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v2. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


BRICKWOOD'S 
SACKETT 

ON 

INSTRUCTIONS 
TO  JURIES 

CONTAINING  A  TREATISE  ON 

Jury  Trials  and  Appeals 

WITH 

FORMS   OF   APPROVED    INSTRUCTIONS   AND    CHARGES 

ANNOTATED 

ALSO  ERRONEOUS  INSTRUCTIONS  WITH  COMMENT  OF 

THE  COURT  IN  CONDEMNING  THEM 


THREE  VOLUMES 
VOL.  II 


THIRD  EDITION 


BY 

ALBERT   W.   BRICKWOOD,  LL.  B. 

OF  THE  CHICAGO  BAR 


CHICAGO 

CALLAGHAN  &  COMPANY 
1908 


COPYRIGHT  1888 

By 

OALLAGHAN  &  COMPANY 

COPYRIGHT  1908 

BY 

OALLAGHAN  &  COMPANY 


T 


VOLUME  II 


<i>6  ihjri 


CHAPTER  LXII. 
NEGLIGENCE— IN  GENERAL. 


See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


§  1336.  Neg-ligence  defined. 

§  1337.  Ordinary  care  defined— Rea- 
sonable care. 

§  1338.  Elements  necessary  for  a 
recovery. 

§  1339.  More  accident  not  action- 
able. 

§  1340.  Actionable  injury  must  be 
the  result  of  negligence. 

§  1341.  Injury  the  result  of  negli- 
gence and  accident. 

§  1342.  The  negligence  charged  must 
be  the  proximate  cause. 

§  1343.  Question  of  negligence  one 
of  fact  for  the  jury. 

§  1344.  Instructions  referring  jury 
to  pleadings  as  to  negli- 
gence alleged. 

§  1345.  Recovery  on  proof  of  allega- 
tions contained  in  one  or 
more  counts  of  declaration. 

§  1346.  Circumstantial  evidence  sup- 
porting plaintiff's  theory 
must  be  inconsistent  with 
any  other  conclusion. 

5  1?A7.  Burden  of  proof. 

§  1348.  Proof  may  be  made  by  de- 
fendant's  own    witnesses. 

§  1349.  Coroner's  verdict  not  evi- 
dence of  negligence. 

§  1350.  View  by  jury  of  scene  of 
accident  as  evidence  of 
negligence. 

§  1351.  Contributory  negligence  de- 
fined. 

§  1352.  Effect  of  contributory  negli- 
gence. 

§  1353.  Ordinary  care  of  plaintiff 
defined. 

8  13.'4.  Contributory  negligence  of 
fliildren. 


§  1355.  Same  subject — Failure  of  in- 
fant plaintiff  to  use  ade- 
quate care. 

§  1356.  Intoxication  as  contributory 
negligence. 

§  1357.  Defective  hearing. 

§  1358.  Contributory  negligence — 
Effect  of  terror  in  sudden 
emergency. 

§  1359.  Danger  must  be  impending 
for  contributory  negligence 
to  be  a  defense. 

§  1360.  Injury  after  defendant  saw 
danger  in  time  to  avert — 
Willful  and  wanton  de- 
fined. 

§  1361.  Burden  of  proof  as  to  con- 
tributory negligence  — 
States  holding  burden  is 
on  plaintiff  to  prove  free- 
dom from  contributory 
negligence. 

§  1362.  Same  subject— States  hold- 
ing burden  of  proof  is  on 
defendant  to  establish 
plaintiff's  contributory  neg- 
ligence. 

§  1363.  Imputed  negligence — Rule  in 
Ohio. 

§  1364.  Same  subject — Negligence  as 
regards  children. 

§  1365.  Parties  to  action  for  negli- 
gence— Several    defendants. 

§  1366.  Corporation  has  same  status 
as  individual. 

5  1367.  Contractor's   negligence. 

§  1368.  Effect  of  release  of  cause  of 
action  by  plaintiff. 

§  1369.  Release  obtained  by  fraud 
or  misrepresentation. 


8  1336.     Negligence  Defined,     (a)     ** Negligence,"  as  that  term  is 
xiHdl  in  lliis  fliari^M'  means  the  failure  to  exerci.se  ordinaiy  care.^ 
(h)     Ncfiifli/^ence  is  a  failuie  to  exercise  that  degree  of  care  and 

1— Rnpld    T.    Ry,    Co.    v.    Miller,  (7611;   Southern  K.  Ry.  Co.  v.  Sage 

—  Tox.   riv.   Ai.p.  — .   85  S.   W.   4!n:  —  Tpx.   Civ.   App.  — ,   80  S.  W.   10.S8 

Oonnan'fl   Adm'r  v.   Lnulsvlllo   Rv.  (1039);    Nesbit   v.   Crosby,   74  Conn. 

Co.,   24    Ky.    L.    1938,    72   S.    W.    760  554.    51  Atl.   550   (552). 

884 


§  1336.] 


NEGLIGENCE— IN  GENERAL. 


885 


diligence  that  an  ordinarily  prudent  person  would  exercise  in  his  own 
affairs  under  like  or  similar  circumstances.^ 

(c)  Negligence  consists  in  doing  something,  which  a  person  of 
ordinary  iDrudenee  and  care  would  not  have  done,  or  would  not  have 
omitted  to  do,  under  like  or  similar  circumstances.^ 

(d)  Negligence  is  the  failure  to  do  what  a  prudent  person  would 
ordinarily  have  done  under  the  circumstances  of  the  situation,  or 
doing  what  such  person,  under  the  existing  cii'cumstances,  would  not 
have  done.  The  duty  is  indicated  and  measured  by  the  exigencies  of 
the  occasion.* 

(e)  Negligence  is  failure  in  the  matter  of  care  under  the  circum- 
stances. Every  man  is  bound  to  be  careful  that  others  take  no 
harm  by  his  conduct  or  his  actions.  The  measure  of  his  duty  is  the 
circumstances  of  the  case.  "What  may  be  absolutely  necessary  under 
some  circumstances  to  protect  others  from  harm  may  not  be  necessary 
under  other  circumstances.  Negligence,  as  I  have  said,  is  the  lack  of 
care  under  the  circumstances.     It  is  the  doing  of  something  which, 


2 — "It  is  said  that  this  does  not 
cover  acts  of  commission  as  well 
as  acts  of  omission,  and  that  in 
this  respect  it  is  faulty  and  mis- 
leading-. But  we  think  that  it 
covers  both.  Failure  to  exercise 
care  and  diligence  that  an  ordi- 
narily prudent  person  would  in- 
volves either  or  both."  German 
Ins.  Co.  V.  C.  &  N.  W.  Ry.  Co., 
128  Iowa  386,  104  N.  TV.,  361  (363). 

3— Galloway  v.  Chicago,  R.  I.  «& 
P.  Ry.  Co.,  87  Iowa  458,  54  N.  W. 
447   (450). 

"Appellant  cites  Pennsylvania 
Co.  V.  Marion,  104  Ind.  239,  3  N.  E. 
874;  and  contends  that  this  instruc- 
tion makes  the  negligence  of  the 
plaintiff  to  depend  on  the  question 
whether  a  person  of  ordinary  pru- 
dence would  have  done  the  same 
thing.  As  said  in  the  case  cited, 
'the  formula  used  is  that  fre- 
quently adopted  in  attempting  to 
define  "negligence."  '  It  is  there 
said:  'Whether  the  plaintiff  was 
negligent  or  not  depended  upon  the 
particular  facts  admitted  or  satis- 
factorily proved  in  the  case.'  This 
instruction  does  not  ignore  the 
facts,  but  makes  them  the  very 
g-roundwork  of  the  inquiry.  True, 
'the  most  prudent  men  are  not 
always  exempt  from  carelessness, 
and.  when  actually  negligent,  the 
law  charges  the  same  consequences 
to  their  negligent  conduct  as  to 
similar  conduct  in  others.'  But 
there  is  no  better  standard  by 
which  to  measure  the  acts  of  men, 
as  to  negligence,  than  to  ask  what 


persons  or  ordinary  prudence  and 
care  would  have  done  under  the 
same  circumstances;  and  such  is 
the  rule  of  this   instruction." 

4— Houston  &  T.  C.  R.  Co.  v. 
Milam,  —  Tex.  Civ.  App.  — ,  58  S. 
W.    735    (736). 

"We  believe  the  usual  definition 
of  negligence,  as  often  approved  by 
the  courts  of  this  state,  would  be 
less  subject  to  criticism.  It  is 
the  failure  to  do  what  a  person 
of  ordinary  prudence  would  do 
under  the  circumstances,  or  doing 
what  a  person  of  ordinary  pru- 
dence would  not  do  under  the  cir- 
cumstances. The  care  required  is 
ordinary  care;  that  is,  such  care 
as  a  person  of  ordinary  prudence 
would  exercise  under  the  circum- 
stances. The  failure  to  exercise 
such  care  is  negligence.  Austin  N. 
W.  R.  Co.  V.  Beatty,  73  Tex.  596, 
11  S.  W.  858;  City  of  Austin  v. 
Ritz,  72  Tex.  402,  9  S.  W.  8S4; 
St.  L.  A.  &  T.  R.  Co.  V.  Finley, 
79  Tex.  88,  15  S.  W.  266;  Houston 
&  T.  C.  R.  Co.  V.  Smith,  77  Tex. 
181,  13  S.  W.  972;  Gulf,  C.  &  S.  P. 
R.  Co.  V.  Hodges,  76  Tex.  92,  31 
S.  W.  64;  Houston  &  T.  R.  Co. 
V.  Oram,  49  Tex.  341.  The  case 
last  cited  above  is  authority  for 
the  charge  given  in  this  case,  as 
is  the  case  of  McDonald  v.  R. 
Co.,  86  Tex.  11,  22  S.  W.  939.  See 
also  Martin  v.  R.  Co.,  87  Tex.  119, 
26  S.  W.  1052;  Texas  &  P.  R.  Co. 
V.  Gorman.  2  Tex.  Civ.  App.  146, 
21  S.  W.  158;  and  Houston  &  G.  N. 
R.   R.  Co.  v.  Randall,  50  Tex.  254." 


8^ 


FORMS  OF  INSTRUCTIONS. 


[§  1.^36. 


under  the  ciremnstanees  and  in  view  of  his  duty  to  endeavor  to 
protect  other  people  from  hanii  by  reason  of  his  conduct,  a  reason- 
able aixd  prudent  man  of  ordinary  common  sense,  would  not  do.  It 
is  the  failure  to  do  something  which  a  man  of  good  judgment  and 
sound  common  sense  would  do,  in  view  of  the  circumstances,  out  of 
a  desire  to  perfonn  his  duty  to  protect  other  people  from  harm  by 
reason  of  his  actions.'^ 

(f)  The  court  instructs  the  jury  that  negligence  is  the  omission 
to  do  something  which  a  reasonable  and  prudent  man,  guided  by 
those  considerations  which  ordinarily  regulate  the  conduct  and  af- 
fairs, would  do,  or  doing  something  which  a  reasonable  man  would 
not  do  under  all  the  circumstances  surrounding  and  characterizing, 
the  particular  case.  And  the  jury  in  this  case,  taking  this  as  the 
dehnilion  of  negligence,  is  to  find  from  the  facts  and  circumstances 
surrounding  the  transaction  in  question  whether  or  not  the  defendant 
company  has  committed  negligence;  and  if  they  so  find,  and  further 
find  that  plaintiff  was  injured  thereby,  then  the  verdict  should  be 
for  plaintiff.*^ 


5 — Foote  v.  American  P.  Co.,  201 
Pa.    St.    510,    51  Atl.    364. 

6— Kennedy  v.  So.  Ry.  Co.,  59  S. 
C.    535,    38    S.    E.    169    (170). 

In  Bodie  v.  Charleston  &  W.  C. 
Ry.  Co.,  61  S.  C.  468,  39  S.  E.  715, 
716,  the  following  charge  was 
given: 

"Negligence  simply  means  want 
of  due  care.  That  is  a  very  short 
definition.  If  you  weigh  each 
word,  you  will  find  that  that  con- 
tains the  whole  doctrine, — want  of 
duo  care;  not  simply  want  of  care 
but  want  of  due  care.  From  its 
very  nature,  negligence  may  con- 
sist in  the  doing  something  which 
should  not  have  been  done.  Negli- 
gence may  also  consist  in  leaving 
updone  that  which  ought  to  have 
bein  done.  It  may,  therefore,  be 
II  fault  of  omission  as  well  as  a 
fault  of  commission.  (It  is  im- 
pcsslble  for  the  court  to  furnish 
a  jury  with  a  hard  and  fast 
measure  of  care,  the  presence  of 
which,  or  the  excrci.se  of  which, 
would  drive  away  the  idea  of 
nc-gligence,  the  absence  of  which 
would  moan  the  presence  of  negll- 
gencf.  There  Is  no  such  hard  and 
fast  rule  which  can  be  applied  by 
a  jury  like  a  foot  rule  or  a  bushel 
moasuro;  but  thoro  Is  a  general 
pririflplo  which  underlies  the  doc- 
trine of  negligence,  and  shows 
sufllflently  clearly  the  mc.isure  of 
care  propor  in  each  particular 
caHf.  and  It  Is  this:  The  greater 
the    probability    of    danger    in    the 


particular  circumstances,  the 
greater  is  the  required  degree  of 
care,  because  the  measure  of  care 
naturally  varies  in  the  different 
circumstances.  For  example  a 
man  cutting  wood  with  an  ax 
must  exercise  a  proper  amount  of 
precaution  to  guard  against  other 
people  that  may  be  near  him;  but 
a  man  who  is  blasting  rock  with 
dynamite,  since  there  is  much 
greater  danger  in  handling  that 
explosive  than  in  holding  an  ax, 
is  required  to  exercise  a  much 
greater  degree  of  care.  Due  care 
in  handling  an  ax  in  cutting  wood 
would  not  be  Sufficient  measure 
of  care  in  handling  dynamite  and 
blasting  rock.  But  this  shows  you 
that  the  jury  in  each  particular 
case  has  to  establish  from  the 
testimony  in  the  case  exactly  the 
measure  of  care  which  should  have 
been  exercised  under  the  circum- 
stances, and  it  is  just  that  amount 
of  care  which  would  or  should 
have  been  exercised  by  a  man  of 
ordinary  intelligence  and  prudence. 
Your  common  sense  and  intelli- 
gence will  guide  you,  in  deciding 
by  the  testimony),  in  the  case  what 
amount  of  care  should  have  been 
exercised  by  the  railway  comptmy 
in  the  circumstances  detailed  in 
the  testimony,  and  also  will  show 
you   what   amount    of   care    should 

have   boon    exercised    by   , 

the  plaintiff,  undor  the  circum- 
stances detiiilod.  when  you  are  con- 
sidering   the    subject    of    contribu- 


§  1336.]  NEGLIGENCE— IN  GENERAL.  887 

(g)  Negligence,  as  used  in  the  insti-uctions,  means,  when  ap- 
plied to  plaintiff,  a  failure  to  exercise  ordinaiy  care  to  protect  him- 
self from  injury;  and  "ordinary  care"  means  such  care  as  an  or- 
dinarily prudent  man  would  exercise  to  protect  himself  from  injuiy 
under  the  same  or  similar  circumstances.'^ 

(h)  Negligence  is  defined  to  be  the  want  of  ordinary  care;  that 
is,  such  care  as  an  ordinarily  prudent  person  would  exercise  under 
like  circumstances.  There  is  no  precise  definition  of  ordinai'y  care, 
[but  it  may  be  said  that  it  is  such  care  as  an  ordinarily  prudent 
person  would  exercise  under  like  circumstances,  and  should  be  pro- 
portioned to  the  danger  jyid  peril  reasonably  to  be  apprehended  from 
a  lack  of  proper  prudence.  This  rule  applies  alike  to  both  parties 
to  this  action,  and  may  be  used  in  determining  whether  either  was 
negligent. 

(i)  It  must  also  appear  from  the  evidence  that  the  plaintiff  did 
not  in  any  way  contribute  to  the  happening  of  the  accident  in  ques- 
tion by  any  negligence  on  his  part;  that  is,  by  his  own  want  of 
ordinary  care.  The  plaintiff,  on  his  part,  was  under  obligation  to  use 
ordinary  care  to  prevent  injuiy  when  passing  over  any  sidewalk;  and 
if  he  failed  so  to  do,  and  his  failure  in  any  way  contributed  to  the 
happening  of  the  accident  in  question,  then  he  cannot  recover  herein. 
The  evidence  shows  without  dispute  that  he  was  blind,  and  this  fact 
should  be  considered  by  you  in  determining  what  ordinary  care  on  his 
part  would  require  when  he  was  attempting  to  pass  over  one  of  the 
sidewalks  of  this  city.^ 

tory  neg-ligence;  and  I  repeat  It  Is  sets  of  circumstances,  and  that 
just  that  degree  of  care  which  a  the  care  or  caution  required  in 
man  of  ordinary  intelligence,  com-  one  case  may  be  greater  or  less 
mon  sense  and  prudence  should  than  the  care  or  caution  required 
have  exercised  under  the  same  or  in  another;  but  the  jury  (were 
similar  circumstances;  not  abso-  plainly  instructed  that  in  any  par- 
lute  care,  not  the  utmost  care  to  ticular  case  or  set  of  circum- 
guard  against  a  possible  danger,  stances  the  law  enjoined  the  duty 
but  only  reasonable  care,  due  of  observing  the  care  due  under 
care,  that  amount  of  precaution  such  circumstances,  and  the  court 
proper  to  guard  against  the  prob-  did  not  instruct  the  jury  that  in 
able  danger."  any  case  the  law  required  a  higher 
On  appeal,  the  court  said:  degree  of  care  than  due  care." 
"The  exception  is  to  that  portion  7 — L.  &  N.  R.  Co.  v.  Hiltner,  22 
of  the  charge  above  which  is  with-  Ky.  Law  1141,  60  S.  W.  2  (4);  Gulf, 
in  the  brackets,  and  the  specific  C  &  S.  F.  Ry.  Co.  v.  Hays,  — 
errors  assigned  are:  (1)  That  the  Tex.  Civ.  App.  — ,  89  S.  W.  29  (32). 
jury  were  instructed  that  in  some  8 — Hill  v.  City  of  Glenwood,  124 
cases  a  higher  degree  of  care  than  Iowa  479.  100  N.  W.  522  C524). 
due  care  is  necessary  to  exempt  "It  is  too  well  established  to  re- 
from  liability;  and  (2)  the  charge  quire  argument  or  citation  of 
left  to  the  jury  the  legal  question,  authority  that  the  care  which  the 
what  degree  of  care  was  necessary  city  is  bound  to  exercise  in  the 
in  this  case.  We  do  not  think  the  maintenance  of  its  streets  is  ordi- 
charge  is  amenable  to  either  objec-  nary  and  reasonable  care,  the  care 
tion.  The  learned  circuit  judge,  which  ordinarily  marks  the  con- 
by  his  language  and  illustration,  duct  of  a  person  of  average  pru- 
merely  meant  to  show  the  jury  donee  and  foresight.  So.  too,  it 
that  'negligence'  is  a  relative  term  is  equally  well  settled  that  the 
when  applied  to  different  cases  or  care    which    a    person    using    the 


888 


FORMS  OF  INSTRUCTIONS. 


[§  1337. 


§  1337.  Ordinary  Care  Defined— Reasonable  Care,  (a)  The  court 
instructs  the  jury,  that  ordinary  care  depends  upon  the  circumstances 
of  each  particular  case,  and  is  such  care  as  a  person  of  ordmai-y  pru- 
dence and  skill  would  usually  exercise  under  the  same  or  similar  cir- 

(b)  The  court  instructs  the  jury  that  ordinary  care,  as  mentioned 
in  these  instructions,  is  the  degree  of  care  which  an  ordinarily  prudent 
person  situated  as  the  defendant  was,  as  shown  by  the  evidence, 
before  and  at  the  time  of  the  injury,  would  usually  exercise  for  his 

own  safety.!'^  „  .     :, 

(c)  Ordinary  care  means  the  degTee  of  care  usually  exercised 
by  ordinarily  careful  and  prudent  persons  under  the  same  or  similar 
circumstances.    Negligence  is  the  failure  to  exercise  ordinary  care.^^ 


street  is  bound  to  exercise  on  his 
own  part  to  discover  danger  and 
avoid  accident  and  injury  is  of 
precisely  the  same  character,  the 
ordinary  and  reasonable  care  ot 
a  person  of  average  prudence  and 
forethought.  The  streets  are  for 
the  use  of  the  general  public  with- 
out discrimination;  for  the  weak, 
the  lame,  the  halt  and  the  blind, 
as  well  as  for  those,  possessing 
perfect  health,  strength  and 
vision.  The  law  casts  upon  one  no 
greater  burden  of  care  than  upon 
the  other.  It  is  true,  however, 
that  in  determining  what  is  rea- 
sonable or  ordinary  care  we  must 
look  to  the  circumstances  _  and 
surroun'^lings  of  each  particular 
case.  As  said  by  us  in  Graham 
V.   Oxford,   105  Iowa  708,  75  N.   W. 

474: 

'There  is  no  fixed  rule  for  deter- 
mining what   is   ordinary  care   ap- 
plicable to  all  cases,  but  each  case 
must    be    determined    according   to 
its  own  facts.'     In   the  case  before 
us   the  plaintiff's  blindness  is  sim- 
ply one  of  the  facts  which  the  jury 
must   give  consideration   in  finding 
whether    he    did     or    did    not    act 
with   the  care  which  a  reasonably 
prudent      man      would      ordinarily 
exercise    when    burdened    by    such 
Infirmity.       In     other     words,     the 
measures   which    a    traveller    upon 
the    street    must    employ    for    his 
own    protection    depend    upon    the 
nature   and   extent   of   the   peril   to 
which  he  knows,  or  In  the  exercise 
of    leasonable    prudence    ought    to 
know,  he   is  expo.sed.     The  greater 
and    more   Imminent   the    risk,   the 
more  he  Is  required  to  look  out  for 
and   guard   ngalnst   injury   to  him- 
Sflf;    but    the    care    thus    exercised 
Is  neither  more  nor  l^ss  th.'in  ordi- 
nnry  care — the   care   which   men   of 
ordinary   prudence   and   experience 


may  reasonably  be  expected  to 
exercise  under  like  circumstances. 
See  cases  cited  in  21  A.  &  E.  Enc. 
Law  (2d  Ed.)  465,  note  1.  In  the 
case  at  bar  the  plaintiff  was  right- 
fully upon  the  street,  and  if  he 
was  injured  by  reason  of  the 
negligence  of  the  city,  and  without 
contributory  negligence  on  his 
part,  he  was  entitled  to  a  verdict. 
In  determining  whether  he  did 
exercise  due  care  it  was  proper  for 
the  jury,  as  we  have  already  in- 
dicated, to  consider  his  blindness, 
and  in  view  of  that  condition,  and 
all  the  surrounding  facts  and  cir- 
cumstances, find  whether  he  exer- 
cised ordinary  care  and  prudence. 
If  he  did,  he  was  not  guilty  of 
contributory        negligence.  This 

view  of  the  law  seems  fo  be  fairly 
embodied  in  the  instructions  to 
which  exception  is   taken." 

9— So.  K.  Ry.  Co.  v.  Sage,  — 
Tex.  Civ.  App.  — ,  80  S.  W.  1038 
(1039) ;  Copeland  v.  Wabash  R.  Co. 
175  Mo.  650,  75  S.  W.  106  (108); 
Rapid  T.  Co.  v.  Miller,  —  Tex.  Civ. 
App.  — ,  85  S.  W.  439;  Cronin  v. 
Delavan,   50  Wis.   375,  7  N.   W.  249. 

10— C.  C.  Ry.  Co.  V.  O'Donnell, 
208  111.  267  (273),  70  N.  E.  294  and 
477. 

"The  instruction  required  due 
care  before  and  at  the  time  of 
the  injury,  and,  we  think,  vas 
broad  enough,  and  did  not  assume 
as  is  contended,  that  the  deceased 
was  in  the  exercise  of  due  care 
at   any   time." 

11 — Gorman  Adm'r.  v.  Louisville 
RV.  Co.,  24  Ky.  L.  1938,  72  S.  W. 
760  (761);  Louisville  &  N.  Ry.  Co. 
V.  Lucas,  30  Ky.  L.  359,  98  S.  W. 
308,  wh'-re  a  somewhat  similar 
instruction  was  approved. 

The  court,  in  the  first  case,  said: 
"It    might    bo    impossible    to    lay 


§  1338.] 


NEGLIGENCE— IN  GENERAL. 


889 


(d)  Reasonable  care  means  that  degree  of  care  which  an  oi'dina- 
rily  prudent  and  careful  person  of  the  same  age  would  exercise  under 
similar  circumstances  and  surroundings.^- 

§  1338.  Elements  Necessary  for  a  Recovery,  (a)  The  jury  are 
instructed  that  the  plaintiff  cannot  recover  in  this  case  against  the 
defendant  company  unless  they  find  that  she  had  a  preponderance  of 
the  evidence  supporting  the  propositions : 

First.  That  the  plaintiff  was  not  at  the  time  of  the  ac- 
cident guilty  of  any  failure  to  exercise  ordinary  care  for  her 
own  safety,  which  approximately  contributed  to  her  injury. 

Second.  That  the  defendant  company  was  guilty  of  neg- 
ligence in  the  manner  charged  in  the  declaration. 

Third.  That  such  negligence  was  the  proximate  direct 
cause  of  the  plaintiff's  injuries  in  question,  if  any. 

And  if  you  find  from  the  evidence  that  the  plaintiff  has  failed  to 
sustain  these  propositions,  as  stated,  or  that  she  has  failed  to  sustain 
any  one  of  them  she  cannot  recover  against  said  defendant  company, 
and  you  should  find  the  defendant  not  guilty.^^ 


down  a  general  rule  that  would 
aptly  and  minutely  define  the  care 
to  be  exercised  under  e^'ery  con- 
ceivable state  of  case.  Nor  would 
it  be  wise  to  attempt  it.  "^^hat 
would  amount  to  ordinary  care  in 
a  sparsely  settled,  unfrequented 
part  of  a  city  might  be  gross 
negligence  in  a  much  used  down- 
town thoroughfare.  And  what 
would  be  ordinary  care  toward  an 
adult  under  similar  circumstances, 
might  be  criminal  negligence  to- 
ward an  infant  of  very  tender 
years.  Ordinarily  careful  and 
prudent  persons  regulate  their 
conduct  by  the  difference  in  cir- 
cumstances surrounding  the  act. 
This  is  generally  knov.'n  and 
recofrnized  of  all  people.  That  is 
what  makes  it  ordinary  care.  So, 
when  the  jury  were  instructed  that 
the  motorman  must  i-egulate  his 
conduct  in  operating  the  car  by 
the  standard  of  conduct  and  caij- 
tion  usually  exercised  by  ordi- 
narily careful  and  prudent  persons 
in  operating  electric  cars  in  such 
neighborhoods  where  small  child- 
ren were  likely  to  be  upon  the 
street  his  full  legal  duty  was 
stated." 

12— Economy  L.  &  P.  Co.  v. 
Hiller.  113  Til.  App.  105,  aff'd  203 
111.    518,    68    N.    E.    72. 

"The  objof'tion  to  this  instru-^- 
tion  is  that  it  omits  to  tell  the 
jury  that  in  determining  the  de- 
gree   of    care    which    the    appellee 


was  required  to  use,  the  jury 
should  consider  not  only  the  age 
but  also  the  experience  and  dis- 
cretion of  appellee.  In  Weick  v. 
Lander,  75  111.  93,  our  Supreme 
Court  say:  'It  was  proper  for 
the  jury  in  passing  on  the  degree 
of  care  required  of  the  plaintiff  to 
take  into  consideration  his  age 
and  experience.'  And  in  Chicas:o 
V.  Keefe,  114  111.  222,  2  N.  E. 
267,  the  instruction  on  this  point 
was  that  the  intestate  (a  child 
ten  years  old)  should  exercise  such 
degree  of  care  'as  from  his  age 
and  intelligence,  under  the  circum- 
stances in  evidence,  was  required.' 
The  court  sustain  the  instructioii 
and  while  criticising  its  phraseo- 
logy say:  'The  circumstances  are 
always  to  be  taken  into  consider- 
ation in  such  cases  and  if  intestate 
exercised  such  care  as  under  the 
circumstances  might  be  expected 
from  one  of  his  age  and  intelli- 
gence, it  was  sufficient.*  And 
again  in  I.  C.  R.  R.  Co.  v.  Slater. 
129  111.  91.  21  N.  E.  575.  our  Su-. 
preme  Court  Review  and  approve 
the  foregoing  authorities  and  say: 
'The.se  decisions  are  in  harmony 
with  the  decisions  of  other  states 
on  the  same  subject  and  but 
recognize  the  rule  laid  down  by 
approved  text  writers  on  nes-1i- 
gence:'  citing  Shearman  &  Red- 
feld  on  N^eo-iieencp,  sec.  49:  Whar- 
ton on  Negliarence,  sec.  309." 
13— W.    C.    3t.    R.    R.    Co.   V.   Pet- 


890  FORMS  OF  INSTRUCTIONS.  [§  1339. 

(b)  The  jury  are  instructed  that,  in  order  to  entitle  the  plain- 
tiff to  recover  in  this  case  from  the  defendant,  two  things  must 
concur  and  appear  from  a  preponderance  of  the  evidence:  first,  that 
such  defendant  was  guilty  of  negligence  which  contributed  to  the 
injury  complained  of;  and  secondly,  that  the  plaintiff  exercised  rea- 
sonable and  ordinai-y  care  for  her  own  safety.  And  if  the  plaintiff 
fails  to  establish  both  of  these  essentials  by  a  preponderance  of  the 
e\-idence,  she  cannot  recover.  The  burden  of  proving  negligence  rests 
with  the  party  alleging  it,  and  where  a  party  charges  negligence  on 
the  part  of  any  other  as  a  cause  of  action,  she  must  prove  his  negli- 
gence by  a  preponderance  of  the  evidence.^* 

(e)  The  juiy  are  instructed  that  this  is  a  suit  brought  to  recover 
damages  which  it  is  alleged  were  caused  the  plaintiff  by  and  through 
the  negligence  of  the  defendant  company  as  set  forth  in  plaintiff's 
declaration,  or  in  some  one  or  more  of  the  counts  thereof. 

(d)  In  order  to  a  recovery  of  any  damages  in  the  case,  it  is  re- 
quired that  you  should  believe,  from  a  fair  and  impartial  considera- 
tion of  all  the  evidence  in  the  case,  that  the  preponderance  or  greater 
weight  of  the  evidence  establishes  first  the  fact  that  plaintiff  suffered 
an  injuiy  as  stated  in  his  declaration,  and  the  extent  thereof;  second, 
that  he  himself  was  at  the  time  and  place  of  said  injury  exercising 
reasonable  and  ordinary  care  and  caution  for  his  own  safety;  and 
third,  that  the  injury  was  the  direct  and  proximate  result  of  the 
negligence  of  the  defendant  company  at  said  time  and  place  as  same 
is  set  out  in  the  declaration,  or  in  some  one  or  more  of  the  counts 
thereof.^'' 

§  1339.  Mere  Accident  Not  Actionable.  The  court  instructs  the 
jury  that,  if  you  believe,  from  the  evidence,  that  the  injuiy  to  the 
plaintiff  was  the  result  of  a  mere  accident,  and  neither  the  de- 
fendant nor  the  plaintiff  were  the  cause  thereof,  you  should  find  the 
defendant  not  guilty.^** 

§  1340.  Actionable  Injury  Must  Be  the  Result  of  Negligence.  The 
Jury  are  further  instructed  that  if  the  evidence  in  this  case  fails  to 

ters,    on    111.    App.    479    (481),    aff' d  the  exercise  of  care   on   the  plain- 

196   111.   298,   63   N.   E.   662.  tiff's  part   to  the  'time'   of  the  in- 

14 — N.   C.   St.   R.   R.  Co.   V.  Boyd,  jury,    and    cases    are    cited    which 

1!jC  111.  416   (418),  40  N.  E.  955,  aff'g  seem  to  support  the  contention.     A 

57   111.   Ar)p.    r<35.  careful     reading'     of     these     cases, 

"In    these    instructions,    the    rule  however,    as    we   think,    shows   the 

In  regard  to  the  burden  of  proof  is  contrary.      In    L.    S.    &    M.    S.    Ry. 

fully   laid   down."  Co.     v.    Hessions,    150    111.    546-555. 

15— Penn.    Co.    V.    Reldy,    99    111.  37    N.    E.    905,    this   objection    to    a 

App.    477    f47S),    nff'd    198    111.    9,    64  similar  instr\iction   was  held  to  be 

N.    R.    608.  untenable.     To  a  like  effect:     L..  S. 

"This  Instruction  Is  criticised  as  &    M.    S.    Ry.    Co.    v.    Johnson,    135 

bomK    mlHlr-Mdiiifir    because    it    as-  111.    641-53,    26   N.    E.    510;    McNulta 

HumoH    the    d'-fendant    was    nepll-  v.    Lo'-kridere.    137   111.    270-87,    27   N. 

Kent.     We   think   the   eritlclsm   not  E.   452,   31    Am.    St.    Rep.    362;    C.   & 

jfood.     The    Instruct  Ion   as  we  read  A.    R.    R.    Co.    v.    Fisher,    141    111. 

It   makes   no   such   assumption.     It  614-25.    31    N.    E.    406." 

Is    niso    snld    that    the    Instruction  16— Webster  Mfe:.   Co.   V.   Nisbett, 

Ik    objectionahlo    because    it    limits  87  111.   App.    551   (553). 


§  1341.]  NEGLIGENCE— IN  GENERAL.  891 

disclose  what  was  the  cause  of  the  explosion  of  the  boiler  of  the 
locomotive,  which  explosion  caused  the  death  of  A.  B.,  and  if  from  a 
careful  consideration  of  all  the  evidence  in  this  case  the  cause  of 
such  explosion  is  unknown,  and  if  the  plaintiff  fails  to  prove,  by  a 
preponderance  of  the  evidence,  that  the  defendant  was  negligent  as  is 
charged  in  the  plaintiff's  declaration,  then  the  plaintiff  cannot  re- 
cover in  this  case,  and  you  should  find  the  issues  for  the  defendant.^'' 

§  1341.  Injury  the  Result  of  Negligence  and  Accident.  The  court 
instructs  the  juiy,  as  a  matter  of  law  that  if  a  person  receives  an 
injury  as  the  combined  result  of  an  accident  and  of  negligence  on 
the  part  of  another,  and  the  accident  would  not  have  occurred  but  for 
such  negligence,  and  the  danger  could  not  have  been  foreseen  or 
avoided  by  the  exercise  of  reasonable  care  and  prudence,  on  the  part 
of  the  person  injured,  then  the  person  guilty  of  the  negligence  will  be 
liable  for  the  injuiy  received. ^^ 

§  1342.  The  Negligence  Charged  Must  Be  the  Proximate  Cause, 
(a)  The  court  instructs  the  jury,  that  the  rule  of  law  is,  that  every 
person  must  be  held  liable  for  all  of  those  consequences  which  flow 
naturally  and  directly  from  this  act,  or  which  might  have  been  fore- 
seen and  reasonably  expected  as  the  result  of  his  conduct,  but  not  for 
those  consequences  which  do  not  flow  naturally  and  directly  from  his 
acts,  or  which  he  could  not  have  foreseen  or  reasonably  have  antici- 
pated as  the  result  of  his  conduct.'^^ 

(b)  If  you  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  the  negligence  or  carelessness  charged  in  the  declaration, 
and  that  the  injury  complained  of  was  the  natural  consequence  of 
such  negligence  or  carelessness,  and  such  as  might  have  been  foreseen 
and  reasonably  anticipated  as  the  result  of  such  negligence  or  care- 
lessness, then  such  carelessness  or  negligence  should  be  regarded  as 
the  approximate  cause  of  the  injuiy. 

(c)  You  are  instructed,  that  although  you  may  believe,  from  the 
evidence,  that  the  injury  complained  of  was  occasioned  by  the  acts  of 
the  defendant,  still,  if  you  further  believe,  from  the  evidence,  that 
such  injury  was  not  the  natural  result  of  the  acts  of  the  defendant 
and  could  not  have  been  foreseen  or  reasonably  expected  to  result 
from  the  conduct  of  the  defendant,  then  the  defendant  would  not  be 
liable. 

(d)  You  are  instructed,  that  an  act  is  not  to  be  deemed  the  proxi- 
mate cause  of  an  injury,  unless  the  injury  was  such  a  consequence  of 
the  act  as,  under  the  surrounding  circumstances  of  the  case,  might 

17—1.    C.    R.    R.    Co.    v.    Prickett,  Parsons    on    Cent.,    456;    Rigby    v. 

210  111.   140   (148).   71   N.   E.  435.  Hewitt.    5    Exch.    240;    Fent    v.    T. 

IS— Aurora  v.  Pulfer.  56  111.  270;  P.  &  W.  Rd.  Co.,  59  III.  349;  Brash- 
Norton  V.  Volzke,  158  111.  402,  41  berg-  v.  Mil.  etc.,  Rd.  Co.,  50 
N.  E.  1085,  49  Am.  St.  167,  aft'g  Wis.  231.  6  N.  W.  821;  Tex.is  & 
54   111.   App.    545.  P.    Ry.    Co.    v.    Short.    —  Tex.    CiV, 

19— Coolev     on     Torts     (3d     Ed.)  App.  — ,  58  S.  W.   56  (57). 
125;   Wharton    on    Neg.,    §    74-78;    2 


892  FORMS  OF  INSTRUCTIONS.  [§  1343. 

and  ought  to  have  been  foreseen  or  anticipated  by  an  ordinarily  rea* 
sonable  and  prudent  man,  as  reasonably  likely  to  flow  from  the  act.-" 
(e)  When  we  speak  of  the  proximate  cause  of  an  injuiy,  we  mean 
not  only  the  natural  cause  of  an  injury,  but  also  such  a  case  as 
ought  under  the  attending  circumstances,  to  be  reasonably  expected, 
by  a  person  of  ordinary  intelligence  and  prudence,  to  produce  injury 
to  another.  Or,  in  other  Avords,  ought  an  injury  to  another,  in  the 
light  of  the  attending  circumstances,  to  have  reasonably  been  fore- 
seen as  a  natural  result  of  the  act  or  omission  complained  of  ^-^ 

§  1343.    Question  of  Negligence  One  of  Fact  for  the  Jury,     (a) 

The  court  instructs  the  jury  that  the  questions  involved  herein,  as 
alleged  in  the  plaintiff's  declaration,  of  negligence  on  the  part  of  the 
defendant,  if  any,  and  the  exercise  of  reasonable  care  on  the  part  of 
the  plaintiff,  if  any,  are  what  are  known  as  questions  of  fact,  which 
is  the  duty  and  province  of  the  jury  to  determine  under  the  law  and 
the  evidence  in  the  case.^^ 

(b)  Whether  there  was  or  was  not  negligence,  or  want  of  due 
care,  on  the  part  of  either  the  defendant  or  plaintiff,  or  both,  is  to  be 
determined  by  you,  in  consideration  of  all  the  facts,  the  situation 
and  surroundings  at  the  time  of  the  accident,  tested  by  your  judg- 
ment as  practical  men.  The  court  cannot  lay  down  any  legal  rules 
by  which  to  resolve  the  question.-"* 

(c)  The  court  instructs  the  juiy  that  if,  immediately  after  the 
injury  plaintiff  said  that  nobody  but  himself  was  to  blame,  or  words 
to  that  effect,  this  does  not  of  itself  make  it  so;  but  the  jury  should 
consider  all  the  facts  and  circumstances  of  the  case,  and  those  sur- 
rounding plaintiff  at  the  time  he  said  what  he  did  say,  and  from  all 
the  facts  and  circumstances  of  the  ease  in  evidence  the  jury  must  de- 

20— Hoag   V.    L.    S.    &   M.    S.    Rd.  law  and  the  evidence,  and  is  with- 

Co..   85   Penn.    St.    293;    L.    N.    A.    &  in    the    rule    stated    in    W.    C.    St. 

C.    R.    Co.    V.    Wood,    113    Ind.    544,  R.    R.    Co.    v.    Schultz.    217   III.    322, 

14  N.   E.   572    (585).  75    N.    E.    495,    where    at    page    325 

21— dwell  v.  Skobis,  126  Wis.  308,  it  was  said:      'In   framing  instruc- 

105  N.   W.   783.  tions   it   is   not   ordinarily   required 

22— C.     &    J.     Elec.     Ry.     Co.    v.  that    any    one     instruction    should 

Pafton.  219  111.   216.  76  N.   E.   381.  state    all    the    law    of   a    case,    but 

"It  l.s  rontended  that  this  in-  if  an  instruction  is  correct  so  far 
struftlon  is  dofortive.  In  thnt  it  as  it  goes,  and  does  not  assume 
attr-mpt.s  to  summarize  the  facts  to  point  out  all  the  elements  of 
necf'H.sary  for  the  plaintiff  to  proof  necessarv  to  a  recovery  and 
prove  in  order  to  entitle  her  to  direct  a  verdict,  it  may  be  sup- 
recover  hut  does  not  require  her  plemented  by  other  instructions. 
to  prove  she  wan  lnj<ired.  The  in-  and  omissions  therefrom  may  be 
stniftlon.  In-  the  opinion  of  the  supplied  by  other  instructions.' 
court.  dopH  not  assume  to  point  Taking  the  instructions  in  this  case 
out  the  elements  of  proof  neces-  fs  a  series,  the  que.=;tion  of  the 
sarv  to  a  rcenvery  and  direct  a  injury  to  appellee  was  fullv  pre- 
verdlft.  but  merely  informs  the  sented  to  the  jury  as  an  element 
Jury  that  two  of  the  elements  In  thnt  must  be  proved  before  she 
the    rape,    those    of    duo    care    and  could  recover." 

nefflljrenrp.    nre    questions    of    fact  23— Hotel    Ass'n.    v.    Walters,    23 

for   their  determination  under  the  Neb.  380,  36  N.  W.  561  (564). 


§  1344.] 


NEGLIGENCE— IN  GENERAL. 


893 


termine  what  effect  to  give  to  said  declaration,  and  also  whose  fault 
was  the  real  cause  of  the  injui-y,  and  find  their  verdict  accordingly.^* 

(d)  If  the  jury  believe  from  all  the  evidence  before  them  that 
Dlaintiff  did  not  receive  any  of  the  injuries  complained  of  in  his  peti- 
tion, then  it  will  be  their  duty  to  find  for  the  defendant.^^ 

§  1344.  Instructions  Referring  Jury  to  Pleadings  as  to  Negligence 
Alleged.  The  specific  acts  of  negligence  alleged  by  plaintiff  are  set 
out  in  his  declaration,  and  in  an  amendment  filed  to  it.  You  will 
have  that  declaration  out  with  you  in  your  jury  room  with  the  amend- 
ment, and  by  a  careful  reading  of  it  you  will  see  the  various  acts  of 
negligence  which  are  alleged  by  the  plaintiff  in  this  case.^e 

§  1345.  Recovery  on  Proof  of  Allegations  Contained  in  One  or 
More  Counts  of  Declaration,  (a)  If  the  jury  believe,  from  the  evi- 
dence, that  the  plaintiff  has  proved  the  allegations  contained  in  one 
or  more  counts  of  her  declaration  by  a  preponderance  of  the  evi- 
dence, and  if  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
was  injured  as  therein  alleged,  and  if  the  jury  believe,  from  the  evi- 
dence, that  the  plaintiff,  at  the  time  of  such  injury,  was  in  the  exer- 
cise of  reasonable  care  for  her  safety  and  if  you  further  believe,  from 
the  evidence,  that  such  injury,  if  proved  was  caused  by  or  through 
the  negligence  of  the  defendant,  as  alleged  in  such  count  of  the 


24— Hasie  V.  Ala.  &  V.  Ry.  Co.. 
78  Miss.  413,  28  So.  941  (942),  84 
Am.    St.    632.  ^ 

25— Weeks  v.  Texas  Mid.  R.  R. 
Co.,  29  Tex.  Civ.  App.  148,  67  S. 
W.   1071. 

26— Central  of  Ga.  Ry.  Co.  v. 
McKinney,  118  Ga.  535.  45  S.  E. 
430. 

"The  assignment  of  error  upon 
this  charge  is  that  it  was  the  duty 
of  the  court  to  state  the  conten- 
tions of  the  parties  and  explain 
them  to  the  jury,  and  that  it 
was  error  to  instruct  them  simply 
that  they  might  ascertain  these 
contentions  from  an  inspection  of 
the  pleadings.  In  City  Ry.  v. 
Findley,  76  Ga.  311,  it  was  held: 
'It  is  the  right  and  duty  of  the 
presiding  judge  to  state  to  the  jury 
the  several  contentions  between 
the  parties,  the  only  restriction 
being  that  he  shall  state  them 
fairly  to  each  side.'  In  that  case 
complaint  was  made  because  the 
court  stated  to  the  jury  the  con- 
tentions of  the  parties,  and  the 
ruling  made  was,  in  effect,  simply 
that  it  was  proper  for  the  judge 
to  do  this,  being  careful  to  state 
the  contentions  of  both  sides  fairly. 
It  certainly  cannot  be  held  that  in 
every  case  the  mere  failure  of  the 
judge  to  state  the  contentions  of 


the  parties  in  his  own  language 
is  such  an  error  as  requires  the 
granting  of  a  new  trial.  If  a  case 
should  arise  where  the  omission 
plainly  operated  to  the  prejudice 
of  the  losing  party,  a  new  trial 
might  be  required,  but  the  present 
recoi'd  presents  no  such  case.  The 
case  of  Sackett  v.  Stone,  115  Ga. 
466,  41  S.  E.  564,  was  a  case  of 
this  character.  The  really  import- 
lant  thing  is  for  the  judge  to  give 
the  jury  clearly  and  fairly  the  law 
applicable  to  the  issues  involved, 
and  if  he  does  this,  his  failure  to 
foriually  state  the  contentions  as 
shown  by  the  pleadings  will  not, 
as  a  general  rule,  be  cause  for  a 
new  trial.  See  in  this  connection, 
Atlanta  Con.  Rv.  Co.  v.  Bagwell, 
107  Ga.  157,  33  S.  E.  191;  Maddox 
V.  Morris,  110  Ga.  309,  35  S.  E. 
170.  The  charge  of  the  trial  judge 
in  this  case,  fully,  fairly  and 
lucddly  stated  the  law  applicable 
to  the  issues  involved.  It  is  not 
to  be  presumed  that  the  jury  were 
unable  to  understand  the  i.'^sues  in- 
volved in  the  case  as  set  forth  in 
the  pleadings,  and  it  cannot  be 
said  that  the  judge's  omission  to 
state  more  definitely  the  conten- 
tions of  the  parties  resulted  in  any 
injury  to  the  defendant." 


894 


FORMS  OF  INSTRUCTIONS. 


[§  1343. 


declaration,  then  the  plaintiff  is  entitled  to  recover  such  damages  as 
you  believe,  from  the  evidence,  will  compensate  her  for  the  injury 
sustained.-' 

(b)  The  court  instructs  the  jury  that,  if  you  believe  and  find 
from  the  evidence,  that  the  plaintiff,  while  exercising  ordinary  care 
to  avoid  injury,  was  injured  by  and  in  consequence  of  the  negli- 
gence of  the  defendant,  as  charged  in  the  declaration,  then  you  should 
find  the  defendant  guilty.-^ 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  plaintiff  has  proven  the  allegations  of  any  one  or 
more  counts  of  the  declaration  herein,  by  a  preponderance  of  the 
evidence,  and  that  the  plaintiff  suffered  and  sustained  injuries  in  the 
mode  and  manner  charged  in  one  or  more  counts  of  the  declaration 
hei-ein,  and  that  he  was  then  in  the  exercise  of  ordinary  care  for  his 
own  safety,  then  they  should  find  the  defendant  guilty.^^ 


27— C.  &  J.  Elect.  Ry.  Co.  v. 
Patton,  219  111.  (217),  76  N.  E.  381. 
See  also  instructions  to  the  same 
effect  in  Penn.  Co.  v.  Reidy,  99 
111.  App.  477  (478),  198  111.  9,  64 
N.  E.  698;  Johnson  v.  McNiff,  113 
111.  App.  1  (2);  C.  U.  T.  Co.  v. 
Lawrence,  113  111.  App.  269  (273), 
affd  211   111.  373,  71  N.   E.   1024. 

In  the  first  case  the  court  said: 

"It  is  objected  that  the  first 
clause  of  the  instruction  submits 
a  question  of  law  to  the  jury. 
This  court  has  repeatedly  held 
that  an  instruction  telling  the  jury 
that  if  they  believe,  from  the  evi- 
dence, the  plaintiff  has  proved  his 
Or  her  case  as  laid  in  his  or  her 
declaration  they  will  find  the 
issuos  for  the  plaintiff,  not  to  be 
objectionable.  Mt.  O.  &  S.  Coal 
Co.  V.  Rademacher,  190  111.  538,  60 
N.  E.  888;  Central  Ry.  Co.  v. 
Bannister  19.5  id.  48,  62  N.  E.  864; 
W.  C.  St.  Ry.  Co.  v.  Lieserowitz, 
197   id.   607,    64   N.   E.    718. 

"It  Is  further  objected  that  the 
Bub.<5or|uent  clauses  of  said  instruc- 
tion fail  to  instruct  the  jury  as 
to  tho  decree  of  proof  required  to 
ostablish  plaintiff's  case.  In  Vil- 
lapo  of  Altamont  v.  Carter,  196 
III.  2^6.  In  passinp  upon  a  similar 
objection.  It  was  said:  'A  require- 
ment jri  tho  first  part  of  an  in- 
Bfnictinn  that  tho  jury  must  base 
th'lr  flndlnp.s  upon  the  evidence 
nppIleR  niKl  extends  to  mil  snbse- 
fpunt  clauses  in  tho  Instruction, 
nnd  it  Is  unnecessary  in  eaeh  of 
the  siiccerdlne  sentencoR  to  inform 
thf  jury  that  fhcy  must  find  frf)m 
a   preponderance    of   the    evidence. 


The  objections  urged  as  to  the 
second  instruction  are  not  well 
taken.'  " 

Where  a  defense  is  made  on  the 
question  of  "assumed  risk,"  the 
instruction  in  the  text  would  be 
erroneous,  unless  it  included  the 
theory  of  the  assumed  risk,  pro- 
vided there  was  evidence  that 
fairly  tended  to  support  the  view 
that  the  risk  was  assumed,  and 
provided  further  the  declaration 
does  not  contain  the  allegation 
that  the  risk  was  not  assumed. 
Terra  Cotta  Lbr.  Co.  v.  Hanley, 
214  111.  243,  rev'g  116  111.  App.  359, 
73    N.    E.    373. 

28— Chicago  U.  T.  Co.  v.  Law- 
rence, 113  111.  App.  269  (273),  affd 
211  111.  373,  71  N.  E.  1024.  Citing 
C.  &  A.  Ry.  Co.  V.  Fisher,  141  111. 
614,  31  N.  E.  406;  L.  S.  &  M.  S. 
Ry.  Co.  V.  Ouska,  151  111.  232,  37 
N.   E.    897. 

29— Johnston  v.  McNiff,  113  111. 
App.   1   (2). 

"If  there  is  one  good  count  to 
which  the  evidence  was  applicable 
and  which  is  sufficient  to  sustain 
the  judgment,  the  error  of  the 
court,  if  any,  in  refusing  to  in- 
struct the  jury  to  disregard  the 
other  counts,  becomes  harmless. 
We  deem  it  unnecessary  to  deter- 
mine whether  or  not  the  sixth  and 
seventh  counts  were  so  faulty  as 
to  be  insnfTicient  to  sustain  a 
verdict,  for  even  if  they  were, 
there  being  five  good  counts,  and 
the  Instruction  being  general  as 
to  the  whole  deelaration,  was  pro- 
perly   given." 

The  court  cited  Cons.  Coal  Co.  v. 


§  1346.]  NEGLIGENCE— IN  GENERAL.  895 

(d)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff,  while 
in  the  exercise  of  ordinary  care,  was  injured  by  or  in  consequence  of 
the  negligence  of  the  defendant,  as  charged  in  the  declaration,  or 
either  one  of  the  counts  thereof,  then  you  should  find  the  defendant 
guilty.^*' 

(e)  If  in  this  case  the  jury  believe  from  the  evidence,  that  the 
plaintiff,  while  using  such  reasonable  care  for  his  "own  safety,  was 
injui-ed  in  the  manner  as  charged,  in  the  declaration,  and  that  such 
injury  was  occasioned  by  the  negligence  of  the  defendant,  or  of  its 
agents  in  charge  of  the  train  of  ears  mentioned  in  the  evidence,  and 
as  charged  in  the  declaration,  then  the  juiy  should  find  the  defendant 
guilty.^^i 

(f)  The  court  instructs  the  jury  that  if  the  jury  believe  from  the 
evidence  that  the  injury  complained  of  in  this  case  resulted  from  the 
defendant's  negligence  as  charged  in  the  declaration,  and  that  the 
plaintiff  was  exercising  ordinaiy  care  for  his  own  safety  before  and 
at  the  time  of  bis  injury,  the  defendant  is  liable  and  the  plaintiff  is 
entitled  to  a  verdict.'^- 

§  1346.  Circumstantial  Evidence  Supporting  Plaintiff's  Theory 
Must  Be  Inconsistent  with  Any  Other  Conclusion.  The  court  in- 
stniets  the  jury  that  to  justify  you  in  finding  that  deceased  was 
killed  by  a  swinging  door  striking  a  crowbar  as  claimed  by  plaintiff, 
it  is  necessary,  not  only  that  the  circumstances  should  all  concur  to 
show  that  he  was  so  killed,  but  that  they  are  inconsistent  with  any 
other  rational  conclusion. ^^ 

§  1347.  Burden  of  Proof,  (a)  The  burden  of  proving  negligence 
rests  on  the  party  alleging  it ;  and  where  a  person  charges  negligence 
on  the  part  of  another  as  a  cause  of  action,  he  must  prove  the  negli- 
gence, by  a  preponderance  of  evidence.  And  in  this  case,  if  the  jury 
find  that  the  weight  of  the  evidence  is  in  favor  of  the  defendant,  or 
that  it  is  equally  balanced,  then  the  plaintiff  cannot  recover,  and  the 
juiy  should  find  the  issues  for  the  defendant.^* 

Scheiber,  167  III.  539,  47  N.  E.  1052;  phrase    'at   the   time'   found    in  the 

Chi.   &  A.   R.   R.   Co.   v.   Anderson,  instruction    as    having    relation    to 

166    111.    572,    46    N.    B.    1125;    H.    &  the    entire    transaction    under    ex- 

St.    J.    R.    R.    Co.    v.    Martin,    111  amination.     L.   S.   &  M.   S.   Rv.   Co. 

111.    219;     Shreffler    v.    Nadelhoffer,  v.   Johnsen,   135   111.    641,   26   N.    E. 

133    111.    536,    25    N.    E.    630,    23    Am.  510;    McNulta  V.  Lockridge,  137  111. 

St.  Rep.  626;  Franklin  Printing  Co.  270,   27   N.   E.   452,  31  Am.   St.   Rep. 

V.    Behrens,    181    111.    340,    54    N.    E.  362." 

896;    Penn.    Co.    v.    Dackes,   133   111.  31— C.    &   A.    R.    R.    Co.   v    Gore 

255.  24  N.  E.   563.  202  111.  188   (196).  aff'g  105  III.  App. 

30— C.   &  A.   R.   R.   Co.  V.  Fisher,  16,    66    N.    E.    1063. 

141   111.    614    (624),    31    N.    E.   406.  32— C.  &  A.  R.  R.  Co.  v.  Harring- 

"The     qualifying    words     'if    the  ton,    90    111.    App.    638    (641),    af£'d 

jury     believe     from     the     evidence'  192   111.   9    (25),    61   N.   E.    622. 

apply  to  the  entire  sentence    .    .    .  33 — "^"heelan    v.    C.    M.    &    St.    P. 

The    word     'while'    means    'during  Ry.    Co.,    85    Iowa    167,    52    N.    W. 

the  time  that,'  and  seems  to  neces-  119  (121). 

sarily  imply   some   degree   of   con-  34— Cooley  on  Torts  (3d  Ed.)  1439; 

tinuance      .    .      .      We     have     on  McQuilken   v.    Cent.,    etc.,    Co.,    50 

several    occasions    interpreted    the  Cal.  7;    Q.  A.  &   St.   L.  R.  R.  Co. 


896  FORMS  OF  INSTRUCTIONS.  [§  1347. 

(b)  The  court  instructs  the  juiy  that  the  burden  of  proof  is  upon 
plaintiff  to  establish  by  a  preponderance  of  the  testimony  the  facts 
on  which  plaintiif  charges  negligence  on  the  defendant,  and  unless 
plaintiff  has  so  established  said  facts  then  the  verdict  of  the  jury 
should  be  for  the  defendant.^^ 

(c)  The  jury  are  instructed  that  the  plaintiff  is  required  by  law 
to  establish  his  ease  by  a  preponderance  of  the  evidence  before  he 
can  recover.  If  the  plaintiff  in  this  suit  has  not  established  his 
case,  or  if  the  evidence  is  evenly  balanced  so  that  the  jury  are  in 
doubt  and  unable  to  say  on  which  side  is  the  preponderance,  or  if 
the  preponderance  of  the  evidence  is  in  favor  of  the  defendants,  then, 
in  either  of  these  eases,  the  verdict  should  be  not  guilty.^*' 

(d)  The  burden  is  upon  the  plaintiff  to  show  that  his  injury  was 
caused  by  the  negligence  of  the  defendant,  and,  if  he  has  failed  to  do 
tliis  by  a  preponderance  of  the  proof,  the  answer  to  the  first  issue 
should  be,  ''No."" 

(e)  The  court  instructs  the  juiy  that  the  burden  of  proof  in  this 
case  is  upon  the  plaintiff,  and  you  are  not  at  liberty  to  find  a  verdict 
in  his  favor  unless  you  believe  from  the  evidence  that  he  has  proved 
the  material  allegations  of  some  one  or  more  counts  of  his  declara- 
tion by  a  preponderance  of  the  evidence.^^ 

(f)  I  charge  you  that  the  burden  of  proof  is  upon  the  plaintiff 
to  reasonably  satisfy  you  by  the  evidence  that  the  defendant  was 
guilty  of  negligence  as  charged  in  some  count  of  the  complaint,  and 
if  from  all  the  evidence  you  are  not  reasonably  satisfied  of  the  truth 
of  the  averments  of  negligence  as  alleged  in  the  complaint,  then  you 
must  find  a  verdict  for  the  defendant,  without  regard  to  the  ques- 
tion of  contributoiy  negligence. ^'^ 

(g)  The  jury  'are  instructed  that  with  respect  to  the  ailments 
and  disabilities  claimed  for  the  plaintiff  in  this  case,  the  burden  of 
proof  is  upon  the  plaintiff  in  that  respect,  as  it  is  with  respect  to  the 
question  of  liability,  to  show,  by  a  preponderance  of  the  evidence, 
not  only  that  such  ailments  really  exist  or  have  existed,  but  also 
that  such  ailments  and  disabilities  are  the  result  of  the  action  in. 
question ;  and  the  burden  of  proof  is  not  upon  the  defendant  to  show 
that  such  alleged  ailments  do  not  proceed  or  arise  from  any  other 
<jau.se. 

V.   Wellhoener,   72   111.    60;    Hoyt  v.  also   instructions   in  C.   C.   Ry.   Co. 

HuflHon,    27    Wis.    G56;    St.    Paul    v.  v.    Nel.son,    llfi    111.    App.    609,*  aff'd 

Kuby,   8    Mlun.    154;    Jcffer.sonville,  215  111.   436,   74  ,N.   E.   45S;    C.   &  A. 

etc.,  V.  Lyon,   55  Ind.   477;    Murphy  R.    R.    Co.    v.    Eselin,    86   111.    App. 

V.    ChioaKO,    etc..    Rd.    Co..    45    la.  94   (99). 

661:  Htranrl  v.  C.  &  W.  M.  Rv.  Co.,  37— Norton  v.   N.  Car.   K.   Co.  122 

C7   MIfh.   MO,  .'54   N.   W.   712    (715).  N.    C.    910,   29   S.   E.    S86    (888). 

.•?r,-.ShafHtottR  V.   St.   Loul.s   &   M.  .^8— Fidelity  &  Oas.  Co.  v.  Oehne, 

R.    R.    Co..    175    Mo.    142,    74    S.    W.  94  111.    App.   117   (121). 

82«   (WO).                         ,  .S9— Rlrminpham    Bolt    R.    Co.    v. 

3«-Chl<-nR0    IT.    T.    Co.    v.    Mee,  Gorcranous,   142  Ala.   238,   37  So.  929 

218   III.   9.   75   N.   E,   Rep.   800.     See  (931). 


§  1347.]  NEGLIGENCE— IN  GENERAL.  897 

(h)  The  jury  are  further  instructed  that  they  have  no  right  to 
guess  or  conjecture  that  any  ailment  complained  of  by  the  plaintiff 
is  the  result  of  this  accident.  Whether  it  is  or  not  must  be  de- 
termined by  the  jury  from  the  evidence.  The  jury  are  not  to  under- 
stand from  this  or  any  other  instruction  that  the  court  intends  to  in- 
timate any  opinion  upon  that  or  any  other  question  of  fact  in  this 
case.  All  such  questions  and  matters  are  solely  and  exclusively  for 
the  jury,  and  they  must  determine  them  from  the  evidence  and  from 
that  alone.'*" 

(i)  The  burden  is  upon  the  plaintiffs  to  establish  that  the  death 
of  the  deceased  was  caused  by  the  negligence  of  the  defendant;  and, 
if  you  find  that  his  death  was  not  due  to  the  negligence  of  the  de- 
fendant, then  you  need  consider  nothing  further,  as  your  verdict  must 
be  in  that  case  for  the  defendant.  The  negligence  of  the  defendant 
company  must  be  established  by  a  preponderance  of  the  evidence; 
and  by  a  preponderance  of  the  evidence  is  not  meant  the  greatest 
number  of  witnesses,  but  it  means  the  evidence  which  is  most  con- 
vincing to  your  minds.*^ 

(j)  The  plaintiff  is  not  bound  to  prove  his  ease  beyond  a  reason- 
able doubt,  but  is  only  bound  to  prove  it  by  the  preponderance  of 
the  evidence.  The  court  instructs  the  jury  that  while,  as  a  matter 
of  law,  the  burden  of  proof  is  upon  the  plaintiff,  and  it  is  for  him  to 
prove  his  case  by  a  prepondei-ance  of  the  evidence,  still  if  the  jury 
find  that  the  evidence  bearing  upon  the  plaintiff's  ease  preponderates 
in  his  favor,  although  but  slightly,  it  would  be  sufficient  for  the  jury 
to  find  the  issues  in  his  favor.*^ 

40— C.    U.    T.    Co.    v.    Fortier,    205  gan  v.   Boom    Co.,   6  Wash.   593,   34 

111.   305   (306),   68   N.   E.   948.  Pac.  157,  36  Am.  St.  182;   McQuillan 

41— Roberts   v.   Port   Blakely   Mill  v.    City    of    Seattle,    13    Wash     600, 

Co.,  30  Wash.    25,  70  Pac.   Ill   (113).  43    Pac.     '893;     State    v.     Surry,     23 

"It   is  argued   that   the   rentence,  Wash.    655,    63    Pac.    557;    Henry    v. 

'and,    if    you    find    that    his    death  Railway     Co.,     24     Wash.     246,     64 

was   not   due   to   the   negligence  of  Pac.     137;     Miller     v.     Dumon|     24 

the  defendant,   then  you  need  con-  Wash.   648,  64  Pac.  804." 
sider  nothing  further,  as  your  ver-         42— Chicago  City  Ry.  Co.  v.   Nel- 

dict  in   that   ease  must  be  for  the  son,   116   111.   App.   609,  aff'd  215  III. 

defendant'    is    erroneous.      But    the  436,   74   N.   E.   458. 
whole     instruction     must    be     con-        "Appellee's      <above      instructions 

etrued    together.      So    construed    it  are   said   to   be   erroneous,   because 

is   not  error.     It   is   true   that   this  of  the  use  of  the  phrases  'plaintiff's 

sentence  Is  not  technically  correct;  case'  and  'his  case.'    It  is  said  that 

but   this    error   is   not   of   moment,  these    phrases    are     equivalent    to 

especially   when    the   intent   of   the  material  allegations  of  the  declara- 

whole  is  clearly  expressed  that  the  tion,'     the     use     of     whif'h     latter 

burden    is    upon    the    plaintiff's    to  phrase,  in  an  instruction,  has  been 

prove    negligence.      The    court    has  held,    in   a  number   of  cases,   to   be 

frenuently     held     that     where     an  erroneous.      It    seems    unnecessary 

isolated   portion   of  an   instruction,  to  discuss   the  point,   since  similar 

(Standing     alone,     miay     be     techni-  instructions  containing  the  phrases 

cally    erroneous,    yet    if    the    whole  'his     case.'     and     'plnintiff's     case.' 

instruction,    taken    toeether,    fairly  have   been   frequently  approved  by 

states   the   law,    it   will   be   upheld,  the     Supreme     Court.       Taylor     v. 

Seattle  C.  E.  L,.  gr  M.  Co.  v.  Seat-  Pelsine.     164    111      331-6      45     N     E 

tie,  6  Wash.  101,  32  Pac.  1058;  Dug-  161;     City    of    LaSalle  'v.    Kostka! 
67 


898 


FORMS  OF  INSTRUCTIONS. 


[§  1348. 


§  1348.  Proof  May  Be  Made  by  Defendant's  Own  Witnesses.  The 
court  instructs  you,  that  if  you  believe,  from  the  evidence,  that  the 
defendant  was  guilty  of  negligence,  as  charged  in  the  declaration,  and 
that  the  plaintiff  was  injured  thereby,  then,  as  regards  the  defend- 
ant's liability,  it  makes  no  difference  whether  such  negligence  ap- 
pears or  is  proved  by  the  testimony  on  the  part  of  the  plaintiff,  or  by 
the  defendant's  own  witnesses.*^ 

§  1349.  Coroner's  Verdict  Not  Evidence  of  Negligence,  (a)  The 
court  instructs  you  that  the  verdict  of  the  coroner's  jury  is  not  to  be 
considered  as  evidence  that  the  deceased  was,  at  the  time  of  the  in- 
jury, in  the  exercise  of  reasonable  care  and  prudence  as  charged  in 
the  declaration. 

(b)  The  court  further  instructs  the  jury  that  the  finding  of  the 
coroner's  jury  or  inquest  is  not  to  be  considered  by  you  as  evidence 
that  the  defendant  was  guilty  of  the  negligence  charged  in  the 
declaration.** 

(c)  The  court  instructs  you  that  the  inquest  in  evidence  is  no  evi- 
dence in  this  case  that  the  switch  stand  spoken  of  by  witnesses  was 


190  111.  130-3,  60  N.  E.  72;  N.  C.  St. 
R.  R.  Co.  V.  Polkey,  203  111.  225-31, 
67  N.  E.  793;  and  cases  cited;  Chi- 
cago C.  Ry.  Co.  v.  Carroll,  206  111. 
318-31,  68  N.  E.  1087,  and  cases 
.cited. 

"It  is  also  s.TJd  that  the  eighth 
instruction  is  erroneous  because  it 
in  effect  tells  the  jury  that  if  the 
plaintiff's  evidence  'preponderates 
in  his  favor,  although  but  slightly,' 
then  they  might  find  a  verdict  in 
his  favor.  It  is  true  that  this 
court  in  O'Donnell  v.  Armour  C. 
H.  Works,  111  111.  App.  516-23, 
criticised  this  phrase  in  an  instruc- 
tion, but  did  not  hold  it  reversible 
error  to  refuse  it  when  asked  by 
the  plaintiff.  In  the  Taylor  case, 
supra,  as  well  as  in  Donley  v. 
Dougherty,  174  111.  582,  51  N.  E. 
714,  and  Chicago  C.  Ry.  Co.  v. 
Fennimore,  199  111.  9-18.  64  N.  E. 
98.'),  the  Sup.  Ct.  held  that  the  giv- 
ing of  slmjlar  instructions  was  not 
reversible    error." 

43— Keokuk,  N.  L.  P.  Co.  v. 
True.  88  111.    608. 

44— C.  M.  &  St.  P.  Ry.  Co.  v. 
Staff,   46   111.    App.    499. 

"That  the  conclusions  of  a  tri- 
htiral  In  a  mntter  wherein  a  party 
had  no  opportunity  either  to  in- 
fhx-nce  Its  dr'termlnatjori,  or  to 
havf  prevented  his  adversary  from 
doing  so,  f)ught  not  to  be  adduced 
as  evidence  against  him.  seems 
too  clear  for  discussion.     The  first 


maxim  in  the  administration  of 
the  law  is  'Audi  altera,  partem,* 
or,  as  expressed  in  Broom's  Legal 
Maxims,  'No  man  should  be  con- 
demned  unheard.' 

To  permit  the  conclusions  of  a 
coroner's  jury,  imputing  negligence 
and  casting  the  blame  for  the 
death  of  an  individual  upon  a 
party  who  was  in  no  wise,  save 
as  one  of  the  human  beings  of  the 
world,  a  party  to  its  proceedings, 
and  had  neither  voice  in  the  selec- 
tion of  the  triers  nor  opportunity 
to  place  before  them  aught  that 
might  tend  to  show  his  own  in- 
nocence, is  to  condemn  one  un- 
heard, and  to  violate  the  .most 
fundamental  of  all  principles  ap- 
plicable to  proceedings  in  courts 
of  justice.  We  do  not  understand 
that  our  Supreme  Court  have 
authorized  the  reception  in  evi- 
dence of  such  verdicts  as  this,  and 
we  look  upon  the  case  of  P.  C. 
&  St.  L.  Ry.  Co.  v.  McGrath,  115 
111.  172,  3  N.  E.  439,  as  containing 
an  intimation  that  they  are  not 
to  be  admitted.  What  is  said  in 
L.  S.  &  M.  S.  Ry.  Co.  v.  Taylor, 
46  111.  App.  506,  as  to  the  admis- 
sibility of  the  verdicts  of  coroners' 
juries,  is  applicable  to  this  one." 
The  verdict  in  this  case  found  that 
the  deceased  came  to  his  doath 
through  the  negligence  of  the  de- 
fendant   company. 


§  1350.] 


NEGLIGENCE— IN  GENERAL. 


899 


loo  close  to  the  tracks  of  the  defendant  at  the  point  where  they  may 

believe  from  the  evidence  the  deceased  ,  was  injured. *•'' 

s  1350.  View  by  Jury  of  Scene  of  Accident  as  Evidence  of  Negli- 
gence. The  jury  has  been  taken  out  to  view  the  scene  of  this  acci- 
dent twice, — the  first  time  for  the  purpose  of  being  able  to  under- 
stand the  testimony,  and  the  second  time  to  witness  certain  experi- 
ments by  agreement  of  both  parties.  I  charge  you  that  you  are  not 
to  consider  as  evidence  what  you  saw  on  the  first  view,  but  what  you 
saw  on  the  second  view  that  was  shown  to  you  by  the  parties  under 
their  agreement  you  should  take  and  consider  as  evidence  in  this 
case.*^ 


45— L.  S.  &  M.  S.  Ry.  Co.  v. 
Taylor,  46  111.  App.  506  (509). 

"It  is  no  longer  a  question  in 
this  state  that  the  coroner's  in- 
quisition is  admissible  in  evidence, 
and  though  not  conclusive,  is  com- 
petent evidence  to  be  considered 
by  the  jury.  P.  C.  &  St.  L.  Ry. 
Co.  v.  McGrath,  115  111.  172;  3  N. 
E.  439;  U.  S.  Life  Ins.  Co.  v. 
Vocke,  129  111.  557,  22  N.  E.  467; 
Gooding.  Adm'r,  v.  U.  S.  Life  Ins. 
Co.,  46  111.  307.  The  same  authori- 
ties have  established  that  the  de- 
positions taken  upon  the  inquest 
are  not  admissible  as  evidence. 
*  *  *  The  public  and  general 
interest  sought  to  be  subserved  by 
the  inquest  was  satisfied  by  the 
proper  finding  of  the  jury,  that 
the  deceased  came  to  his  death 
by  being  knocked  off  the  car  by 
a  standing  switch;  but  whether 
that  result  was  caused  by  the 
negligent  placing  of  the  switch,  or 
by  the  negligent  conduct  of  the 
deceased  while  on  the  car,  in  ap- 
proaching or  passing  the  switch, 
or  in  boarding  the  car  in  the  first 
instance,  was  purely  a  matter  of 
private  inquiry  between  the  repre- 
sentative of  the  deceased  and  the 
railroad    company." 

46— Schweinfurth  v.  Cleveland  C. 
C.  &  St.  L.  Rv.  Co.,  60  Ohio  St.  215, 
54  N.   E.   89   (92). 

"The  record  shows  that  during 
the  progress  of  the  trial,  and  be- 
fore the  conclusion  of  the  evidence, 
counsel  for  the  defendant  moved 
the  court  for  an  order  directing 
the  jury  to  be  taken  to  the  cross- 
ing where  the  deceased  was  killed, 
at  about  the  f;ame  time  in  the 
evening,  for  the  purpose  of  wit- 
nessing certain  experiments  which 
the  defendant  proposed  to  have 
made  in  the  running  of  a  train  of 
.cars     there,     under     circumstances 


like  those  present  at  the  accident, 
for  the  purpose  of  informing  the 
jury  in  regard  to  the  cause  and 
manner  of  its  occurrence.  No  ob- 
jection w^as  made  by  plaintiff's 
counsel,  'and  thereupon,'  as  stated 
in  the  record,  'it  is  agreed  that 
the  jury  shall  go  to  said  crossing 
at  7  o'clock  this  evening,  April 
14,  1898,  in  charge  of  the  sheriff, 
to  witness  certain  experiments 
made  with  the  engine  and  train 
there.  And  thereupon  the  jury 
reported  at  the  court  house  at 
said  hour,  and,  in  charge  of  the 
sheriff,  went  to  the  scene  of  the 
accident,  and  witnessed  certain 
experiments  made  with  said  engine 
and  train,  horse  and  buggy,  men 
seated  in  the  buggy,'  etc.  The 
question  made  on  this  charge  is 
whether  the  jury  might  properly 
consider  the  information  obtained 
from  these  experiments  as  evidence 
in  the  case,  and  is,  in  this  form, 
a  new-  question  in  this  state.  TVe 
are  not  aware  of  any  reported 
decision  of  this  court  in  which  a 
like  question  w^as  involved.  It  was 
held  in  Machader  v.  "Williams,  54 
Ohio  St.  344,  43  N.  E.  324.  that 
the  preliminary  view,  authorized 
by  section  5191  of  the  Revised 
Statutes,  of  the  property  or  place 
involved  in  a  litigation,  is  merely 
for  the  purpose  of  enabling  the 
jury  to  apply  the  evidence  offered 
on  the  trial.  But  experiments, 
made  in  the  presence  of  the  jury, 
with  a  view  of  reproducing  to 
their  senses,  as  nearly  as  may  be, 
the  transaction  or  occurrence,  in 
whole  or  in  part,  which  is  the  sub- 
ject matter  '  of  investigation  by 
them,  would  seem  to  have  a  dif- 
ferent purpose.  They  serve  to  put 
the  jury  in  possession  of  knowl- 
edge, important  in  the  determin- 
ation  of  the   issues   on   trial,    that 


900 


FORMS  OF  INSTRUCTIONS. 


[§  1351. 


§1351.  Contributory  Negligence  Defined,  (a)  '' Contributory  neg- 
ligence" is  such  negligence  on  the  part  of  plaintiff  as  helped  to 
produce  the  injiu-ies  complained  of,  and  if  the  jury  find,  from  a  pre- 
ponderance of  all  the  evidence  in  this  case,  plaintiff  was  guilty  of 
any  negligence  that  helped  to  bring  about  or  produce  the  injuries  com- 
plained of,  then,  in  that  case,  the  plaintiff  cannot  recover  in  this 
action.*^ 

(b)     The  want  of  ordinary  care  and  prudence  on  the  part  of  a 


they  could  not  obtain  so  readily 
or  accurately  from  the  testimony 
of  witnesses.  They  are,  in  a 
measure,  a  substitute  for  oral 
testimony,  and  often  may  afford 
evidence  more  satisfactory  and  re- 
liable. In  Smith  v.  State  2  Ohio 
St.  511,  where  the  prosecuting  wit- 
ness on  a  trial  of  an  indictment 
for  malicious  shooting  had  testi- 
fied that  he  saw  and  identified  the 
defendant  through  a  glass  win- 
dow, after  dark,  from  the  flash  of 
the  pistol  which  he  fii'ed,  it  was 
held  competent  for  the  defendant 
to  prove  experiments  made  by 
witnesses  under  similar  circum- 
stances, and,  as  a  result  of  them, 
that  a  person  could  not  be  so 
identified.  If  the  testimony  of  wit- 
nesses relating  to  such  experi- 
ments, and  the  information  ob- 
tained from  them,  furnish  com- 
petent evidence  which  the  jury 
may  consider  in  making  up  their 
verdict,  it  is  difficult  to  assign  any 
satisfactory  reason  why  such  ex- 
periments, when  made  in  the 
presence  of  the  jury  for  their  in- 
formation, and  by  which  the  re- 
sults are  made  obvious  to  their 
senses,  should  not  afford  evidence 
of  equal,  or  even  greater,  force 
and  certainty.  Witnesses  observ- 
ing the  experiments,  when  called 
upon  to  testify,  may  imperfectly 
describe  them,  or  fail  to  make 
themselves  fully  understood,  while 
those  imperfections  are  removed 
when  the  jury  is  placed  in  the 
position  of  the  observing  witnesses. 
with  all  the  opportunities  of  ob- 
servation. As  said  in  2  Jones  Ev. 
para.  39.5:  'For  obvious  reasons, 
there  la  no  class  of  evidence  so 
convincing  and  sntlsfactory  to  a 
courf  or  jury  ,ts  that  which  is  ad- 
dressed directly  to  the  senses  of 
the  court  or  jury.'  Tn  patent 
oasfu,  oxpcrlmenf  H  before  the 
court  and   jury    ire   constantly   re- 


sorted to  as  a  means  of  pi'oving 
novelty  of  inventions,  and  the 
principles  of  their  construction 
and  operation.  And  in  the  Ameri- 
can notes  to  Tayl.  Ev.  p.  365,  it 
is  said  that  'a  particularly  cogent 
method  of  proving  a  fact  is  to 
test  its  existence  by  experiments 
in  open  court.'  True,  the  experi- 
ments in  this  case  were  not  made 
in  court.  It  was  impractical  to 
do  so.  Nor,  without  the  consent 
of  the  parties  could  they  have 
been  ordered  to  be  made  else- 
where. But  they  were  made  out 
of  court,  at  the  request  of  the  de- 
fendant, in  pursuance  of  an  order 
procured  by  it,  and  under  condi- 
tions which,  to  its  satisfaction, 
constituted  a  sufficiently  accurate 
representation  of  the  occurrence 
that  resulted  in  the  death  of  the 
plaintiff's  intestate;  and  they  were 
necessarily  of  the  same  probative 
character  as  if  made  in  open  court. 
They  were  intended  to  furnish  in- 
formation which  the  jury  might 
use  in  determining  the  issues  in 
the  case,  and  which,  indeed,  might 
conclusively  settle  them  in  the 
minds  of  the  jury.  It  would  be 
a  vain  thing  to  attempt  to  re- 
quire the  jury  to  disregard  the 
evidence  so  inade  manifest  to  their 
own   senses." 

47— P.alt.  &  O.  S.  W.  Rv.  Co.  v. 
Young,  153  Ind.  163,  54  N.  E.  791 
(793). 

"It  wiill  be  observed  that  no  at- 
tempt is  made  to  state  what  acts 
or  omissions  on  the  part  of  the 
plaintiff  would,  under  the  circ^um- 
stances  of  this  case,  constitute 
contributory  negligence.  The  gen- 
eral statement  that  contributory 
negligence  is  such  negligence  as 
helped  to  produce  the  injuries  com- 
plained of  includes  the  idea  of 
both  acts  and  omissions,  and  is 
not  a.  misstatement  of  the  law." 


§  1352.]  NEGLIGENCE— IN  GENERAL.  901 

person  injured,  contributing  directly  and  approximately  to  the  injui-y 
complained  of,  is  eontributoiy  negligence.** 

(c)  Contributory  negligence  is  any  degree  of  carelessness,  how- 
ever slight,  on  the  part  of  a  person  injured,  which  co-operates  in  pro- 
ducing the  injury  comj^lained  of.*^ 

(d)  Contributory  negligence  is  such  an  act  or  omission  on  the  part 
of  the  jilaintiff  amounting  to  a  want  of  ordinary  care  as,  concurring 
or  co-operating  with  the  negligent  act  or  omission  of  the  defendant, 
is  the  proximate  cause  or  occasion  'of  the  injury  complained  of .^'^ 

(e)  Contributoi-y  negligence,  in  its  legal  signification,  is  such  an 
act  or  omission  on  the  part  of  the  plaintiff,  amounting  to  a  want  of 
ordinary  and  proper  care  and  prudence,  as,  concurring  or  co-operat- 
ing with  some  negligent  act  of  the  defendant,  is  the  proximate  cause 
of  the  occasion  of  the  injuries  complained  of.^^ 

(f)  Contributory  negligence  is  the  doing  an  act  by  the  person 
complaining  of  injury  which  a  prudent  man  would  not  have  done 
under  similar  circumstances,  that  contributed  to  the  injury,  and  but 
for  which  act  on  the  part  of  the  person  injured  such  injury  would 
not  have  occuiTed.-^- 

§  1352.  Effect  of  Contributory  Negligence,  (a)  The  law  places 
upon  all  persons  the  duty  of  exercising  reasonable  care  to  avoid  in- 
jury, and  even  though  the  jury  should  believe,  from  the  evidence,  that 
the  defendant  was  negligent  and  that  plaintiff  was  injured  thereby,  if 
the  evidence  also  shows  that  the  injury  would  have  been  avoided  by 
the  exercise  of  ordinary  care  by  the  plaintiff,  and  that  the  plaintiff 
did  not  exercise  such  care,  you  should  find  the  defendant  not  guilty.^^ 

48— Todd  V.  Banner,  17  Ind.  App.  Note— For  particular  instructions 

368,   46   N.   E.    829.  on      contributory      negligence      see 

49— Kitzberger  v.    C.   R.    I.   &   P.  under  the  heading  of  "Negligence," 

R.    Co.,    4    Neb.    (unof.)    324,    93    N.  "Master  and   Servant,"   "Passenger 

W.   935   (936).  Carrier,"    "Railroads,"    etc. 

50— Norton    v.    N.    C.    R.    R.    Co.,  53— Cullen   v.   Higgins,    216   111.   78 

122   N.   C.   910,   29   S.    E.   SS6    (890).  (83,   84),    74    N.'  E.    698. 

51— Int.    &    G.    N.    R.    Co.    v.    An-  "It    is    not    denied    but    this    in- 

chonda.    33    Tex.    Civ.    App.    24,    75  struction  is  an  accurate  statement 

S.    W.    557   (559).  of   the    law    and    applicable    to    the 

"It    is   contended    that   the   effect  case,    but    it    is    insisted    that    the 

of  this   charge,    as  worded,   was  to  principles  sought   to  be  announced 

inform    the   jury   that    there   would  to     the     jury     thereby     are     fully 

be      no      contributory      negligence  covered       by       other      instructions 

upon    the    part    of    plaintiff    unless  which  were  given  to  the  jury.     We 

there     was     concurrent     negligence  cannot  agree  with   this  view.     The 

on    the    part    of    defendant.     There  giving    of    an     instruction    in    ab- 

is  nothing  of  a  substantial   nature  stract  form  does  not  deprive  a  liti- 

in    the   point.     If   no    negligence    of  gant  of  the  right  to  have  the  jury 

defendant  appeared,  plaintiff  could  fully   instructed    as   to    the   law   of 

not    recover    at    all.  ■  Contributory  the   case,   in   view  of  the   evidence 

negligence    becomes    important    in  introduced     upon     the    trial.      The 

any    case    only    where    defendant's  contention  of  the  appellee  was  the 

nes-ligence    is    found    to    exist.      It  appellant  was  guilty  of  negligence, 

necessarily    must     concur     or     co-  while  the  contention  of  the  appel- 

operate  to  produce  the  injuries."  lant    was    that    the    appellee    was 

52 — Houston   &   T.    C.    Ry.    Co.   v.  guilty    of    contributory    negligence. 

Moss,   —   Tex.    Civ.    App.   — ,    63    S.  and,     even     though     the     appellant 

W.   894   (895).  was  guilty  of  negligence,   that  the 


902  FORMS  OF  INSTRUCTIONS.  [§  1352, 

(b)  If  the  accident  Avas  caused  either  wholly  or  in  part  by  a 
■want  of  reasonable  care  or  attention  to  his  situation  on  the  part  of 
the  plaintiff,  he  cannot  recover.  In  other  words,  if  the  accident  was 
caused  by  a  want  of  due  care  on  the  part  of  both  parties  contributing 
thereto,  the  law  will  not  aid  the  plaintiff.^* 

(c)  One  who  is  injured  by  the  negligence  of  another  cannot  re- 
cover damages  therefor,  if  the  injured  party,  by  his  own  negligence 
or  willful  Avrong,  approximately  contributed  to  the  injury,  so  that  it 
would  not  have  happened  but  for  his  own  fault.  If,  therefore,  you 
find  that  said  P ,  by  his  own  carelessness  substantially  con- 
tributed to  the  injury,  or  that  he  might  by  the  exercise  of  ordinary 
care,  such  as  a  prudent  person  generally  would  have  used  under 
similar  circumstances,  have  avoided  the  injury,  he  cannot  recover 
damages.^^ 

(d)  To  entitle  the  plaintiff  to  recover  under  either  the  first  or 
third  paragraph  of  the  complaint,  it  must  appear  from  a  fair  pre- 
ponderance of  the  evidence,  not  only  that  the  injuries  complained  of 
were  caused  by  the  negligent  acts,  or  some  of  the  negligent  acts  of  the 
agents,  sen^ants  and  employes  of  the  defendant,  as  charged,  but  that 
she  was  herself  free  from  all  negligence  contributing  directly  to  said 
injuries.^^ 

(e)  The  jury  are  instructed  that,  if  they  believe,  from  the  evi- 
dence, that  the  plaintiff  in  this  case  was  guilty  of  any  negligence 
which  contributed  in  any  degree  to  the  injury  of  Avhich  he  com- 
plains, then  he  cannot  recover  in  this  case,  and  your  verdict  should 
be  for  the  defendant,^' 

(f)  The  court  instructs  the  juiy  that  to  entitle  the  plaintiff  to 
recover  the  jury  must  believe  from  the  evidence  that  the  injury  com- 
plained of  was  occasioned  by  the  carelessness  or  negligence  of  the 
defendants  or  their  servants  in  the  manner  charged  in  the  declaration. 
And  if  the  jury  believe  from  the  evidence  that  the  plaintiff  was  guilty 
of  negligence  contributing  to  the  injury,  then  the  plaintiff  cannot  re- 
cover, and  the  jury  should  find  for  the  defendants.^^ 

appellee,    by    reason    of    her    con-  "This  is  correct.     The  jury  must 

tributory  negligence,  could  not  re-  be  the  judge  of  the  fair  prepondcr- 

cover.      The     appellant     had     the  ance  of  the  evidence,  and  they  are 

right  to  have  an  instruction  given  instructed  that  they  must  find  a.-^- 

to     the    jury    which     clearly    pre-  cordingly.      This     covers     what     is 

sented   to   them   that   phase   of   his  asked    for    by    appellant, — that    'if, 

defense,     and     as     no     instruction  from    the    whole    evidence    in    the 

given  to  the  jury  presented  appel-  cause,    the   jury    cannot    determine 

lant's  contention   fully  and   clearly  whether   or   not   plaintiff   was    free 

in   that  regard   it  was  error  to  re-  from      such     negligence,     then      it 

fuse   said   instruction."  would    be    your    duty    to    find    for 

S4 — Hotel     Ass'n     v.    Walters,     23  the   defendant.'  " 

Neb.   .■',80,   36  N.  W.  561  (564).  57— Wierzbicky    v.     Illinois     Steel 

55— Pledger    v.    C.    B.    &    Q.    Ry.  Co.,   94    111.    App.   400    (401). 

Co.,  CO  Nob.  456.  95  N.  W.  1057  (1060).  58— Beidler  v.   King,  108  111.   App. 

56— Chicago,  St.  T^.  &  P.  R.  Co.  v.  23    (40),    aff'd   209   111.    302,   70   N.    E. 

SpllkfT,    1.''.4    lri<l.    :',x(i,   .".:',    n.    E.   280  763. 
(286). 


§  1353.]  NEGLIGENCE— IN  GENERAL.  903 

(g)  The  court  instructs  the  juiy  that  one  who  is  injured  by  the 
mere  negligence  of  another  cannot  recover  at  law  or  equity  any  com- 
pensation for  his  injury,  if  he,  by  his  own  or  his  agent's  ordinary 
negligence  or  willful  wrong,  contributed  to  produce  the  injury  of 
which  he  complains,  so  that,  but  for  his  concurring  and  co-operative 
fault,  the  injury  would  not  have  happened  to  him.^^ 

§  1353.  Ordinary  Care  of  Plaintiff  Defined,  (a)  By  ordinary 
care,  the  law  means  such  a  degree  of  care  under  the  circumstances, 
and  in  the  situation  in  which  the  plaintiff  was  placed,  so  far  as  they 
may  be  shown  by  the  evidence,  as  an  ordinarily  prudent  person  would 
exercise  under  the  circumstances  and  in  the  same  situation,  for  one  of 
his  age,  capacity  and  experience.^'' 

(b)  The  court  instniets  the  jury  that  ordinary  care  as  mentioned 
in  these  instructions,  is  that  degree  of  care  which  an  ordinarily  pru- 
dent person,  with  deceased's  knowledge  or  means  of  knowledge  of 
electrical  affairs,  and  situated  as  deceased  was,  before  and  at  the 
time  of  the  accident,  would  exercise  for  his  own  safety.®^ 

§1354.  Contributory  Negligence  of  Children,  (a)  The  jui-y  are 
instructed  that  the  rule  of  law  as  to  negligence  in  children  is  that 
they  are  required  to  exercise  only  that  degree  of  care  and  caution 
which  persons  of  like  age,  capacity  and  experience  might  be  reason- 
ably expected  to  naturally  and  ordinarily  use  in  the  same  situation 
and  under  the  like  circumstances,  provided  that  the  parents  or  per- 
sons having  control  of  such  children  have  not  been  guilty  of  want  of 
ordinary  care  in  allowing  them  to  be  placed  in  such  circumstanees.*^^ 

59— So.  Exp.   Co.  v.  Hill,  —  Ark.  it   was   said:     'It   is   not  to  be  ex- 

— ,   98   S.   W.   371.  pected  that  a  boy  twelve  years  of 

Little   Rock   &   F.    S.    Ry.    Co.   v.  age    will    use    the    same    degree    of 

Pankhurst,  36  Ark.  371;  Little  Rock  caution    and    care    as    a    person    of 

&   F.    S.    Ry.    Co.    v.    Cavaness,    48  mature    years;    nor    does    the    law 

Ark.   106,    2   S.    W.    505;     Kansas   C.  require   it.     It   was   proper  for   the 

So.    Ry.    Co.    V.    McGinty,    76    Ark.  jury    in    passing-    upon    the    negli- 

356,   88   S.   W.   1001.     "This  doctrine  gence  of  the  deceased  to  take  into 

of  contributory  negligence  so  often  consideration    his    age    and    experi- 

announced   by  this  court  was  cor-  ence.'  In  C.  &  A.  R.  Co.  v.  Becker 

rectly  applied  to  the   facts  of  this  Admr.,  76  111.  25  (a  similar  action), 

record."  the  deceased  son  being  onlv  six  or 

60— P.,   F.   ^V.   &  C.    R.    R.   Co.   V.  seven   years    of   age,    it    was   again 

Moore,    110    111.    App.    304.  said:     'The   age,    the   capacity   and 

61— Commonwealth      El.      Co.      v.  discretion  of  the  deceased  to  avoid 

Rose,    114    111.    App.    181    (184),    aff'd  danger   were    questions    of    fact    to 

214   111.    545,    73   N.   E.    780.  be  determined  by  the  jury,  and  his 

62—111.    C.    R.    R.    Co.    v.    Slater,  responsibility  was   to   be   measured 

129  111.  91   (99),  aff'g  28  111.  App.  73,  by  the   degree  of  canacity  he  was 

21   N.    E.   575,   16  Am.    St.   242,   6   L.  found   to  possess.'     (See  also  same 

R.    A.   418.  case,  84  111.  4S3).     So  in  Chicago  v. 

"The  giving  of  this  instruction  is  Keefe,  114  111.  222,  2  N.  E.  267.  the 

urged   as   error,  and   is   said   to   be  deceased   being  a  lad   between  ten 

directly  contrary  to  the  law  in  this  and  eleven  years  of  age,  an  Instruc- 

class   of  cases.     We  find,  however,  tion    given    at    the    request    of   the 

in  "Weick  v.  Lander,  75  111.  93,  which  plaintiff  limited  the  degree  of  care 

was  an  action   by   a  father  as  ad-  required  of  the  deceased  to  such  as 

ministrator    for  the   wrongful   kill-  'from   his  age  and  intelligence  under 

ing  of  his  son,  twelve  years  of  age,  the  circumstances  in  evidence  was 


904 


FORMS  OF  INSTRUCTIONS. 


[§  1354. 


(b)  The  jurj^  are  instructed  that  in  determining  the  relative  de- 
gree of  care  or  want  of  care  manifested  by  the  parties  at  the  time  of 
the  injury,  the  age  and  discretion  of  the  party  injured  are  proper  sub- 
jects for  the  jury.  The  law  does  not  require  that  a  child  shall  exer- 
cise the  same  degree  of  care  and  caution  as  a  person  of  mature  years, 
but  only  such  care  and  caution  as  a  person  of  his  age  and  discretion 
would  naturally  and  ordinarily  use. 

(e)  The  jury  are  instructed  that  the  rule  as  to  contributory  negli- 
gence of  a  child  is  that  it  is  required  to  exercise  only  that  degree  of 
care  which  a  person  of  that  age  would  naturally  and  ordinarily  use 
in  the  same  situation  and  under  the  same  circumstances.^^ 


required.'  The  phraseology  was  con- 
demned, but  it  was  held  that  inas- 
much as  it  was  in  effect  the  same 
as  if  it  had  been  limited  to  'such 
care  as  might  be  expected  of  a 
person  of  his  age  and  discretion,' 
there  was  no  substantial  error  in 
giving  it.  And  it  was  fui'ther  said: 
'The  circumstances  in  evidence  are 
always  to  be  taken  into  considera- 
tion in  such  cases,  and  if  the  in- 
testate exercised  such  care  as,  un- 
der the  circumstances,  might  be 
expected  from  one  of  his  age  and 
intelligence,  it  was  sufficient.' 
These  decisions  are  in  harmony 
with  those  of  other  states  on  the 
same  subject,  and  but  recognize 
the  rule  laid  down  by  approved 
text  writers  on  negligence.  Shear- 
man &  Redfield  Neg.,  sec.  49; 
Wharton  Neg.,  sec.  309.  The  in- 
struction was  proper." 

For  a  ca.se  in  which  an  instruc- 
tion was  given  on  the  assumption 
that  the  child  in  question  was  thir- 
teen when  he  was  in  fact  four- 
teen, see  Mester  v.  Wuest,  57  111. 
App.    122    (125). 

See  also  United  Breweries  Co.  v. 
O'Donnell,  221  111.  334,  337,  77  N.  B. 
547;  St.  Louis,  etc.,  Rd.  Co.  v. 
Vallrlus,  56  Ind.  511;  McMillan  v. 
Burlington,  etc.,  Rd.  Co.,  46  la. 
231;  Cleveland,  etc.,  Rd.  Co.  v. 
Miinsnn.  31  Ohio  St.  4.'jl;  Chicago, 
etc.,  Rd.  Co.  v.  Murray,  71  111. 
601;  Baltimore,  etc.,  Rd.  Co.  v.  Mc- 
Donnell, 43  Md.  534;  Gov.  St.  Rd. 
Co.  v.  Hanlon,  53  Ala.  70;  Isabel 
V.  Hannibal,  etc.,  Rd.  Co.,  60  Mo. 
475. 

63 — Norton  v.  Volzke,  158  111  402, 
affg  54  111.  App.  545.  41  N.  JO.  1085, 
49  Am.   St.  167. 

"These  In.struction.s  inform  the 
Jury  that  the  ngc  and  (li.scretion 
of  the  party  Injiirc/d  are  proper 
.subject.s  for  enquiry,  that  the  law 


does  not  require  one  of  tender 
years  to  exercise  the  same  degree 
of  care  and  caution  as  a  person  of 
mature  years,  and  that  a  child  is 
only  required  to  exercise  that  de- 
gree of  care  which  one  of  that 
age  would  naturally  and  reasonably 
use  in  the  same  situation  and  un- 
der like  circumstances.  In  Herd- 
man-Harrison  Milling  Co.  v.  Spehr, 
145  111.  329,  33  N.  E.  944  (a  case 
similar  in  many  respects  to  this), 
this  court  said  (p.  33):  'If  plaintiff 
had  been  an  adult  and  unimpaired 
in  faculties,  he  would  unquestion- 
ably on  the  case  made  be  held  to 
have  assumed  the  risk  of  his  em- 
ployment with  the  machinery  un- 
covered as  it  was  when  he  entered 
the  service  of  appellant.  It  is  not 
claimed  that  the  danger  to  which 
he  was  exposed  by  reason  of  the 
gear  being  left  uncovered  was  not 
patent  to  everyone  of  ordinary  in- 
telligence and  experience.  It  is 
alleged  in  the  declaration  that  for 
a  year  prior  to  the  injury,  plaintiff 
had  been  in  the  saine  employment, 
the  machinery  remaining  in  the 
same  condition.  That,  as  between 
employer  and  employe,  the  latter 
assumes  all  the  usual  known  dan- 
gers incident  to  the  employment, 
that  he  also  takes  upon  himself  the 
hazard  of  the  use  of  defective  tools 
and  machinery  if,  after  his  em- 
ployment, he  knows  of  the  defects 
but  voluntarily  continues  in  the 
employment  without  objection,  are 
frimiliar  rules  of  law  often  recog- 
nized by  the  decisions  of  this  and 
other  courts.  That  this  general 
rule  does  not  apply  to  employes 
who,  from  youth  or  want  of  their 
natural  faculties  are  unable  to 
appreciate  the  danger  incident  te 
the  employment,  or  which  may  re- 
.inlt  from  the  continued  use  of  de-i 
fective      machinery     or     tools,      is 


§  1354.]  NEGLIGENCE— IX  GENERAL.  905 

(d)  The  court  further  instructs  the  jury  that,  if  they  believe  from 
the  evidence  that  the  plaintiff  at  the  time  of  the  accident  was  a  child 
between  the  age  of  five  and  six  years,  then  he  cannot,  because  of  his 
tender  j-ears,  be  guilty  of,  or  be  charged  with,  carelessness  or  negli- 
gence in  respect  to  the  accident  in  this  case,  so  as  to  relieve  at  all 
any  want  of  due  care  on  the  part  of  the  railroad  company,  so  that,  if 
the  jury  further  believe  from  the  evidence  that  the  accident  causing 
the  injury  to  plaintiff  was  due  to  the  want  of  due  and  ordinary  care 
by  the  defendant  railroad,  then  vou  must  find  a  verdict  for  the  plain- 
tiff, and  no  want  of  care  by  the  plaintiff  will  save  the  defendant  from 
the  liability  for  the  accident.*'* 

(e)  In  this  connection  I  further  charge  you  that  the  conduct  of 
a  child  of  tender  years  is  not  to  be  judged  by  the  same  rule  which 
governs  that  of  adults.  While  it  is  the  general  rule  in  regard  to  an 
adult  that  to  entitle  him  to  recover  damages  for  an  injury  resulting 
to  him  from  the  fault  or  negligence  of  another,  he  must  himself  have 
been  free  from  negligence  and  fault.  This  rule,  however,  when  ap- 
plied to  a  child  of  tender  years  will  not  prevent  a  recovery  by  it  un- 
less it  is  possessed  of  that  degree  of  intelligence,  prudence  and 
caution  which  will  cause  it  to  know  and  to  appreciate  and  to  under- 
stand the  dangers  incident  to  itself  from  its  wrongful  acts  and  omis- 
sions.*'^ 

(f )  The  degi'ee  of  diligence  that  the  law  requires  of-  the  plaintiff 
was  that  care  which  would  reasonably  be  expected  of  a  boy  of  his  age 

equally     well     settled.      Such     em-  capable    of    such    conduct    as    wMll 

ployes  are  entitled  at  the  hands  of  constitute    contributory   neglig-ence, 

their   employers   to    instructions   as  and  that  the  court  may  so  declare 

to  the  dang-er  and  how  to  avoid  it  as  a  matter  of  law.'    (C.  C.  Ry.  Co. 

—in  other  words,  they  are  entitled  v.    Wilcox,    138    111.    370,    27    N.    E. 

to    be    put    in    possession    of    that  899,  21  L.  R.  A.   76.)     The  rule  has 

knowledge   which   to   adults   comes  its  basis  in  the  well-known  imma- 

from  experience  and  mature  judg-  turity    of    a    child    of    such    tender 

ment.     (2  Thompson  on  Negligence,  years"    (p.    427). 

978;     Deering    on     Negligence,     sec.  65 — No.    Texas   Con.    Co.   v.    Bost- 

197;    Wood    on    Master    &    Servant,  wick,    83    Tex.    Civ.    App.    12,    80   S. 

sec.   350).     See  also   Jones  v.    Flor-  W.   109   (110). 

ence  Min.  Co.,  66  Wis.  268,  28  N.  "If  the  plaintiff  was  possessed  of 
W.  207,  57  Am.  Rep.  269;  Spring-  sufficient  knowledge  and  discretion 
field  Cons.  Ry.  Co.  v.  Welch,  155  to  understand  the  danger  to  him- 
lil.  511,  40  N.  E.  1034.  .  .  .  While  self  of  being  in  appellant's  gin 
it  is  true,  perhaps,  that  these  in-  house  while  its  machinery  was  be- 
structions  might  have  been  more  ing  operated,  the  law  of  contrib- 
skillfully  drawn,  they  correctly  utory  negligence  applicable  to.  an 
state  the  law  in  this  state,  and  the  adult  was  applicable  to  him;  while 
jury  could  not  have  been  deceived  on  the  other  h.nnd,  if  he  was  not 
or  misled  by  them."  possessed  of  such  knowledge  and 
64— C.  C.  Ry.  Co.  v.  Toohey,  196  discretion,  a  different  rule,  as  an- 
111.  410  (418),  63  N.  E.  997,  5S  L.  R.  nounced  by  the  charge,  should  be 
A.  270.  "We  are  of  opinion  that  applied.  But  w-hether  the  charge  is 
there  was  no  error  in  giving  this  to  be  defended  upon  this  ground  or 
instruction  in  analog^'  to  the  rule  not,  we  think  it  a  very  clear  state- 
in  law  whioh  exempts  ch'ldren  un-  ment  of  the  rule  of  contributory 
der  sevpri  y^a'-s  of  asrp  from  crim-  negligence  when  applied  to  a  child 
inal  responsibility,  that  up  to  the  of  tender  years,  and  therefore  un- 
age  of  seven  years  'a  child  is  in-  objectionable  in  the  present  case." 


906  FORMS  OF  INSTRUCTIONS.  [§  1355. 

and  capacity.  You  heard  the  testimony  as  to  his  age;  you  saw  him 
when  he  was  upon  the  stand;  and,  in  passing  upon  what  degree  of 
care  he  should  have  exercised  on  that  occasion,  you  may  take  into 
consideration  his  appeai'ance  on  the  stand,  his  manner  of  testifying, 
and  the  capacity  that  he  exhibited  while  a  witness  on  the  stand.  As 
I  stated  to  you,  the  care  that  the  law  requires  of  him  was  that  care 
which  might  be  reasonably  expected  of  a  person  of  his  age  and 
capacity."^ 

§  1355.  Same  Subject — Failure  of  Infant  Plaintiff  to  Use  Adequate 
Care,  (a)  Althouiili  the  jury  may  believe  from  the  evidence  the  de- 
fendant was  guilty  of  negligence,  still  if  they  shall  further  believe 
from  the  evidence  plaintiff  failed  to  exercise  that  degree  of  care  and 
caution  which  persons  of  his  age,  capacity  and  experience  may  rea- 
sonably be  expected  to  use,  in  the  same  situation  and  under  like  cir- 
cumstances, and  that  but  for  the  failure  to  use  such  care  and  caution 
the  injury  to  him  would  not  have  occurred,  the  plaintiff  was  guilty 
of  contributory  negligence,  and  the  law  is  for  the  defendant,  and  the 
jury  should  so  find.^^ 

(b)  The  court  instructs  the  jury,  if  they  believe  from  the  evi- 
dence that  S.  W.,  the  infant  plaintiff,  was  warned  of  the  danger  in 
playing  upon  the  hand  car,  and  was  of  sufficient  intelligence  to  com- 
prehend the  danger  incident  to  doing  so,  yet  he  persisted  in  playing 
with  said  rnaehine,  the  court  instructs  the  jury  that  such  action  on 
his  part  amounts  to  contributoiy  negligence  such  as  will  bar  his 
right  of  recoveiy,  although  they  may  further  believe  that  it  was 
grossly  negligent  in  the  defendant  company  to  leave  said  machine 
where  it  was  left.®^ 

(e)  If  the  jury  believe  from  the  evidence  in  this  ease  that  the 
plaintiff  at  the  time  of  the  injuiy  complained  of,  had  sufficient  age 
and  sufficient  intelligence  and  experience  to  properly  appi'ehend  and 
understand  the  risks  he  took  in  jumping  on  to  the  rear  of  a  passing 
wagon  and  thus  remaining  and  riding,  then  you  are  instructed  that 
the  law  charges  him  with  the  same  responsibility  for  his  conduct  as 
if  he  were  of  full  age,  and  that  want  of  ordinary  care  on  the  part  of 
the  plaintiff,  if  shown  by  the  evidence,  would  be  a  complete  defence 
to  his  suit,  the  same  as  if  he  were  of  full  age.°^ 

(d)  The  JU17  are  instructed  that,  while  a  minor  is  not  required 
to  exercise  the  same  degree  of  care  and  pi-udenee  for  his  or  her 
safety  which  is  required  of  a  person  of  mature  age,  yet  he  or  she  is 
required  to  exercise  such  ordinaiy  care  for  his  or  her  own  safety  as 
is  commonly  exercised  by  one  of  like  years,  experience  and  intelli- 
gence. Unless  the  plaintiff  in  this  ease  has  proven  by  a  preponder- 
ance of  the  evidence  that  she  did  exercise  such  degree  of  care  for 

BR—rjoorprln.   C.   &   N.   Tty.   Co.   v.  68— T.    C.    R.    R.    Co.    v.    Wilson, 

Watkina.  07  Ca.  381,  24  R.  K,  :^4  (35).  supra. 

67— T.   C.   R.  R.   Co.  V.  Wilson,  23  69— Til.  Iron  &  M.  Co.  v.  Webber, 

Ky.  T..  684.  63  S.  W.  608.  196  111.   526  (535),  63  N.  E.  1008. 


§,1356.]  NEGLIGENCE— IN  GENERAL.  907 

her  own  safety  at  the  time  of  the  alleged  injuiy,  the  juiy  should  find 
for  the  defendant.'^*' 

(e)  The  mere  fact  that  there  is  negligence  shown  by  the  plaintiffs 
to  have  existed  on  the  part  of  the  defendant  or  the  defendant's 
servant  -would  not  entitle  the  plaintiffs  to  a  verdict,  if  there  was 
negligence  on  the  part  of  the  plaintiff  which  contributed  to  bring 
about  the  accident.  Negligence,  to  be  a  subject  of  recoveiy,  must 
be  the  cause  of  the  injuries  which  are  complained  of;  and,  if  those 
injuries  are  brought  about  by  carelessness  on  the  part  of  the  man 
who  is  injured,  the  consequences  and  the  results  of  the  injui'ies  lie 
just  where  they  have  fallen.  So  that  if  you  come  to  the  conclusion 
that,  under  the  circumstances  here,  the  defendant's  driver  was  guilty 
of  negligence,  you  are  confronted  with  the  question  whether  the  boy, 

,  himself,  was  careless,  and  whether  he  failed  to  take  that 

care  for  his  safety  which,  under  the  circumstances  in  question,  he  or 
any  boy  of  his  age  of  an  equal  degree  of  intelligence  with  that  pos- 
sessed by  him  would  have  taken.  Was  he  inattentive  to  what  was 
before  him?  Did  he  shut  his  eyes  to  that  which  he  was  bound  to  see 
and  which  was  obvious  ?  If  he  was  lacking  in  the  degree  which  you 
have  a  right  to  expect  from  him  under  the  circumstances,,  and  if  his 
failure  to  take  care  of  himself  contributed  to  bring  about  his  in- 
juries, neither  he  nor  his  father  are  entitled  to  any  damages.'^ 

§  1356.  Intoxication  as  Contributory  Negligence  (a)  The  court 
instructs  the  juiy,  as  a  matter  of  law,  that  a  man  cannot  voluntarily 
place  himself  in  a  condition,  whereby  he  loses  such  control  of  his 
brain  or  muscles  as  a  man  of  ordinaiy  prudence  and  caution  in  the 
full  possession  of  his  faculties  would  exercise,  and  by  such  loss  of 
control  contribute  to  an  injui'y  to  himself,  and  then  hold  one  ignorant 
of  his  condition  liable  in  damages.  And  if  you  believe,  from  the  evi- 
dence, that  at  the  time  of  the  alleged  injury,  the  plaintiff  was  so  in- 
toxicated, that  he  had  lost  eontx*ol  of  his  brain  or  muscles  as  an  or- 
dinarily prudent  and  cautious  man  in  the  full  possession  of  his  facul- 
ties would  exercise  under  similar  circumstances,  and  that  the  de- 
fendants were  ignorant  of  such  condition,  and  if  you  further  find, 
from  the  evidence,  that  such  intoxication  contributed  to  the  alleged 
injury,  then  the  plaintiff  cannot  recover. '^^ 

(b)  Since  a  person,  when  intoxicated,  is  less  likely  to  use  ordi- 
nary care  in  a  given  instance  than  when  he  is  sober,  it  is  always 
proper  to  inquire  into  his  condition  in  this  respect.  If  he  has  been 
called  upon  to  use  such  care,  and  if  it  is  found  that  at  the  time  he 
was  intoxicated,  this  circumstance  may  be  considered  upon  the  ques- 
tion whether  he  did  in  fact  use  ordinary  care  at  the  time  in  question.'^' 

70— Lieserowitz  v.  W.  C.  St.  R.  R.  73— Guertin   v.   Town   of  Hudson, 

Co.,   80  111.   App.    248   (255).  71   N.   H.    505,   53  Atl.   736   (738). 

71 — Foote   v.    American    Pro.    Co.,  "The  instruction  of  the  court   on 

201  Pa.  510.  51  Atl.  364  (365).  the       question        of        intoxication, 

72 — Stranrl  v.  C.  &  W.  M.  Ry.  taken  as  a  whole,  was  in  accord- 
Co.,  67  Mich.   380,  34  N.   W.   715.  ance    with    the    law."      Stuart    v. 


908  FORMS  OF  INSTRUCTIONS.  [§  1357. 

§  1357.  Defective  Hearing,  (a)  You  are  instructed  that  wher- 
ever, in  any  of  the  instructions,  you  are  told  that  J.  H.  was 
bound  to  exercise  due  care  for  his  safety,  it  is  meant  that  the  law  r-e- 
quired  him  to  exercise  the  degree  of  care  that  a  reasonably  prudent 
person  in  possession  of  the  ordinary  senses  and  capacities  would  have 
exercised  under  the  facts  and  circumstances  in  evidence.  If  you  be- 
lieve he  was  old  or  hard  of  hearing,  yet  that  did  not  excuse  him  from 
the  duty  to  exercise  the  full  degree  of  care,  as  above  explained. 

(b)  You  are  instructed  that  if  you  believe  the  plaintiff  was  old  or 
his  hearing  defective,  yet  that  would  not  excuse  him  from  the  obliga- 
tion to  exercise  due  care.  He  was  bound  to  exercise  that  degree  of 
care  that  an  ordinarily  prudent  person  would  have  exercised  under 
the  circumstances  shown  in  evidence,  and  the  law  is  that  any  defect 
in  hearing  not  only  did  not  excuse  him  from  the  exercise  of  care,  but 
it  required  of  him  'the  greater  use  of  his  other  senses  to  discover 
whether  a  car  Avas  approaching.  If  he  failed  to  exercise  such  care 
then  he  cannot  recover  and  your  verdict  should  be  not  guilty.'^* 

S  1358.  Contributory  Negligence — Effect  of  Terror  in  Sudden 
Emergency.  The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  W.  H.  F.,  through  the  negligence  of  the  defendant, 
was  in  ten'or  of  an  emergency  for  which  he  was  not  responsible,  and 
for  which  the  defendant  was, — he  acted  wildly  and  negligently,  and 
lost  his  life  in  consequence, — said  negligent  conduct,  under  such  cir- 
cumstances, is  not  contributory  negligence.  In  such  case  the  negli- 
gent act  of  the  defendant  is  the  proximate  cause  of  the  injury.'^ 

§  1359.  Danger  Must  Be  Impending  for  Contributory  Negligence 
to  Be  a  Defense.  The  duty  resting  by  law  upon  all  persons  to  exer- 
cise ordinaiy  care  to  avoid  the  consequences  of  another's  negligence 
does  not  arise  until  the  danger  is  impending,  or  the  circumstances  are 
such  that  an  ordinarily  prudent  man  would  have  reason  to  appre- 
hend its  existence.  Failure  to  exercise  ordinaiy  care  on  the  part  of 
the  person  injured,  before  the  negligence  complained  of  is  apparent 
or  should  be  reasonably  apprehended,  would  not  preclude  a  recovery, 
but  would  authorize  a  jury  to  diminish  the  damages  in  proportion  to 
the  fault  of  the  person  injured.'^*' 

Machlns    Port,    48    Me.    477;    Alger  any    merit    in    the    exception    that 

V.    Lowell,    .3    Allen    402;    Thorp    v.  this    charge,    'without    qualification 

Town   of   Brookfield,    36   Conn.   320;  or    further    explanation,    wfis    cal- 

Kinprston   v.    Ft.    W.    &   E.   R.   Co.,  culated    to    mislead    the    jury,    and 

112    Mich.   40,   70   N.   W.    315.   74   N.  was  an  expression   of  opinion  that 

W,   230,    40   L.   R.   A.   138e;   Thomp.  the     danger     was     not     impending, 

Neg.    85  340,    4')2,    494.  and    should   not   have   been   appre- 

74— T.  P.   &  W.  Ry.   Co.  v.  Ham-  hended     by     the     plaintiff,     at    the 

mr-tt.    220   III.    9,    77    N.    E.    72.  time  she  was   injured.'     There  was 

7.^5— P.    &   O.    R.   R.   Co.   V.   Pew's  no   expression    of   opinion   involved 

Exr.,   94  Va.  82.   2B  S    E.   40(5   ("407).  in   the  charge,   and   we   do   not   see 

76— Atlanta   K.    &   N.    Rv.    Co    v.  hoM'     the     jury    conld     have    been 

Crnrdnor.  122  Oa.  S2,  49  Ro.  818  ('820,  mi«lerl     into     believing    that     there 

8^1.    822).  was.      The   failure    of  the   court    to 

"We   do   not   think   that   there   Is  distinctly  charge  the  principle  that 


§  1360.]  NEGLIGENCE— IN  GENERAL.  909 

§  1360.  Injury  After  Defendant  Saw  Danger  in  Time  to  Avert  It — 
Willful  or  Wanton  Defined,  (a)  If  you  believe,  from  the  evidence, 
that  the  defendant,  or  its  servants,  were  guilty  of  negligence,  as  ex- 
plained in  tliese  instructions,  upon  the  occasion  referred  to,  and  that 
the  plaintiff  was  injured  thereby,  as  stated  in  the  declaration,  and 
that  he  has  sustained  damage  by  reason  thereof;  and  also  that  the 
plaintiff  was  himself  guilty  of  slight  negligence,  which  contributed 
to  the  injury,  and  without  which  the  accident  would  not  have  hap- 
pened, still  the  defendant  would  be  liable  in  this  case;  provided,  you 
further  believe,  from  the  evidence,  that  the  servants  of  the  defendant 
saw  the  danger,  to  which  the  plaintiff  was  exposed,  in  time  to  have 
averted  it,  and  by  the  exercise  of  ordinaiy  care  and  prudence  could 
have  prevented  the  injury."'^ 

(b)  The  court  instructs  the  jury  that  what  is  meant  by  willful 
and  wanton  misconduct  is  such  conduct  as  amounts  to  an  intentional 
wrong,  or  of  such  a  reckless  character,  as  shows  that  the  person  or 
persons,  guilty  of  such  misconduct,  were  at  the  time  acting  in  such 
manner,  as  shows  that  thej'  had  an  utter  disregard  for  the  safety  and 
lives  of  other  persons.''^ 

§  1361.  Burden  of  Proof  as  to  Contributory  Negligence — States 
Holding  Burden  Is  on  Plaintiff  to  Prove  Freedom  from  Contributory 
Negligence,  (a)  The  jury  are  instructed  that  before  the  plaintiff 
can  recover  a  verdict  in  this  ease,  the  law  requires  him  to  prove  by  a 
preponderance  of  evidence  that  at  the  time  he  received  the  injuiy 
complained  of  he  was  exercising  that  degree  of  care  and  caution 
which  a  reasonable,  prudent  and  cautious  man  would  have  exercised 
under  like  circumstances,  and  in  the  situation  that  plaintiff  was 
placed,  as  shown  by  the  evidence;  and  if  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  at  the  time  he  received  the  injury  com- 
plained of  did  not  exercise  such  care  and  caution  for  his  personal 
safety,  he  cannot  recover  in  this  action,  and  your  verdict  should  be 
for  the  defendant.'^ 

the    plaintiff    could    not    recover   if  neg-lig'ence   by   the    exercise   of   or- 

she  could,   by  the  exercise  of  ordi-  dinary    care.      This    we    understand 

nary   care,   have   avoided   the   con-  to    be    the    doctrine    laid    down    in 

sequences  of  the   defendant's   neg--  Western       &      Atlantic       Railroad 

ligence,    did    not   make    the   charge  Company     v.     Ferg-uson,     113     Ga. 

here    excepted    to    erroneous.      The  708,   39   S.   E.   305,   54  L.   R.   A.   802." 

failure    to    give    this    principle    in  77 — Wharton       on      Ncg.,       §  301; 

charge    at    all    has    been    properly  Cooley    on    Torts     (3d     Ed.)     1443; 

excepted   to   in   another   ground    of  Harlan  v.   St.   Louis,  etc.,   Rd.   Co., 

the    motion,    which    we    will    here-  65    Mo.    22;    Floyd    v.    Paducah    R. 

inafter    consider.     ..."  &    L.    Co.,    24    Ky.    Lr.    R.    2364,    7S 

"The    law   of   contributory   negli-  S.   W.    1122;    Norfolk   &   W.    R.    Co. 

gence    is    not    applicable    to   a   case  v.    Spencer's    Adm'x,    104    Va.    657, 

in    which    the   fn^ts    show   that   the  52    S.    E.    310. 

person    ininrod    did    not   fail   to   ex-  78 — T.   C.   R.   R.  Co.  v.  Leiner,  202 

erri<?e     ordinary     care     before     the  Til.    624.    aff'd    103    111.    App.    438.    67 

nea-ligenre    of    the    defendant    was  N.    E.    398.    95   Am.   St.   Rep.   266. 

either     apparent     or     .should     have  79— Donley    v.    Dougherty,    75    Til. 

been     apprehended     by     him,     and  App.    379     r382),    aff'd    174    III.    582, 

could     not    after    that     time    have  51    N.    E.    714. 
avoided    the    consequence    of    such 


910  FORMS  OF  INSTRUCTIOljrS.  [§  1362. 

(b)  The  court  instructs  the  jury  that  the  burden  of  proof  is  not 
upon  the  defendants  to  show  that  they  are  not  guilty  of  the  specific 
negligence  charged  in  the  declaration,  or  in  some  count  thereof,  but 
the  burden  is  upon  the  plaintiff  to  prove  that  the  defendants  are 
guilty,  and  also  to  prove  that  he  himself  was  in  the  exercise  of  ordi- 
nai-y  care  for  his  own  safety,  and  this  rule  as  to  the  burden  of  proof 
is  binding  in  law,  and  must  govern  the  jury  in  deciding  this  case.  The 
jury  have  no  right  to  disregard  said  rule  or  to  adopt  any  other  in 
lieu  thereof,  but  in  considering  the  evidence  and  coming  to  a  verdict, 
the  jury  should  adhere  to  said  rule.^° 

(c)  The  court  instructs  the  jury  that  the  burden  is  upon  the 
plaintiff  to  prove,  by  the  greater  weight  of  the  evidence,  not  only  the 
negligence  of  the  defendant  as  charged  in  the  declaration,  but  also 
to  prove  by  the  greater  weight  of  the  evidence  that  the  deceased  w^as 
free  from  negligence  which  contributed  to  the  collision  which  caused 
his  death,  and  if  you  find  from  all  the  evidence  in  this  case  that  the 
plaintiff  has  not  so  proven  both  of  said  facts,  then  you  should  find 
the  defendant  not  guilty.^^ 

(d)  The  jury  are  further  instructed  that  the  burden  is  on  the 
plaintiff  to  prove  by  a  preponderance  of  the  evidence  that  he  was 
exercising  such  care  and  caution  for  his  safety  in  going  on  to  the 
north  part  of  this  viaduct  while  it  was  being  repaired  in  view  of  the 
condition  existing  at  that  place  at  the  time  in  question  as  could  be 
reasonably  expected  from  a  boy  of  his  age  and  intelligence.^- 

§  1362.  Same  Subject — States  Holding  Burden  of  Proof  Is  on  De- 
fendant to  Establish  Plaintiff's  Contributory  Negligence,  (a)  The 
burden  of  proof  in  this  action  is  upon  the  plaintiff'  to  establish  by 
competent  evidence  eveiy  material  allegation  of  his  petition;  and,  the 
defendant  in  his  answer  having  alleged  contributory  negligence  on 
the  part  of  the  plaintiff,  the  burden  of  proof  is  upon  the  defendant 
to  establish  this  allegation  by  a  preponderance  of  the  evidence,  unless 
you  find  from  the  plaintiff's  own  testimony  that  he  was  guilty  of  con- 
tributory negligence. ^^ 

80— C.  U.  T.  Co.  v.  Mee,  218  111.  9,  that,    'in   an   action    for   neglig'ence 

75    N.    E.    800.  where    the    plaintiff    can    prove    his 

81— C.   B.   &  Q.   R.    R.   Co.   v.  Ap-  case  without  disclosing  any   negli- 

pell.  10.3  Til.  App.   185  (187,  188).  gence     on     his     part,     contributory 

"That   this  instruction  stated  the  negligence   is   a  matter  of  defense, 

law    correctly    can     not    be    ques-  the  burden  of  proving  it  being  on 

tioned.     We   do   not    find    that   the  the  defendant.'     That  decision  was 

principle  of  law  sought  to  be  pre-  rendered      after     a     very     careful 

sented  to  the  jury  by  this  instruc-  examination   of  the  authorities  for 

tlon    is    fully    covered    by    another  and    against    the    proposition,    and 

Instruction,     and     appellant     there-  the      con<^lusion      reached      in      our 

fore   had   a   right  to   have   it  go  to  view  is   right,  and  will   be  adhered 

th':    Jury."  to.      The     doctrine    of    that     case, 

82 — Chlcaero     v.     Walter,     93     Til.  however,    can   have   no   application 

App.    228    (230).  where    the    plaintiff    in    his    testi- 

83 — Durrell    v.    .Tohnson,    31    Neb.  mony  has  stated   fncts  from   which 

79fi.    48    N.    W.    890.  the    .iury   could    find    that    his    own 

'•Tn    1/in^'oln    v.    Walker,    18    Neb.  negligence    had    contributed    to    the 

244,   20   N.   W.   113,    this   court   held  injury.      This    element    is    entirely 


§  1363.]  NEGLIGENCE— IN  GENERAL.  911 

(b)  If  you  believe,  from  the  evidence,  that  the  carelessness  and 
negligence,  if  any  there  was,  on  the  part  of  the  plaintiff  contributed 
to  the  alleged  injury  complained  of,  I  instruct  you  that  the  plaintiff 
in  this  action  cannot  recover;  but  the  burden  of  proof  is  upon  the  de- 
fendant to  show  that  the*  plaintiff  was  guilty  of  contributory  negli- 
gence, if  any  there  was,  and  the  defendant  must  prove  that  fact  by  a 
fair  preponderance  of  the  evidence.^* 

(c)  If  you  should  find  that  the  injuries  occurred  by  reason  of  any 
negligence  on  the  part  of  the  defendants,  then  the  plaintiff  is  en- 
titled to  recover,  unless  it  affirmatively  appears  by  a  preponderance 
of  evidence  on  that  point  that  the  plaintiff  was  guilty  himself  of 
negligence  which  contributed  to  the  injuries  in  question.  The  ques- 
tion of  contributory  negligence  of  the  plaintiff  is  a  matter  of  defense, 
which  must  be  affirmatively  established  by  a  fair  preponderance  of 
evidence.  If,  on  this  question  of  contributory  negligence  you  should 
find  that  the  evidence  was  equally  balanced,  then  upon  that  question 
you  would  have  to  find  in  favor  of  the  plaintiff.*^ 

§  1363.  Imputed  Negligence— Rule  in  Ohio.  The  court  instructs 
the  jury  that  the  doctrine  of  imputed  negligence  does  not  prevail  in 
the  state  of  Ohio;  and  if  you  find  that  X.  died  through  the  wrongful 
act,  neglect  or  default  of  the  defendant,  by  himself  or  his  agent,  then 
the  plaintiff  is  not  deprived  of  the  right  of  action  in  this  case  by 
reason  of  contributory  negligence  on  the  part  of  her  husband  or  any 
one  else,  unless  such  person  was  acting  as  her  agent  at  the  time.^^ 

8 1364.  Same  Subject — Negligence  as  Regards  Children,  (a)  The 
jury  are  instructed,  that  negligence  is  the  omission  of  such  care  or 

ignored    in    the    instruction    given,  appreciate      that      plaintiff's      con- 

The    court,    therefore,    should    have  tritautory    neg-ligence    could    be    as 

added      to      the      instruction       the  well    established    by    his    own    evi- 

qualification,   'unless  you   find  from  dence    if    it    appeared     therein    as 

the   plaintiff's    own   testimony   that  by    that   of   his    adversary    was    no 

he     was     guilty     of     contributory  justification  for  the  refusal   to  in- 

negligence,'       this       would       have  struct     as     requested,      and,      evi- 

adapted     the     instruction     to     the  dently,  was  not  the  reason  for  the 

evidence."  refusal.       If    it     was     feared     that 

84— Van    Camp    H.    &    I.    Co.    v.  the  abstract  propositions   found   in 

O'Brien,  28  Ind.  App.  152,  62  N.  E.  the  request  might  not  be  correctly 

464.  applied    by    the    jury    to    the    facts 

85 — Parsons    v.    Lyman,    71    Minn,  as    proven,    the    court,    of    its    own 

34,    73   N.   W.   634.  motion,   or  upon    the   suggestion   of 

"The  propositions  stated  in  the  counsel,  could  easily  have  in- 
request  were  clear,  precise  and  structed'  upon  this  point,  and 
intelligible.  As  abstract  state-  should  have  done  so.  As  the  re- 
ments  of  the  law,  they  were  cor-  jected  request  contained  a  perti- 
rect.  The  objection  to  the  in-  nent  and  material  instruction,  and 
struction  embodied  in  the  request  the  ground  was  not  covered  else- 
could  not  have  been  that  the  where  in  the  charge,  but,  on  the 
language  was  obscure  or  ambigu-  contrary,  the  jury  was  incorrectly 
ous,  but,  rather,  that  it  might  not  charged,  there  was  error  for 
be  properly  applied  by  the  jury  which  a  new  trial  must  be  had." 
to  the  evidence,  without  some-  86 — Davis  v.  Guarnieri,  45  Ohio 
thing  further  and  explanatory.  St.  470,  15  N.  E.  350,  4  Am.  St. 
That    the     jury    might    not     fully  548. 


912 


FORMS  OF  INSTRUCTIONS. 


[§  1364. 


caution,  as  persons  of  ordinary  prudence  usually  exercise  or  deem 
sullieient,  under  the  same  or  similar  circumstances  of  the  case.  And 
in  this  case,  if  the  jury  believe,  from  the  evidence,  that  the  child  in 
question  was  injured  through  the  negligence  of  the  defendant,  as 
charged  in  the  declaration,  then  it  will  be  for  the  jury  to  determine, 
from  the  evidence,  whether  the  parents  of  the  child  were  in  the  ex- 
ercise of  ordinary  care  and  prudence,  for  the  safety  of  the  child,  re- 
gard being  had  to  his  age  and  intelligence  and  all  the  surrounding 
circumstances.^'' 

(b)  The  jury  are  instructed  that,  if  they  believe,  from  the  evi- 
dence, that  deceased,  at  the  time  of  his  injury,  from  his  age,  re- 
quired the  care  and  oversight  of  some  older  person  in  order  to  insure 
his  personal  safety,  and  further,  that  at  the  time  of  the  injurj' 
reasonable  care  and  oversight  were  not  exercised  by  the  parents  (or 
either  of  them)  of  the  child  for  its  personal  safety,  and  that  such 
want  of  reasonable  care  contributed  directly  to  the  injury,  then  the 
plaintiff  cannot  reeover.^^ 

(e)  Where  the  pai'ents  of  an  infant  or  a  child,  too  young  to  be 
allowed  on  the  public  streets  alone,  a,\e  unable  to  give  him  their  per- 
sonal care,  but  do  intrust  him  to  the  eare  and  supervision  of  a  suit- 


"The  court  below  was  asked  to 
apply  the  familiar  principle  of 
contributory  negligence  as  a  de- 
fense to  the  plaintiff's  action.  To 
do  this  it  became  necessary  in 
case  the  jury  should  find  the  wife 
without  fault,  to  insist  that  the 
negligence  of  the  husband  contrib- 
uted with  that  of  the  defendant 
to  produce  the  injury  complained 
of.  This  defense  necessarily  in- 
volved the  assumption  either  that 
the  husband  was  the  agent  of  the 
wife,  or  that,  by  reason  of  their 
marital  relations,  his  negligence 
was  to  be  imputed  to  her.  The 
contention  now  is  that  the  doc- 
trine of  imputed  negligence  still 
prevails  in  Ohio,  so  far  as  relates 
to  husband  and  wnfe.  In  Bellefon- 
taine  &  Ind.  R.  R.  Co.  v.  Snyder, 
18  Ohio  St.  399,  it  was  held  that 
the  negligence  of  a  parent  or 
custodian  of  a  child  cannot  be 
imputed  to  the  child  to  bar  its 
right  of  action  against  others  for 
injuries  resulting  from  their 
wrongful  acts.  Again,  it  was  said 
hy  this  court  in  Cleveland,  C.  & 
C.  R.  R.  Co.  v.  Manson,  30  Ohio 
St.  451,  (first  paragraph  of  the 
syllnbus):  'The  dnr-trine  of  im- 
puted npgllgen<^e  does  not  prevail 
In  Ohio;  and  a  child  of  tender 
yoars.  Injured  by  the  fault  of 
another  is  not  deprived  of  a  right 
of  action  by  reason  of  contributory 


negligence  on  the  part  of  a  parent 
or  guardian.  In  Transfer  Co.  v. 
Kelly,  36  Ohio  St.  86,  38  Am.  Rep. 
558,  it  was  held  that  in  an  action 
by  a  railroad  passenger  (without 
fault  himself)  for  a  personal  in- 
jury, against  a  defendant  whose 
negligence  directly  and  proxi- 
mately concurred  with  the  negli- 
gence of  the  railroad  coinpany  in 
producing  the  injury,  the  concur- 
rent negligence  of  the  company 
cannot  be  imputed  to  the  plaintiff 
so  as  to  charge  him  with  contrib- 
uting to  his  own  injury.  In 
Street  Railway  Co.  v.  Eadie,  43 
Ohio  St.  91,  1  N.  E.  519,  a  minor 
fully  capable  of  taking  reasonable 
care  of  herself  was  riding  with 
her  father  in  his  wagon,  when  she 
was  injured  by  a  collision  between 
the  wagon  and  street  car,  caused 
by  the  mutual  negligence  of  her 
father  and  a  street  car  driver,  but 
without  fault  on  her  part.  It  was 
held  that  her  father's  negligence 
was  not  to  be  imputed  to  her  to 
bar  her  recovery  against  the 
street  car  company." 

87 — Johnson's  Adm'r.  etc.,  v.  Chi. 
&  N.  W.  Ry.  Co.,  49  Wis.  529,  5 
N.   W.   886. 

88— True  &  True  Co.  V.  Woda, 
201  111.  31  .'5.  66  N.  E.  369,  aff'g  104 
111.  App.  15;  J.  M.  &  L.  Rd.  Co. 
v.    Bowen,    40    Ind.    545. 


?,1365.]  NEGLIGENCE— IN  GENERAL.  913 

able  person,  the  negligence  of  the  latter  cannot  be  imputed  to  the 
parents  nor  to  the  chilcl.^^ 

(d)  As  pertinent  to  the  question  of  reasonable  care,  regarding 
the  child,  the  juiy  may  consider  whether  it  aiipeaxs,  from  the  evi- 
dence, that  he  was  of  such  tender  years  as  to  need,  for  his  personal 
safety,  the  care  and  oversight  of  some  older  person;  and,  if  the  juiy 
so  find,  from  the  evidence,  then  they  should  inquire  whether  it  ap- 
pears, from  the  evidence,  that  at  the  time  of  the  accident  some  older 
person  was  exercising  such  care  and  oversight  over  the  person  of  the 
child,  as  ordinarily  judicious  and  careful  persons,  having  the  care  of 
children  of  like  age,  usually  exercise  over  them.*^" 

§  1365.    Parties   to    Action    for   Negligence — Several   Defendants. 

(a)  The  court  instructs  the  jury  that  notwithstanding  plaintiff  has 
alleged  in  his  complaint  joint  and  concurrent  negligence  on  the  part 
of  all  the  defendants,  I  charge  you  that  if  the  proof  fails  to  show 
such  joint  and  concurrent  negligence  on  the  part  of  all  the  defend- 
ants, yet  shows  negligence  on  the  part  of  one  or  more  of  the  defend- 
ants which  negligence  resulted  in  injury  to  plaintiff,  as  the  sole  and 
proximate  cause  thereof,  then  you  may  find  a  verdict  against  such  de- 
fendant or  defendants  as  the  proof  shows  was  guilty  of  such  negli- 
gence.^^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  has 
proved  the  allegations  contained  in  one  or  more  counts  of  his  declara- 
tion by  a  preponderance  of  the  evidence,  and  if  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  was  injured  as  alleged,  and  if  you  be- 
lieve, from  the  evidence,  that  the  plaintiff  at  the  time  of  such  injury 
was  in  the  exercise  of  reasonable  care  for  his  safety,  and  if  you 
further  believe,  from  the  evidence,  that  such  injury,  if  proved,  was 
caused  by  or  through  the  negligence  of  the  defendants,  or  either  of 
them,  as  alleged  in  either  count  of  the  declaration,  then  the  plaintiff 
is  entitled  to  recover  from  the  defendant  or  defendants  proven 
guilty  such  damages  as  you  believe,  from  the  evidence,  will  compen- 
sate him  for  the  injury  sustained. ^- 

§  1366.  Corporation  Has  Same  Status  as  Individual.  You  are  in- 
structed by  the  court  that  it  is  your  imperative  duty  to  try  this  case 
and  decide  the  same  as  if  it  was  a  suit  between  two  individuals.  The 
fact  that  the  person  injured  was  a  boy,  and  the  defendant  a  coipora- 

89— Walters    v.    C,    R.    I.    &    P.  of  the  defendants  or  either  of  them 

Rd.    Co.,   41   la.    71.  as    alleged    in    either    count    of   the 

90 — Kvansville,    etc.,    Rd.    Co.    v.  declaration,    plaintiff    was    entitled 

Wolf,    59    Ind.    89.  to  recover;    for  where  two   defend- 

91 — Carson   v.    Southern   Ry.   Co.,  ants  are  sued   for  a  tort,  it  is  not 

68   S.   C.   55,   46  S.   E.    525   (532).  necessary  that  both  must  be  found 

92 — Chi.    Telephone    Co.   v.    Hiller,  pruilty  or  neither,  but   one  may  be 

106    Til.    App.    306     (310),    aff'd     203  found       eruiltv       and       the       other 

111.    518,    68   N.    E.   72.  acquitted.     C.    &  W.   T.    Ry.   Co.   v. 

"This    instruction     was     literally  Doan.    93    111.    App.    247."     Aff'd   195 

correct   in   statinpr   that    if   the   in-  111.   168,  62  N.  E.   826. 
jury  was  caused  by  the  negligence 

58 


914  FORMS  OF  INSTRUCTIONS.  [§  1367. 

tion,  should  make  no  difference  with  you  in  the  trial  of  this  action. 
In  considering  and  deciding  this  cause,  you  should  look  solely  to  the 
evidence  for  the  facts,  and  the  instructions  of  the  court  for  the  law, 
in  the  case,  and  find  your  verdict  accordingly,  without  any  reference 
to  who  is  plaintiff  and  who  is  defendant.  The  fact  that  the  plaintiff 
has  brought  suit  in  this  action  constitutes  no  ground  whatsoever  on 
which  to  base  the  presumption  that  he  is  entitled  to  a  verdict  against 
the  defendant.  That  he  is  a  poor  boy  constitutes  no  reason  why  the 
plaintiff  should  be  entitled  to  a  verdict.  All  these  things  are  outside 
of  what  you  are  to  consider.^^ 

§  1367.  Contractor's  Negligence,  (a)  The  court  instructs  the 
jury,  as  a  matter  of  law,  that  when  work  is  contracted  to  be  done  by 
a  contractor,  the  owner  retaining  or  exercising  no  control  over  the 
manner  of  doing  the  work,  and  the  work  is  not  of  itself  dangerous, 
but  only  becomes  so  by  the  negligence  of  the  contractor,  then  the  em- 
ployer is  not  liable  for  injuries  resulting  from  the  negligence  of  the 
contractor.^* 

(b)  Although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  was  the  owner  of  the  premises  adjoining  the  sidewalk  in 
question,  and  that  the  work  on  the  building  and  walk  was  being  done 
for  hire,  and  that  a  dangerous  and  unsafe  opening  had  been  left  in 
the  walk  by  reason  whereof  the  plaintiff  was  injured,  as  alleged, 
while  exercising  reasonable  care  himself,  still,  if  you  further  believe, 
from  the  evidence,  that  before  the  time  of  the  alleged  injury,  the  de- 
fendant had  entered  into  a  written  contract  with  A.  &  B.  for  an 
erection  of  a  building  on  said  premises,  and  that  the  said  A.  &  B. 
were  then  reputed  to  be  skillful,  reliable  and  competent  builders,  and 
that,  at  the  time  of  the  injury,  said  contractors  were  in  the  exclusive 
possession  of  said  premises  and  sidewalk,  pursuant  to  the  tenns  of 
said  contract,  for  the  purpose  of  erecting  said  building  and  doing 
said  work,  and  were  not  subject  to  the  control  or  direction  of  the  de- 
fendant as  to  the  manner  of  doing  the  work,  aiid  that  the  acts  charged 
as  the  cause  of  the  injuiy  were  acts  of  the  said  contractors  or  their 
employes,  and  not  of  the  defendant  nor  of  his  servants  or  agents, 
then  the  defendant  would  not  be  liable  for  such  injury.^^ 

(e)  That  when  work  is  contracted  to  be  done  which  is  dangerous 
of  itself,  unless  guarded,  and  the  employer  makes  no  provision  in  his 
contract  for  its  being  guarded,  and  makes  no  reasonable  effort  to 
guard  it  himself,  then  he  is  negligent,  and,  if  injury  results  there- 
from, he  cannot  escape  liability,  on  the  ground  that  the  work  was 
done  by  a  contractor."" 

(d)  The  court  inst7'ucts  the  jmy,  that  it  is  a  rule  of  law  that 
when  certain  work,  and  the  manner  of  doing  it,  are  assented  to  by 

93— Pledprer    v.    C.    B.    &    Q.    R.     Pierrepoint    v.    Loveless,    72    N.    T. 
Co..     69    Neb.    456,    95    N.    W.    1057     211. 
(l"5n).  95— Kyan   v.   Curran,   64   Tnd.    345. 

94— Myer   v.    Hobbs,    57   Ala.   175;         96— Wood    v.    Ind.    S.    D.    44    Ta. 

27;    Hale  v.   Johnson,    80   111.   185. 


§1 1368.1  NEGLIGENCE— IN  GENERAL.  915 

the  employer,  and  damage  to  a  third  party  must  necessarily  or  natu- 
rally result  from  the  work  and  the  manner  of  doing  it,  then  the  em- 
ployer will  be  liable.  And  in  this  case,  if  the  jury  believe,  from  the 
evidence,  that  the  defendant  employed  the  said  A.  B.  to  blast  the 
rocks  in  question,  for  the  purpose  of  getting  out  the  stone  fi'om  the 
quarry,  and  that  the  said  A.  B.,  in  pursuance  of  such  contract,  did 
blast  out  the  stone  in  question,  and  that  plaintiff's  property  was 
damaged  in  consequence  of  such  blasting,  then  the  defendant  would 
be  liable  for  such  damage,  provided  you  further  believe,  from  the 
evidence,  that  the  said  A.  B.  was  not  guilty  of  any  special  negligence 
or  want  of  ordinary  care  in  doing  said  work,  which  resulted  in  or 
contributed  to  such  injuiy.^'^ 

§  1368.    Effect  of  Release  of  Cause  of  Action  by  Plaintiff,     (a)  If 

you   believe   from   the   evidence   that   on   or   about   the  day   of 

,  the  plaintiff  agreed  with  the  defendant  upon  a  com- 
promise of  his  claim  for  damages  sued  on  in  this  ease  for  the  sum  of 
$1,  and  the  promise  to  employ  him  for  one  day  as  a  section  foreman, 
and  the  further  promise  of  the  general  claim  agent  of  the  defendant 
company  to  pay  to  the  plaintiff  the  full  time  lost  by  him  on  account 
of  his  injuries,  same  to  be  ascertained  by  a  statement  of  the  attend- 
ing physician;  and  if  you  believe  that  the  plaintiff  then  and  there 
accepted  said  promise  and  agreement,  together  with  the  one  dollar, 
and  the  employment  of  him  for  one  day  as  a  section  foreman,  in  sat- 
isfaction and  discharge  of  his  original  cause  of  action  on  account  of 
his  injuries,  and  that  he  agreed  and  expected  to  look  to  and  demand 
of  the  defendant  the  sum  of  the  time  lost  by  him  on  account  of  such 
injuries,  when  same  were  ascertained  by  his  physician,  under  said 
promise  and  agreement,  and  not  to  demand  of  defendant  damages  on 
account  of  his  original  cause  of  action,  as  it  stood  before  such  prom- 
ise and  agreement  was  made — then  you  will  find  a  vei'dict  for  the 
defendant. °^ 

(b)  In  this  ease  you  are  instructed  that,  as  a  defense,  defendant 
pleads  a -settlement  and  release  made  with  the  plaintiff,  and,  in  avoid- 
ance of  such  settlement  and  release,  the  plaintiff  claims  that,  when 
such  settlement  was  made  and  such  release  executed,  he  did  not  have 
the  mental  capacity  to  do  such  things,  and  you  are  instructed  to  re- 
turn a  verdict  for  the  defendant  unless  you  believe  from  the  evi- 
dence that,  at  the  time  plaintiff  made  such  settlement  and  executed 
such  release,  he  was  mentally  incapable  of  understanding  the  nature 
and  effect  of  such  settlement  and  release. 

§  1369.  Release  Obtained  by  Fraud  or  Misrepresentation.  The 
court  instructs  the  jury  that  if  they  find  and  believe  from  the  evi- 
dence that  the  plaintiff  is  an  ignorant  and  illiterate  woman,  and  that 
within  a  few  days  after  her  injury  defendant's  claim  agent  called  on 

97— Tiffin  v.  McCormack,  34  Ohio  Minter,  —  Tex.  Civ.  App.  — ,  85 
St.    638.  S.    W.    477    (479). 

98— Gulf,   C.    &    S.   F.    Ry.   Co.   v. 


916  FORMS  OF  INSTRUCTIONS.  [§  1369. 

her,  and  repeated  his  visits  to  her  during  the  succeeding  week,  and 
induced  her  to  accept  from  h^m  the  sum  of  ten  dollars  ($10),  by  rep- 
resenting to  her  that  the  defendant  could  not  be  compelled  by  law  to 
pay  her  anything,  but  that  it  had  authorized  him  to  give  her  five 
dollars  ($5)  as  a  gratuity,  and  that  he  himself  would  add  five  dol- 
lars ($5)  to  that  amount,  and  desired  her  to  sign  a  receipt  so  that  he 
could  show  defendant  that  he  had  paid  out  this  money,  and  if  you  be- 
lieve that  when  plaintiff  signed  said  release  she  did  not  understand 
its  contents  or  character,  and  thought  it  was  a  receipt,  and  not  a  re- 
lease of  her  rights,  and  that  its  nature  was  misrepresented  (as  above 
stated)  to  her  by  defendant's  agent,  then  said  release  is  invalid  and 
constituted  no  defense  to  this  suit.**^ 

99 — Austin  v.   St.   L.   Transit  Co.,  he  knew  to  be  false,  and  that  the 

115    Mo.   App.    146,    91    S.    W.    450.  representations     were     believed     to 

"This   instruction   authorized   the  be  true  by  plaintiff  and  were  relied 

jury    to    find    for    the    plaintiff    if  on  by  her;   and  we  can  see  no  ob- 

they  found   that  defendant's   claim  jection    to    it    or   just    ground    for 

agent    made    false    representations  criticism." 
to   plaintiff,    representations    which 


CHAPTER  LXIII. 
NEGLIGENCE— MASTER  AND  SERVANT. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


PART   I. 

LIABILITY   OF   MASTER  FOR  ACTS  OF 

SERVANT. 

s  I3V0.  Master  liable  for  negligence 
of  servant. 

§  1371.  Liable  for  the  torts  of  serv- 
ants,   when. 

§  1372.  Liability  of  master  for  ma- 
licious, vexatious  or  wan- 
ton  acts   of  servants. 

§  1373.  Wrongful  act  of  servant. 

§  1374.  Authority  of  watchman  to 
guard  premises  does  not 
include  authority  to  shoot 
trespassers. 

§  1375.  Band  director  not  liable  for 
injury  by  beer  bottle  care- 
lessly dropped  by  band 
member. 

PART   II. 
LIABILITY  OF  MASTER  TO  SERVANTS. 

IN  GENERAL. 

§  1376.  Master  and  servant — Master 
liable  to  servant,  when. 

§1377.  Reasonable  care  only  re- 
quired for  safety  of  em- 
ployes. 

5 1378.  Servant's  right  to  presume 
master  has  performed  duty 
with    ordinary   care. 

§  1379.  Master  not  an  insurer  of 
servant's    safety. 

§  1380.  Master  not  liable  for  mere 
accident. 

§  1381.  Duty  of  master  to  make 
rules  for  the  guidance  of 
employes. 

§  1382.  Instruction  of  servant  ig- 
norant of  the  danger  of 
his    position. 

§  1383.  Employment  of  minor  in 
dangerous    position. 

§  1384.  Instruction  of  minor  by 
master. 

§1385.  Right  to  rely  on  representa- 
tions of  minor  as  to  ex- 
perience. 

§1386.  Employing  child  without 
school  certificate  in  Illi- 
nois. 


§  1387.  Negligence  of  master  not 
presumed — Bui'den  of  proof 
on   plaintiff. 

§  1388.  Effect  of  admission  of  plain- 
tiff that  explosion  was  his 
fault. 

§  1389.  Foreman  .assumes  risk  of 
carelessness  of  employes 
subject   to   his   control. 

REASONABLY  SAFE  PLACE  FOB  WORK. 

§  1390.  Master  must  furnish  rea- 
i  sonably  safe  place  and 
surroundings. 

§  1391-  Insufficient  fastening  or 
nailing   of    scaffold. 

§  1392.  Servant  may  assume  mas- 
ter has  furnished  safe 
scaffold. 

§  1393.  Injury  from  falling  of  brick 
through  insufficient  plat- 
form of  scaffolding. 

5  1394.  Injury  through  defective 
sewer  cover. 

§  1395.  Failure  to  keep  boards  on 
sill  of  window  securely 
fastened. 

§  1396.  Elevator— Duty  to  keep  in 
repair. 

§  1397.  Elevator— Failure  of  master 
to  guard  opening. 

§  1398.  Mines — Failure  to  partition 
off  stairway  from  main 
air-way   escapement   shaft. 

5  1399.  Mines— Statutory  inspection 
of. 

§  1400.  Mines — Failure  of  mine  boss 
to  visit  room  in  which 
miners   work- 

§  1401.  Maintaining  coal  chute 
without  guard  gate  or 
guard  board. 

§  1402.  Allowing  shavings  to  ac- 
cumulate in  passageway 
near    molder. 

§  1403.  Injury  by  being  jolted  from 
car  on  logging  road. 

§  1404.  Injury  to  conductor  of  street 
car  through   defective  rail. 

§  1405.  Telephone  wires — Burden  of 
proof  as  to  negligence  in 
adjusting. 


917 


918 


FORMS  OF  INSTRUCTIONS. 


SATE  AND  SUITABLE  APPLIANCES. 

§  1406.  Master's  duty  to  provide 
safe  appliauces  and  keep 
them   in  proper  repair. 

§  1407.  Material  not  an  appliance- 
Master  in  furnishing  ma- 
terial stands  on  same  foot- 
ing- as  third  person  so  do- 
ing. 

§  1408.  Machinery  used  by  mas- 
ter, although  not  owned  by 
him. 

§  1409.  Latent  defects— Master  not 
liable   for. 

§  1410.  Master  does  not  insure  ab- 
solute safety  of  appli- 
ances. 

§  1411.  Duty  of  employer  to  use 
reasonable  diligence  for 
safety  of  employe  includes 
inspection  and  tests  at 
proper  intervals  of  appli- 
ances. 

§  1412.  Duty  of  inspection— Charac- 
ter of  business  should  be 
considered. 

§  1413.  Defective  machinery  alone 
insufficient  for  recovery- 
Injury  must  have  proxi- 
mately resulted  from  de- 
lect. 

!  1414.  Master  not  bound  to  furnish 
the  safest  and  best  appli- 
ances. 

§  1415.  What  are  appliances  in  the 
raising  of  cants. 

§  1416.  Duty  of  master  in  furnish- 
ing mail  cranes  and  en- 
gines. 

§  1417.  Liability  for  defect  in  weld 
of   swivel. 

§  1418.  Injury  through  defect  in 
lever  of  jacksaw. 

§  1419-  Defective  belt   in   mill. 

§  1420.  Injury  through  unsuitable 
belt  on  planer  machine. 

§  1421.  Spike  maul  flying  off  han- 
dle. 

§  1422.  Flanges  of  wheels  on  de- 
fendant's cars  being  worn 
too   thin. 

i  1423.  Injury  to   employe  from  de- 
'       fective    ladder — When    em- 
ploye   cannot    be    charged 
with    negligence. 

S  1424.  Using   defective   tire   bender. 

S  1425.  Servant  injured  through  de- 
fective  derrick. 

9  1426.  Injury  to  gripman  on  street 
car  through  defective 
brake. 

!  1427.  Injury  to  servant  by  negli- 
gf-nt  use  of  compressed 
air. 


FELLOW  SERVANTS. 

§  1428.  Fellow  servants  defined — 
Contributory    negligence. 

§  1429.  Fellow  servants— Elements 
necessary  to  constitute  re- 
lationship  of. 

§  1430.  Fellow  servants  —  Persons 
may  be  as  to  part  of  em- 
ployment and  not  as  to 
other  part. 

§  1431.  Who  are  fellow  servants  a 
question  of  fact  for  the 
jury. 

§  1432.  Negligence  of  defendant  and 
of   fellow   servant. 

§  1433.  Fellow  servants  —  Rule  in 
Colorado. 

§  1434.  Care  required  by  master  in 
selection  of  fellow  serv- 
ants. 

§  1435.  Responsibility  of  master  for 
incompetency  of  fellow 
servants. 

§  1436.  Person  charged  with  venti- 
lation of  mine  not  fellow 
servant  of  miner. 

§  1437.  Negligence  of  fellow  serv- 
ant. 

§  1438-  Motorman  of  street  car  fail- 
ing to  reduce  speed  at 
sunken  or  depressed  spot — 
Fellow  servant  of  con- 
ductor. 

§  1439.  Who   are   vice-principals. 

§  1440.  Responsibility  of  master  for 
negligence  of  vice-princi- 
pal. 

§  1441.  Servant  engaging  in  extra 
hazardous  work  different 
from  ordinary  employment 
at  command  of  fellow 
servant. 

§  1442.  Superior  authority  does  not 
always  destroy  relation- 
ship of  fellow  servants. 

§  1443.  Molder  as  vice-principal  to 
laborer. 

ASSUMPTION  OF  RISK. 

§  1444.  Servant  assumes  all  risks 
ordinarily  and  naturally 
incident  to  particular  serv- 
ice in  which  he  is  engaged. 

§  1445.  Risk  not  ordinarily  incident 
to  employment — Burden  of 
proof. 

§  1446-  Assumed  risk  —  Circum- 
stances   to    be    considered. 

§  1447.  Servant  does  not  take  the 
risk  of  dangers  not  inci- 
dent to  the  business— Duty 
of  master— Duty  of  serv- 
ant. 

5  1448.  Servant  does  not  assume  ex- 
traordinary   peril   or   risks, 


NEGLIGENCE— MASTER  AND  SERVANT. 


919 


§  1449.  Servant  voluntarily  assum- 
ing duty  not  arising  under 
his   employment. 

§  1450.  Employe  voluntarily  taking 
place  he  is  not  required  to 
take. 

§  1451.  Servant's  knowledge  of  facts 
which  would  make  his  own 
act    dangerous. 

§  1452.  Duty  of  servant  to  apprise 
himself  of  dangers  of  ma- 
chinery. 

§  1453.  Duty  of  servant  to  look  out 
for  patent  and  obvious  de- 
fects. 

§  1454.  Effect  of  plaintiff's  knowl- 
edge that  window  was  of 
great   weight. 

§  1455.  Prior  knowledge  of  condi- 
tion of  ditch  by  employe 
of  municipal   corporation- 

§  1456.  Danger  of  falling  into  chute 
or  excavation,  when  as- 
sumed. 

§  1457.  Carrying  glass  through  pas- 
sageway which  servant 
knows  to  be  obstructed. 

§  1458.  Knowledge  of  servant  as  to 
uncovered    electric   wires. 

§  1459.  Assumption  of  risk  by  em- 
ployes of  street  car  com- 
pany as  to  poles  too  near 
track. 

§  1460.  Duty  of  servant  as  to  ex- 
amination of  grip  car  for 
defects. 

§  1461.  Assumption  of  risk  in  grind- 
ing planer  tool  upon  emery 
wheel. 

§  1462.  Using  defective  gas  pipe  as 
lever. 

§  1463.  Assumption  of  risk  in  un- 
loading   timbers. 

§  1464.  Carrying  too  heavy  a  piece 
of  timber — Employing  in- 
sufficient help  —  Assumed 
risk. 

§  1465.  Failure  to  use  precautions 
against   known   danger. 

§  1466-  Servant  knowing  hazards 
cannot  recover  on  ground 
there  was  a  safer  way  of 
conducting    business. 

§  1467.  Continuing  work  in  danger- 
ous place  after  notice  of 
defect   to  master. 

§1468.  Operating  dangerous  mn- 
chine  after  promise  of 
master  to  supply  device 
for  lessening  danger. 


§  1469.  Continuing  in  employment 
after  bolt  had  come  off 
many  times — Fellow  serv- 
ant. 

§  1470.  Defective  machinery — Con- 
tinuing work  with  assu- 
rance of  superintendent 
that   machine   is   all   right. 

§  1471.  Minors — Assumption  of  risk. 

CONTRIBUTORY  KEGLIGENCE. 

§  1472.  Contributory  negligence  of 
servant — In  general — Serv- 
ant guilty  of  cannot  re- 
cover. 

§  1473.  Contributory  negligence  de- 
fined. 

§  1474.  Negligence  of  servant  or 
fellow  servant  must  be  a 
proximate  cause  of  injury 
in  order  to  be  defense. 

§  1475-  Contributory  negligence — 
Surrounding  facts  and  cir- 
cumstances in  evidence 
should    be   considered. 

§  1476.  Contributory  negligence  of 
plaintiff  must  be  pleaded 
by  defendant— (South  Car- 
olina). 

§  1477.  Burden  of  proof  as  to  con- 
tributory neglige;ice — Rule 
that  it  is  ordinarily  on  de- 
fendant. 

§  1478.  Voluntarily  doing  work  in 
more  dangerous  of  possi- 
ble  different  ways. 

§  1479.  Doing  work  in  way  other 
than   ordered   by   master. 

§  1480.  Servant  —  Continuing  work 
without  repairing  defects 
after  being  warned  of 
danger. 

§  1481.  Intoxication  of  servant  as 
contributory   negligence. 

§  1482.  Minors  rule  as  to  contrib- 
utory negligence — Safe  ma- 
chinery and  appliances^ 
Safe   place    to   work. 

§  1483.  Working  near  a  dangerous 
lumber  pile. 

§  1484.  Raising  beam  in  obviously 
dangerous  way. 

§  1485.  Failure  to  heed  warning  of 
foreman  to  get  away  from 
falling  timber. 

§  1486.  Want  of  ordinary  care  of 
both  master  and  servant- 
Going  under  dangerous 
roof  in  coal  mine — Series. 

§  1487.  Contributory  negligence  in 
lowering  air  pump. 

§  1488.  Using  defective  shaft  of 
wagon  in   alighting. 


920 


FORMS  OF  INSTRUCTIONS. 


[§  1370. 


§  1489.  Contributory     negligence     ia 

unloadiug  cattle. 
§  1490.  Contributory     negligence     in 

grindiug  tool. 
§  1491.  Injury  through   careless  use 

of  hammer. 
51492.  Working   with    split,    frayed, 

raveled  or  untwisted  rope. 


INSUEANCE. 

§  1493.  Agreements  between  em- 
ployers and  employes  as  to 
insurance  against  acci- 
dents. 

EELEASES. 

§  1494.  Release  of  right  of  action  by 
servant. 


PART  I. 
Liability  of  Master  for  Acts  of  Servant. 

§  1370.  Master  Liable  for  Negligence  of  Servant,  (a)  The  master 
is  civilly  liable  for  the  tortious  acts  of  his  servants,  whether  of  omis- 
sion or  commission,  or  whether  negligent,  fraudulent  or  deceitful,  if 
done  in  the  course  of  his  employment,  even  though  the  master  did  not 
authorize  or  know  of  such  acts,  or  may  have  forbidden  them.  But  the 
act  must  be  done,  not  only  while  the  servant  is  engaged  in  the  serv- 
ice he  is  employed  to  render,  but  it  must  pertain  to  the  particular 
duties  of  that  employment.^ 

(b)  The  court  instructs  you,  that  where  a  tort  or  wrong  is  com- 
mitted by  an  agent  or  employe,  in  the  course  of  his  employment,  and 
while  pursuing  the  business  of  his  employer,  the  employer  will  be 
liable  for  the  damages  resulting  from  the  wrongful  act,  although  it 
is  done  without  the  employer's  knowledge  or  consent,  unless  the 
wrongful  act  is  a  willful  departure  from  suoh  employment  or  busi- 
ness.^ 

§  1371.  Liable  for  the  Torts  of  Servants,  When.  Railroad  com- 
panies are  responsible  to  passengers  for  the  unlawful  acts  of  their 
servants  and  agents  employed  in  running  their  trains,  when  such 
wrongful  acts  are  committed  in  connection  with  the  business  intrusted 
to  them,  and  spring  from,  or  gTow  immediately  out  of,  such  busi- 
ness.^ 

§  1372.  Liability  of  Master  for  Malicious,  Vexatious  or  Wanton 
Acts  of  Servants,  (a)  The  juiy  are  charged  that  unless  they  are 
reasonably  satisfied  from  the  evidence  before  them  in  this  case  that 
the  assault  and  battery  alleged  to  have  been  committed  by  C.  upon 
the  plaintiff  in  this  cause  was  committed  in  the  attempt  of  said  C.  to 
collect  a  fee  alleged  to  be  due  from  the  plaintiff  as  a  tax  payer, 
which  said  fee  the  said  C.  by  virtue  of  his  employment  as  a  deputy 
tax  collector  was  authorized  to  collect,  and  which  was  an  unlawful 
charge  against  the  plaintiff  they  must  find  for  the  defendant. 

(b)  The  jury  are  charged  that  if  they  shall  be  I'easonably  satis- 
fied from  the  evidence  that  the  alleged   assault  and  battery  by  C. 


1— Snyder  v.  Hnnnibal  Rd.  Co., 
60  Mo.  413;  Robinson  v.  Webb,  11 
Ru.<!h  (Ky.)  4fi4;  Ei-kert  v.  St. 
Louis,  etc.,  2  Mn.   App.  .36. 

2— Cooley  on  Torts  (.Id  Ed.)  1017 
et  seq.;  1  Add.  on  Tort.s  31;  God- 
dard  v.  Grand  Trunk  R.  R.  Co., 
57   Me.    202;   Phila.,   etc..   R.    R.   Co. 


V.  Derby,  14  How.  IT.  S.  46S;  Bry- 
ant v.  Rich,  106  Mass.  ISO;  Ind.  R. 
R.    Co.    v.    Anthony.    43    Ind.    1S3. 

3 — Ofisway  v.  Atlanta,  etc..  Rd. 
Co..  R8  Oa.  216;  Rass  v.  Chicago, 
etc.,  Rd.  Co.,  42  Wis.  654;  Brown 
v.  Hannibal,  etc.,  Rd.   Co.,  66  Mo. 


§  1373.]  NEGLIGENCE— MASTER  AND  SERVANT.  921 

upon  the  plaintiff  in  this  cause  was  the  result  of  malice,  vexation  or 
wantonness  on  the  part  of  said  C,  they  must  find  a  verdict  for  the 
defendant,  notwithstanding  the  fact  that  the  said  C.  was  in  the  em- 
ploy of  the  defendant  when  he  so  assaulted  and  beat  the  plaintiff,  un- 
less they  shall  be  reasonably  satisfied  from  the  evidence  that  the  de- 
fendant authorized  or  participated  in  such  act,  or  that  said  assault 
was  committed  while  acting  within  the  scope  of  the  employment  of 
said  C* 

§  1373.  Wrongful  Act  of  Servant.  If  the  jury  believe,  from  the 
evidence,  that  defendant's  engineer,  with  intent  to  frighten  plaintiff's 
horses,  unnecessarily  and  wantonly  let  off  steam  or  blew  a  whistle, 
^nd  thereby  frightened  plaintiff's  horses,  so  that  they  ran  off  and 
injured  him  while  he  was  in  the  exercise  of  all  reasonable  care  and 
prudence  in  that  behalf,  then  the  defendant  is  guilty,  and  the  jury 
should  find  for  the  plaintiff.^ 

§  1374.  Authority  of  Watchman  to  Guard  Premises  Does  Not  In- 
clude Authority  to  Shoot  Trespassers,  (a)  If  you  believe,  from  the 
evidence  in  this  case,  that  the  plaintiff,  after  being  ordered  to  leave 
the  premises  of  the  defendant,  immediately  started  peaceably  to  do 
so,  without  opposing  or  resisting  the  watchman,  and  that  the  plaintiff 
continued  thus  to  go  toward  the  fence  alongside  defendant's  rail- 
way, and  that  just  as  he  neared  such  fence  or  was  about  to  step  over 
the  same,  the  watchman  wantonly  without  lawful  excuse  or  authority, 
and  merely  to  satisfy  some  personal  spite  or  feeling  of  anger  toward 
the  plaintiff  or  his  companions,  fired  the  pistol  toward  the  plaintiff, 
and  inflicted  the  wound  of  which  the  plaintiff  complains  in  this  case, 
and  that  such  act  on  the  part  of  the  watchman  was  not  necessary  or 
proper  to  the  protection  of  the  cars  inside  the  yards  nor  done  in  the 
performance  of  any  duty  in  that  respect,  the  plaintiff  is  not  en- 
titled to  recover  in  this  case,  and  your  verdict  should  be  for  the  de- 
fendant. 

(b)  The  court  instniets  you  that  the  law  is  that  the  master  is  not 
responsible  for  the  acts  of  the  sei'vant  done  outside  of  the  master's 
business  and  to  accomplish  some  end  personal  to  the  servant  himself; 
that  the  law  does  not  imply  any  authority  from  the  master  to  the 
servant  to  commit  an  assault  upon  a  person  who  is  not  injuring  or 
threatening  to  injure  the  master's  property,  and  who  is  not  interfer- 
ing with  the  servant's  porfoi-mance  of  his  duty  to  the  master;  and  if. 
in  this  case,  you  believe  from  the  evidence  that  the  plaintiff  A.  B. 
was  peaceably  leaving  the  railroad  property  of  the  defendant,  and 
was  not  threatening  defendant's  property  nor  refusing  to  go  promptly 
outside  its  right  of  way,  nor  interfering  in  any  way  with  the  per- 
formance by  the  watchman  of  his  duties  in  the  defendant's  railroad 

4 — Approved,  Case  v.  Hulsebush.  thnn    a    preponderance   of   the   evi- 

122   Aln.   212.   26   So.    155.      Tn    some  rlenrp. 

iiiT-icfjictions   the  ii?e  of   the  words  5 — Toledo,    etc.,    Rd.    Co.    v.    Har- 

"reiponably    sati.sfied"     hive    been  mon,   47   111.   298. 
held    erroneous   as   requiring'  more 


922 


FORMS  OF  INSTRUCTIONS. 


[§  1375. 


yard,  and  that,  under  these  circumstances,  the  watchman  fired  the 
shot  that  struck  the  plaintiff  for  some  purpose  of  his  own,  the  plain- 
tiff cannot  recover  in  this  ease,  and  your  verdict  must  be  for  the  de- 
fendant.*^ 

§  1375.  Band  Director  Not  Liahle  for  Injury  by  Beer  Bottle  Care- 
lessly Dropped  by  Band  Member.  If  members  of  the  band  were 
drinking  beer  on  the  platform,  and  one  of  them  carelessly  dropped 
the  bottle  which  injured  the  plaintiff,  the  defendant  would  not  be 
liable.^ 


PART  II. 

Liability  of  Masters  to  Servants. 
IN  general. 

§  1376.    Master  and  Servant — Master  Liable    to    Servant,  When. 

(a)  The  jury  are  instructed,  that  a  master  or  employer  is  bound  to 
use  reasonable  care,  skill  and  judgment  to  furnish  suitable  maehineiy 
and  implements,  properly  constructed,  and  ordinarily  skillful  and 
trustworthy  agents  or  workmen;  and' if  the  employer  does  not  use 
such  care,  skill  and  judgment,  and  injury  I'esults  therefrom  to  an  em- 
ploye, the  employer  will  be  liable  for  such  injury. 


6— Belt  Ry.  Co.  v.  Banicky,  102 
111.    App.   642   (647-8-9). 

"Appellee  was  a  trespasser  upon 
appellant's  premises.  A  master  Is 
liable  for  the  act  of  his  servant 
done  in  the  course  of  his  employ- 
ment about  his  master's  business- 
Wood  on  Master  &  Servant,  p. 
522.  The  master  is  in  this  State 
responsible  for  acts  of  the  servant 
done  within  the  general  scope  of 
his  employment  while  engaged  in 
his  master's  business  with  the 
view  to  the  furtherance  of  that 
business,  whether  he  acts  will- 
fully or  wantonly.  A  master  is 
not  liable  for  acts  of  his  servant 
not  within  the  scope  of  his  em- 
ployment. Tuller  v.  Voght,  13  111. 
277-2S5;  Oxford  v.  Peter,  28  III. 
4.'?4;  C.  M.  &  St.  P.  Ry.  Co.  v. 
West.  125  111.  320-323,  17  N.  E.  788, 
8  Am.  St.  Rep.  380;  N.  C.  C.  Ry. 
Co.  V.  Gastka,  128  111.  613-617,  21 
N.  E.  522.  4  L.  R.  A.  481;  C.  B.  & 
Q.  Ry.  Co.  V.  Casey,  9  111.  App. 
632;  Foster,  Rxtrs.  v.  The  Essex 
Rank.  17  Mass.  478-508-510;  The 
Mechanics  Rank  v.  Bank  of  Co- 
lumbia. 5  Wheaton  (N.  Y.)  326; 
Bnllnbroko  v.  Swindon  Tjocal 
Board,  8  Ad.  &  Ellis.  512;  Bailey 
V.    Manchester    Ry.    Co.,    L.    R.    7 


C.  P.  420;  Evans  Ewell  on  Agency, 
489  marginal  paging;  Wood  on 
Master  &  Servant.  522;  9th  ed. 
Story  on  Agency,  sec.  456-456a; 
Vol.  14,  pages  818-25,  1st  ed..  Am. 
&  Eng.  Ency.  of  Law;  Thames 
Steamboat  Co.  v.  Housatonic  Ry. 
Co.,  24  Conn.  40-53-54-56,  63  Am. 
Dec.  154;  McCann  v.  Tillinghast, 
140  Mass.  327,  5  N.  E.  164;  Cleve- 
land V.  New.son,  45  Mich.  621,  7  N. 
W.  222;  Cantrill  v.  Colwell,  new  ed. 
40  Tenn.  471;  Golden  v.  Newbrand, 
52  III.  59,   35  Am.  Rep.  257. 

"The  mere  employment  of  a 
watchman  to  guard  property  and 
keep  away  trespassers  does  not 
involve  an  authority  to  shoot  tres- 
passers. An  authority  for  such 
shooting   cannot    be   presumed- 

"The  shooting  of  a  trespasser 
who  is  actually  leaving  the  prem- 
ises is  not  within  the  general  or 
implied  authority  of  a  mere  watch- 
man." 

7 — Williams  v.  Mineral  City  P. 
Ass'n,  128  Iowa  32,  102  N.  W.  783 
(784). 

"Certainly  the  mere  fact  that  n 
member  of  the  band  whether  he 
was  the  employe  of  the  defendant, 
or  of  the  band  director,  carelessly 
dropped  a  bottle  upon  the  plaintiff, 


§  1377.]  NEGLIGENCE— MASTER  AND  SERVANT.  923 

(b)  While  a  master  is  not  an  insurer  that  the  servants  he  em- 
ploys arc  skillful  and  prudent,  or  that  the  workmanship  or  materials 
employed  in  his  business  are  absolutely  proper  or  suitable,  yet  he  is 
bound  to  use  all  reasonable  care  and  skill  in  their  selection  and  con- 
struction, so  far  as  regards  the  safety  of  the  persons  in  his  employ.** 

(e)  The  court  instructs  the  jury  that  it  is  a  positive  duty  which 
the  master  owes  to  his  employe  to  furnish  such  employe  with  reason- 
ably suitable  and  safe  machinery,  means  and  appliances  for  doing 
the  work  which  the  servant  is  em^jloyed  to  do,  and  to  provide  him  a 
reasonably  safe  place  in  which  -to  work;  that  this  duty  being  one 
which  the  master  is  positively  bound  to  perform  in  the  first  instance, 
he  cannot  be  excused  from  its  perfonnance  by  intrusting  it  to  another 
charged  with  the  duty  to  make  performance  for  him,  but  who  neglects 
to  discharge  that  duty. 

(d)  If  the  master  furnishes  his  employe  with  adequate  machinery, 
means  and  ajipliances  and  a  safe  place  for  the  performance  of  his 
work,  exercises  reasonable  care  in  keeiDing  them  in  order  and  proper 
repair,  and  provides  competent  fellow  servants,  then  the  master  is  not 
responsible  to  one  servant  for  the  negligence  of  another  servant  in 
the  management  and  use  of  the  machinery  and  appliances  furnished 
for  performing  his  work. 

(e)  If  then,  one  servant  shall  be  injured  through  the  negligence 
of  a  fellow  servant  while  at  work  in  the  line  of  his  employment,  this 
is  considered  a  risk  incident  to  the  employment,  and  the  master  is 
not  liable.'' 

§  1377.  Reasonable  Care  Only  Required  for  Safety  of  Employes, 
(a)     As  respects  the  duty  of  a  master  or  employer  towards  a  servant 

would  not  sustain  a  charge  of  neg-  Ohio    St.    566;    Lewis   v.    St.    Louis, 

ligence  against  the  defendant.  The  etc.,    Rd.    Co.,    59    Mo.    496;    Baxter 

negligence     of      the      servant      for  v.    Robei-ts,    44    Cal.    187;    Ackersou 

which  the  master  must  respond  to  v.   Dennison,   117   Mass.   407;  Strah- 

a    third    person    is    negligence    in  lendorf   v.   Rosenthal,   30   Wis.   674; 

some   act  or  failure  to  act  within  Richardson  v.  Cooper.  88  111.  270. 

the  scope  of  his  employment.  This  9 — Metzler       v.        McKenzie,       34 

is   elementary   and   requires   no   ci-  Wash.   470,   76  Pac.   114   (115). 

tation    of    authorities.      So    far    as  "Many  illustrations  of  the  appli- 

the  record   shows,   the  employment  cation    of    these    principles    of    law 

of  the  band  was  for  no  other  pur-  are  furnished  by  the  decisions.  The 

pose    than    to    provide    music    for  following  are  some  of  the  decisions 

the     occasion,     and     ordinarily     at  by     this     court     bearing     on     these 

least,  the  relation   of  beer  to  har-  propositions  of  law  which  may  be 

mony   of   sound   is   not   so   obvious  cited   in   this   connection:     McDon- 

or   necessary   that   the   passing   of  ough   v.    Great   Northern    Ry.    Co., 

bottles    between    members    can    be  15  Wash.  244,  46  Pac.   334;  Johnson 

said    to    be   within    the   scope   of   a  v.    Bellingham    Bay    Imp.    Co..    13 

musician's     employment.     We     are  Wash.    455.    43    Pac.    370;    Allend    v. 

unable  to   see  how  the   instruction  Spokane    Falls    &    N.    Ry.    Co.,    21 

complained   of   could   in   any   man-  Wash.    324,    58    Pac.    244;    Shannon 

ner  have  prejudiced  the  plaintiff's  v.     Cons.,      etc..     Mining     Co.,     24 

case."  Wash.    119.    64   Pac.    169;    Hammar- 

8— Shearm.   &   Red  on  Neg.,  §89-  berg  v.  St.  Paul.  etc..  Lumber  Co., 

92;     Nnyes    v.     Smith,     28    Vt.     59;  19    Wash.    537,    53    Pac.    727;    Towle 

Buzzpll    V.    Laconia,    etc.,    Co.,    48  v.  Stimson   Mill  Co.,  33  Wash.  305. 

Me.    113;    McGatrick   v.    Wason,    4  74   Pac.   471." 


924:  FORMS  OF  INSTRUCTIONS.  [§  1378. 

or  employe,  in  his  service,  the  court  instructs  the  jury,  as  a  matter  of 
law,  that  the  master,  or  employer,  is  not  bound  to  provide  machinery 
which  is  absolutely  safe.  The  law  imposes  on  the  master,  or  employer, 
only  the  obligation  to  use  reasonable  and  ordinary  care,  skill  and 
diligence,  in  procuring  and  furnishing  suitable  and  safe  machinery.^" 

(b)  A  master,  such  as  the  defendant,  is  bound  to  use  ordinary  and 
reasonable  care  to  prevent  injuiy  to  its  sei'vant,  such  as  plaintiff,  in 
the  course  of  his  employment ;  and  if  the  master  does  not  do  this,  and 
if  the  servant  is  injured  in  consequence  of  such  failure  so  to  do  on 
part  of  the  master,  the  latter  will  be  answerable  for  the  damages  di- 
rectly and  approximately  occasioned  thereby.^^ 

(c)  The  court  instructs  the  jury  that  the  measure  of  care  which 
should  have  been  taken  by  the  defendant  company  to  avoid  a  re- 
sponsibility of  the  injury  to  the  said  B.  is  that  which  a  person  of  or- 
dinary care,  pi'udence  and  caution  would  use  if  his  own  interests 
were  to  be  affected,  or  the  Avhole  of  the  risk  were  his  own.  It  is  such 
care  as  a  person  of  ordinary  prudence  would  exercise  under  the  cir- 
cumstances surrounding  the  accident  at  the  time  of  the  injury.^- 

(d)  The  jury  are  instructed  that  it  is  the  law  that  the  mere  fact 
that  the  plaintiff  in  this  case  was  at  the  time  of  the  accident  in  the 
employ  of  the  defendant,  did  not  imply  an  obligation  on  the  part  of 
the  defendant  to  take  more  than  ordinary  care  for  plaintiff's  safety; 
it  was  only  bound  to  use  ordinary  care,  and  the  plaintiff  was  bound 
to  use  ordinary  care  for  his  own  safety.  The  law  required  that  botli 
parties  should  use  ordinary  eare.^^ 

§  1378.  Servant's  Right  to  Presume  Master  Has  Performed  Duty 
with  Ordinary  Care.  The  court  instructs  the  jui*y  that  the  servant 
has  a  right  to  presume  that  the  master  has  performed  his  duty  with 
ordinary  care.^* 

§  1379.    Master  Not  An  Insurer  of  Servant's  Safety,     (a)     The 

court  instructs  the  jury  that  the  defendant  was  not  an  insurer  of  the 
plaintiff's  safety  at  the  time  and  place  here  in  question;  and  you  are 
further  instructed  that  you  cannot  infer  or  presume  that  the  de- 
fendant was  negligent  at  said  time  and  place,  or  find  a  verdict  in  the 
plaintiff's  favor,  from  the  mere  fact,  if  it  be  a  fact,  that  the  spike 

10 — Wharton       on       Neg'.       §205;  above    instruction    states    the    law 

Wright  V.  The  N.  Y.  Cent.  Rd.  Co.,  properly,    and    should    have    been 

25   N.   y.   562;   Cooley   on  Torts   (3d  given." 

Ed.),   11.39-1141;   Ladd  v.   New  Bed-  13—111.   S.   Co.  v.  Wierzbicky,  107 

ford,    etc.,    Rd.    Co.,    119   Mass.    412;  111.    App.    69    (77),    aff'd    206   111.    201, 

Indianapolis,  etc.,  Rd.  Co.  v.  Love,  68  N.  E.  1101. 

10   Ind.    554;    Fort   Wayne,    etc.,   v.  14— M.,  K.  &  T.  Ry.  Co.  of  Texas 

Gildcrsleeve,    33    Mich.    137;    Camp  v.    Crowder,  —  Tex.   Civ.    App.   — , 

Point,    etc.,    Co.    v.    Ballou,    71    111.  55    S.    W.    380.      "The    charge    an- 

417.  nounced   the  correct   principle,   and 

11— International  &  G.  N.  R.  Co.  it  was  not  improper  for  the  court 

V.  Trump.  —  Tex.  Civ.  App.  — ,  94  to  so  inform  the  jury.     M.  K.  &  T. 

R-  W.   903.  Railway    Co.    v.    Gordon,    11    Tex. 

12— McVfjy    V.     St.    Clair    Co.,    49  Civ.    App.    672,    33    S.    W.    684,    and 

W.  Va.  412,  38  S.  E.  648  (651).     "The  authorities  there  cited." 


§1379.]  NEGLIGENCE— MASTER  AND   SERVANT.  925 

maul  described  by  the  evidence  slipped  off  of  its  handle  and  fell  upon 
the  plaintiff's  foot  and  injui-ed  it.^^ 

(b)  The  court  instructs  the  jury  that  a  railroad  company  is  not 
an  insurer  of  the  lives  and  limbs  of  its  servants,  and  it  cannot  be  held 
liable  for  an  injury  sustained  by  its  servants,  unless  it  was  guilty  of 
some  act  of  negligence  which  resulted  in  the  injury,  and  which  was 
not  contributed  to  by  the  carelessness  or  negligence  of  the  servant 
himself.^® 

(c)  The  court  instnicts  the  jury  that  the  defendants  were  not  in- 
surers of  the  plaintiff  against  injury  while  in  their  employment,  and 
that  you  cannot  find  a  verdict  for  him  merely  because  he  was  in- 
jured. 

(d)  The  court  instructs  the  juiy  that  if  you  believe  from  the  evi- 
dence that  the  plaintiff  was  not  using  ordinaiy  cai'e  at  the  time  and 
place  of  his  injuiy,  and  that  the  failure  to  use  such  care  directly  con- 
tributed to  cause  his  injury,  then  you  will  find  for  the  defendants; 
and  you  are  instructed  that  ordinary  care  is  such  care  as  would  be 
used  by  an  ordinarily  prudent  person  under  the  same  circumstances. 

(e)  The  court  instructs  the  jury  that,  in  considering  its  verdict, 
the  jury  should  not  be  governed  by  sympathy  for  plaintiff  because  he 
met  with  an  injury  while  in  defendants'  employ,  or  have  any  preju- 
dice or  feeling  either  in  favor  of  or  against  the  plaintiff  or  defend- 
ants, but  the  jury  should  only,  in  arriving  at  its  verdict,  be  gov- 
erned by  the  evidence  and  instructions  of  the  court. ^'^ 

(f)  An  employer  is  not  bound  to  furnish  his  employes  with  abso- 
lutely safe  materials  and  appliances.  He  is  not  an  insurer  of  the 
safety  of  his  employes  or  of  the  perfection  of  the  materials  or  ap- 
pliances upon  or  with  which  the  employe  may  labor.  But  his  obliga- 
tion is  to  use  ordinaiy  and  reasonable  care  to  supply  reasonably  safe 
materials  and  appliances;  and  if  the  juiy  believe  from  the  evidence 

that   the  defendant   furnished  with   an  ingot  reasonably 

cooled  and  hardened  for  moving  through  the  air,  held  by  tongs,  and 
that  the  ingot  fell  fi'om  pure  accident,  or  from  any  negligence  on  the 

part  of ,  or  because  the  hold  upon  the  ingot  was  loosened 

without  negligence  of  the  defendant  by  reason  of  striking  against,  or 

resting  upon,  a  ear,  so  that  the  ingot  fell  over  and  injured  , 

then  the  juiy  should  bring  in  a  verdict  of  "not  guilty. "^^ 

(g)  The  jury  are  instructed  that  the  defendant  was  not  bound  as 
an  insurer  for  the  absolute  safety  and  suitability  of  the  machinery 
and  appliances  furnished  by  him  for  use  in  his  business,  and  that  he 
was  not  bound  to  furnish  the  very  best  or  most  improved  kind  of  ma- 
chinery to  be  used  in  his  factory.     It  was  sufficient  if  the  machine 

15 — Deckerd    v.    Wabash    R.    Co.,  it  could  be  more  forcibly  and  ex- 
Ill  Mo.  App.  532.  SB  P.  W.  9S2  (9U).  plicitlv  expres.sed." 

Ifi— B.    &    O.    S.    W.    Rv.    Co.    V.  17— Curtis     v.     McNair,     173     Mo. 

Spaulding-,   21   Ind.   App.   323.   52  N.  270.  73  S.  W.  167  (172). 

E.    410    (412).      ."It    stated   the    law  18—111.    R.    Co.    v.    Trafas,    69   111. 

clearly,  and  we  do  not  know  how  App.   87   (89). 


926 


FORMS  OF  INSTRUCTIONS. 


[§  1380. 


and  the  pulleys  and  appliances  connected  with  the  same  were  reason- 
ably safe  and  suitable  for  the  purpose  for  which  they  were  used.^'* 

§  1380.  Master  Not  Liable  for  Mere  Accident.  The  court  in- 
structs the  jury  that  if  they  shall  believe  from  the  evidence  that  the 
plaintiff's  intestate  sustained  the  injuries  complained  of  as  the  direct 
and  natural  result  of  an  accident,  and  not  as  the  direct  and  natural 
result  of  the  defendant's  negligence,  they  must  find  for  the  de- 
fendant.-° 

§  1381.  Duty  of  Master  to  Make  Rules  for  the  Guidance  of  Em- 
ployes. It  is  the  duty  of  the  master  when  the  nature  of  the  business 
i-equired  it  to  make  and  promulgate  rules  for  the  protection  of  his 
servants,  and  to  use  due  care  and  diligence,  after  the  making  and 
promulgating  of  a  necessary  rule  to  have  it  enforced;  and  if  you 
should  find  from  the  evidence  in  this  case  that  the  nature  of  the  de- 
fendant's business  was  such  as,  in  the  exercise  of  due  care  and 
prudence  for  the  safety  of  its  employes,  requiring  the  making  and 
promulgating  of  rules,  and  should  further  find  that  the  defendant 
failed  to  make  and  promulgate  such  rules,  or  having  made  and  pro- 
mulgated the  same  failed  to  use  due  care  and  diligence  to  have  them 
enforced,  and  should  further  find  that  the  injuries,  if  any  received  by 
the  plaintiff,  were  caused  by  such  failure,  you  should  find  for  the 
plaintiff.-^ 


19 — Harsha  v.  Babicx,  54  111. 
App.  586  (587  and  588).  "The  in- 
struction for  which  defendant 
asked  should  have  been  given. 
Nothing-  equivalent  thereto  was 
given,  and  for  the  error  in  this 
regard  the  judgment  must  be  re- 
versed   and    the   cause   remanded." 

20— De  Witt's  Adm'r  v.  Louis- 
ville &  N.  R.  Co.,  29  Ky.  Law 
1161,  96  S.  W.  1123.  "Taken  as  a 
whole,  the  jury  could  not  have  un- 
derstood that  the  defendant's  neg- 
ligence was  eliminated  from  their 
consideration  when  they  were 
plainly  told  that  the  accident  must 
not  be  the  result  of  defendant's 
negligence  if  they  would  find  for 
it." 

21— Johnson  v.  U.  P.  Coal  Co..  28 
Utah  46,  76  Pac.  1089  (1097).  "The 
following  rule  stated  in  Barrows 
on  Neg.  p.  102,  §  40,  is  generally 
sustained  by  both  courts  and  text 
writers  to-wit:  'It  is  the  duty  of 
the  master  to  prescribe  and  pub- 
lish such  suitable  rules  as  the  cir- 
cumstances may  reasonably  re- 
quire for  the  proper  and  safe 
transaction  of  the  business.  This 
duty  of  the  master  to  protect  his 
servants  by  making  suitnble  rules 
for  the  safe  management  of  the 
business  becomes  more  imperative 


in  proportion  to  the  danger  and 
complication  of  the  work  but 
whether  any  rule  at  all  is  required 
in  the  exercise  of  ordinary  care  in 
a  particular  case,  or  whether  the 
one  in  effect  at  the  time  of  the 
injury  was  reasonably  sufficient 
are  generally  questions  of  fact  for 
the  jury.  .  .  .  And  the  master 
must  also  exercise  ordinary  care 
to  see  that  the  rules  and  regula- 
tions are  enforced.'  A  failure  upon 
the  part  of  the  master  to  perform 
this  duty  is  negligence  per  se. 
Wood  on  Mast.  Liab.  §  403. 
Whether  this  duty  has  been  per- 
formed depends  upon  the  circum- 
stances of  each  particular  case, 
and  when  the  evidence,  as  in  this 
case  is  such  as  reasonable  men 
might  differ  as  to  whether  the 
duty  has  been  performed,  it  is  a 
question  for  the  jury.  In  East- 
wood v.  Retsoff  Mining  Co..  86 
Hun  91  (96),  34  N.  Y.  S.  196  (198), 
the  court  said:  'It  is  quite  clear 
in  this  case  that  the  question 
whether  or  not  the  case  was  a 
proper  one  for  requiring  the  de- 
fendant to  establish  rules  for  the 
government  of  its  employes  in 
drawing  salt  from  this  bin,  when 
men  were  engaged  inside  of  it, 
was    one    as    to    which    reasonable 


§1382.]  NEGLIGENCE— MASTER  AND   SERVANT.  927 

§  1382.  Instruction  of  Servant  Ignorant  of  the  Dangers  of  His 
Position.  If,  at  the  time  plaintiff  was  emplo^^ed  by  the  agents  of  the 
defendant  company  to  operate  the  engine  and  drive  wheel  thereof  in 
question,  he  was  ignorant  of  the  duties  of  such  position  and  the 
dangers  incident  thereto,  and  if  such  facts  were  known  to  the  agent 
of  defendant  company  who  employed  him,  then  it  was  the  duty  of 
such  agent  to  have  instructed  plaintiff  how  to  operate  said  engine 
and  drive  wheel,  and  to  have  warned  him  of  the  dangers  incident  to 
starting  said  drive  wheel;  and  if  such  agent  failed  so  to  do,  and  if 
such  failure  was  negligence  on  the  part  of  said  agent,  and  if  plaintiff 
was  thereby  injured,  and  if  such  failure  on  the  part  of  defendant's 
agent  was  the  direct  cause  of  such  injury,  and  if  plaintiff  did  not 
contribute  thereto  by  some  negligent  acts,  as  hereinafter  explained, 
you  will  find  for  the  plaintiff.-- 

§  1383.  Employment  of  Minor  in  Dangerous  Position,  (a)  Per- 
sons who  employ  children  must  anticii^ate  the  ordinary  behaviour  of 
children,  and  must  take  notice  of  their  lack  of  judgment,  and  must 
exercise  greater  care  towards  and  for  them  than  is  required  by  law 
to  be  exercised  towards  and  for  adult  persons. 

(b)  It  is  an  actionable  wrong  for  a  person  to  place  or  employ  a 
child  of  such  immature  judgment  as  to  be  unable  to  comprehend  the 
danger  to  work  with  or  about  a  machine  of  a  dangerous  character, 
likely  to  produce  injury;  and  in  this  case  if  you  are  satisfied  by  a 
preponderance  of  the  eWdenee  that  the  defendants  employed  plaintiff 
at  and  about  a  machine  of  a  dangerous  character,  and  one  likely  to 
produce  injury,  and  that  he  was  injured  while  working  at  and  aboiat 
said  machine,  and  at  the  time  of  his  injury  he  was  of  such  immature 
judgment  as  to  be  unable  to  comprehend  the  dangerous  character  of 
the  said  machinery,  you  ought  to  find  for  the  plaintiff.-^ 

men  might  differ.  ...  In  every  made  is  not  conclusive  against  the 
case  this  duty  is  performed  by  the  necessity  of  making-  them.  It  is 
exercise  of  reasonable  care  in  simply  a  fact  to  be  considered.' 
deriding  in  the  first  place  whether  Under  the  circumstances  disclosed 
rules  are  necessary;  and  in  the  sec-  by  the  evidence,  the  instruction 
end  place,  in  making  such  rules  under  consideration  correctly 
as  appear  to  be  sufficient.  Blithe  stated  the  law,  and  properly  sub- 
question  in  either  case  may  \w  for  mitted  to  the  jury  the  question 
the  .iury  to  determine  whether  in  as  to  whether  the  defendant  in 
the  first  place  the  company  took  respf>ct  to  the  matter  of  making, 
reasonable  care  to  conclude  wheth-  promulgating  and  enforcing  neces- 
er  rules  were  necessary,  or  in  the  sary  rules,  was  negligent." 
second  place,  if  they  were,  whether  22— Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
the  rules  thus  made  were  proper  Newman,  27  Tex.  Civ.  App.  77,  64 
for    the    purpose    for    which    they  S.    W.    790. 

were  intended.     When  the  question  2.3 — Taylor     v.     Wootan.     1     Tnd. 

is    whether    the    case    was    one    in  App.    188,    27    N.    E.    502    (504).    50 

which    rules    ought    to    have    been  Am.    St.    Rep.    200.      "it    is    argued 

made,    the    fact    that   other   people  that   these   in.structions   wholly   ig- 

or     corporations     engaged     in     the  nore   the    question    of   contributory 

same     business     had     or    had     not  negligence,    and    are    therefore    er- 

foimd   it   necessary   to   make   rules  roneous.     it   is   not  necessary   that 

Mvriu     that     subject     is     one     that  each     instruction     should     contain 

might  well  be  considered.    But  the  the  whole  law  of  the  case,  or  any 

fact  that  no   such  rules  had   been  branch  of  the  case,  with  the  rec- 


928 


FORMS  OF  INSTRUCTIONS. 


[§  1384. 


§  1384.  Instruction  of  Minor  by  Master,  (a)  When  the  master 
employs  a  minor  to  perform  work  which  is  dangerous  or  hazardous 
to  the  person  of  such  minor,  it  is  the  duty  of  the  master  or  employer 
to  explain  to  such  minor  the  proper  manner  of  performing  such  work, 
and  also  to  explain  to  such  minor  the  dangers  and  hazarels  to  his 
person  incident  to  the  performance  of  such  work,  and  how  to  avoid 


ognized  exceptions.  They  should 
all  be  considered  together,  and 
construed  with  reference  to  each 
other.  If  an  instruction  contains 
a  complete  statement  of  a  prop- 
osition of  law,  applicable  to  the 
facts  in  a  given  case,  it  will  be 
held  good  as  part  of  a  series  con- 
taining the  entire  law  of  the  case. 
The  subject  of  contributory  negli- 
gence was  fully  and  clearly  ex- 
pounded in  other  instructions,  so 
this  objection  is  not  tenable.  It 
is  insisted,  further,  that  these  in- 
structions are  vicious,  in  that  they 
declare  it  to  be  an  actionable 
wrong  to  employ  an  infant  in  a 
dangerous  position,  under  any  cir- 
cumstances. They  do  not  bear 
any  such  an  interpretation,  and 
read  in  the  light  of  the  evidence, 
and  in  harmony  with  the  other 
instructions,  they  correctly  state 
the  law.  It  should  be  kept  in 
mind  that  the  complaint  proceeds 
upon  two  separate  and  distinct 
theories.  In  the  first  paragraph, 
the  liability  of  appellants  is  pre- 
dicated upon  their  alleged  negli- 
gence in  the  employment  of  the 
appellee  in  a  hazardous  undertak- 
ing, without  giving  him  sufficient 
instructions  to  enable  him  to  guard 
against  the  dangers;  while  in  the 
second  paragraph  it  is  alleged  that 
the  appellee  lacked  the  capacity 
to  understand  and  appreciate  the 
dangers  incident  to  the  service, 
and  was  therefore  unfit  for  that 
kind  of  work,  and  the  appellants 
were  culpable  for  engaging  him 
in  such  work,  knowing  his  inca- 
pacity. The  instructions  complained 
of  are  pertinent  to  the  latter 
theory.  The  law  recognizes  the 
right  of  a  master  to  employ  an 
Infnnt  in  hazardous  occupation  on 
condition  that  he  shall  furnish 
such  infant  with  such  information 
rflative  to  the  perils  of  his  situa- 
tion as  will  enable  him  to  com- 
prfhond  the  dangers  and  under- 
stand how  to  avoid  them.  But  it 
Is  an  actionnble  wrong  for  a  mas- 
tpr  to  expose  In  a  hnzardous  em- 
nloyment  onp  whom  he  knows  to 
be  lacking   in   capacity  to   under- 


stand and  appreciate  the  dangers 
surrounding  him,  however  much 
he  may  have  been  instructed.  A 
contrary  rule  of  law  would  be 
egregiously  inhuman.  In  the  case 
of  .Pitts.  C.  &  St.  L.  R.  Co.  V. 
Adams,  105  Ind.  151,  5  N.  E.  187, 
the  supreme  court  said  upon  this 
question:  'A  neglect  of  such  du- 
ties may,  in  a  case,  the  servant 
being  without  contributory  negli- 
gence, render  the  master  liable,  re- 
gardless of  the  fact  that  he  may 
have  exercised  reasonable  care  in 
making  and  keeping  the  premises, 
machinery  and  appliances  in  a 
safe  condition.  The  person  em- 
ployed may  be  so  young,  inex- 
perienced and  immature  in  judg- 
ment that  no  kind  of  warning  and 
instruction  would  relieve  the  mas- 
ter from  responsibility  for  injur- 
ies resulting  from  putting  him  at 
a  hazardous  and  dangerous  work.' 
The  rule  is  stated  thus  in  Shear. 
&  R.  Neg  (4th  Ed.>  para.  219:  'And 
if  he  (the  master)  knows,  or  in 
the  exercise  of  ordinary  care  and 
sagacity  would  have  known,  that 
the  servant  has  not  capacity 
enough  to  understand  the  warning 
and  appreciate  the  danger,  he  will 
be  liable  for  an  injury  which  such 
servant  may  suffer  in  consequence, 
if  continued  at  such  work.'  See 
also  Coombs  v.  Cordage  Co.,  102 
Mass.  572;  Hamilton  v.  R.  R.  Co.,  54 
Tex.  556;  Hayden-  v.  Manufactur- 
ing Co.,  29  Conn.  548.  It  would  be 
extr^ely  difficult  to  formulate  an 
arbitrary  rule  for  the  measure- 
ment of  capacity  in  such  cases; 
but  it  may  be  safely  declared  that, 
to  justify  a  master  in  the  employ- 
ment of  an  ignorant  and  inex- 
perienced infant  in  a  hazardous 
calling,  such  infant  should  possess 
at  least  sufficient  capacity  to  un- 
derstand the  dangers  of  the  situa- 
tion, and  to  appreciate  the  im- 
portance of  heeding  prudent  warn- 
ings for  his  own  safety.  The 
question  of  the  appellee's  capacity 
in  this  case  was  properly  sub- 
mitted to  the  jury,  and  the  in- 
structions attacked  by  the  ap- 
n;ellants  were  not  erroneous." 


§  1384.]  NEGLIGENCE— MASTER  AND   SERVANT.  929 

such  dangers  unless  the  dangers  and  risks  incident  to  such  work  are 
patent  and  obvious  to  persons  of  like  age  and  intelligence  of  such 
minor.-* 

(b)  The  jury  are  further  instructed  that  it  is  the  duty  of  the 
master  who  sets  a  servant  to  work  in  a  place  of  danger,  or  with 
dangerous  machinery  or  appliances,  to  give  him  such  notice  and  in- 
structions as  is  reasonably  required  by  the  youth,  inexperience  or 
want  of  capacity  of  the  servant ;  and,  failing  to  do  so,  the  master  is 
liable  for  the  damage  suffered  through  such  failure.-^ 

(c)  It  was  the  duty  of  the  defendant,  if  he  directed  the  plaintiff's 
intestate  to  manage  the  engine  and  turn  on  the  steam,  or  allowed 
him  to  do  so,  in  the  course  of  his  duties  and  if  the  defendant  knew 
that  he  was  young  and  inexperienced  to  instruct  him  as  to  its  danger, 
and  to  use  due  care  in  directing  his  attention  to  the  danger,  if  any, 
connected  with  the  engine  and  valve.  It  would  be  negligence  in  the 
defendant,  if  he  emploj-ed  a  boy  15  years  old,  without  experi- 
ence, and  put  him  to  running  an  engine  without  giving  him  care- 
ful instructions  how  to  use  it;  and  if  that  was  the  proximate  cause 
of  the  injui'y,  you  should  answer  the  first  issue  *'Yes." 

(d)  It  was  the  duty  of  the  defendant  to  exercise  due  care  in  the 
emploj-ment  of  the  boy  to  do  such  work  as  that  of  managing  danger- 
ous machineiy;  that  is,  was  the  hiring  of  a  15  3-ear  old  boy  to  run  a 
mill  and  manage  machinery,  without  warning  him  of  danger,  if  any, 
a  thing  that  a  prudent  business  man,  under  the  same  circumstances, 
would  do  ?  Was  it  due  care  to  put  the  boy  in  charge  of  the  engine 
without  warning?  Would  a  reasonable  and  prudent  man  do  it,  and 
if  not  was  that  the  proximate  cause?     That's  the  question.-® 

(e)  If  you  find  from  the  evidence  that  he  was  a  minor  at  the  time, 
but  over  fourteen  years  of  age,  and  that  when  he  applied  for  the 
position  he  stated  that  he  knew  the  duties  of  a  car  coupler,  and  could 
discharge  them,  the  defendant  had  the  right  to  accept  the  statement 
as  true,  and  act  on  it;  and  it  would  not  be  under  any  obligations  to 
instruct  the  plaintiff  as  to  the  dangers  attending  the  work,  or  as  to 
how  to  avoid  them,  unless  you  should  believe  from  the  evidence  that 

24 — Wood  V.  Texas  Cotton  P.  Co..  in.struction  g-iven  for  plaintiff,  is 
—  Tex.  Civ.  App.  — ,  88  S.  W.  496  erroneous,  because  it  assumes  the 
(497).  "It  is  contended  that  the  dangerous  character  of  the  em- 
duty  tiQ  warn  an  inexperienced  ployment  and  the  inexperience  of 
minor  is  not  limited,  as  a  matter  plaintiff.  There  is  no  conflict  in 
of  law,  to  only  dangers  which  are  the  evidence  about  either  of  these 
not  patent;  that  though  the  dan-  propositions.  They  are  undis- 
ger    may    be    obvious    and    patent,  puted." 

yet   the    master    should    warn   and  26 — Marcus    v.    C.    D.    Loane    & 

instruct  how  to  avoid  it.     The  rule  Co.,  133  N.  C.  54.  45  S.  E.  354  (355). 

of  law   applicable   to   the   question,  "The  rule  laid   down  by  his  honor 

we   think,    is    clearly    expressed   by  for      measuring      the      defendant's 

our  Pupreme  Court  in  the  case  of  duty,      assuming     that      the     jury 

the  Tex.  &  Pac.  Rv.   Co.  v.  Brick,  should  find   that  the  deceased  was 

83  Tex.   598.   20   S.   "W.    511."  employed    to   mnnas-e   the    machin- 

25— Giebell   v.    Collins    Co.,   54  W.  erv     or     to    run     the     engine     was 

Va.    518.   46   S.    E.    569   (573).      "It   is  clearly   correct." 
urg-ed    bv    defendants    that    above 
59 


930  FORMS  OP  INSTRUCTIONS.  [§1384. 

the  circumstances  were  such  as  to  require  a  prudent  person,  in  the 
exercise  of  ordinary  diligence,  to  give  such  instructions.-^ 

(f )  You  are  charged  that  it  is  the  duty  of  the  plaintiff  to  use  or- 
dinary care  in  the  performance  of  his  duty,  and  of  the  employer  to 
take  proper  precautions  for  the  safety  of  the  employes  when  working 
about  machinery,  especially  when  such  person,  through  youth,  in- 
experience or  want  of  capacity,  may  be  unable  to  appreciate  or  avoid 
the  danger  to  which  he  is  exposed.  Therefore,  if  you  believe  from  the 
evidence  that  the  plaintiff  was  employed  to  work  about  machinery 
which  was  dangerous,  and  that  defendant  knew  or  should  have  known 
of  the  peril  to  which  the  plaintiff  would  be  exposed,  and  did  not  give 
the  plaintiff  reasonable  notice  of  such  danger,  and  he,  without  negli- 
gence on  his  part,  through  inexperience  failed  to  perceive  or  under- 
stand the  risk,  and  the  plaintiff  was  injured,  you  will  find  for  the 
plaintiff;  otheinvise  find  for  the  defendant.  But  the  jury  are  charged 
that  the  fact  that  plaintiff  was  a  minor  does  not  relieve  him  from 
using  ordinary  care  for  his  protection  against  risks  incident  to  his 
emplojTnent.  You  are  charged  that  ordinary  care  is  such  care  that 
an  ordinarily  prudent  person  of  the  same  age  and  capacity  would  ex- 
ercise under  the  same  or  similar  circumstances.-^ 

(g)  The  court  instructs  the  jurj'  that  if  they  find  from  the  evi- 
dence that  the  defendant  put  the  plaintiff  to  work  upon  the  machine, 
and  that  the  said  machine  was  dangerous  to  operate,  and  that  the 
plaintiff  had  no  previous  knowledge  of  the  mode  of  operating  said 
machine  or  of  its  dangerous  character,  and  that  the  defendant  did  not 
warn  the  plaintiff  of  the  dangers  incidental  to  operating  said  machine, 
and  because  of  said  failure  of  the  defendant  to  warn  or  inform  the 
plaintiff  of  the  dangerous  character  of  said  machine,  and  without 
fault  on  the  part  of  the  plaintiff,  the  plaintiff  was  hurt  while  operat- 
ing said  machine,  then  the  verdict  of  the  jury  should  be  for  the  plain- 
tiff. Provided  the  jury  further  find  that  the  duty  of  operating  the 
machine  was  excluded  by  the  contract  of  employment  made  with  the 
plaintiff's  mother,  if  the  jury  shall  find  the  same,  and  that  the  plain- 
tiff was  a.t  the  time  a  boy  of  about  14  years  of  age,  and  that  his  father 
was  dead. 29 

(h)  If  you  find  that  the  place  was  dangerous,  and  that  the  de- 
fendant knew,  or  had  reason  to  know,  the  peril  to  which  plaintiff 
would  be  exposed,  and  did  not  give  him  sufficient  or  reasonable  notice 
of  it,  and  if  he,  without  any  negligence  on  his  part,  from  youth  or 
inexperience,  failed  to  perceive  or  appreciate  the  danger,  and  was 

27— Atlanta   &    W.    P.    R.    Co.    v.  apppllee  did  not  know  how  tn  op- 

Smlth.  94  Oa.   107.  20  S.  E.  763.  ernte  the  machine,   or  that  tho  ac- 

28 — Rerinp    Mfer.    Co.    v.    ■p^r-melnt,  <^ido-nt   to   him   was   caused   by  any 

—  Tf'x.   — .   79   S.   W.   869   fS7n.  fnilure    on    the    part    of    appellant 

29— Nat'l    R.    &    S.    Co.    v.    ■R-ndv.  to     warn     him     of     the     dnn^erous 

93  Md.   646,   49   Atl.   845   (Mfi).     "The  character     of    the     machine.       The 

appellnnt  excepted  specially  tn  the  lenrned  .iudg'e  below  overruled  this 

KrnntinpT  nf  this  praver  for  wnnt  of  exception,    and     his    action    in     so 

lepnlly  sufficient  evidence  that  the  doing   meets   our   approval." 


§  1385.]  NEGLIGENCE— MASTER  AND   SERVANT.  931 

injured  in  consequence,  the  defendant  is  responsible  to  him,  in  an 
action,  for  such  damages  as  you  shall  find  he  has  sustained  by  reason 
of  the  injury  under  the  charge. 

(i)  A  party  entering  upon  a  particular  employment  assumes  the 
risk  and  perils  usual  thereto,  when  the  usual  and  customary  means 
to  g-uard  against  accidents  are  adopted.  If  the  servant  with  full 
knowledge  of  the  danger,  and  understanding  the  increased  risk  oc- 
casioned thereby,  consents  to  enter  into  the  employment,  then  he 
voluntarily  incurs  the  risk;  and,  if  he  suffers  damages  in  consequence 
of  injury  received  thereby,  he  will  be  without  remedy.  The  fact  that 
he  remains  in  the  master's  employment  under  such  circumstances, 
and  with  such  knowledge,  is  what  constitutes  contributory  negligence 
on  his  part.  In  such  a  case,  the  master,  in  permitting  his  machinery 
to  be  thus  more  than  ordinarily  dangerous  is  guilty  of  negligence; 
but  the  servant,  with  full  knowledge  thereof,  by  remaining,  con- 
tributes thereto,  and  hence  he  cannot  recover  if  he  has  such  knowl- 
edge.^** 

§  1385.  Right  to  Rely  on  Representations  of  Minor  as  to  Experi- 
ence, (a)  The  court  instructs  the  jury  that  the  fact  that  the  de- 
ceased was  in  the  employ  of  the  defendant  company  as  coal  loader 
did  not  prevent  the  defendant  employing  the  deceased  to  work  as  a 
helper  on  the  mine  machine;  and  if  the  jury  believe  from  the  evi- 
dence that  said  B.  H.  approached  the  deceased  while  he  Avas  engaged 
at  his  work  as  coal  loader,  and  inquired  of  him  whether  or  not  he  had 
worked  upon  a  mine  machine  as  helper,  and  the  deceased  informed 
said  H.  that  he  had  so  worked,  and  upon  that  information  the  said 
H.  believed  it  to  be  trae,  and  requested  the  deceased  to  assist  him  as 
a  helper  in  running  the  machine  in  room  ISTo.  4  to  cut  it  out,  and  the 
deceased  consented  thereto  without  making  any  soi't  of  objection, 
then,  although  the  deceased  may  have  been  but  17  years  of  age,  if  the 
juiy  believe  from  the  evidence  that  he  was  possessed  of  ordinary  in- 
telligence, the  said  H.  had  the  right  to  rely  upon  the  representations 
of  the  deceased  to  him  as  to  his  experience  and  if,  under  such  cir- 
cumstances, he  entered  upon  the  work  of  assisting  to  run  said  mine 
machine  as  a  helper,  the  deceased  was  required  to  exercise  ordinary 
care  to  avoid  danger  and  injury  to  himself  while  so  at  work,  and  the 
said  H.  would  not  be  required  to  instruct  him  as  to  his  duties  unless 
it  appeared  from  the  manner  in  which  he  undertook  to  perfoi-m  and 
did  perform  the  same  that  he  was  incapable  of  doing  it  for  want  of 
knowledge  and  information  as  to  what  the  duties  of  a  helper  upon  a 
mine  machine  were. 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  deceased  represented  to  the  said  H.  that  he  had 
worked  upon  a  mine  machine  as  a  helper,  and  he  consented  to  work 
°s  such  helper  in  running  the  machine  to  cut-out  room  No.  4,  and  pro- 

30 — "These       instructions       were   without   error."     King  v.   Ford   R. 
Lbr.  Co.,  93  Mich.  172,  53  N.  W.  10  (12). 


932  FORMS  OF  INSTRUCTIONS.  [§  1386. 

ceeded  to  do  such  work,  and  if  the  said  H.  believed  it  to  be  true, 
and  did  not  discover  before  his  injury  any  want  of  capacity  in  the 
said  B.,  and  the  jury  believe  from  the  evidence  that  the  said  B.  was 
a  person  of  ordinary  sense,  the  defendant  cannot  be  held  for  the 
negligence  on  the  part  of  said  B.  under  such  circumstances.^^ 

§  1386.  Employing  Child  without  School  Certificate  in  Illinois, 
(a)  The  court  instrixets  you  that,  if  you  believe  from  the  evidence 
before  you  iu  this  case  that  the  defendants  were  a  fii'm  and  were 
carrj'ing  on  a  factory  or  manufacturing  establishment,  as  alleged  in 
the  plaintiff's  declaration;  that  they  employed  the  plaintiff  to  work 
in  their  said  factoiy  or  manufacturing  establishment  by  the  day,  or 
for  a  longer  period  of  time  than  one  day,  without  having  been  first 
furnished  with  a  certificate  fi^om  the  board  of  education  or  school 
directors  of  the  school  district  in  which  the  plaintiff  then  resided 
authonzing  such  employment :  that  the  defendants  after  such  em- 
ployment put  and  placed  the  plaintiff  to  work  at  the  sawing  machine 
mentioned  in  the  plaintiff's  declaration;  that  the  plaintiff  at  the 
time  of  such  employment  was  under  the  age  of  thirteen  years;  that 
the  plaintiff  was  injured  as  alleged  in  the  plaintiff's  declaration 
while  he  was  working  under  such  employment  at  and  with  the  said 
sawing  machine,  and  in  such  factory  or  manufacturing  establishment, 
and  while  he  was  under  the  age  of  thirteen  years,  and  by  reason  of 
being  so  employed  in  such  factory  or  manufacturing  establishment; 
and  that  the  plaintiff  was  at  the  time  he  was  injured  and  immediately 
before,  exercising  all  due  and  ordinary  care  (that  is  such  reasonable 
care  as  a  child  of  his  age  might  reasonably  be  expected  to  exercise), 
for  his  own  safety,  then  you  will  find  the  defendants  guilty  and  as- 
sess the  plaintiff's  damages  at  such  sum  as  you  find  from  the  evidence 
will  be  a  just  and  reasonable  compensation  for  his  injuries. 

(b)  The  court  instructs  you  that,  if  any  person,  firm  or  corpora- 
tion employs  a  child  under  the  age  of  thirteen  years  by  the  day,  or 
for  any  greater  period  of  time  than  one  day,  in  any  factory  or  manu- 
facturing establishment,  without  a  certificate  issued  by  the  board 
of  education  or  the  school  dii'ectors  of  the  school  district  where  such 
child  resides  authorizing  such  employment,  then  such  employment  is 
an  act  of  negligence  on  the  part  of  such  firm,  person  or  corporation 
so  employing  such  child,  and  if  such  child  is  hurt  or  injured  in  such 
factory  or  manufacturing  establishment  while  it  is  so  emploj'ed,  or  by 
reason  of  being  so  employed,  and  while  such  child  is  using  due  and 
ordinary  care  (that  is,  such  reasonable  care  as  a  child  of  that  age 
might  reasonably  be  expected  to  exercise),  for  its  own  safety,  then 
the  person,  fimn  or  corporation  so  employing  such  child  is  legally 
liable  for  such  injury.^^ 

31 — McVpy    V.    Rt.    Clnir    Co.,    49  appellants    that    these   instructions 

W.   Vn.   412,   ?.f^   R.   K.   e,iH  <C,r,2).  take  from  tho  jury  thp  miestion  of 

?,2 — Morris     v.     Stanfiolfl,     SI     HI.  nr>p:lig-ence    on    the    pnrt    of    nppel- 

App.   264   (268).     "It  is  insisted  by  lants,   if   they   find,    from   the  evi- 


§1387.]  NEGLIGENCE— MASTER  AND   SERVANT.  933 

§  1387.  Negligence  of  Master  Not  Presumed — Burden  of  Proof  on 
Plaintiff.  Negligence  on  the  part  of  the  defendant  is  not  presumed. 
It  is  an  affirmative  fact,  which  plaintiff  must  prove  by  a  preponder- 
ance of  the  evidence,  and  the  negligent  act  or  acts,  proved,  if  any, 
must  be  such  particular  acts  as  are  alleged  in  the  plaintiff's  com- 
plaint. The  burden  of  proof  is  on  the  plaintiff,  and  if  you  find  that 
the  evidence  bearing  on  the  question  of  negligence  on  the  part  of  the 
defendant  is  evenly  balanced,  or  that  it  preponderates  in  favor  of  the 
defendant,  then,  in  that  case  the  plaintiff  cannot  recover,  and  your 
verdict  must  be  for  the  defendant — no  cause  of  action. ^^ 

S 1388.  Effect  of  Admission  of  Plaintiff  that  Explosion  Was  His 
Fault.  The  court  instructs  the  jury  that,  even  if  they  believe  fi"om 
the  evidence  that  defendant  S.,  after  the  explosion,  and  injury  of  the 
plaintiff,  stated  or  admitted  that  he  was  to  blame  in  the  matter,  or 
that  it  was  his  fault,  yet  that  does  not  entitle  the  plaintiff  to  re- 
cover unless  the  evidence  in  the  case  before  the  jury,  including  such 
statements  of  said  S.,  if  the  juiy  believe  it  was  made,  under  the  in- 
struction given  by  the  court,  shows  that  the  said  S.  was  negligent, 
and  that  his  negligence  was  the  direct  and  proximate  cause  of  the 
plaintiff's  injuries.^* 

§  1389.  Foreman  Assumes  Risk  of  Carelessness  of  Employes  Sub- 
ject to  His  Control,  (a)  The  testimony  is  undisputed  that  the 
plaintiff  had  charge  of  the  wareroom  in  which  said  accident  occurred, 
and  of  the  unloading  and  depositing  the  merchandise  brought  into 
said  building,  as  well  as  the  direction  and  control  of  the  employes 
whose  duty  it  was  to  truck  said  goods,  including-  all  glass  therein.  If, 
therefore,  you  find  from  the  evidence  that  the  said  injury  was  caused 
by  the  passageway  being  obstructed  by  the  employes  trucking  goods 
therein,  your  verdict  will  be  for  the  defendant,  unless  you  find  that 

dence,     that     appellee    was     under  formance    of   such    statutory    duty 

thli'teen   years   of  age.     Section   77,  resulting  in  injury  to  another  may 

chapter    38,    of    the    Criminal    Code  therefore   be   presumed    to   be   neg- 

declares,    'that    it    shall    be    unlaw-  ligence    as    a    conclusion    of    law.' 

ful  for  any  person,  firm  or  corpora-  To   the  same   effect   is   L.    S.    &   M. 

tion    to    employ    or   hire    any    child  S.    Ry.    Co.    v.    Parker,    131   111.    566, 

under    thirteen    years    of    nge    ex-  23   N.   E.   237.     If  the  non-perform- 

cept  as  hereinafter  provided.'  .    .    .  ance  of  a  statutory  duty  resulting 

If    by    reason    of    this    prohibition  in    personal    injury    to    another    is 

the   employment    of   a    child    under  negligence    in    law,    the    doing    of 

thirteen    years    of    age    without    a  something     prohibited     by     statute 

certificate,     is    negligence     in    law,  resulting  in  personal  injury  to  an- 

and    the    injury    occurs    in    conse-  other   must    also    be    negligence    in 

quence  of  such  employment,   there  law.      There    is    then    no    error    in 

is    no    error    in    these    instructions,  stating    in     the     instructions     that 

It   was   held   in   the   case   of   T.   H.  the    employment   of   a    child    under 

&    I.    R.    Co.    V.    Voelker,    129    111.  the  age  of  thirteen  without  a  cer- 

555.    22    N.    E.    20.    that    'A    statute  tificate    from     a     school     board    is 

commanding    an    act    to    be    done  negligence. " 

creates    an    absolute    duty    to    per-         33 — Downey     v.     Gemini     'Mining 

form    such    act,    and    the    dutv    of  Co..   24   Utah   431,   6S  Pac.   414   (417), 

such  performance  does  not   depend  91    Am.    St.    Rep.   79!^. 
upon  and  is  not  controlled  hy  sur-         34 — Schwartz  v.   Shull,  45  W.  Va. 

rounding  circumstances.     Non-per-  405,  31   S.  E.  914   ('916). 


934  FORMS  OF  INSTRUCTIONS.  [§  1390. 

the  defendant  personally  directed  the  obstruction  of  said  passageway. 
And  the  court  further  instructs  you  that  an  order  given  by  the  de- 
fendant to  pile  said  goods  in  the  north  end  of  the  store  was  not  an 
order  to  obstruct  a  permanent  passageway  therein. 

(b)  You  are  further  instructed  that  the  foreman  and  plaintiff  in 
this  case  not  only  assumed  all  ordinary  risks  of  the  work  he  was 
personally  doing,  but  he  also  assumed  all  the  risk  occasioned  by  the 
carelessness  of  the  employes  subject  to  his  control,  and  over  whom  he 
was  superintendent,  while  in  the  performance  of  their  work,  and  it  is 
therefore  the  duty  of  the  plaintiff  to  see  that  those  under  his  control 
and  direction  properly  performed  their  work,  and  if,  owing  to  the 
carelessness  of  said  employes  under  said  plaintiff's  control  in  per- 
forming their  work,  said  plaintiff  was  injured,  then  the  plaintiff  can- 
not recover,  and  your  verdict  must  be  for  the  defendant.^^ 

REASONABLY   SAFE   PLACE   TO  WORK. 

§  1390.  Master  Must  Furnish  Reasonably  Safe  Place  and  Sur- 
roundings, (a)  The  jury  are  instructed  that  it  was  the  duty  of  the 
defendant  in  this  case  to  use  ordinary  care  and  prudence  in  furnish- 
ing to  the  plaintiff  at  and  before  the  time  of  the  accident  complained 
of,  a  reasonably  safe  place  and  reasonably  safe  surroundings  in  which 
to  work,  and  to  use  reasonable  care  to  maintain  and  keep  such  place 
in  a  reasonably  safe  condition.^** 

(b)  It  is  the  duty  of  a  master  or  employer  to  furnish  his  servant 
or  employe  with  a  safe  place  to  work,  and  to  make  provisions  for  the 
safety  of  his  employes  or  servants  as  will  protect  them  against  the 
dangers  incident  to  their  employment. 

(c)  You  are  instructed  that  S.  and  H.  were  not  obliged  to  furnish 
the  said  P.  with  an  absolutely  safe  place  to  work  in  or  to  make  sup- 
ports of  the  tunnel  absolutely  safe,  but  they  were  only  required  to 
use  ordinary  care  to  protect  their  employes  against  accident,  etc.^' 

(d)  It  is  the  duty  of  the  employer  to  furnish  a  suitable  and  safe 
place  for  his  employes  to  work.^^ 

(e)  The  court  instructs  the  juiy  that  it  was  the  duty  of  the  de- 

35 — Kennard      v.      Grossman,     —  misled   to  accept  the  first  instruc- 

Neb.  — ,  89  N.   W.   1025  (1026).  tion  above  g-iven   as  meaning   that 

36 — Hansell-Elcock  F.  Co.  v.  defendants  were  required  to  fur- 
Clark,  115  111.  App.  209  (212),  aff'd  nish  an  absolutely  safe  place  in 
214  111.  399,  73  N.  E.  787.  "We  which  deceased  was  to  work." 
think  this  instruction  states  the  38 — Grijalva  v.  S.  P.  Co.,  1.37  Cal. 
correct  rule  as  to  appellant's  duty  569,  70  Pac.  622  (624).  "It  stated 
to  appellee  as  to  furnishinpr  him  the  law  as  laid  down  by  this  court 
a  reasonably  safe  place  and  rea-  in  Mullin  v.  Horseshoe  Co.,  105 
sonably  .safe  surroundings  in  Cal.  83,  38  Pac.  535.  And  there  was 
which  to  work,  and  in  maintaining  no  issue  made  by  pleadings  as  to 
the  same  In  a  reasonably  safe  con-  the  character  of  the  place,  as  the 
ditlon."  answer  admits  that  it  was  a  dan- 

37 — Pawley   v.    f?wenRen.   146   Cal.  g-erous    place,    and    that    the    work 

471.   80  Pac.  722  (725).     "We  do  not  was    dangerous." 

think    the    jury    could    have    been  The    above    instruction    standing 


§  1391.]  NEGLIGENCE— MASTER  AND   SERVANT.  935 

fendant,  except  in  so  far  as  it  may  have  been  excused  therefrom  by 
the  duty  of  the  plaintiff,  under  the  evidence,  to  use  ordinary  care  and 
skill  in  the  management  of  that  kind  of  business  for  the  protection  of 
the  plaintiff;  and  if  they  believe  from  the  evidence  that  the  defendant 
failed  to  do  what,  under  the  evidence,  the  jury  may  believe  was  in- 
cumbent on  its  part  to  do,  in  order  to  keep  the  room  in  which  plaintiff 
worked  in  a  reasonably  safe  condition  in  that  nature  of  business,  and 
that  the  injury  to  the  plaintiff'  was  directly  caused  by  such  failure, 
then  they  should  find  for  the  plaintiff.^^ 

(f )  It  was  the  duty  of  the  defendant  to  keep  the  premises  about 
which  the  plaintiff  was  employed  in  a  reasonably  safe  condition — that 
is  to  say,  in  such  a  condition  as  the  premises  would  have  been  kept  by 
a  person  of  ordinary  prudence  under  the  same  circumstances,  con- 
sidering the  nature  of  the  work  to  be  performed. 

(g)  The  defendant  was  under  no  obligation  to  keep  the  plaintiff 
absolutely  safe  and  free  from  danger,  nor  to  insure  the  plaintiff 
against  accident.  His  duty,  to  express  it  tersely,  was  to  use  ordinary 
care  to  secure  the  plaintiff's  safety.  Ordinary  care,  you  are  instruct- 
ed, is  the  care  that  is  ordinarily  exercised  by  persons  of  average 
prudence  under  the  same  or  similar  circumstances.  Just  what  that 
degree  of  care  is,  or  would  be  is  for  the  jury  to  determine.  Having 
determined  what,  under  the  circumstances,  would  have  been  ordinary 
care  it  is  for  you  to  say  whether  such  care  was  exercised  by  the  de- 
fendant about  the  premises  in  question. 

(h)  You  are  instructed  that  it  was  the  duty  of  the  defendant  com- 
pany to  keep  the  premises  about  which  the  plaintiff  was  employed  in 
a  reasonably  safe  condition;  that  is  to  say,  in  such  a  condition  as  the 
premises  would  have  been  kept  by  a  person  of  ordinary  prudence  un- 
der the  same  circumstances,  considering  the  nature  of  the  work  to  be 
accomplished.*'' 

(i)  The  court  instructs  you  that  if  the  defendant  furnished  a 
place  which  was  as  safe  and  free  from  danger  as  other  persons  of  or- 
dinary care,  prudence  and  caution,  and  engaged  in  like  business,  and 
in  like  circumstances,  ordinarily  furnish,  then  you  must  find  that  the 
defendant  furnished  to  the  plaintiff  a  reasonably  and  ordinarily  safe 
place  to  work.*^ 

§  1391.  Insufiacient  Fastening  or  Nailing  of  Scaffold,  (a)  If  you 
believe  from  the  evidence  that  S.  B.,  the  foreman  of  defendant  X.,  or- 
dered the  carpenter  S.  to  nail  one  of  the  planks  of  the  scaffold,  from 

alone  and  outside  the  issue  of  the  24    Utah    431,   68   Pac.    414    (415),    91 

above  case  as  made  by  the  plead-  Am.   St.  798. 

ings  would  ordinarily  be  erroneous.  41— Guinard    v.    Knapp,    Stout    & 

It   does   not   state   the   correct   rule  Co..    95    Wis.    482.    70    N.    W.     671. 

of    law,    unless    qualified    in    some  "This    proposed    instruction    unde- 

such    manner    as    the    instruction  niably  states  the  law  of  negligence 

just    preceding    it.      This    instruc-  as    applicable   to   the   duty    of   the 

tion,   therefore,   is   not   commended  master  to   furnish   a  safe  place  to 

for  general  use. — [Editor.]  work,  and  tn  the  facts  of  the  case, 

39 — Russell  C.  Cnal  Co.  v.  Wells,  with      substantial      accuracy.        It 

96  Va.  416.  31   S.  E.  614  (615").  should  have  been  given  as  asked." 

40 — Downev  v.   Gemini   Min.   Co.. 


936  FORMS  OF  INSTRUCTIONS.  [§,1392. 

which  plaintiff  fell,  to  the  trestle  inside  with  eightpenny  nails,  and 
that  said  S.  did  so  under  and  by  direction  of  said  B.,  and  if  you 
further  believe  from  the  evidence  that  said  B.  was  guilty  of  negli- 
gence in  having  said  plank  so  fastened  and  if  you  further  believe 
from  the  evidence  that  while  plaintiff  was  working  on  said  scaffold 
the  said  fastening  of  said  plank  came  loose,  and  thereby  caused 
plaintiff  to  fall  from  said  scaffold  and  to  be  injured;  and  if  you 
believe  from  the  evidence  that  the  negligence,  if  any,  of  said  B. 
was  the  proximate  cause  of  said  injury — then  you  will  find  for 
the  plaintiff,  unless  you  find  for  the  defendant  under  the  chai'ges  here- 
inafter given  you. 

(b)  If  you  do  not  believe  from  the  evidence  that  said  plank  was 
so  fastened  by  the  order  of  said  foreman  B.,  and  that  he  was  guilty 
of  negligence  in  having  it  so  fastened,  and  that  such  negligence,  if 
any,  was  the  proximate  cause  of  plaintiff's  injury,  if  any,  you  will 
find  for  the  defendant. 

(c)  Or,  if  you  believe  from  the  evidence  that  the  plaintiff  himself 
was  guilty  of  negligence  in  the  construction  of  said  scaffold,  and  that 
such  negligence,  if  any.  proximately  contributed  to  his  injuries,  if 
any,  you  will  find  for  defendant ;  or  if  you  believe  from  the  evidence 
that  either  or  any  of  the  fellow  servants  with  the  plaintiff  were  guilty 
of  negligence  in  the  construction  of  said  scaffold,  and  that  such  neg- 
ligence, if  any,  proximately  contributed  to  Ms  injuries,  if  any,  you 
will  find  for  defendant ;  or  if  you  believe  fi'om  the  evidence  that  when 
the  plaintiff  went  upon  said  scaffold  he  knew  it  was  unsafe  for  him  to 
walk  or  stand  thei'eon  to  do  work,  you  will  find  for  defendant. ■*- 

§  1392.  Servant  May  Assume  Master  Has  Furnished  Safe  Scaffold. 
It  was  not  incumbent  upon  the  servant  to  inspect  the  implement 
which  the  master  provided  him  upon  and  with  which  to  perform  his 
work,  but  he  had  a  right  to  rest  upon  the  assurance  that  the  master 
would  perfoim  the  obligations  and  duties  which  the  law  east  upon 
him  to  exercise  reasonable  care  to  provide  him  a  reasonably  safe  scaf- 
fold upon  which  to  Avork.'*'' 

§  1393.  Injury  from  Falling  of  Brick  through  Insufficient  Plat- 
form of  Scaffolding.  If  the  jury  believe  from  the  evidence  in  this 
case,  that  the  platform  of  the  scaffolding  in  question  did  not  have  a 
sufficient  covering  or  other  proper  provision  to  render  its  use  reason- 

42— Boettler     v.      Tumlinson.     —  App.  — ,  44  S.  W.  894;  Smith  v.  Rich- 

Tex.    Civ.    App.    — ,    77    S.    W.    824  ardson    Lumber    Co.,    92    Tex.    450, 

(825).     "If  the  charge  given  by  the  49  S.  W.   574;  Scott  v.  T.  &  P.   Ry. 

court    Is    in    itself    unobjectionable.  Co.,  93  Tex.  625,  57  S.  W.  801;  Hum- 

a    party    cannot    complain    of    the  phreys  v.   Edwarrls,   89  Tex.  517,  36 

failure  of  the  court  to  give  an  in-  S.  W.  333  (434);  Cotton  State  Bldg. 

.struction    which    he    ha.s    neglected  Co.  v.   Jones,  94  Tex.  497,   62  S.  W. 

to  ask.     This  we  believe  to  be  the  741;    Reazley    v.    Denson,    40    Tex. 

rationale     of     the     decisions     upon  433;  Wenar  v.   Stenzel.   48  Tex.  489; 

charges  exc'luding  issues  raised   by  Stude    v.    Sinnders,    2    Pnsev.    TTn- 

the  pleadings  nnd  evidence.  Chnm-  ren.   Cns.  1?4." 

blee  V.   Tarbox.  27  Tex.   "HO.  84   Am.  43 — Momence    R      r-o      ir      Turroll, 

Dpc.    614;   Johnston  v.    Johnston.  —  106   Tl'.    Ann.    160.    aff'd    205    Til.    515, 

Tpx.    Civ.    App.    — ,    67    S.    W.    124;  68   N.    E.    1078. 
Eppstein   v.   Thomas.   —   Tex.    Civ. 


§  1394.]  NEGLIGENCE— MASTER  AND   SERVANT.  937 

ably  safe  to  employes  having  business  on  the  premises  below  and  un- 
derneath said  platform,  and  that  the  existence,  location  and  use  of  the 
platfoi-m  was  not  known  to  the  plaintiff,  A.  B.,  and  that  the  plaintiif 
was  in  the  exercise  of  reasonable  care  at  the  time,  and  that  for  want 
of  such  covering,  guard,  i-ailing  or  protection,  the  brick  in  question 
fell  down  from  said  platfoi-m,  and  struck  and  injured  the  plaintiff, 
then  the  defendants  in  this  case  are  liable.** 

§  1394.  Injury  through  Defective  Sewer  Cover.  The  court  in- 
structs the  jury  if  you  lind,  from  the  evidence,  that  the  defendant  did 
not  have  actual  notice  of  a  defect  in  the  sewer  cover  described  in 
the  declaration,  yet  if  you  find,  from  the  evidence,  that  the  cover  of 
said  sewer  hole  was  in  a  defective  condition  and  remained  so  for 
such  a  length  of  time  prior  to  the  accident  to  the  plaintiff  that  the 
defendant  might  have  discovered  such  defect  by  the  exercise  of 
reasonable  diligence,  then  you  will  be  justified  in  finding  that  the  de- 
fendant had  notice  of  such  defect,  and  that  it  was  the  duty  of  the  de- 
fendant to  have  repaired  said  defect.*^ 

§  1395.  Pailure  to  Keep  Boards  on  Sill  of  Window  Securely 
Fastened.  The  court  instructs  you  that  it  is  the  duty  of  the  de- 
fendants to  use  reasonable  care  and  diligence  to  keep  the  boards  up- 
on the  sill  of  the  building  securely  fastened,  and,  if  the  board  which 
injured  the  plaintiff  fell  from  the  sill  of  the  building  on  which  said 
plaintiff  was  working,  and  was  not  securely  fastened  on  said  sill,  and 
fell  because  of  such  insecure  fastening,  and  the  defendant  knew,  or 
by  the  exercise  of  reasonable  care  might  have  known,  of  such  in- 
secure fastening  in  time  to  have  remedied  the  same,  then  the  defend- 
ant was  guilty  of  negligence,  and  is  liable  if  the  plaintiff  was  in  the 
exercise  of  due  care."' 

44 — Angus    v.     Lee.    40    111.    App.  as  to  the  construction  of  the  plat- 

304  (306).     "It  appears  by  this  rec-  form,    before    they    beg-an    to    work 

ord     that    the     practical     men    en-  upon   it.     The   law   implies    such   a 

gaged    in    the    construction   of   this  duty  where  the  platform  is  over  a 

building  did  not  so  understand  the  thoroughfare.       Jager     v.     Adams, 

obligations    of   the    respective    con-  123   Mass.   26,  25  Am.   Rep.   7." 

tractors;    for    those    for   whom    the  45 — Wrisley     v.     Burke.     106     111. 

appellee   worked    engaged,    in   their  App.    30    (31),    aff'd    203    111.    250,    67 

contract,   to  floor  the  joists  of  the  N.   E.   8S8. 

story    next    over   where    their   men  46 — Whitney    &    Starrette    Co.    v. 

might  be  at  work,  as  a  protection  O'Rourke.    172    111.    177    (183).    50   N. 

to    them;    this    was    not    done;    but  E.   242,  aff'g  68  111.  App.  487.    "This 

there  was  a  conflict  of  evidence  as  instruction    expressly    requires    the 

to  whether  the  appellants  w^ere  to,  jury    to    find    that    the    defendant 

and    did.    in    this    instance,    notify  knew    of    or    by    the    exercise    of 

the   foreman    under  whom    the  ap-  reasonable  care  might  have  known 

pellee  worked,  of  where  the  appel-  of    the    defect     in     question.      The 

lants  were  going   to  work,  so  that  use  of  the  words  'due  care'  instead 

men    might    be    kept    from    under  of   the   customary  words   'ordinary 

them.      Why    the    particular    brick  care'  is  overcome  by  the  fact   that 

thnt     hurt     the     apnellee    fell     can  the  jury  we^-e  gi\-eTi  other  ins^^ruc- 

onlv    be    f^onie'^tu'-ed:    there    is    no  tions  both  by  pliin  +  iff  and  defend- 

.^virioiT^e     urvnn     the     subject;     and  ant    th-^t    the    r>ipi'->tiff   must    be   in 

therefore   t>^e   instrii'^tion   puts   the  the   exercise   of   ordinary  care.  .  .  . 

right    to    recover   wholly    upon    the  We    do    not    think    that    the    words 

supposed    duty    of    the    appellants  'securely   fastened'    necessarily   in- 


938  FORMS  OF  INSTRUCTIONS.  [§  1396. 

§  1396.  Elevator — Duty  to  Keep  in  Repair.  The  plaintiff  prays 
the  court  to  instruct  the  jury  that  it  was  the  duty  of  the  defendant, 

,  to  use  ordinary  care  and  diligence  in  keeping  the  elevator 

used  by  it  in  repair;  and  if  they  shall  find  from  the  evidence  that  the 

accident  resulting  in  injuries  to    the    plaintiff,    ,  occurred  by 

reason  of  a  defect  in  said  elevator,  which  defect  could  have  been  dis- 
covered and  remedied  by  the  defendant  previous  to  the  accident  by 
the  use  of  ordinary  care  and  diligence  in  inspecting  said  elevator,  or 
if  they  shall  find  that  the  said  accident  happened  by  reason  of  an 
improper  method  of  construction  of  said  elevator,  and  shall  further 
find  that  the  plaintiff  was  in  the  usual,  ordinary,  and  proper  discharge 
of  his  duties  as  the  conductor  of  said  elevator  when  hurt,  then  their 
verdict  must  be  for  the  plaintiff.*'^ 

§  1397.  Elevator — Failure  of  Master  to  Guard  Opening,  (a)  The 
court  instructs  the  jury  that  under  the  pleadings  and  evidence  in  this 
case  it  was  the  duty  of  the  defendant  to  have  had  the  elevator  open- 
ing in  the  shipping  room,  mentioned  in  the  evidence,  provided  with 
inclosing  railing  or  gate  to  effectually  bar  said  opening,  for  the  pre- 
vention of  accidents  therefrom,  and  to  keep  such  opening  closed  by 
such  railing  or  gate  when  such  opening  was  not  being  used,  and  that 
a  failure  to  do  so,  if  the  defendant  did  so  fail,  was  negligence  upon 
the  part  of  the  defendant.  And  the  court  further  instructs  the  jury 
that  if  the  defendant  did  provide  such  railing  or  gate,  and,  by  its  of- 
ficers or  agents  authorized  to  direct  and  control  said  railing  or  gate 
as  to  its  being  kept  open  or  closed,  caused  the  same  to  be  kept  open 
when  said  elevator  was  not  being  used,  then  such  providing  of  said 
gate  or  railing  was  no  compliance  with  the  ordinance  read  in  evi- 
dence, and  the  defendant  was  guilty  of  negligence  in  that  regard.'*^ 

(b)  If  the  jury  find  from  the  evidence  that  prior  to  and  on  the 
,  the  defendant  occupied  the  premises,  known  as  "814  and 

volve  the  idea  of  absolute  safety,  care,  may  perform  his  duty  with- 
The  master  is  required  to  use  rea-  out  exposure  to  dangers  not  aris- 
sonable  care  and  prudence  in  pro-  ing-  within  the  obvious  scope  of 
vidinff  the  servant  with  safe  and  his  employment,  is  not  to  be  un- 
.suitiible  appliances  and  instrumen-  derstood  as  implying  an  absolute 
talities  to  be  used  by  him  in  the  liability  for  the  safety  of  the  work- 
work,  which  he  is  employed  to  do.  man's  place.  Northcoat  v.  Bach.- 
He  must  also  use  all  reasonable  elder.  111  Mass.  322.  It  cannot  be 
care  to  furnish  to  his  employe  a  said  that  the  instruction  required 
reasonably  safe  place  in  which  to  too  much  of  the  appellant  in  stat- 
work,  and  use  proper  diligence  to  ing  in  substance  that  it  was  its 
keep  such  place  in  a  reasonably  duty  to  make  a  reasonable  effort 
safe  condition.  Consolidated  Coal  to  make  the  board  secure.  The 
Co.  V.  Haenni,  146  111.  614.  35  N.  place  where  the  appellee  worked 
E.  162;  Libby,  McN.  &  L.  v.  Scher-  could  not  be  reasonably  safe  un- 
man. 146  111.  5.^)3;  34  N.  E.  801.  37  less  the  boards  w-ere  securely  fas- 
Am.    St.    101;    Hess    v.    Rosenthal,  tened." 

160  Id    fi^l.  43  N.   K.  743;  111.  S.   Co.  47— Baltimore    B.    &    S.    Mfg.    Co. 

V.     Rchvmnnowskl,    162    id.    447,    44  v.    Jamar,    93    Md.    404,    49    Atl.    847 

N.  E.  876.     The  Implied  contract  of  (849),  86  Am.  St.  428. 

an    employer    with    his    servant    to  48 — Wendler    v.     People's     House 

furnish    a   suitable   place    in    which  Furnishing   Co.,    16!i    Mo.    527,    6f5    S. 

the   servant,    while   exercising   due  W.  737  (740).     "The  validity  of  the 


§  1398.]  NEGLIGENCE— MASTER  AND   SERVANT.  939 

816  North  Broadway,"  mentioned  in  the  evidence,  and  used  the  ele- 
vator mentioned  in  the  evidence;  and  if  the  jury  find  from  the  evi- 
dence that  on  said  day  the  plaintiff  was  in  the  service  of  the  de- 
fendant as  a  cabinet  repairer,  and  that  it  was  in  the  line  of  his  duty 
to  ride  upon  the  elevator  mentioned  in  the  evidence  in  the  discharge 
of  his  duties;  and  if  the  jury  further  find  from  the  evidence  that  said 
elevator  passed  through  a  hatchway  in  the  floor  of  the  shipping  room; 
and  if  the  jury  find  from  the  evidence  that  the  shipping  room  near 
said  elevator  opening  on  said  day  was  dark  and  insufficiently  lighted, 
and  that  the  sunlight  was  partly  excluded  by  the  piling  up  of  furni- 
ture therein;  and  if  fhe  jury  find  from  the  evidence  that  the  defend-, 
ant  did  not  exercise  ordinary  care  in  maintaining  said  room  near  said 
elevator  opening  in  such  condition ;  and  if  the  jury  further  find  from 
the  evidence  that  defendant  was  maintaining  said  elevator  opening 
in  said  floor  without  keeping  the  guard  or  rail  closed  to  prevent  per- 
sons from  falling  therein,  and  sustaining  injury;  and  if  the  jury 
further  find  from  the  evidence  that  defendant  did  not  exercise  ordi- 
nary care  in  maintaining  said  elevator  hole  in  said  floor  without  keep- 
ing the  guard  for  protection  closed  and  without  having  said  room 
properly  lighted;  and  if  the  jury  further  find  from  the  evidence  that 
on  said  day  the  plaintiff  was  at  or  near  said  elevator  hole  for  the 
purpose  of  using  said  elevator  in  the  discharge  of  the  duties  of  his 
employment,  and  that  while  so  near  said  elevator  opening  for  said 
purpose  he  fell  therein  and  sustained  the  injuries  on  account  of 
which  he  sues;  and  if  the  jury  further  find  from  the  evidence  that 
the  plaintiff  was  caused  to  so  fall  into  said  opening  bj'^  reason  of  its 
being  so  open,  unlighted  and  unguarded ;  and  if  the  juiy  further  find 
from  the  evidence  that  the  plaintiff  knew  that  said  room  was  in- 
sufficiently lighted,  and  that  there  was  no  guai'd  or  protection  kept 
closed  around  said  elevator  opening,  and  that  thereby  he  incurred  some 
risk  in  remaining  in  defendant's  service  and  in  discharging  the  duties 
of  his  emplo>Tnent;  yet  if  the  jury  find  from  the  evidence  that  the 
dangers  arising  to  the  plaintiff  by  reason  of  said  unguarded  elevator 
opening  and  said  want  of  light  near  said  elevator  were  not  so  ob- 
vious and  imminent  as  to  tlireaten  immediate  injury,  and  were  not 
such  that  an  ordinarily  prudent  person  under  the  circumstances 
would  not  have  remained  in  defendant's  service  and  performed  the 
duties  plaintiff  was  hired  to  perform;  and  if  the  jury  further  find 
from  the  evidence  that  plaintiff  was  exei'cising  ordinary  care  at  the 
time  of  his  injurv,  plaintiff  is  entitled  to  recover.*" 

§  1398.    Mines — Failure  to  Partition  off  Stairway  from  Main  Air- 
way Escapement  Shaft,     (a)     The  juiy  are  instructed  tliat  if  plain- 

orrlinnnrp   in   question,    the   ohli.era-  Am.    St.   601;    Brannock  v.   'Klmore. 

tion    of  defendant    to   obey   it.    and  114   Mo.   59.  21   S.   W.  451;   Shear.  & 

its    liabihty    for    failure    to    do    so,  R.    Neg-.    par.    13." 

are  propositions  of  law  clearly  es-  49— "Wendler    v.     People's    H.     F. 

tahlished.    Murray  v.  Mo.  Par.  Ry.  Co.,    supra. 

Co.,   101    Mo.    236,    13    S.    W.    817,   20 


940  FORMS  OF  INSTRUCTIONS.  [§  1399. 

till  did  say  he  fell  and  was  injured  as  a  result,  partly,  of  bis  own 
neglect,  yet  if  the  jury  believe,  from  a  preponderance  of  the  evidence, 
that  the  plaintiff's  injury  was  occasioned  by  reason  of  the  Avillful 
failure  of  defendant  to  partition  off  the  stairway  from  the  main  air- 
way escapement  shaft,  and  provide  substantial  hand-rails  and  plat- 
forms for  the  same,  and  that  such  injury  would  not  have  occurred 
but  for  such  willful  failure,  then  the  verdict  should  be  for  the  plain- 
tiff. 

(b)  The  jury  are  instructed  that  if  they  believe,  from  a  pre- 
ponderance of  the  evidence,  that  on  the  ,  18 — ,  defendant 

was  the  operator  of  siaid  coal  mine  worked  by  shaft,  which  had  been 
in  operation  for  more  than  a  year  for  hoisting  coal  for  sale  and  use, 
and  there  were  more  than  six  men  employed  in  such  mine,  and  an 
escapement  shaft  had  been  constructed  in  addition  to  the  hoist  shaft, 
and  that  said  mine  was  less  than  one  hundred  feet  in  depth,  but  de- 
fendant willfully  failed  to  provide  such  escapement  shaft  with  stair- 
Avays  partitioned  oft'  from  the  main  air-way,  having  substantial  hand- 
rails and  platforms,  and  by  reason  of  such  willful  failure  the  plain- 
tiff, while  in  the  employ  of  defendant  in  said  mine,  fell  to  the  bot- 
tom of  said  shaft  and  was  injured,  the  verdict  should  be  for  the 
plaintiff.-^" 

§  1399.  Mines — Statutory  Inspection  of.  (a)  The  court  instructs 
you  that  in  this  case  the  plaintiff  must  prove  all  the  material  allega- 
tions of  his  declaration,  and  this  being  a  suit  for  an  alleged  violation 
of  a  statute,  the  plaintiff  must  prove  before  he  can  recover,  first,  that 
the  defendant  itself  or  through  its  proper  representative  Avillfully  and 
wrongfully  violated  the  act  in  question,  in  the  manner  alleged  in  the 
plaintiff's  declaration;  second,  the  plaintiff  must  prove  by  the  greater 
weight  of  evidence  that  this  willful  violation  of  this  act  as  alleged  in 
the  declaration  (if  you  believe  there  was  a  violation)  was  the  prin- 
cipal and  substantial  cause  of  the  injury. 

(b)  And  you  are  instructed  that  if  you  should  believe  from  the 
evidence  that  an  examination  of  the  mine  was  not  made  the  day  the 
deceased  was  injured,  before  he  and  other  employes  entered  said  mine, 

50 — Carterville    Conl    Cn.    v.    Ab-  depend    in   such   case   on   the  exer- 

bott.   181   111.   495   (498).  55  N.   E.   131,  else   of   ordinary   care   by   the   per- 

aff's-   81    111.    App.    279.      "If   one   is  son    injured,    nor    can    he    be    pre- 

injured    as   the   result   of   some  act  eluded    by   mere   contributory   neg- 

of    neg-lig-ence    on    the    part    of    the  ligrence.      This    legislation     fixes    a 

mine  owner  other  than  the  failure  broad  and  distinct  exception  to  the 

to    comply    with    the    specific    du-  general    rule.      The    court    referred 

ties   required   by   the  statute,   then  to   section   14  of  an   Act   amending 

the  person  injured  must  have  been  an    Act    providing    for    the    health 

in    the    exercise    of    ordinary    care  and  safety  of  persons  employed  in 

before   he  can   maintain  an  action,  coal   mines,   the   amendment   being 

and    must    allege    and    prove    that  enforced  July  1st.  1887,   and   stated 

he    was    in    the    exercise    of    such  that    the    principles   herein    argued 

care.     The   rule   is   different,   how-  are  sustained  by  T?artlett  C   &   M. 

ever,    under  this    legislation   where  Co.  v.   Roach,  68  Til.  178;  T.itchfield 

there  is  a  willful  failure  to  comply  C.  Co.  v.  Taylor,  81  111.   590;  Catlet 

with  the  provisions  of  the  statute,  v.  Young,  143  111.  74,  32  N.  E.  447." 
and   the   right   of  recovery  cannot 


§  1400.]  NEGLIGENCE— MASTER  AND   SERVANT.  941 

but  yet  if  you  further  believe  from  the  evidence  that  an  examination 
of  the  mine  was  made  by  the  defendant  through  its  manager  some 
hours  before  the  deceased  was  injured,  and  said  mine  was  apparently 
safe  from  danger  of  falling  clods,  rock,  etc.,  and  that  you  further 
believe  from  the  evidence  that  even  though  the  mine  had  been  in- 
spected early  in  the  morning  before  deceased  went  to  work,  this  acci- 
dent would  have  happened,  then  the  court  instructs  you  that,  under 
the  evidence,  the  accident  was  not  caused  prineii^ally  and  substan- 
tially by  a  failure  to  inspect  the  mine  as  required  by  law.^^ 

§  1400.  Mines — Failure  of  Mine  Boss  to  Visit  Room  in  Which 
Miners  Work,  The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that,  under  and  by  the  rules  of  the  defendant  company, 
it  was  the  duty  of  the  bank  or  mine  boss  of  said  company  to  make 
daily  visits  to  the  room  in  which  the  miners  were  at  work,  for  the 
purpose  of  seeing  whether  or  not  said  rooms  were  in  safe  condition 
for  the  miners  to  continue  their  work,  and  if  they  further  believe 
from  the  evidence  that  the  mine  boss  of  the  defendant  failed  or  neg- 
lected to  visit  the  room  in  which  the  said  plaintiff  was  at  work,  or 
failed,  if  he  made  such  visit,  to  discover  the  danger  which  threatened 
the  plaintiff  if  he  continued  his  work  in  said  room,  if  they  believe 
such  danger  was  threatening  and  could  have  been  discovered  by  the 
use  of  ordinary  diligence  on  the  part  of  said  boss,  then  said  company 
was  guilty  of  negligence. ''- 

§  1401.  Maintaining  Coal  Chute  Without  Guard  Gate  or  Guard 
Board.  If  you  do  not  find  from  the  evidence  that  said  coal  chute 
was  without  a  guard-  gate  or  guard  board,  or  if  you  find  it  was 
without  a  guard  board  or  guard  gate,  yet  if  you  do  not  believe 
from  the  evidence  that  the  defendant  was  guilty  of  negligence  in 
having  said  chute  in  said  condition,  and  that  such  negligence,  if  any 
was  the  proximate  cause  of  plaintiff" 's  injuries,  if  any,  you  will  find 
for  defendant. ^^ 

§  1402.  Allowing  Shavings  to  Accumulate  in  Passageway  Near 
Molder.  (a)  If  you  find  the  facts  to  be  that  the  defendant  i;nneees- 
sarily  and  dangerously  permitted  shavings  to  accumulate  in  the  pas- 
sageway near  the  molder,  and  that  the  plaintiff,  in  obedience  to  the 
superintendent's  order's,  was  compelled  to  pass  near  them,  and  that 
they  caused  him  to  fall  and  slip  and  cut  himself,  that  would  be 
negligence,  and  j'ou  should  answer  the  first  issue  *'Yes. " 

(b)  If  you  find  the  facts  to  be  that  the  rip  saw  and  molding  ma- 
chine were  dangerously  close,  and  that  in  order  to  comply  with  the 
superintendent's  order  the  plaintiff  was  compelled  to  pass  with  a 
load  in  his  arms  between  them,  and  that  the  defendant  company  had 
permitted  the  regular  passageway  for  this  lumber  to  become  filled  up 

51— Mo.      &      111.      Coal      Co.      v.  5."?- Int.   &   G.   N.   R.   Co.   v.   Har- 

Schwalb,  74  111.  App.   567  (574).  ris.  —  Tex.   Civ.  App.  — ,   65  S.  "W. 

52— Russell    C.    C.    Co.    v.    Wells,  885  (888). 
96  Va.  416,  31  S.  E.  614  (615). 


942  FORMS  OF  INSTRUCTIONS.  [§  1403. 

with  plank,  and  failed  to  provide  another,  that  would  be  negligence 
upon  the  part  of  the  defendant;  and,  if  the  plaintiff  was  injured 
thereby, — if  that  negligence  caused  his  injury, — your  answer  to  the 
first  issue  should  be  ''Yes." 

(c)  So  if  the  jury  find  that  a  counter  shaft  or  loose  pulley,  or  a 
covering  for  a  saw  running  naked,  was  a  proper  and  reasonable  safe- 
guard for  its  employes,  and  the  defendant  failed  to  provide  it,  that  is 
negligence ;  and,  if  the  jury  find  that  the  plaintiff  was  injured  by 
reason  of  such  negligence,  they  will  answer  the  first  issue  ''Yes. "^* 

§  1403.  Injury  by  Being  Jolted  from  Car  on  Logging  Bead,  (a) 
The  court  charges  the  jury  at  the  request  of  the  defendant,  that  if 
they  believe  from  the  evidence  that  at  the  time  immediately  pre- 
ceding the  alleged  accident  the  logging  track  of  the  defendant  was  in 
good  condition, — that  is,  in  as  good  condition  as  first-class  logging 
roads  of  the  same  nature  and  kind  are  kept, — then  they  must  find 
their  verdict  for  the  defendant  under  the  first  count  of  the  com- 
plaint. 

(b)  And  the  court  further  charges  the  jury  that  if  they  believe 
from  the  evidence  that  at  the  time  immediately  preceding  the  al- 
leged accident  that  the  cars  of  the  defendant  were  not  in  a  defective 
and  imperfect  condition,  then  they  must  find  for  the  defendant  under 
the  second  count  of  the  complaint. 

(c)  And  the  court  further  charges  the  jury  that  if  they  believe 
from  the  evidence  that  at  the  time  of  the  alleged  accident  the  en- 
gineer in  charge  of  the  locomotive  which  was  drawing  the  siaid  train 
was  not  guilty  of  any  negligence  in  so  running  the  said  train  over 
said  track  in  its  then  condition,  as  alleged,  as  to  negligently  cause  R. 
M.  to  be  jostled  and  jolted  and  thrown  fi'om  his  position  on  the  cars 
and  killed,  they  must  find  their  verdict  for  the  defendant  on  the  third 
count  of  the  complaint. 

(d)  And  the  court  further  charges  the  jury  that  if  they  believe 
from  the  evidence  that  the  engineer  in  charge  of  said  train  did  not 
mn  the  cars  in  a  negligent  and  careless  manner,  so  as  to  jolt  any  of 
said  cars  from  said  track,  they  must  find  for  the  defendant  on  the 
fourth  count  of  the  complaint. 

(e)  And  the  court  further  charges  the  jui-y  that  if  they  believe 
from  the  evidence  that  R.  M.  was  so  careless  and  negligent  in  his  con- 
duet  and  manner  of  riding  upon  the  car  from  which  he  was  thrown 
that  it  caused  him  to  fall  from,  or  to  be  jostled  from,  the  car  up<m 
which  he  was  riding,  and  fell  (fall)  under  the  wheels  of  other  cars 
upon  the  train,  and  thereby  met  his  death,  then  they  must  find  for 
the  defendant  upon  each  and  every  count  of  the  complaint,  although 
they  might  further  believe  that  the  defendant  was  also  gnilty  of 
simple  negligence.'*''' 

54— Myers  v.   Connorrt  L<.  Co.,  129  decisions   of   this   court,   and   there 

N.  C.  2.52,  .39  S.  E.  960  f961).  "We  see  was     evidence     upon     wliich     they 

no    error   In    the   charge.     The   in-  were  formulated." 

structlons  were  based  on  repeated  55 — These    instructions    were    ap- 


§  1404.]  NEGLIGENCE— MASTER  AND   SERVANT. 


943 


§  1404.    Injury  to  Conductor  of  Street  Car  Through  Defective  Rail. 

The  court  instructs  the  jury  that  if  they  believe  from  the  evidence 
that  plaintiff  was  employed  as  a  conductor  on  one  of  the  cars  owned 
and  operated  by  the  defendant,  and  that  he  was  injured  by  reason  of 
the  car  leaving  the  track  on  account  of  a  defective  rail  of  the  said 
track,  and  not  through  or  on  account  of  any  fault  on  his  part,  they 
should  find  in  favor  of  the  plaintiff  and  against  the  defendant,  pro- 
vided they  further  find  that  the  defendant  company  knew,  or  could 
by  the  exercise  of  ordinary  care  have  known,  of  the  existence  of  the 
defective  rail  on  the  said  track  for  a  sufficient  length  of  time  prior 
to  the  accident  for  them  to  have  made  necessary  repairs.^" 

§  1405.  Telephone  Wires — Burden  of  Proof  as  to  Negligence  in 
Adjusting.  The  court  instructs  the  jury  that  the  burden  of  proof  is 
on  the  plaintiff  to  prove,  by  a  preponderance  of  the  evidence,  that 
the  witness  B.  was  negligent  when  engaged  in  stretching  the  wires  in 
connection  with  the  witness  A.,  and  that,  in' consequence  of  B.'s 
negligence  or  carelessness  in  adjusting  the  wires,  they  came  into  con- 
tact with  the  wires  of  the  power  company.  If  you  find  that  the  evi- 
dence bearing  upon  the  point  is  evenly  balanced,  and  does  not  pre- 
ponderate in  favor  of  the  conclusion  that  B.  was  negligent  in  that 
respect,  your  verdict  should  be  in  favor  of  the  defendant — no  cause 
of  action.  It  isn't  necessary  that  negligence  shall  be  established  by 
direct  evidence.  It  may  be  proved  by  circumstances,  if  they  are  such 
as  to  establish  bj'  fair  and  just  inference  to  unbiased  minds  the  exist- 
ence of  negligence. ^'^ 

SAFE  AND   SUITABLE  APPLIANCES. 

§  1406.  Master's  Duty  to  Provide  Safe  Appliances  and  Keep  Them 
in  Proper  Repair,  (a)  I  charge  you  that  it  was  the  duty  of  the 
raihvaj'  company  in  this  case  to  furnish  the  plaintiff  with  safe  and 
suitable  appliances  with  which  to  perfonu  the  work  required  of  him, 
and  also  see  that  the  same  were  kept  in  proper  repair,  and  if  this 
duty  was  negligently  performed,  and  the  plaintiff  sustained  any  in- 
jury thereby,  the  railway  company  is  responsible  in  damages.  I 
charge  you  that,  provided  the  negligence  of  the  railway  company 
was  the  direct  and  proximate  cause  of  the  injury,  and  the  plaintiff 
did  not  contribute  to  the  direct  and  proximate  cause  of  the  injury.^^ 

proved  in  Davis  v.  Miller,  109  Ala.  of  the  motorman   and   charges  the 

589,   19   So.    699    (702).  plaintiff    with    the    oonpequence    of 

56— Moore    v.    St.    L.    T.    Co.,    193  his  own  fault  only,  if  any  is  found. 

Mo.  411.  91  S.  W.  1060  (1061).     "This  and   in  that  the  instruction  is  cor- 

instruction    is    not    subject    to   the  rect." 

interpretation  that  it  assumes  that  57— Black  v.  Rocky  Mt.  "Bell  Tel. 

the    rail    was   defective.      It    leaves  Co.,  26  Utah  451,   7.3  Pac.   514   (516). 

that    fact    to    be    found    from    the  58— Carson   v.    So.    Rv.    Co..    68   S. 

evidence,     and     makes    its    finding  C.   55,   46   S.    E.    525    (5.35).      "We   do 

essential  to  the  plaintiff's  right  to  not    see    that    the    judge's    charge 

recover.     It  does  leave  out  of  view  was    improper.      He    charged     the 

supposed     contributory    negligence  law  of  this  state.     He  did  not  use 


944  FORMS  OF  INSTRUCTIONS.  [§  1407. 

(b)  The  duty  which  the  defendants  owed  to  the  plaintiff  to  fur- 
nish him  with  safe  machineiy  and  appliances  was  a  pensonal  one,  and 
such  a  duty  as  the  law  will  not  permit  them  to  escape  by  trusting  it 
to  an  employe  who  negligently  performs  it. 

(e)  To  render  defendants  liable  to  plaintiff  in  damages,  it  is  not 
necessary  that  they  should  have  had  actual  knowledge  of  the  unsafe- 
ness  of  the  said  machine.  The  proof  is  sufficiently  made  out  by 
plaintiff  when  it  is  shown  that  said  machine  was  defective  and  unsafe 
in  such  respect  that,  if  a  proper  insi^ection  of  it  had  been  made  by 
defendant,  such  unsafeness  and  defectiveness  would  have  been  ascer- 
tained in  time  to  prevent  the  injury.  If  the  unsafeness  was  conspicu- 
ous, defendants  Avill  be  presumed  to  have  had  knowledge  of  it.^^ 

§  1407.  Material  Not  an  Appliance — Master  in  Furnishing  Ma- 
terial Stands  on  Same  Footing  as  Third  Person  so  Doing.  The  court 
instructs  the  jury  that  the  material  furnished  for  use  in  the  ma- 
chineiy  was  not  an  appliance. *^° 

§  1408.  Machinery  Used  by  Master,  Although  Not  Owned  by  Him. 
The  duty  of  the  master  to  furnish  safe  machinery  is  not  affected  by 
the  fact  that  he  does  not  own  the  machineiy  furnished.  It  is  suf- 
ficient if  it  is  used  by  such  employer.  The  duties  which  an  em- 
ployer owes  to  his  servants,  and  which  he  is  required  to  perform,  are 
to  furnish  suitable  machinery  and  appliances,  by  which  the  service  is 
to  be  performed,  and  to  keep  them  in  repair  and  order;  to  exercise 
ordinary  care  in  the  selection  and  retention  of  sufficient  and  compe- 
tent servants  to  properly  conduct  the  business  in  which  the  sei'vant  is 
employed ;  and  to  make  such  provisions  for  the  safety  of  employes  as 
will  reasonably  protect  them  against  the  dangers  incident  to  their 

languag-e  which  made  the  master  which  anything^  is  made  or  may 
a  guarantor  of  the  machinery  and  be  made.'  While  it  is  unques- 
appliances,  especially  as  the  cir-  tionably  the  duty  of  the  master  to 
cuit  judge  was  careful  to  say,  provide  his  serv^ants  with  safe  and 
'Provided  the  negligence  of  the  suitable  appliances,  and  to  see 
master  was  the  direct  and  proxi-  that  they  are  kept  in  proper  re- 
mate  cause  of  the  injury,'  etc.  pair,  it  is  no  part  of  his  duty  to 
This   exception    is    overruled."  furnish    material    upon    which    the 

59 — Higgins  v.  Williams,  114  Cal.  machinei-y  may  operate.     He,  how- 

176,    45   Pac.    1041    (1043).  ever,    may    furnish    this    material, 

60 — Gallman  v.  Union  Hardwood  in  which  case  he  is  only  bound  to 
Mfg.  Co.,  65  S.  C.  192,  43  S.  E.  observe  the  rule,  'sic  utere  tuo  ut 
524  (525).  "This  is  the  first  time  non  alienum  laedas,'  or  to  exercise 
the  question  under  consideration  reasonable  care  in  so  doing.  The 
ha.s  been  presented  to  this  court  appliances,  in  contemplation  of 
for  adjudication.  There  is  a  wide  law,  are  always  provided  by  the 
distinction  between  'material'  and  master  employing  the  servants  to 
'appliances.'  The  term  'appli-  operate  them.  But  the  materials 
ances*  refers  to  the  machinery  and  out  of  which  articles  are  to  be 
all  the  instruments  used  in  opera t-  made  by  the  machinery  are  fre- 
ing  it.  Bodie  v.  Charleston  &  W.  quently  furnished  by  third  parties. 
C.  Ry.  Co.,  61  S.  C.  480,  39  S.  E.  as,  for  instance,  a  public  sawmill 
715.  In  20  Knc.  of  T^aw  (2d  "Rd.)  or  cotton  gin.  When  the  master 
232,  It  is  said:  'Materials  include  furnishes  the  material,  he  stands 
everything  of  which  anything  is  upon  the  same  footing  as  a  third 
made.'  Webster's  International  partv  so  doing,  and  is  only  re- 
Dictionary  defines  'material'  to  be:  sponsible  when  he  fails  to  exer- 
'Tho    substance    of   matter    out    of  else  ordinary   care." 


§  1409.]  NEGLIGENCE— MASTER  AND   SERVANT.  945 

employmeat.  The  performance  of  these  duties  cannot  be  shifted  by 
an  employer  to  a  servant,  so  as  to  avoid  responsibility  for  the  in- 
jury caused  to  another  servant  by  his  omission.*^! 

§  1409.  Latent  Defects — Master  Not  Liable  for.  (a)  The  court 
charges  the  jury  that  if  they  find  from  the  evidence  that  the  accident 
occuiTcd  by  reason  of  hidden  defects  in  the  iron  guy  rods  or  iron 
plates,  which  defects  were  not  known  to  defendant,  and  could  not  be 
known  to  defendant  by  the  exercise  of  reasonable  diligence  in  time  to 
have  avoided  the  injury,  then  the  plaintiff  cannot  recover. 

(b)  The  court  cliarges  the  jury  that  if  they  believe  from  the  evi- 
dence that  the  defects  were  latent  and  discovered  for  the  first  time 
after  the  accident,  such  defects  would  not  make  the  defendant 
liable  in  this  action. ^^ 

§  1410.  Master  Does  Not  Insure  Absolute  Safety  of  Appliances. 
Under  these  claims  and  countei'-claims,  as  made  by  plaintiff,  and  de- 
fendant, the  court  charges  you  that  the  law  made  it  the  duty  of  the 
defendant,  C.  D.,  to  exercise  reasonable  care  and  precaution  to  pro- 
cure and  furnish  the  plaintiff,  R.,  a  suitable  and  safe  machine  for 
him  to  work  upon,  and  it  also  required  the  defendant  to  exercise 
reasonable  care  and  caution  to  keep  the  machine  in  a  proper  state  of 
repair.  It  did  not  require  the  defendant  to  insure  the  absolute  safe- 
ty of  the  plaintiff  R.  in  working  with  the  machine,  which  the  de- 
fendant furnished  him,  but  it  did  not  impose  upon  the  defendant  the 
obligation  to  use  reasonable  and  ordinary  care,  skill  and  diligence 
in  keeping  the  machine  in  a  safe  and  suitable  condition  for  him  to  do 
his  work  with.     The  law  did  not  require  R.  to  inspect  the  machine.^' 

§  1411.  Duty  of  Employer  to  Use  Reasonable  Diligence  for  Safety 
of  Employe  Includes  Inspection  and  Tests  at  Proper  Intervals  of  Ap- 
pliances, (a)  The  duty  imposed  on  the  defendant  company  by  the 
contract  of  hiring  was  to  not  subject  the  deceased,  without  his  knowl- 
edge and  consent,  expressed  or  implied,  to  risks  not  assumed  by  him, 
under  the  contract  of  hiring.  An  emj^loyer  contracts  with  his  employe 

61 — Hig-gins  v.  Williams,  114  Cal.  on   the   same  subject  and   is   prob- 

176,  45  Pac.  1041  ('1043).  ably  more  favorable  to  the  defend- 

62— So.   Car  &   Fdry.   Co.   v.   Jen-  ant     than     the     one     in     question, 

nings,     137     Ala.     247,     34     So.     1002  neither  that  nor  any   other  of  the 

(1003).      The    first    charge    correctly  given  charges  asserts  the  principle 

asserts    the    law    as    applicable    to  it    embodies    with    a    fullness    that 

the   case.      An    employer   is   bound  can   enable   us   to   say   the   refusal 

to    use    only    reasonable    diligence  of  the  first  charge  was  non-injuri- 

in    the   maintenance    of   machinery  ous  to  the  defendant, 
and    appliances   used    in    his    busi-        63— Record   v.   Chickasaw   C.   Co., 

ness.    and    is    not    chargeable    with  lOS    Tenn.    657,    69    S.    W.    334    (335). 

neglierence    •on    account    of    defects  "We  think  the  charee  of  the  court 

thprf>in.   the   existence   of  which   is  was    correct.      He    did    not    imnose 

not  discoverable  by  the  use  of  such  upon   plaintiff  the  dutv   of  a    close 

diligence.  L.  &  N.  R.  Co.  v.  Camp-  and     minute     inspection,     and     did 

bell,   97   Ala.    147,    12   So.   574:    L.    &  impose   on  the   defendant  the  duty 

N.    R.    Co.    V.    Allen.    78    Ala.    494.  of  .seeing  that  the  machine  was  in 

This    charge   is   not   abstract,    and  safe  coadition." 
though  the  second  charge  given  is 
60 


946  FORMS  OF  INSTRUCTIONS.  [§i  1412. 

to  use  reasonable  diligence  to  protect  him,  the  employe  from  ordinaiy 
risks,  and  for  omission  of  such  diligence  or  want  of  care  the  employer 
may  become  liable  to  the  employe  for  all  damages  arising  therefrom. 

(b)  The  duty  of  a  master  toward  a  servant  in  his  employ  is  to 
exercise  reasonable  care  and  skill  to  provide  safe  machinery  and  ap- 
pliances for  caiTying  on  the  business  in  which  he  employs  the  sem'ant, 
and  in  keeping  such  machinery  and  appliances  in  a  safe  condition  for 
such  use,  including  the  duty  of  making  inspection  and  tests  at  proper 
intervals  whilst  the  work  progresses.*** 

§  1412,  Duty  of  Inspection — Character  of  Business  Should  Be  Con- 
sidered. The  duty  of  inspection  is  affirmative,  and  it  must  be  con- 
tinuously fulfilled  and  positively  performed.  In  ascertaining  whether 
this  has  been  done  or  not,  the  character  of  the  business  should  be 
considered,  and  anything  short  of  this  would  not  be  ordinary  care.^^ 

§  1413.  Defective  Machinery  Alone  Insufficient  for  Recovery — In- 
jury Must  Have  Proximately  Resulted  From  Defect.  In  order  to  find 
for  the  plaintiff,  therefore,  in  this  case,  gentlemen,  you  must  be  able  to 
ascertain  from  the  evidence  that  the  defendants,  or  one  of  them,  were 
negligent  as  charged  in  the  complaint;  and  you  must  be  able  to  find 
from  the  evidence  that  there  was  some  defect  in  the  machinery  as 
charged  in  the  complaint  which  was  the  proximate  cause  of  the  in- 
juries the  i:>laintiff  sustained,  if  he  sustained  such  injuries.  If  you 
should  find  that  there  were  certain  defects  in  this  machinery,  that 
alone  would  not  be  sufficient,  unless  you  should  find  from  the  evi- 
dence that  the  injuries  sustained  by  the  plaintiff,  if  he  did  sustain  any 
injuries,  were  sustained  by  reason  of  that  particular  defect.  Some 
defective  machinery  might  have  been  there  that  would  not  be  re- 
sponsible for  the  accident  that  occurred,  but  you  must  be  able  to 
fix  as  the  cause  of  this  accident  that  it  resulted  from  some  defect  in 
that  machinery.*"* 

§  1414.  Master  Not  Bound  to  Purnish  the  Safest  and  Best  Ap- 
pliances, (a)  The  jury  are  instructed  that  it  is  direct,  personal,  and 
absolute  obligation  of  the  master  to  provide  reasonably  safe  and 
suitable  machinery  and  appliances  for  the  business.  This  includes 
the  exercise  of  reasonable  care  in  furnishing  such  appliances.  The 
master  must  furnish  a  safe  place  in  which  his  servant  is  to  Avoi^k. 
And  the  jury  are  further  instructed  that  the  master  is  liable  for  any 
injury  to  his  servants,  due  to  the  neglect  or  failure  of  the  master  to 
provide  such  safe  and  suitable  machineiy  and  appliances  for  the 
business,  or  to  exercise  such  reasonable  care  in  furnisliing  such  ap- 
pliances, or  to  furnish  his  servants  a  safe  place  in  which  to  work. 

64— Belleville    S.    Co.   v.    Comben,  6S7;   Jager  v.   Cal.   Bridge   Co.,   104 

61   N.  .1.  251,  39  Atl.   641  (642).  Cal.  .546,   38  Pac.  413;    Alexander  v. 

fiFi— Dyas  v.    S.    Pac.   Co.,  140  Cal.  Central  L.    &  M.   Co.,   104   Cal.    539. 

296.  73  Pac.  972  (976).  38    Pac.    4.10." 

"This    correctly    .states    the    law.  66— Young'    v.    O'Brien,    36    Wash. 

2   Thomp.    on   Neg.    p.   984;    Rilveira  570,    79    Pac,    211    (213). 
V.    Iversen,    128    Cal.    192,    60    Pac. 


§  1415.]        •   NEGLIGENCE— MASTER  AND   SERVANT.  947 

(b)  The  court  instructs  the  jury  that  the  defendant  was  not 
bound  to  furnish  to  the  plaintiff,  the  safest  and  best  appliances  and 
machinery  used  with  which  to  work,  but  the  defendant  should  be 
acquitted  of  fault  in  this  respect  if  the  appliances  and  machinery, 
which  they  did  furnish  the  plaintiff,  were  reasonably  safe  and  suitable. 
The  court  instructs  the  jury  that  before  the  plaintiff  can  recover 
from  the  defendant,  in  this  case,  for  the  loss  of  his  hand  while  in 
said  company's  employ,  he  must  overcome  two  presumptions:  First, 
the  presumption  that  the  defendants  did  provide  safe  and  suitable 
machinery,  and  a  safe  and  suitable  place  in  which  to  work ;  second, 
the  presumption  that  the  jDlaintiff  assumed  all  the  usual  and  ordinary 
hazards  of  the  business  in  which  he  is  engaged;  and  that  unless  the 
plaintiff  does  overcome  the  said  presumptions  by  a  preponderance  of 
the  evidence,  j^ou  will  find  for  the  defendant.*'^ 

§  1415.  Appliances — ^What  are  in  the  Raising  of  Cants.  I  further 
instruct  j'ou  gentlemen,  that  in  the  raising  of  the  cant  in  question, 
whatever  was  necessary  or  needful  or  useful  in  order  to  raise  the 
cant  in  an  ordinarily  safe  manner  and  consistent  with  the  care  and 
caution  neeessaiy  tb  render  safe  and  free  from  danger  the  workmen 
engaged  in  it,  are  instrumentalities  or  appliances,  within  the  mean- 
ing of  the  law,  whether  the  same  be  ropes,  engines,  platforms,  or 
staging  or  servants;  and  it  is  the  duty  of  the  master  or  its  vice  prin- 
cipal or  yard  foreman  having  charge  of  the  raising  of  this  cant,  to 
furnish  all  such  necessary  instrumentalities  and  appliances,  whether 
ropes,  machinery,  staging  or  servants,  and  that  they  shall  be  reason- 
ably suitable  and  competent.®^ 

§  1416.  Duty  of  Master  in  Furnishing  Mail  Cranes  and  Engines, 
(a)  The  court  instructs  the  jury  that  the  defendant  in  this  case  was 
under  no  obligation,  by  contract  of  employment  with  said  C.  W.  B., 
deceased,  or  otherwise,  to  furnish  any  particular  kind  of  mail  cranes, 
or  to  adopt  the  latest  and  most  approved  appliances  in  connection 
therewith,  or  to  use  in  its  business  locomotives  of  any  particular  kind 
or  width,  and  that  it  was  only  bound  to  exercise  reasonable  care  to 
see  that  the  mail  cranes  and  engines  used  by  it  were  reasonably  safe 
and  suitable  for  the  purposes  for  which  they  were  used,  and  if  the 
jury  believe  from  the  evidence  that  the  defendant's  mail  crane  and  en- 
gine in  question  were  suitable  for  the  purpor,es  for  which  they  were 
designed  and  used,  and  were  reasonably  ^afe  for  such  use,  they 
should  return  a  verdict  for  the  defendant 

(b)  If  you  believe  from  the  evidence  c'^at  the  defendant's  meth- 
ods, machinery,  instrumentalities,  and  appliances,  and  the  mail  crane 
in  question,  were  sufficient  for  the  purposof  for  which  they  were  used 
and  i-easonably  safe  when  the  said  C.  W.  B.  entered  the  defendant'-, 

67 — The  above  instructions  sriven  68 — Sroufe    v     IWonn    Bros.    Co. 

for     plaintiff     and     defendant     to-  28     Wash.    381,    6?    Pac.     s96     (901), 

pether     state     the     law     correctly.  92  Am.   St.   84'. 
Giebell    v.    Collins    Co.,    54    W.    Va. 
518,    46    S.    E.    569    (573). 


948  FORMS  OF  INSTRUCTIONS.  [§  1417. 

employ,  and  that  the  defendant  used  ordinary  care  to  keep  them  and 
said  crane  sufficient  for  such  purposes  and  reasonably  safe,  then  said 
C.  W.  B.  assumed  the  risk  of  danger  from  their  use  and  plaintiff 
cannot  recover  in  this  action.'''^ 

(c)  If  you  believe  from  the  evidence  in  this  case  that  the  mail 
crane  when  in  operation  was  unnecessarily  dangerous  to  employes 
and  to  C.  W.  B.  in  the  performance  of  his  duty  and  in  the  exercise  of 
ordinary  care  on  the  defendant's  locomotive,  and  that  the  said  C.  W. 
B,  did  not  know,  and  could  not  by  the  exercise  of  ordinary  care 
have  foreseen,  the  dangers  to  be  encountered  from  said  mail  crane, 
and  that  the  defendant  knew,  or  ought  to  have  known,  of  its  dan- 
gers, and  after  such  knowledge,  or  after  it  might  have  had  such 
knowledge  by  the  use  of  ordinary  care,  it  failed  to  give  the  plaintiff's 
decedent,  C.  W.  B.,  warning  of  such  danger,  then  your  verdict  must 
be  for  the  plaintiffJ" 

§  1417.  Liability  for  Defect  in  Weld  of  Swivel  If  the  plaintiff's 
injuries  were  caused  by  reason  of  the  swivel  breaking  where  it  was 
welded,  and  neither  of  the  defendants  knew  of  any  defect  in  said 
weld,  and  said  defects  could  not  be  detected  by  an  ordinary,  careful 
inspection,  then  the  plaintiff  cannot  recover  in  this  suit  and  you  should 
find  for  the  defendants.'^^ 

§  1418.    Injury  through  Defect  in  Lever  of  Jackscrew.     (a)     If 

you  believe  from  the  evidence  that  on  or  about  the  day  of  May, 

18 — ,  the  plaintiff  was  in  the  employ  of  the  defendant  as  a  bridgeman, 
and  that  it  became  the  duty  of  the  plaintiff  to  hoist  and  place  in 
position  a  stringer  of  the  bridge,  and  for  that  purpose  it  became 
necessaiy  for  the  plaintiff  to  use  and  he  did  use  a  jackscrew  and  a 
lever,  and  the  defendant  furnished  to  plaintiff  said  jackscrew  and 
lever  for  that  purpose,  and  that  plaintiff  l)egan  turning  the  lever  of 
said  jackscrew  in  order  to  hoist  said  stringer,  and  while  doing  so 
said  lever  bent  and  slipped  out  of  the  jackscrew,  and  as  a  direct  re- 
sult of  said  lever  slipping  out  of  the  jackscrew,  if  it  did  slip  oiit, 
plaintiff  lost  his  balance,  and  was  hurled  or  fell  from  said  bridge,  and 
Avas  injured  as  alleged  in  his  petition;  and  you  further  believe  from 
the  evidence  that  the  lever  of  said  jackscrew  was  defective,  and  unfit 
for  the  purpose  for  which  it  was  being  used,  and  not  sufficiently  tough 
and  hard  to  use  in  hoisting  the  aforesaid  stringer  without  bending, 

69— Denver    &    R.    G.    R.    Co.    v.  70— Denver  &  R.  G.  R.  R.   Co.  v. 

Burchard,   —  Colo.   — ,   86   Pac.   749  Burehard,    supra. 

(754).  "The     court     here     submitted     to 

"This       request       was       refused,  the   jury   the   que.stion    of   whether 

Nowhere     in     the     rhar>?e     of     the  or  not   the  crane  was   unnecessari- 

cnurt  was  the  defendant  ffiven  the  ly    dangrerous;    that    is,    whether    it 

'benefit    of    the    law    as    announced  was   unnecessarily   near   the   track 

in     such     two    instructions.       Pur-  — that    being'    the    only    cause    as- 

♦  her,    the    jury    was    permitted    to  sipned    for   its   being:   dangerous   in 

find     acralnst     \ho     defendant,     al-  nporatinn." 

though     the     dffnndant     had     been  71 — ^Doyle    <^,    Co.    v.    Hawkins,    34 

frop     of     negligence     in     the     con-  Ind.   App.   514,  7."?  N.   E.   200   (202). 

structlon    and    maintenance   of   the  "A   controlling  proposition  which 

crane."  it    devolved    upon    appellee    to    as- 


§il419.]  negligence:— MASTER  AND   SERVANT.  949 

and  that  the  defendant  knew  of  such  defect,  if  any,  or  could  have 
known  of  it  by  the  exercise  of  ordinary  care,  and  that  the  defendant 
was  negligent  in  furnishing  said  lever  in  such  condition,  if  it  was  in 
such  condition,  and  that,  this  negligence  of  the  defendant,  if  any, 
was  the  direct  cause  of  the  plaintiff's  injury;  and  you  further  find 
that  the  plaintiff  did  not  know  of  any  defect  in  said  lever,  if  any  de- 
fect there  was,  and  that  plaintiff  was  not  guilty  of  contributor^'  negli- 
gence, and  did  not  assume  the  risk, — then  I  charge  you  that  your 
verdict  must  be  for  the  plaintiff. 

(b)  And  if  you  further  believe  from  the  evidence  that  the  lever  of 
said  jackscrew  was  defective,  and  unfit  for  the  puipose  for  which  it 
was  being  used,  and  not  sufficiently  tough  and  hard  to  use  in  hoist- 
ing the  aforesaid  stringer  without  bending,  and  that  the  defendant 
knew  of  such  defect,  if  any,  or  could  have  known  of  it  by  the  exercise 
of  ordinaiy  care,  and  that  the  defendant  was  negligent  in  furnishing 
said  lever  in  such  condition,  if  it  was  in  such  condition,  and  that  this 
negligence  of  the  defendant,  if  any,  was  the  direct  cause  of  the  plain- 
tiff's injurv,  I  charge  you  that  your  verdict  must  be  for  the  plain- 
tiff.'- 

§  1419.  Defective  Belt  in  Mill,  (a)  In  this  case  it  was  the  duty 
of  the  master  to  furnish  a  belt  which  was  reasonably  safe  for  the 
use  to  which  it  was  put,  and  if  you  find  from  the  evidence  in  this 
case  that  the  belt  by  which  the  accident  occui'red  was  a  defective 
belt,  and  that  the  master  had  knowledge  of  that  defect  through  the 
knowledge  of  the  millwrights,  or  of  its  superintendent,  B.,  and  knew 
that  the  belt  was  not  a  safe  or  proper  belt,  then  you  are  instructed 
that  the  master  failed  to  discharge  his  duty  towards  the  plaintiff. 

(b)  In  this  case  if  you  find  that  the  plaintiff  was  injured  by  the 
reason  of  a  latent  danger  in  the  belt,  of  which  he  had  no  knowledge, 
and  of  which  he  could  not  have  known  by  the  exercise  of  reasonable 
care  and  caution,  in  the  place  to  which  he  was  sent,  then  you  are 
instructed   that  if  you   fui'ther  find   that   the   accident   occurred   by 

tablish  was  that  the  appellants  ac-  terms  or  substance  is  identical.    He 

tually     knew     of     the     defect,     or  asserts  that  the  fact  of  the  defec- 

would    have    known    of    it    if    they  tive  swivel  being  used  creates  lia- 

had     made    a    proper    use    of    the  bility  without  other  proof  of  notice, 

means   of    information    which   they  The   authorities   cited   are   those   in 

possessed;    and    the    failure    to    in-  which  the  neg-ligent  act  charged  is 

spect    being    the    breach    of    duty  an  affirmative  one,  and  done  by  the 

specificallv  relied  upon,  it  also  de-  master  with    his   own   hand,    or  by 

volved  upon  him  to  show  that  the  another  under  his  order  and  direc- 

defective      condition      which      pro-  tion.   notice  being  therefore  involved 

duced  the  injury  would  have  been  in  the  doing  of  the  act.     Louisville, 

discovered    bv    such    an    examina-  etc.,   R.   Co.   v.   Hicks.  11  Ind.  App. 

tion    as,    under    the    law    and    cir-  588,     37    N.     E.    43,    39    N.     E.    767; 

cumstances    of    the    case,     it    was  Standard    Oil    Co.    v.    Bowker.    141 

their    dutv    to    make.        Pittsburg,  Ind.   18,   40   N.    E.   128;    Clear    C.    S. 

etc.,   R.   R.   Co.   V.   Adams.  105  Tnd.  Co.    v.    Dearmin,    160    Ind.    162.    66 

151,  5  N.  E.  187;  L.  S.   &  M.  S.  Ry.  N.    E.   609;  Con.    S.    Co.   v.   Morgan. 

Co.  V.  McCormick,  74  Ind.  440.    The  Adm'r.   160  Tnd.   341,   66  N.   E.   696." 

appellee  has  not  called  attention  to  72— Galveston  H.  &  S.  A.  Ry.  Co. 
any     instruction     given     which    in 


950  FORMS  OF  INSTRUCTIONS.  [§  1420. 

reason  of  such  concealed  or  hidden  danger,  then  your  verdict  must  be 
for  the  plaintiff."^ 

§  1420.  Injury  through  Unsuitable  Belt  on  Planer  Machine,  (a) 
If  the  jury  believe  the  undisputed  evidence,  and  also  that  at  the 
time  the  plaintiff  was  injured,  he  was  in  the  discharge  of  his  duties 
as  employe  of  the  defendant,  and  that  defendant  through  his  fore- 
man negligently  failed  to  use  due  care  and  reasonable  diligence  to 
provide  the  planer  machine  with  a  good,  proper  and  suitable  belt 
with  which  to  operate  said  machine,  and  that  he  negligently  pro- 
vided a  belt  with  which  to  operate  said  machine  which  he  knew,  or 
ought  to  have  known  was  unsafe  and  unsuitable  for  the  purpose  for 
which  it  was  furnished,  and  that  the  belt  was  unsafe  and  dangerous 
by  reason  of  being  fastened  together  with  metal  studs,  and  which 
studs  would  break  or  tear  out  of  said  belt  on  account  of  the  weak- 
ness of  the  fastening,  and  that  the  belt  hooks  broke  out  of  the  belt 
and  struck  plaintiff,  and  that  plaintiff's  injuries  resulted  from  said 
negligence,  then  you  must  find  a  verdict  for  the  plaintiff  and  assess 
his  damages. 

(b)  If  the  jury  believe  the  undisputed  evidence  in  this  case  and 
.that  when  plaintiff  was  injured  he  was  in  the  discharge  of  his  duties 
as  employe  of  the  defendant  and  at  the  time  the  belt  (which  broke 
and  caused  the  injury  to  plaintiff)  was  fastened  together  and  put 
upon  the  machine,  T.  was  intrusted  with  superintendence  in  this  re- 
gard, and  that  the  belt  was  fastened  together  and  put  on  the  machine 
while  said  T.  was  in  the  exercise  of  such  superintendence,  and  that 
said  T.  was  negligent  either  in  not  fastening  the  belt  together  by 
lacing  or  with  covy  hooks,  or  in  not  putting  up  a  guard  to  protect 
the  plaintiff  from  danger  of  being  struck,  or  in  not  instructing  the 
plaintiff  of  the  dangers  connected  with  the  use  of  the  belt,  and  if 
you  further  believe  that  the  hooks  broke  out  of  the  belt  and  struck 
plaintiff  then  under  the  employer's  liability  act  of  this  state  the 
plaintiff  would  then  be  entitled  to  a  verdict  at  your  hands  under  the 
second  count  of  the  complaint. ''* 

§  1421.  Spike  Maul  Flying  off  Handle.  The  court  instructs  the 
jury  that  if  you  find  from  tlie  evidence  in  this  case  that  a  spike  maul 
wedged  with  an  iron  or  wooden  wedge  or  a  nail  is  liable,  when  being 
used,  to  fly  off  the  handle,  then  the  risk  of  injury  by  being  hit  by 
such  a  maul  is  a  risk  assumed  by  the  plaintiff  when  he  entered  the 
employment  of  the  defendant,  and  ho  cannot  recover  in  fliis  caso.'^" 

§  1422.  Flanges  of  Wheels  on  Defendant's  Cars  Being  Worn  too 
Thin,  [f,  therefore,  you  find  from  a  preponderance  of  the  evidence 
that  tlie  accident  which  caused  the  death  of  the  deceased  was  due  to 
any  defect  in  any  wheel  or  wheels  of  defendant's  ears,  by  the  flanges 

V.  Hnmpton.  24  Tex.  Civ.  App.  458,  74— Davis    v.    Kornmnn,    141     Ala. 

!)9    S.    W.    928.  479.    37    So.   789    f790). 

7."? — Golrlthorpfi    v.    Clnrk-Nirkor-  7." — Dcckerd    v.    Wabash    R.    To., 

son  T>.  r.n..  31  Wash.  467,  71  Pac.  Ill  Mo.  App.  117,  85  S.  W.  982  (985). 
1091    n094). 


§  1423.]  NEGLIGENCE— MASTER  AND   SERVANT.  951 

being  worn  down  too  thin,  or  to  any  flaw  or  break  in  the  flanges,  and 
that  such  defect,  if  any  existed,  could  have  been  discovered  by 
reasonably  careful  inspection  of  the  wheels,  and  that  defendant  failed 
to  make  such  inspection,  then  your  verdict  should  be  for  the  plain- 
tiffs. *  *  *  The  company  is  not  required  to  guard  against  de- 
fects which  cannot  be  discovered  by  reasonable  care,  but  they  are 
required  to  discover  defects  which  can  be  disclosed  by  reasonably 
careful  inspection.  *  *  *  The  master  is  bound  to  use  appliances 
which  are  not  defective  in  construction;  but  as  between  him  and 
his  employes,  he  is  not  bound  to  use  such  as  are  of  the  best  or  most 
approved  description.  If  they  ai'e  such  as  are  in  general  use,  that 
is  all  that  is  required.  The  employer  is  bound  to  furnish  machinery 
and  appliances  that  are  of  ordinary  character  and  of  reasonable 
safety.  Whatever  is  according  to  the  general,  usual,  and  ordinary 
course  adopted  by  those  in  the  same  business  is  reasonably  safe 
within  the  meaning  of  the  law.'^° 

§  1423.  Injury  to  Employe  from  Defective  Ladder— When  Em- 
ploye Cannot  Be  Charged  with  Negligence.  On  the  other  hand,  if 
you  find  from  the  evidence  that  any  ordinarily  prudent,  careful  man, 
with  the  knowledge  of  the  condition  of  the  ladder  which  the  evidence 
shows  R.  had  of  it,  would  have  gone  upon  and  used  the  ladder  just 
as  the  evidence  shows  him  to  have  used  it,  then  he  cannot  be  charged 
with  negligence.'^''' 

§  1424.  Using  Defective  Tire  Bender.  If  you  believe  from  all  the 
evidence  that  the  defendant  did  not  use  ordinaiy  care  in  the  prem- 
ises, but  at  the  time  of  the  accident  the  tire  bender  was  in  a  defective 
condition — that  is,  dangerous  to  those  working  at  or  near  it,  because 
it  would  sometimes  start  and  revolve  its  rollers  of  its  own  accord 
without  being  thrown  into  gear  by  any  one — and  that  said  tendency 
to  start  off  by  itself  was  known  to  the  defendant,  or  in  the  exercise 
of  oi-dinaiy  care  would  have  been  known  to  it,  then,  and  upon  your 
so  finding,  the  defendant  is  guilty  of  negligence.  Unless  you  so  find, 
you  need  inquire  no  further,  for  your  verdict  must  then  be  for  the 
defendant. ''^^ 

§  1425.  Servant  Injured  through  Defective  Derrick.  It  is  a  pri- 
mary duty  of  the  master  to  provide  suitable  and  reasonably  safe  tools 
and  machinery  for  the  servant  with  which  to  perfonn  the  particular 
work  in  which  he  is  engaged.  If  the  master  shall  fail  in  the  per- 
formance of  this  primary  duty,  he  is  liable  to  the  servant  for  what- 

76— Roberts   V.    Port    B.    M.    Co.,  situated,  then  he  was   not   charpre- 

30  Wnsh.   25.   70  Pac.   Ill  (114).  able    with    nesrlisrence.     "We    are   of 

77— Ritt    v.    True   T.    P.    Co.,    108  opinion  that  perhnp.=;  the  lanerunpre 

Tenn.  646.  69  S.  W.  324.  of    the    counsel    is    the    better    ex- 

"It    is    ST  id    that    this   instrnotion  pres«inn.  but  we  think  that  of  the 

should   have  bpen    that   if  plaintiff  trial  iiidg-e  is  equivalent  to  it,  and 

was    in    the    exercise    of    ordinarv  there    was    no    request    to    charge 

prudence    and     care,     such     as    is  in    th"    langruagre    of    counsel." 
usunlly     exercised     bv     ordinarily        7R— VHoc-    v.    T?ettendorf    A.    Co., 

prudent  and  careful  men  similarly  126  Iowa  138.  101  N.  "W.  859  (860). 


952  FORMS  OP  INSTRUCTIONS.  [§  1426. 

ever  injury  he  may  suffer  resulting  alone  from  such  failure.  In  the 
performance  of  this  duty  the  master  must  use  all  reasonable  care  and 
prudence  for  the  safety  of  the  servant,  having  regard  to  the  char- 
acter of  the  work  to  be  performed.  Such  care  must  always  be  in 
proportion  to  the  danger  of  the  employment.  The  servant  has  the 
right  to  rely  upon  the  master  for  the  proper  performance  of  his  duty 
without  inquiry  on  his  part.  The  choice  of  tools  and  machinery  lies 
with  the  master.  They  must  be  suitable  for  the  work,  and  reason- 
ably safe.  It  is  not  necessary  that  they  should  be  the  latest,  new- 
est, the  most  improved,  the  safest,  or  the  best.  Neither  is  the  use 
of  like  tools  and  machinery  in  other  establishments  the  test  of  fitness. 
The  true  test  is  not  alone  that  others  use  them,  but  whether  they 
ai-e  reasonably  safe  for  the  work  to  be  done ;  and  not  whether  other 
persons  do  in  fact  use  them,  but  whether  they  are  such  as  reasonably 
careful  and  prudent  men  would  use  under  like  circumstances.  AYhere 
the  master  has  performed  this  primary  duty,  the  servant  assumes  the 
ordinary  risks  and  hazards  incident  to  the  business  in  which  he  is 
engaged.  He  is  presumed  to  have  contracted  with  reference  to  such 
risks  and  hazards,  and  in  contemplation  of  the  dangers,  great  or 
little,  that  sui-round  his  peculiar  occupation.  He  holds  himself  out 
for  such  work,  and  is  presumed  to  know  and  contemplate  its  ordinary 
risks  and  dangers.  The  distinct  question  is  whether  the  defendant 
provided  in  that  derrick  a  reasonably  suitable  and  safe  machine  for 
hoisting  and  handling  that  frame.  This  is  to  be  determined  by  you 
from  the  evidence  in  this  case,  under  the  rules  of  law  above  stated. 
If  that  derrick  Avas  reasonably  suitable  and  safe  for  that  work  at  the 
time  of  the  accident,  then  your  verdict  should  be  for  the  defendant. 
In  that  ease  the  accident  did  not  result  from  the  negligence  of  the 
defendant,  but  was  the  result  of  one  of  the  risks  which  the  plaintiff 
assumed  in  his  employment.  It  would  be  a  mere  accident,  without 
negligence  for  which  the  defendant  would  not  be  liable.  The  case  of 
the  plaintiff  rests  upon  the  negligence  of  the  defendant.  No  recovery 
can  be  had  for  the  plaintiff  unless  you  are  satisfied  from  the  pre- 
ponderance of  the  evidence  that  the  injuries  complained  of  resulted 
from  the  negligence  of  the  defendant.  Negligence. is  never  presumed; 
it  must  be  proved.  There  is  practically  no  dispute  about  the  law  in 
this  case.  We  have  called  your  attention  to  the  principles  of  law 
involved  so  that  you  may  apply  them  to  the  facts.  The  issue  is  es- 
sentially one  of  fact  to  be  detennined  by  you  from  the  evidence.  It 
is  for  you  to  say  whether  the  derrick  at  that  time,  and  for  that 
work,  was  a  reasonably  suitable  and  safe  machine.''^ 

§  1426.  Injury  to  Gripman  on  Street  Car  through  Defective  Brake. 
If  you  further  believe,  and  find  from  the  evidence,  that  dependant's 
starter,  S.,  or  it=!  foreman,  R.,  knew  of  said  condition  of  said  brake; 
if  you  believe  and  find  from  the  evidence  it  was  in  said  condition  at 
said  time  a  sufficient  length  of  time  before  said  collision  to  have  re- 

79_Croker   v.    Pusey    &   J.    Co.,   3  Penwell   (Delaware)   1,   50  Atl.   61. 


§1427.]  NEGLIGENCE— MASTER  AND   SERVANT.  953 

paired  the  same,  or  have  had  said  car  turned  in,  and  that  they  failed 
to  do  so;  and  if  you  further  believe  and  find  from  the  evidence  that 
the  employes  of  defendant  in  charge  of  and  operating  said  street 
car  did  not  exercise  ordinary  care  in  operating  the  same  at  the  time 
of  the  collision,  and  such  failure  to  exercise  ordinary  care,  and  the 
said  defective  condition  of  said  brake,  if  you  believe  from  the  evi- 
dence it  was  at  said  time  in  a  defective  condition,  combined  and 
jointly  were  the  cause  of  the  collision ;  and  if  you  further  iind  from 
the  evidence  that  at  said  time  the  plaintiff  was  exercising  reasonable 
and  ordinary  care  as  a  gripman  on  the  said  car  on  which  he  was 
working — then  you  will  find  a  verdict  for  the  plaintiff.^*' 

§  1427.  Injury  to  Servant  by  Negligent  Use  of  Compressed  Air. 
(a)  If  you  believe  fi'om  the  evidence  that  at  the  time  the  compressed 
air  struck  C,  if  it  did,  N.  was  defendant's  vice  principal  and  had 
control  over  said  C.  and  other  employes,  and  if  you  believe  from  the 
evidence  that  said  N.  had  the  compressed  air  turned  on  and  was 
engaged  in  using  it  in  the  course  of  his  employment  by  defendant, 
and  for  the  puipose  of  foiT\'arding  the  business  of  the  defendant,  and 
that  while  so  using  it,  if  he  did  so  use  it,  he  struck  said  C.  with  said 
compressed  air,  and  thereby  caused  the  death  of  said  C,  and  if  you 
further  believe  from  the  evidence  that  said  N.  knew,  or,  in  the  exer- 
cise of  ordinary  care  could  have  known,  that  said  compressed  air  was 
likely  to  cause  C.'s  death,  or  do  him  serious  bodily  harm,  and  that 
it  was  negligence  on  the  part  of  said  N.  to  strike  said  C.  with  said 
eomiDressed  air,  if  you  find  he  did  so,  and  that  such  negligence,  if  any, 
was  the  direct  cause  of  C»'s  death,  and  if  you  further  find  from  the 
evidence  that  the  plaintit!^,  0.,  was  the  wife  of  said  C,  and  that  E. 
and  F.  were  the  children  of  said  C,  and  that  said  plaintiffs  were 
damaged  by  his  death,  then  I  charge  you  that  your  verdict  must  be 
for  the  plaintiffs.^^ 

(b)  If  you  believe  from  the  evidence  that  at  the  time  N.  applied 
the  compressed  air  to  the  person  of  C,  deceased,  that  said  act  was  not 
done  Avithin  the  scope  of  the  general  authority  or  employment  of  said 
N.,  and  you  further  believe  it  was  not  so  done  in  the  perfonnance  of 
the  master's  business  and  for  the  accomplishment  of  the  object  for 

80— Cole    V,    St.    L.    T.    Co.,    183  and    the    instruction    in    the    par- 
Mo.   81,  81   S.  W.  1138  (1140).  ticular    now    under    discussion    is 

"The  servant  assumes  the  risk  only  in  effect  sayinisr  that,  if  the 
of  the  danger  incident  to  the  em-  master  was  negligent,  it  is  no  ex- 
plnyment,  but  never  assumes  the  cuse  that  the  negligence  of  a  fel- 
risk  of  the  master's  negligence,  low  servant  of  the  plaintiff  con- 
If  his  master  furnishes  him  un-  tributed  with  that  of  the  master 
safe  implements,  and  he  uses  them,  to  cause  the  injury,  citing  De- 
knowing  them  to  be  unsafe,  a  weese  v.  Mining  Co.,  54  Mo.  App. 
question  of  contributory  negligence  476;  id.,  128  Mo.  423,  31  S.  W.  110; 
arises,  but  not  of  assumption  of  Young  v.  Shickle,  103  Mo.  324,  15 
the  risk.  Pnuck  v.  St.  L.  Dressed  S.  "W.  771;  Browning  v.  Ry.  Co., 
Beef  Co.,  159  Mo.  467,  61  S.  W.  124  Mo.  55,  27  S.  W.  644." 
806.  81— Galveston,    H.    &    S.    A.    Ry. 

.     .     .     "The     suit     is     bottomed  Co.    v.    Currie,    —   Tex.    Civ.    App. 

on   the  negligence   of  the   master,  — ,  91  S.  W.  1100  (1101). 


954  FORMS  OF  INSTRUCTIONS.  [§  1428. 

which  said  N.  was  employed  by  the  defendant,  and  that  said  act  was 
not  so  done  while  performing  any  duty  with  said  compressed  air  in 
behalf  of  said  defendant  railway  company,  and  that  said  act  was  an 
independent  act  of  the  said  N.,  in  no  wise  connected  with  any  duty 
being  performed  by  said  N.  for  this  defendant,  and  you  further  find 
that  said  act  was  so  done  by  the  said  N.  for  the  puipose  of  playing 
a  prank  u^dou  said  C,  then  you  will  find  a  verdict  in  favor  of  the 
defendant,^^ 

FELLOW  SERVANTS. 

§  1428.    Fellow   Servants  Defined — Contributory   Negligence,      (a) 

The  court  instructs  the  jury  thait,  in  order  to  constitute  servants  of 
the  same  master  fellow-servants,  it  is  essential  that  they  shall  be,  at 
the  time  of  the  injury,  directly  co-operating  with  each  other  in  the 
particular  business  in  hand,  or  that  their  duties  shall  bring  them 
into  habitual  association,  so  that  they  may  exercise  an  influence  upon 
each  other  promotive  of  proper  caution ;  and,  if  the  juiy  believe,  from 
the  evidence,  that  the  plaintiff,  M.,  and  the  man,  V.,  who  was  assist- 
ing him  at  the  time  of  his  alleged  injury  were  in  the  employ  of  the 
defendant,  P.,  and  that  they  were  directly  co-operating  with  each 
other  in  the  particular  business  in  hand  or  that  their  usual  duties 
brought  them  into  habitual  association  so  that  they  might  exercise  an 
influence  upon  each  other  promotive  of  proper  caution  then  the  court 
instructs  the  juiy  as  a  matter  of  law  that  the  said  plaintiff  and  the 
said  V.  who  was  thus  assisting  him  at  the  time  of  his  alleged  injuries, 
were  fellow  servants  and  if  the  jury  further  believe,  from  the  evi- 
dence, that  the  injury  received  by  the  plaintiff  was  occasioned  by  his 
own  carelessness  and  negligence,  or  through  the  carelessness  and  neg- 
ligence of  the  said  V.,  who  was  thus  assisting  him  at  the  time  and 

82— Galveston,    H.    &    S.    A.    Ry.  air  to  so  penetrate  C,  as  to  cause 

Co.  v.   Currie,  supra.  his   death   or  do   him   any  real   in- 

"The  above  instruction  is  com-  jury.  But  the  act  was  the  direct 
plained  of  upon  the  ground  that  and  proximate  cause  of  C.'s  death, 
there  was  no  evidence  that  N.  and  in  such  cases  it  does  not  af- 
knew,  or  in  the  exercise  of  ordi-  feet  the  liability  of  the  wrong 
nary  care  could  have  known,  that  doer  that  the  consequence  of  his 
compressed  air  was  likely  to  cause  act  was  something  unforeseen  or 
C.'s  death  or  do  him  serious  bodi-  improbable.  The  act  was  calcu- 
ly  injury.  It  is  true  that  this  lated  or  likely  to  do  some  injury 
seemed  to  have  been  a  result  of  and  as  this  is  the  case  it  is  not 
the  application  of  compressed  air  necessary  that  injury  in  the  pre- 
to  a  person  that  staggered  the  cise  form  in  which  it  in  fact  re- 
comprehension  of  the  physician  suited  should  have  been  foreseen, 
who  testified  in  the  case,  who  Hill  v.  Winsor,  118  Mass.  251;  At- 
says'  he  did  not  believe  it  possi-  chison,  T.  &  S.  F.  Ry.  v.  Parry, 
ble  for  a  hose  of  the  size  of  the  67  Kan.  .51.5.  7.S  Pac.  105;  El  Paso 
one  to  so  overcome  the  sphincter  &  N.  W.  Ry.  v.  McComas,  'IG  Tex. 
muscle  as  to  allow  air  to  rush  Civ.  App.  170,  81  S.  W.  761;  Gulf, 
Into  the  bowels  of  C,  but  he  C.  &  R.  F.  Ry.  Co.  v.  Hayter,  93 
went  on  to  say  that  it  did.  It  is  Tex.  2.'?9,  54  S.  W.  944,  47  L..  R.  A. 
probably  safe  to  say  from  the  evi-  325,  77  Am.  St.  856." 
dance  that  N.   did   not  expect  the 


f  1429.]  NEGLIGENCE— MASTER  AND   SERVANT.  955 

place  mentioned  in  the  declaration,  then  the  defendant  would  not  be 
liable  to  the  plaintiff  if  he  was  otherwise  without  fault,  and  the  jury 
shoiild  find  the  defendant  not  guilty. ^^ 

(b)  If  the  jury  find  from  the  evidence  that  plaintiff  himself  was 
careless  or  neglig-ent  at  the  time  or  place  of  the  accident,  and  that 
such  negligence  directly  contributed  to  the  injury  which  he  sustained, 
then  plaintiff'  cannot  recover  damages  in  this  case  and  the  verdict 
should  be  for  the  defendant. 

(c)  The  jury  are  further  instructed  that  defendant  is  not  re- 
sponsible for  the  negligence  of  plaintiff's  fellow  servants,  if  the  jury 
believe  from  the  evidence  that  plaintiff's  felloAv  sei'vants  were  guilty 
of  negligence,  and  that  such  negligence  caused  the  accident  by  which 
plaintiff  was  injured.  The  term  ''fellow  servants"  as  used  in  this 
insti'uction,  means  those  who  are  engaged  with  the  plaintiff  in  the 
same  work,  without  any  relation  to  each  other  as  co-laborers,  and 
without  rank.^* 

§  1429.  Fellow  Servants — Elements  Necessary  to  Constitute  Rela- 
tionship of.  (a)  The  coui't  instructs  the  jurj^  that  to  constitute  de- 
fendant's servants  who  were  switching  the  caboose  in  question,  fel- 
low servants  of  deceased,  so  as  to  exempt  the  defendant  from  liabil- 
ity on  account  of  the  death  of  deceased  from  the  negligent  acts  of 
defendant's  said  servants  (provided  you  believe  from  the  evidence  de- 
ceased's death  was  caused  by  the  negligent  acts  of  said  servants), 
said  servants  and  deceased  should  be  actually  co-oi^erating,  just  be- 
fore and  at  the  time  of  the  collision  which  caused  deceased's  death, 
in  the  particular  business  in  hand,  or  their  usual  duties  should  bring 
them  into  habitual  consociation  with  each  other,  so  that  they  might 
exercise  an  influence  upon  each  other  promotive  of  proper  caution  for 
their  personal  safety.^^ 

83— Pagels   v.    Meyer,    193   111.    172  85— P.,    C,    C.    &    St.    L.    Rv.    Co. 

(177),    61    N.    E.    1111,    rev'g    88    111.  v.    Bovard,    223   111.   176   (184),   79   N. 

App.    169.  E.    128. 

"The  court  refused  to  instruct  "The  instruction  is  in  accordance 
the  jury  as  requested.  This  in-  with  the  language  used  by  this 
struction  stated  the  rule  of  law  court  in  C.  &  A.  R.  R.  Co.  v. 
as  to  what  will  constitute  fellow-  O'Brien,  155  111.  630,  40  N.  E.  1023, 
servants  in  practically  the  same  and  N.  C.  Rolling  M.  Co.  v.  John- 
language  employed  by  the  court  son,  114_  111.  57,  29  N.  E.  186.  The 
in  a  great  many  cases,  among  instruction  is  charged  with  being 
which  are:  C.  &  N.  W.  R.  R.  Co.  erroneous  upon  two  grounds: 
v.  Moranda,  93  111.  302,  34  Am.  First,  because  it  is  said  to  as- 
Rep.  168;  C.  &  E.  I.  R.  R.  Co.  v.  sume  that  the  death  of  the  de- 
Geary,  110  id.  383;  Stafford  v.  C,  ceased  resulted  from  the  negli- 
B.  &  Q.  R.  R.  Co.,  114  id.  244,  2  gence  of  appellant's  servants;  and 
N.  E.  185;  N.  C.  Rolling  M.  Co.  second,  that  it  omits  to  condition 
V.  Johnson,  114  111.  57,  29  N.  E.  the  right  of  recovery  upon  the 
186;  C.  &  N.  W.  Ry.  Co.  v.  Sny-  exercise  of  due  care  on  the  part 
der,  117  III.  376,  7  N.  E.  604;  C.  &  of  the  deceased."  Neither  of  these 
A.  R.  R.  Co.  v.  Hoyt.  122  id.  369,  objections  is  well  taken.  As  to 
12  N.  E.  225;  C.  &  E.  I.  R.  R.  Co.  the  first,  the  jury  are  required  to 
V.  Kneirim,  152  id.  458,  39  N.  E.  believe  from  the  evidence  that 
324.    43    Am.    St.    259."  the    deceased's    death    was    caused 

84 — Kaminski    v.     Tudor    I.     W.,  by    the    negligent    acts    of    appel- 

167   Mo.   462,  67  S.   W.   221   (222).  lant's     servants,      and,      therefore, 


9u6  FORMS  OF  INSTRUCTIONS.  [§  1430. 

(b)  If  you  believe  from  the  evidence  that  W.  was  not  intrusted 
by  the  defendant  with  the  authority  to  suiDerintend,  control,  com- 
mand, and  direct  plaintiff  in  the  performance  of  the  work  in  which 
he  was  engaged  at  the  time  he  was  injured,  then  said  W.  and  plaintilf 
were  fellow  servants,  and  you  will  return  a  verdict  for  the  de- 
fendant.^^ 

(c)  The  court  instructs  the  jury  that  it  is  not  necessary,  in  order 
to  constitute  two  employes  fellow  servants,  that  they  should  be  per- 
sonally acquainted  with  or  know  each  other's  names,  or  that  they 
should  be  doing  identically  the  same  thing  at  the  same  time.  The 
rule,  exempting  the  master  from  liability,  does  not  rest  in  any  degree 
upon  personal  acquaintance  or  actual  previous  association  between 
the  servants,  but  upon  the  relation  of  their  duties  to  each  other  and 
the  respective  positions,  which  they  hold.  If,  therefore  you  believe 
from  the  evidence  that,  at  the  time  the  injury  in  question  was  received, 
the  deceased,  W.  R.,  was  directly  co-operating  with  the  employes  in 
charge  of  the  locomotive  in  the  particular  work  of  the  defendant 
then  in  hand,  in  such  case  it  is  your  duty  to  find  the  defendant  not 
guilty,  even  though  you  believe  from  the  evidence  that  said  R.  was 
not  acquainted  with  said  employes,  so  in  charge  of  said  engine.^" 

§  1430.  Fellow  Servants — Persons  May  Be  as  to  Part  of  Employ- 
ment, and  Not  as  to  Other  Part.  I  charge  you  further,  that  the  serv- 
ant does  not  assume  the  risks  of  carelessness  of  those  who  undertake 
to  discharge,  under  the  master's  directions,  the  master's  duty  towards 
the  servant,  even  if  such  persons  are  also  servants  of  the  same 
master;  nor  does  the  servant  assume  risks  which  he  neither  knows  nor 
suspects,  nor  had  reason  to  look  for.  The  risks  incident  to  his  em- 
ployment which  he  assumes  are  such  risks  as  he  knoAVS,  or  which  by 
the  exercise  of  ordinary  care,  he  should  have  known  of.  In  this  con- 
nection, I  charge  you,  that  while  in  the  discharge  of  his  ordinary 
duties  the  man  R.  was  a  fellow  servant  of  the  deceased,  yet  while 
engaged  in  transmitting  signals  from  the  foreman,  M.,  to  the  men 
operating  the  donkey  engine,  he  was  discharging  a  duty  imposed  by 

such  neglig-ence  is  not  assumed  to  cism  cannot  be  made  upon  this 
have  existed.  As  to  the  second  in.struction  that  it  states,  if  cer- 
objection.  the  Instruction  only  tain  facts  are  found,  the  jury  may 
purported  to  state  the  law  in  ref-  render  a  verdict  for  the  plain- 
erence  to  the  question  of  fellow-  tiff,  and  omits  certain  other  facts 
servants,  and,  therefore,  it  was  necessary  to  be  found  in  order  to 
unnecessary  to  embody  in  the  in-  entitle  t'he  jury  to  find  for  the 
struction  a  stntement  in  regard  to  plaintiff.  The  instruction,  on  the 
the  care  of  the  deceased  for  his  contrary,  merely  states  n  rule  in 
own  safety.  In  C.  &  E.  111.  R.  Co.  regard  to  fellow-servants  which 
V.  Hines,  132  111.  ICl,  23  N.  E.  1021,  would  exempt  appellant  from  Ha- 
lt   was    said:      'It    is    not    required  bility." 

that    the    entire    law    of    the    case  86— Reeves  v.  Galveston,   H.  &  S. 

shall  be  stated  In  a  single  instruc-  A.    Ry.    Co..   —  Tex.   Civ.   App.   — , 

tion,    and    it    is    therefore    not    im-  98  S.  W.  929. 

proper    to    state    the    law    as    ap-  87— C.     &     E.     I.     R.     R.     Co.     v. 

plicable     to     particular     questions,  Kimmel.    221    111.    547    (553,    554),    77 

or  particular  parts  of  the  case,  in  N.   E.   936. 
separate    instructions.'      The    criti- 


§  1431.]  NEGLIGENCE— MASTER  AND  SERVANT.  957 

law  upon  the  vice  principal,  and  was  therefore  while  so  engaged,  a 
vice  principal  of  the  defendant ;  and  if  you  find  from  a  preponderance 
of  the  evidence  that  R.  failed  to  correctly  transmit  the  signal  given 
him  by  the  foreman,  M.,  and  by  reason  of  such  failure  the  injury,  if 
any,  complained  of  was  caused,  then  you  must  find  the  defendant 
guilty  of  negligence.^^ 

§  1431.    Who  are  Fellow  Servants  a  Question  of  Fa^ct  for  the  Jury. 

The  court  instructs  the  jury  that  the  question  as  to  whether  the  de- 
ceased, and  the  servants  of  the  defendant  in  charge  of  the  train  in 
question  and  spoken  of  by  the  witnesses  were  fellow  servants  so  as 
to  exempt  the  defendant  from  liability  from  any  negligence  of  its 
servants  in  the  management  of  said  train,  is  a  question  of  fact  to  be 
determined  by  the  jury  from  the  evidence  in  the  case  under  the  in- 
structions of  the  court. ^^ 

§  1432.    Negligence  of  Defendant  and  of  Fellow  Servant,     (a)     If 

the  jury  believe,  from  the  evidence,  that  the  defendant  was  guiltj'  of 
negligence,  as  charged  in  the  declaration,  and  'that  the  plaintiff  by 
reason  thereof  was  injured  and  damaged  as  claimed  by  him,  and  that 
he  himself  was  guilty  of  no  want  of  ordinary  care  that  contributed  to 
the  injury,  then  the  defendant  is  liable  in  this  action,  although  you 
may  further  believe,  fi'om  the  evidence,  that  the  negligence  of  a 
fellow  servant  contributed  to  such  injuiy.  In  such  cases  the  rule  of 
law  is  that  contributory  negligence  to  defeat  an  action  must  be  that 
of  the  plaintiff  or  of  some  person  for  whose  acts  he  is  responsible.^" 

88 — Sroufe    v.    Moran    Bros.    Co.,  ceased   and    one   Bray  were   fellow 

28  Wash.  381  (393),  68  Pac.  896  (901),  servants,  and  on  that  question  we 

92  Am.  St.  847.  said:       'The     definition     of     fellow 

"Persons     working     together     as  servant  may  be  a  question  of  law, 

fellow     servants     may     be     fellow  but  it  is  always  a  question  of  fact 

servants  with  regard  to  some  part  to    be    determined    from    the    evi- 

of   the   employment,   and   principal  dence   whether   a   given   case   falls 

or    master    with    regard     to    some  within     the     definition.        Whether 

particular  part  of  the  employment,  the    deceased    and    Bray   were    fel- 

Shannon   v.   Cons.   T.   &   P.    Mining  low  servants  depended  upon  a  va- 

Co.,  24  Wash.  130,  64  Pac.  169;  Uren  riety    of    facts    which    had    to    be 

V.     G.    T.     Mining    Co.,     24    Wash,  proven    before    the    jury.      The    in- 

261,    64    Pac.    174;    Costa    v.    Pacific  quiry    would    arise    whether    they 

Coast    Co.,    26    Wash.    138,    66    Pac.  were  in   the    service   of   a  common 

398."  master;  were   they   engaged   in   the 

89 — L.     E.    &    W.    R.    R.    Co.    v.  same    line     of    employment;    were 

Middleton,    142   111.    550    (556),    32   N.  the      existing      relations      between 

E.   453.  them     of     such     a     character     and 

"We  are  of  opinion  that  said  in-  their  duties  such  as  to  bring  them 

struction   was   clearly   proper.    The  often    together    co-operating    in    a 

question  whether  Middleton  was  a  particular  work?     These   and   per- 

fellow  servant  with  those  in  charge  haps     other     facts     of     a     kindred 

of    the    colliding    train   was   a   fact  character     were     matters      to      be 

for  the  jury,  and   it  was  the  duty  proven   before   the  jury,   and   from 

of  the  court  to  submit  it  to  them,  the   facts   thus   proven,    it  was   for 

with  proper  instructions  as  to  the  the  jury  then   to  say  whether  two 

law     defining     the     relation.      Sub-  servants   in   the   discharge  of  their 

stantially    the    same    question    was  duties    were    fellows." 

decided    in    T.    &    St.    Iv.    R.    R.    Co.  90_Shetter   v.    C.    &    N.    W.    Ry. 

v.   Morgenstern.  106  111.  216.     There  Co.,    49    Wis.    509. 
the  question  was  whether  the  de- 


958  FORMS  OF  INSTRUCTIONS.  [§  1433.. 

(b)     If  3'oti  believe  from   the  evidence   that  on  or  about , 


plaintiff  was  in  the  emploj'  of  defendant  in  its  shops  at  S.  A.,  and 
that  while  so  emploj'ed  he  was  under  the  direction  and  control  of 
one  D.,  and  that  the  said  D.  ordered  the  plaintiff  and  one  R.  to  take 
up  and  carry  a  jolank  or  piece  of  timber  as  alleged  in  plaintiff's  peti- 
tion, and  that  in  obedience  to  said  order  the  plaintiff  and  said  R.  at- 
tempted to  carry  the  said  plank  or  timber ;  and  you  further  find  from 
the  evidence  that,  while  plaintiff  had  said  plank  or  timber  upon  his 
shoulder  said  R.  dropped  his  end  of  said  plank  or  timber,  and  in- 
jured plaintiff,  as  alleged  in  plaintiff's  petition;  and  you  further  find 
from  the  evidence  that  said  R.  was  physically  unable  to  sustain  or 
hold  up  his  end  of  said  plank  or  timber,  and  that  defendant  knew  of 
this,  or  by  the  exei^ise  of  ordinary  care  could  have  known  of  it, 
and  that  it  was  negligence  on  the  part  of  defendant  to  order  the  said 
R.  to  assist  in  carrjdng  said  plank  or  timber,  if  he  was  so  ordered, 
and  that  such  negligence  if  any,  was  alleged  in  his  petition;  and  if 
you  further  find  from  the  evidence  that  the  plaintiff  was  not  guilty  of 
negligence  and  that  he  did  not  assume  the  risk — then  and  in  such 
case  you  Avill  find  for  the  plaintiff.^^ 

§  1433.  Fellow  Servants — Eule  in  Colorado.  The  jury  are  in- 
structed that  the  rule  Avhich  obtains  in  the  state  of  Colorado  is  that 
for  the  acts  of  his  vice  principal  done  within  the  scope  of  his  em- 
ployment, and  such  as  properly  devolve  upon  the  master  in  his  gen- 
eral duty  to  his  servants,  the  master  is  liable ;  while  for  all  such  acts 
as  relate  to  the  common  employment,  which  are  on  a  level  with  the 
acts  of  the  fellow  laborer',  except  such  acts  as  are  done  by  the  vice 
principal  against  the  reasonable  objections  of  the  injured  servant, 
the  master  is  not  responsible.  In  other  words  the  test  of  the  liability 
is  the  character  of  the  act,  rather  than  the  relative  act  of  the 
servant.^2 

§  1434.    Care  Required  of  Master  in  Selection  of  Fellow  Servants. 

(a)  The  court  instructs  the  juiy,  that  no  person,  or  coiiioration,  is 
responsible  for  injuries  to  an  employe,  occasioned  by  the  careless- 
ness, negligence  or  unskillfulness  of  a  fellow  servant,  engaged  in  the 
same  line  of  service;  provided  the  employer  has  taken  proper  care 
and  caution  to  engage  proper  servants  to  perform  the  duties  assigned 

91— G.    H.    &    S.    A.    Ry.    Co.    V.  Pers.    Inj.    §§    103,    201;    Supple    v. 

Sherwood.    —    Tex.    Civ.    App.    — ,  Aprnew,    191    111.    439,    61    N.    E.    392. 

67  S.   W.  776   (777).  The   act   of   neglig-ence   pleaded   by 

"If  the  injury  was  caused  by  the  appellee  is  in  itself  of  such  a  char- 
joint  result  of  the  neprlif?ence  of  acter  that  it  could  not  possibly 
the  appellant  and  the  fault  of  a  be  the  nes'lig'ence  of  R.  It  was 
fellow  servant,  appellee's  ripht  to  the  nog:lis'ence  of  D.,  who,  though 
recover  would  be  maintained;  for  appellant's  servant,  was  its  vice 
the  original  negligence  of  appel-  principal,  and  not  a  fellow  serv- 
lant  would  still  remain  as  the  cul-  ant  of  the  appellee  and  could  not 
pable  and  diroot  cause  of  the  in-  be  the  act  of  any  one  else." 
jury,  and  the  intervening  fnult  of  92 — Carletnn  Min.  &  M.  Co.  v. 
R.,  which  might  have  contributed  Ryan,  29  Colo.  401,  68  Pac.  279 
to  it,  could  not  be  regarded.  (281). 
Shear    &    R.    Neg.    §    188;    Busw. 


§  1435.]  NEGLIGENCE— MASTER  AND   SERVANT.  959 

to  them.  Nor  is  the  employer  liable  for  injuries  thus  sustained,  if 
the  person  injured  was,  while  engaged  as  such  serv^ant,  acquainted 
with  the  character  of  such  fellow  servant  for  capacity,  prudence  and 
skill. 

(b)  The  rule  of  law  is,  that  when  a  person  engages  in  the  service 
of  another,  he  undertakes,  as  between  himself  and  his  employer,  to 
run  all  the  ordinary  risks  incident  to  such  ser^dce;  and  this  includes 
the  risk  of  occasional  carelessness,  negligence  or  unskillfulness  on  the 
part  of  his  fellow  servants  engaged  in  the  same  line  of  duty  and 
service;  provided,  the  emploj'^er  has  exercised  reasonable  care  and 
caution  to  engage  competent  and  careful  persons  to  discharge  the 
duties  assigned  to  them.^^ 

§  1435.  Responsibility  of  Master  for  Incompetency  of  Fellow 
Servant.  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  G.  and  P.  were  incompetent  and  unfit  persons  to  per- 
form the  duty  of  propelling  said  hand  ear,  and  that  by  reason  thereof 
they  pulled  or  jerked  upon  the  handle  bar  instead  of  pressing  down; 
and  you  further  find  they  were  negligent;  and,  further,  that  the  de- 
fendant knew,  or  by  the  exei'cise  of  ordinary  care  could  have  known, 
of  the  unfitness  and  incompetency  of  said  G,  and  P.,  if  you  find  they 
were  unfit  and  incompetent,  and  that  the  defendant  was  gniilty  of 
negligence  in  employing  and  keeping  said  G.  and  P., — then  your  ver- 
dict should  be  for  the  plaintiff.^^ 

§  1436.  Person  Charged  with  Ventilation  of  Mine  Not  Fellow 
Servant  of  Miner.  I  charge  you  further  that  the  positive  duty  of 
keeping  a  good  and  sufficient  ventilation  in  the  mine  being  on  the 
defendants,  as  you  have  been  instructed,  it  matters  not  Avho  or  what 
persons  perfoiTaed  work  or  assist  in  the  work  of  ventilation.  If  you 
should  find  that  it  was  necessary  to  keep  chute  No.  15,  or  any  other 
chute,  open  as  an  airway,  in  order  to  have  good  and  sufficient  ventila- 
tion in  chute  14  above  the  fii'st  crosscut,  and  that  part  of  the  duty  of 
the  loader  was  to  keep  chute  15  clear,  then,  in  that  respect,  in  per- 
forming that  particular  work,  he  was  assisting  in  performing  a  posi- 
tive duty  of  the  defendants  to  the  deceased,  and  was,  as  to  the  work, 
a  vice  principal  of  the  defendants,  and  not  a  fellow  workman  of  the 
deceased.''^ 

§  1437.  Negligence  of  Fellow  Servant,  (a)  The  jury  ai-e  in- 
structed, that  the  rule  of  law,  that  an  action  will  not  lie  by  a  servant 
against  his  master  or  employer,  for  an  injuiy  sustained  through  the 
negligence  or  default  of  a  fellow  servant,  applies  only  to  cases  where 
the  injuries  complained  of  occur  without  the  fault  of  the  employer, 

93— Smith    v.    Lowell    Mfg.    Co.,  announced   in   Costa  v.   Pac.   Coast 

124    Mass.    114.  Co..    26    Wash.    138,    66    Pac.    398." 

94— Int.    &   G.   N.   R.   Co.   v.   Mar-  Czarecki    v.    Seattle    &    S.    F.    Ry. 

tinez.    —   Tex.    Civ.    App.    — ,    57   S.  &  Nav.    Co.,   30  Wash.   288,  70  Pac. 

W.    689    (690).  750   (752). 

95 — "This  is  within  the  principle 


960  FORMS  OF  INSTRUCTIONS.  [§1438. 

either  in  the  act  which  caused  the  injury,  or  in  the  employment  of 
the  person  who  caused  it. 

(b)  While  it  is  true  that  a  common  employer  is  not  responsible 
to  a  servant  for  an  injury  caused  by  the  negligence  of  his  fellow 
servant,  engaged  in  the  same  line  of  employment,  yet  it  is  the  duty  of 
the  employer  to  use  all  reasonable  care,  caution  and  prudence  to  pro- 
vide safe  structures,  competent  emi5loyes,  and  all  appliances  neces- 
sary to  the  safety  of  the  employed,  and  to  adopt  all  reasonable  rules 
and  regulations  to  avoid  injuries  to  the  employed,  and,  having  adopted 
such  rules,  to  conform  to  them,  or  be  responsible  for  consequences 
resulting  from  a  departure  therefrom.^^ 

(c)  The  master  does  not  warrant  the  competency  of  his  servants 
to  the  other  servants.  The  extent  of  the  master's  undertaking  is,  that 
he  will  exercise  reasonable  care  in  the  selection  of  an  employe,  and  if 
his  incompetency  is  discovered,  will  dismiss  him  from  service.  The 
master  will  be  liable,  where  the  injury  is  imputable  to  his  negligence, 
in  the  selection  of  the  servant,  or  in  retaining  him  after  his  incompe- 
tency is  known.'''^ 

(d)  The  court  charges  the  jury  that  they  cannot  find  a  verdict 
against  the  N.  Company  on  account  of  any  negligence  on  the  part  of 
any  fellow  sei'vant  of  plaintiff's  intestate,  although  such  negligence 
on  the  part  of  the  fellow  servants  of  the  deceased  may  have  caused 
the  injury  and  death  of  B.^^ 

§  1438.  Motorman  of  Street  Car  Failing  to  Reduce  Speed  at  Sunken 
or  Depressed  Spot — Fellow  Servant  of  Conductor.  If  you  find  from 
the  evidence  that  the  motorman  in  charge  of  the  car  knew,  or  might 
have  known  by  the  exercise  of  ordinary  care,  the  condition  of  the 
track  at  the  point  of  the  accident,  and  that  he  negligently  ran  his 
car  upon  the  point  at  which  the  track  was  sunken  or  depressed  with- 
out slowing  it  down  and  reducing  the  speed  to  one  of  safety,  then  the 
plaintiff  is  not  entitled  to  recover,  and  your  verdict  Avill  be  for  the 
defendant.^'* 

96— Chi.  &  N.  W.  Ry.  Co.  v.  Tay-  R.    R.,    174    Mo.    53,    73    S.    W.    686, 

lor,   69   111.   461.  61    L.    R.    A.    475.      There    was    also 

97 — Columbus,     C.    &    I.    C.     Ry.  evidence  that  the  car  was  running^ 

Co.  V.  Troesch,  68  111.  545.  at  an  ordinary  rate  of  speed  when 

98 — N.  A.  Ry.   Co.  v.  Mansell,  138  it    jumped    the    track.      Defendant, 

Ala.     548,     36    So.    459    (462),     citing  however,    contends   that    under   the 

Mobile     &     M.     Ry.     v.     Smith,     59  evidence  it  was  conclusively  shown 

Ala.   245;   Smoot   v.    M.    &    M.    Ry.,  that  the  motorman   was  negligent, 

67  Ala.  13;  M.  &  O.  Ry.  v.  Thomas,  and     for     this     reason     the     case 

42  Ala.   672.  should  have  been  withdrawn  from 

99 — Houts   v.    St.    L.    T.    Co.,    108  the    jury.      In    order    to    authorize 

Mo.    App.    686,    84    S.    W.    161    (164).  the    court    to    take    the    case    from 

"This     instruction     imputed     the  the  jury,  the  evidence  should  have 

negligence  of  the  motorman,  if  he  been     so     strong     that     reasonable 

was    negligent,    to    the    conductor,  minds  could  come  to  but  one  con- 

for    the    reason    they    were    fellow  elusion,    to-wit,    that    the   car   was 

servants.     Stocks  v.   St.   L.   T.   Co.,  run   at   a   negligent   and    high    rate 

106    Mo.    App.    129,    79    S.    W.    1176;  of    speed,     and     that     it     was     this 

Godfrey    v.    St.   L.    T.    Co.,   107  Mo.  high    rate   of   speed   that   caused    it 

App.   193,    81    S.   W.   1230;   Sams  v.  to  jump  the  track.     It  is  not  con- 


§1439.]  NEGLIGENCE— MASTER  AND   SERVANT.  961 

§  1439.  Who  are  Vice  Principals,  (a)  You  are  also  instructed 
that,  wJien  an  injury  results  to  a  servant  from  an  order  improperly 
given  or  act  negligently  done,  and  the  person  who  gives  the  order  or 
does  the  act  is  in  the  performance  of  a  duty  the  breach  of  which  by 
the  master  in  person  would  create  a  liability,  and  he  is  clothed  with 
apparent  authority  in  that  respect,  and  the  order  given  or  act  done 
is  within  the  scope  of  the  apparent  authority,  the  master  is  responsi- 
ble in  damages  to  the  injured  servant,  if  the  injured  servant  is  in  the 
exercise  of  due  care  and  caution  for  his  own  safety.  It  is  immaterial 
whether  the  person  exercising  the  authority  was  known  as  a  foreman 
or  by  anj'  other  title ;  if  he  is  clothed  with  apparent  authority  to 
direct  and  command,  and  the  injured  servant  in  good  faith  obeys  and 
performs,  the  person  so  exercising  such  authority  is  not  as  to  the  per- 
son injured  a  felloAv  servant  in  the  sense  that  the  common  master  is 
relieved  of  responsibility  for  injuries  resulting  from  his  imprudent 
conduct  or  negligent  act.^"" 

(b)  The  court  instructs  the  juiy  that  where  a  master  confers  au- 
thority upon  one  of  his  emploj^es  to  take  charge  and  control  of  a 
certain  class  of  workman  in  carrying  on  some  particular  branch  of 
his  business,  such  employe  in  governing  and  directing  the  movements 
of  the  men  under  his  charge  with  respect  to  that  branch  of  the  busi- 
ness is  the  direct  representative  of  the  master,  and  is  not  a  mere 
fellow  sen'ant ;  and  all  the  commands  given  by  him  within  the  scope 
of  his  authoi'ity  are  in  law  the  commands  of  the  master,  and  if  he 
is  guilty  of  a  negligent  and  wrongful  exercise  of  his  power  and  au- 
thority over  the  men  under  his  charge,  it  is  in  law  the  same  as  though 
the  master  itself  was  guilty  of  such  conduct.^ 

§  1440.  Responsibility  of  Master  for  Negligence  of  Vice  Principal. 
The  court  instructs  the  juiy  that  if  a  railroad  company  vests  one  of 
its  employes  with  authority  of  superintendence,  control  or  command 
over  other  of  its  employes,  or  with  authority  to  direct  such  employes 
in  the  performance  of  their  dntj,  such  employe  vested  with  such  su- 
perintendence, control  or  command  or  authority  to  direct,  is  not  a 
fellow  servant  with  those  over  whom  he  has  such  superintendence, 
control  or  command,  or  authority  to  direct,  but  is  a  vice  principal; 
and  the  company  would  be  liable  for  any  negligence  of  such  vice 

clusively  shown   that  the   ca^  was         "The       instruction       g-iven       for 

running:    at    a    hi^h    rate    of    speed  plaintiff   and    quoted    in    the   state- 

or   at   a   speed   exceeding   the  ordi-  ment    is    not     in    our    opinion    er- 

nary  rate,  and  for  this  reason  the  roneous  for  the  reason  claimed  by 

question  of  whether  or  not  it  was  appellant,  viz.,  that  it  assumes  the 

runningr  at   a  negligent   speed  was  existence    cf    facts    which    are    in 

one    for    the    jury."  dispute.     The   instruction   does  not 

100 — "We    do    not    think    this    in-  purport    to    be    upon    the    facts    of 

strument     is     open    to     criticism."  the  case,  but  in  general  terms  em- 

W.    C.    St.    R.    R.    Co.    V.    Dwyer,  bodies     simply     a     proposition     of 

162   Til.   482   (490),    aff'g   57   111.    App.  law,  which   is  clearlv  sustained  by 

440.    44    N.    R.   815.  the   rulings  of  the   Supreme  Court 

1 — 111.  Steel  Co.  V.  Hanson,  97  111.  in    Fraser   &   Chalmers    v.    S^^hroe- 

App.   ^169   (471),   aff'd  195  111.   106,   62  der.   163  111.    459   (464),  45  N.    E.  288, 

N.   B-   918.  and  cases  cited." 
61 


962  FORMS   OF  INSTRUCTIONS.  [§  1441. 

principal  which  might  proximately  produce  injury  to  any  of  the  em- 
ployes over  whom  he  had  such  superintendence,  control  or  command, 
or  authority  to  direct. - 

§  1441.  Servant  Engaging  in  Extra  Hazardous  Work  Different  from 
Ordinary  Employment  at  Command  of  Fellow  Servant.  The  court 
instructs  the  jury  that  where  a  person  in  the  employ  of  another  in 
the  performance  of  a  specific  line  of  duty,  only  ordinarily  hazardous, 
is  commanded  by  a  fellow  servant,  but  to  whom  he  is  so  subordinate 
that  he  is  compelled  to  obey  his  directions,  to  do  an  act  in  the  same 
general  service,  but  different  from  the  sphere  of  employment  in  which 
he  has  engaged  to  serve,  and  extra  hazardous  in  its  character,  and  in 
respect  to  which  the  servant  making  the  requirement  knew  he  was 
unskilled  and  inexperienced,  and  in  doing  the  same  the  servant  so  di- 
rected received  injuries  occasioned  by  the  negligence  of  another  serv- 
ant employed  in  the  particular  line  of  service  in  which  the  act  was 
being  done,  the  common  employer  will  be  liable  to  the  servant  so  in- 
jured, and  the  jury  should  so  find.^ 

§  1442,  Superior  Authority  Does  Not  Always  Destroy  Relationship 
of  Fellow  Servants.  The  court  instructs  the  jury  that  the  facts  that 
the  said  H.  was  superior  in  power  and  authority  over  the  said  B.  in 
the  service  of  the  said  company  at  the  time  of  said  accident  would 
not,  of  itself,  destroy  the  relation  of  co-servant  as  between  the  said 
H.  and  the  said  B. ;  and  if  they  believe  from  the  evidence  that  the 
said  H.  was  capable  of  running  the  said  machine  at  the  time  of  the 
accident,  and  that  the  said  B.  then  and  there  knew  how  to  perform 
his  duties  as  helper  upon  the  said  machine,  and  was  working  within 
the  scope  of  his  employment,  then  they  would  in  that  case  be  eo- 
servants,  and,  although  the  jury  might  believe  the  accident  resulted 
from  the  negligence  of  the  said  H.  under  such  circumstances,  the 
plaintiff  would  not  be  entitled  to  recover  in  this  case,  and  the  jury 
should  so  find.* 

§  1443.  Molder  as  Vice  Principal  to  Laborer.  If  the  jury  be- 
lieve, from  the  evidence,  that  the  plaintiff  was  in  the  defendant's  em- 
ploy as  a  common  laborer,  and  required,  in  the  discharge  of  his  duty, 
to  assist  other  servants  of  the  defendant,  who  were  molders,  as  a 
helper,  and  was  under  the  control  or  subject  to  the  orders  of  said 
molders:  that  one  of  such  molders,  negligently  ordered  or  directed  the 
plaintiff  to  repair,  adjust  or  put  in  order  the  stationary  crane  in  ques- 
tion; that  in  giving  such  order  (if  the  jury  believe,  from  the  evidence, 
he  gave  it),  said  molder  was  not  a  fellow  servant  with  the  plaintiff, 
as  defined  by  the  instruction  given  on  that  question:  that  it  was  a 
dangerous  service  for  him  to  r)erform  and  that  the  plaintiff  did  not 
appreciate  or  comprehend  such  danger;  that  while  the  plaintiff  was 

2— S.  A.  &  A.  P.  Ry.  Co.  v.  Wio-        3— McVey  v.  St.   Clair  Co.,  49  W. 
grers,   22    Tex.    Civ.    App.    344,   54   S.     Vn.   412.    38   S.    R.    64S    ('649). 
W.   910    (911).  4— McVev  v.   St.   Clair  Co.,  49  W. 

Va.  412,    38   S.    E.    648    (651). 


§  1444.]  NEGLIGENCE— MASTER  AND   SERVANT. 


963 


endeavoring  to  carry  out  and  execute  such  order,  the  defendant  so 
carelessly  and  improperly  managed  and  controlled  the  other  crane  in 
question  that  the  plaintiff  was  struck  and  injured  by  the  same,  as 
charged  in  the  declaration,  and  that  the  plaintiff  was  in  the  exercise 
of  ordinary  care  for  his  own  safety  before  and  at  the  time  of  his 
injui-y,  the  defendant  is  liable  and  a  verdict  ought  to  be  returned  for 
the  plaintiff.^ 

ASSUMPTION  OF  RISK. 

§  1444.  Servant  Assumes  All  Risks  Ordinarily  and  Naturally  Inci- 
dent to  Particular  Service  in  Which  He  is  Engaged,  (a)  The  jury 
are  instructed,  as  a  matter  of  law,  that  a  servant,  when  he  enters  the 
sei'\'ice  of  an  employer,  impliedly  agrees  that  he  will  assume  all  risks 
which  are  ordinarily  and  naturally  incident  to  the  particular  service 
in  which  he  engages,  and  if  the  jury  believe  from  the  evidence  that 
the  injury  to  the  plaintiff  was  only  the  result  of  one  of  the  risks  ordi- 
narily incident  to  the  work  in  which  plaintiff's  intestate  was  engaged, 
and  not  othenvise,  then  he  cannot  recover  in  this  case,  and  your  ver- 
dict should  be  for  the  defendant.*^ 

(b)  It  is  alleged  in  the  declaration  filed  in  this  ease  by  the  plain- 
tiff S.  that  the  hazards  and  dangers  of  drawing  the  spike  in  the  man- 


5— Leighton,  etc..  Steel  Co.  v. 
Snell,  217  111.  152  (159),  75  N.  E. 
462. 

"It  is  said  of  this  instruction 
that  it  assumes  that  appellee  and 
the  molder  were  not  fellow-serv- 
ants. We  do  not  agree  with  this 
contention.  The  instruction  is 
long,  and  as  printed  is  divided 
into  three  clauses  by  semi-colons, 
but  it  begins  by  informing  the 
jury  that  if  they  believe  from  the 
evidence,  and  then  follow  the  va- 
rious matters  contained  in  the  in- 
struction. The  writer  of  the  in- 
struction unnecessarily,  in  the  sec- 
ond clause,  repeated  the  expres- 
sion 'if  the  jury  believe  from  the 
evidence,'  but  it  neither  added  to 
nor  took  from  the  instruction  the 
force  of  the  direction  contained  in 
the  first  part  of  the  instruction, 
that  all  the  matters  therein  fol- 
lowing should  be  found  from  the 
evidence.  It  is  not  necessary 
that  each  thought  or  element  or 
act  pointed  out  or  specified  in  the 
instruction  shall  be  preceded  im- 
mediately by  the  requirement  that 
the  jury  must  find  it  from  the  evi- 
dence. Where  the  Instruction  cen- 
to ins  but  a  single  sentence  and 
begins  with  the  renuirement  to 
'find  from  the  evidence'  the  mat- 
ters therein,  the  direction  to  'find 
from  the  evidence'  will  apply  to 
the    entire    sentence.      C.    &    A.    R. 


R.  Co.  v.  Fisher,  141  111.  614,  31  N. 
E.  406." 

"It  is  also  said  that  the  instruc- 
tion omits  the  question  whether 
the  molder  had  the  power  or  au- 
thority to  direct  the  appellee  to 
repair  the  crane.  The  instruction 
tells  the  jury  that  they  must  be- 
lieve, from  the  evidence,  that  ap- 
pellee was  under  the  control  or 
subject  to  the  orders  of  the  mold- 
er. If  he  was  under  the  control 
and  subject  to  the  orders  of  the 
molder,  and  the  direction  was 
with  reference  to  work  that  was 
in  the  line  in  which  the  molder 
was  engaged  or  if  it  concerned 
the  repairing  of  tools  or  machinery 
which  the  molder  handled  in  the 
prosecution  of  his  work,  as  the 
evidence  in  this  case  shows  was 
true,  then  the  molder  did  have 
authority  to  give  the  order  as  a 
vice  principal  and  bind  appellant, 
unless  it  could  be  said,  under  the 
evidence,  as  the  jury  were  ad- 
vised, that  the  rnolder  and  the 
helper  were  fellow-servants.  We 
think  the  instruction  is  not  sub- 
ject to  either  of  the  criticisms 
made  of  it.  and  that  while  it  i9 
not  artistically  drawn  it  would  be 
properly  understood  by  the  aver- 
age   mind." 

6— C,  B.  &  Q.  R.  R.  Co.  V. 
Camper,  199  111.  569.  65  N.  E.  4481 
reversing  100    111.    ApQ.    21, 


964  FORMS  OF  INSTRUCTIONS.  [§  1444. 

ner  he  did  draw  it  were  unknown  to  him;  now  if  the  jury  believe 
from  the  evidence  that  such  hazards  and  dangers  were  known  to  said 
plaintiff,  or  that  he  had  had  sufficient  experience  and  knowledge  of 
the  business  as  would  make  the  dangers  and  hazards  known  to  an 
ordinarily  prudent  and  intelligent  man,  then  the  verdict  should  be  for 
the  defendants.'' 

(c)  The  jui-y  are  instructed,  that  a  servant,  when  he  engages  in 
a  particular  employment,  is  presumed  to  do  so  Avith  a  knowledge  of, 
and  a  taking  of  the  risks  of  its  ordinary  hazards,  whether  from  the 
carelessness  of  fellow  servants  in  the  same  line  of  employment,  or 
from  latent  defects  in  the  machinery  and  appliances  used  in  the  busi- 
ness, or  the  ordinai'y  dangers  in  the  use  of  the  same. 

(d)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  (or 
deceased)  was  engaged  in  the  employment  of  the  defendant  when  he 
was  injured,  and  that  such  injury  was  received  while  in  the  dis- 
charge of  his  duty  as  such  employe;  and  if  the  jury  further  believe, 
from  the  evidence,  that  such  injury  was  occasioned  either  by  his  own 
negligence,  carelessness  or  want  of  skill,  or  by  that  of  his  fellow  serv- 
ants, engaged  in  the  same  line  of  duty  or  service,  as  explained  in 
these  instructions,  then  the  jury  should  find  for  the  defendant;  pro- 
vided, they  further  believe  from  the  evidence,  that  the  defendant 
was  not  guilty  of  any  lack  of  care  or  prudence  in  selecting  or  retain- 
ing such  fellow  servants,  to  discharge  the  duties  assigned  to  them. 

(e)  The  jury  are  instructed,  that  where  an  employment  is  attended 
with  danger,  a  servant  engaging  in  it  assumes  the  hazard  of  the  ordi- 
nary perils  which  are  incident  to  it;  and  if  he  receives  an  injury  from 
an  accident,  which  is  an  ordinary  peril  of  the  service  undertaken  by 
him,  he  cannot  recover  damages  for  such  injury.^ 

(f)  The  court  instructs  the  jury. that  the  plaintiff,  in  entering  the 
employment  of  the  defendant,  assumed  all  the  ordinary  and  usual 
risks  and  hazards  of  service,  and  if  the  jury  believe,  from  the  evi- 
dence, that  the  primary  cause  of  plaintiff's  injury  was  the  fall  of  the 
coal  from-  the  roof  of  the  mine,  and  that  the  danger  of  such  fall  was 
one  of  the  ordinai'y  and  usual  risks  and  hazards  of  such  service,  then 
the  jui-y  should  find  the  defendant  not  guilty.** 

(g)  If  you  find  (from  the  evidence)  that  these  defects  nnd  these 
dangers  were  knoAvn  to  the  plaintiff,  or  that  by  the  exercise  of  reason- 
able diligence  on  his  part,  he  ought  to  have  known  them,  at  the  time 
he  went  to  work,  and  at  the  time  he  was  injured,  it  will  be  your  duty 
to  find  a  verdict  for  defendant  in  the  case.^" 

(h)  If  the  jury  believe  (from  the  evidence)  the  employment  was 
daneernns,  and  that  the  defendant  used  proper  precautions  by  notice 
and  instruction  concerning  it,  the  plaintiff  cannot  recover.^^ 

7—1.    C.    R.    R.    Co.    V.    RnorlorlPr,  Til.  9  (21),  54  N.  E.  567.  aff'g  75  Til. 

90   111.    Anp.    590    C59.'?),    aff'd   199   111.  Anp.   605. 

184.    65   N.    K.    21S.  10— Shoemakpr    v.    Brvant    "L.    & 

8— T.,  W.  &  W.  Rd.  Co.  V.  Rlack.  F«.    Mill   Co.,   27  Wash.    637,   6S   Pac. 

88    111.    112.  .*?80    (?,h:\). 

9 — Cons.  Coal  Co.  v.  Bokamp,  181  11 — Hayes    v.    Bush    &    Denslow 


§  1445.]  NEGLIGENCE— MASTER  AND   SERVANT.  965 

§  1445.  Risk  Not  Ordinarily  Incident  to  Employment — Burden 
of  Proof.  When  the  servant  shows  that  the  injury  received  was  in 
consequence  of  a  risk  not  ordinarily  incident  to  the  employment, 
growing  out  of  the  master's  negligence,  the  burden  is  then  upon  the 
masiter  to  show  the  servant  knew  and  understood  the  increased  dan- 
ger.^2 

§  1446.  Assumed  Risk — Circumstances  to  Be  Considered,  (a)  In 
this  case,  if  you  believe,  from  the  evidence,  that  tlie  plaintiff  at  or 
before  the  time  of  the  injuiy  knew  and  appreciated  the  danger  and 
peril  of  the  work  in  which  he  was  engaged  at  the  time  of  the  injury, 
and  understood  the  same,  and  then  chose  to  engage  in  the  work  W'hich 
exposed  him  to  such  perils  and  danger,  he  cannot  recover,  and  your 
verdict  should  be  not  guilty.  And  in  detei-mining  the  question 
whether  or  not  the  plaintiff  knew,  appi'eciated  and  understood  the 
perils  and  dangei-s  of  the  work  in  which  plaintiff  was  engaged,  you 
will  consider  the  evidence  as  to  plaintiff's  age,  as  to  his  previous  ex- 
perience with  the  machine  in  question  or  similar  machinery,  and  all 
other  evidence  bearing  upon  said  issue.  If,  on  the  other  hand,  you 
find  and  believe,  from  the  evidence,  that  the  defendant  company  and 
its  officers  knew,  or  had  reason  to  know,  the  peril  and  danger  to  which 
plaintiff  was  and  would  be  exposed  while  in  the  work  and  employ- 
ment in  which  he  was  engaged  at  the  time  of  the  injury  and  did  not 
explain  or  give  notice  of  such  danger  or  peril  to  the  plaintiff,  and  if 
you  further  find  that  at  the  time  of  the  injury,  the  plaintiff  was  not 
guilty  of  negligence  and  was  exercising  ordinary  care,  and  that  from 
his  youth  and  inexperience  he  failed  to  know,  understand  or  appre- 
ciate, and  in  fact  did  not  know,  understand  or  appreciate  the  risk  or 
danger  or  peril  to  which  he  was  exposed  in  the  work  in  which  he  was 
engaged  at  the  time  of  the  injuiy,  and  that  in  consequence  he  was 
injured,  then  the  defendant  is  liable,  and  you  should  find  the  defend- 
ant guilty.^^ 

(b)  Had  the  plaintiff  been  warned  to  keep  away  from  the  shaft, 
and  of  its  dangerous  nature  when  running?  If  he  was  notified  of  the 
danger,  did  he  comprehend  and  undei-stand  it?  If  so,  he  cannot  re- 
cover. In  determining  whether  he  undei'stood  the  warning,  if  given, 
you  may  consider  the  plaintiff's  age  at  the  time,  his  intelligence,  his 

Mfg.    Co.,    102    N.    T.    648,    5    N.    E.  fittended  with  hazard   and   dansrer, 

784   (785).  but    only    in    the    sense    in    which 

12 — King-    V.    Ford    R.    L.    Co.,    93  any      employment      requiring-      the 

Mirh.    172.    53   N.   W.    10    (13).  use   of  heavy  machinery  propelled 

"The  court   followed   almost  ver-  with     steam    is     hazardous.    .    .    . 

bntim  the  rule   laid   down  in   Swo-  Appellant     proved     that     its     fore- 

boda    V.    Ward,    40    Mich.    423,    and  men    and     pressmen     were    in     the 

the    instruction    was    correct."  habit  of  warning  the  boys  to  keep 

13 — Pressed  R.   Co.  v.  Reinneiger,  out    of    d^^nger.      The    very    theory 

140  Til.    334   (340).   29   N.   E.   1106.  upon    which    both    sides    tried    the 

"We    do    not    think    the    instruc-  case       and        asked       instructions, 

tion  is  erroneous  in  assuminsr  that  namely,  th^it  the  employe  assumes 

the  machine  wns  a  danererous  one.  'ordinarv    hazards    and     perils'     of 

It    assumes    that    the    work    upon  his  emnloyment,  implies  that  such 

which   appellee    was    engaged    was  'hazards   and   perils'    exist." 


966  FORMS  OF  INSTRUCTIONS.  [§  1447. 

experience  or  want  of  experience  and  such  like.  In  other  words,  you 
may  consider  these  circumstances  to  enable  you  to  ascertain  and  de- 
termine whether  he  fully  understood  and  appreciated  the  danger.  If 
such  warning  was  given,  and  he  understood  it,  and  continued  to  work 
there  after  such  knowledge,  he  cannot  recover  in  this  action.^-* 

§  1447.  Servant  Does  not  Take  the  Risk  of  Dangers  not  Incident 
to  the  Business — Duty  of  Master — Duty  of  Servant,  (a)  The  court 
instructs  the  juiy,  that  where  a  servant  is  injured  by  something  not 
incident  to  his  employment,  but  by  a  temporary  peril,  to  which  he  is 
exposed  by  the  negligent  act  of  his  employer,  without  any  negligence 
on  the  servant's  part,  he  is  entitled  to  recover  damages,  from  the  em- 
ployer, on  account  of  such  injury.  That  Avhen  a  servant  is  employed 
in  a  business,  and  at  a  place  not  dangerous,  and  the  employer  negli- 
gently and  carelesisly  creates  a  peril  at  the  place  where  the  servant  is 
at  work,  and  the  servant  is  injured  thereby,  then  the  servant  will  be 
entitled  to  recover  for  such  injury,  if  he  is  himself  without  fault  con- 
tributing to  such  injury.^5 

(b)  It  was  the  duty  of  the  plaintiff,  when  he  accepted  employ- 
ment from  the  defendant,  to  exercise  ordinary  care  for  his  own  safety, 
and  not  knowingly  to  expose  himself  to  unnecessary  risks  or  dangers 
connected  with  his  said  employment.  And  the  court  instructs  the 
jury  that  the  plaintiff,  when  he  accepted  employment  from  the  de- 
fendant to  operate  the  machine  known  as  a  ''joiner,"  assumed  all  the 
risks  incident  to  such  employment;  that  is,  such  risks  as  naturally 
arose  out  of,  or  w^ere  necessarily  connected  with,  said  employment. 
But  he  did  not  assume  risks  that  were  unknown  to  him,  and  which 
were  not  incident  to  his  employment,  nor  such  risks  which  the  de- 
fendant could,  by  the  exercise  of  ordinary  care,  have  guarded  against. 

(c)  The  court  instructs  the  jury  that  it  is  the  duty  of  the  de- 
fendant, tlie  A.  Company,  when  it  employed  the  plaintiff,  to  exercise 
ordinary  care  in  providing  him  with  a  reasonably  safe  machine  or 
joiner;  that  is,  one  in  good  order,  and  fitted  for  the  purpose  and 
work  for  which  it  was  intended.  It  was  also  the  duty  of  the  de- 
fendant to  exercise  ordinary  care  in  keeping  the  same  in  reasonably 
safe  condition  for  the  use  of  the  plaintiff  while  he  was  so  engaged  in 
operating  the  said  machine. 

(d)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  injury  of  the  plaintiff  complained  of  was  caused 
by  the  failure  on  their  part  to  perform  its  duties,  as  defined  in  instruc- 
tion No.  2,  then  the  law  is  for  the  plaintiff,  and  the  jury  should  so 
find,  unless  the  jury  shall  believe  from  the  evidence  that  the  plaintiff 
himself  failed  to  perform  his  duty,  as  defined  in  instruction  No.  1, 
and  that  for  such  failure  on  his  part  the  accident  would  not  have 

14 — "This  instruction  was  clearly  banks    v.    Hapntzsche.    7."?    111.    236: 

correct."      Kinp   v.    Fnrfl    River   L.  O.    M.    Co.    v.   Kitts,   42  Mich.   34,   3 

Co..   93  Mich.  172,  .'■>3   N.  W.  10  03).  N.    W.   240. 

15— Wharton  on  Ne^.  §  549;  Fair- 


§  1448.]  NEGLIGENCE— MASTER  AND   SERVANT.  967 

happened ;  in  which  latter  event  the  law  is  for  the  defendant,  and  the 
jury  should  so  find. 

(e)  The  court  instnicts  the  jury  that  if  they  believe  from  the 
evidence  that  the  injury  of  the  plaintiff  complained  of  in  his  petition 
was  not  the  result  of  any  defect  in  the  machine  joiner,  but  was  the 
result  of  a  risk  or  danger  as  natui'ally  arose  or  gi'ew  out  of  the  plain- 
tiff's employment,  and  was  naturally  attended  upon  said  employment, 
then  the  law  is  for  the  defendant,  and  the  jury  should  so  find. 

(f)  The  court  instructs  the  jui-y  that  if  the  injury  complained  of 
was  not  the  result  of  a  risk  or  danger  incident  to  said  employment, 
but  could  have  been  prevented  by  the  exercise  of  ox-dinaiy  care  on 
the  part  of  the  defendant  in  the  performance  of  its  duty,  as  defined 
in  instruction  No.  2,  then  the  law  is  for  the  plaintiff,  and  the  jury 
should  so  find,  unless  the  jury  shall  also  believe  from  the  evidence 
that  by  the  exercise  of  ordinary  care  on  his  part  the  plaintiff  could 
have  prevented  said  injury;  in  which  latter  event  the  law  is  for  the 
defendant,  and  the  juiy  should  so  find.^^ 

§  1448.  Servant  Does  Not  Assume  Extraordinary  Perils  or  Risks. 
The  court  instructs  the  jury  that  while  it  is  the  law  that  where  an 
employment  is  attended  with  danger,  the  servant  engaging  in  it  as- 
sumes the  measure  of  ordinary  perils  which  are  incident  to  it,  this 
applies  only  to  perils  or  risks  ordinarily  incident  to  the  service  and 
not  to  those  which  are  exti'aordinary  and  which  did  not  exist  at  the 
time  the  servant  engaged  in  the  master's  business,  and  which  the 
servant   did  not  subsequently  assume.^'' 

§  1449.  Servant  Voluntarily  Assuming  Duty  Not  Arising  Under 
His  Employment.  The  court  instructs  the  jury  that  if  you  believe  it 
was  not  a  duty  arising  under  plaintiff's  employment  for  him  to  look 
after  the  regulating  and  supplying  of  water  to  the  boiler  of  engine 
44,  but  if  you  believe  that  he  voluntarily  assumed  the  matter  of  look- 
ing after  and  regulating  such  supply  of  water,  and  if  you  believe  fur- 
ther that  the  accident  in  question  was  caused  or  directly  contributed 
to  by  negligence  on  his  part,  either  in  the  fact  of  the  assumption  of 
such  matter,  or  in  the  manner  of  his  looking  after  the  regulating  such 
supply  of  water,  then  you  ^^^ll  find  for  the  defendant.'^ 

^  1450.  Employe  Voluntarily  Taking  Place  He  Is  Not  Required  to 
Take.  The  court  instructs  the  jury  that  if  an  employe  in  the  dis- 
charge of  the  duties  in  his  line,  voluntarily  takes  a  place  which  he  is 
not  required  to  take,  he  assumes  the  risk  which  may  attach  to  such 

16 — This  series  of  instructions  ap-  fective   condition    of   the   joiner   or 

proved    in    Reiser   v.    Southern    P.,  neerlisence    on    the    part    of    appel- 

M.    &   L.    Co.,   114   Ky.    1,   69   S.   W.  lant." 

lOS.^i    (1086).  17— Wrisley     v.     Burke,     106     111. 

"We  are  of  opinion  that  thfi   in-  App.    30    (31),    aff'd    20,3    111.    250.    67 

structions    submitted    to    the    jury  N.  E.  818. 

the  real  issues  raised  by  the  plead-  18 — Int.   &  G.  N.   R.    Co.  v.   Wal- 

ing-s;    that    is.    whether   appellant's  ters.    —    Tex.    Civ.    App.    — ,    80    S. 

Injury   was    the    result    of    the    de-  W.    668   (669). 


968  FORMS  OF  INSTRUCTIONS.  [§  1451. 

place,  and  which  is  greatei*  than  the  risk  attached  to  the  place  he  may 
have  taken  b}'  reason  of  his  employment.^'' 

§  1451.  Servant's  Knowledge  of  Facts  Which  Would  Make  His 
Own  Act  Dangerous.  The  court  instructs  you  that,  if  you  believe, 
from  the  evidence,  that  the  plaintilf  knew  of  the  removal  of  the  dirt 
and  debris  from  the  dump  pile  at  or  near  the  place  where  the  plain- 
tiff fell,  or  by  the  exercise  of  ordinary  care  could  have  known  of  the 
removal  of  dirt  and  debris  from  the  dump  pile,  and,  if  the  jury  also 
believe,  from  the  evidence,  that  the  plaintiff  failed  to  exercise  ordi- 
naiy  care  in  going  out  from  the  jDlace  where  he  was  injured  in  the 
night  time  then  your  verdict  must  be  for  the  defendant.-" 

§  1452.  Duty  of  Servant  to  Apprise  Himself  of  Dangers  of  Ma- 
chinery, (a)  If  you  find  that  the  plaintiff  engaged  with  the  de- 
fendant in  the  duty  of  oiling  the  machinery  of  its  sa^^^Ilill  without  at 
the  time  fully  understanding  or  comprehending  the  dangei's  incident 
to  his  business,  yet  if  you  find  that  betiveen  the  time  of  his  employ- 
ment and  the  time  he  was  injured  he  learned  of  these  dangers  or  in 
the  course  of  his  employment  ought  to  have  known  of  the  liability 
to  accident  by  being  entangled  in  the  machinery,  as  he  was,  it  is  your 
duty  to  find  that  he  assumed  the  risk  of  such  injury  as  incident  to  his 
employment,  and  you  cannot  attribute  the  accident  to  the  negligence 
of  the  defendant. 

(b)  It  is  the  duty  of  the  plaintiff  to  look  at  the  machinery  about 
which  he  is  employed  to  work,  and  to  apprise  himself  of  any  danger 
afforded  by  the  machinery  itself,  and  which  he  could  have  discovered 
or  ought  to  have  discovered  by  a  proper  examination  thereof,  or  by 
the  use  of  his  sight  and  other  senses;  and  if  he  failed  during  the 
course  of  his  employment,  and  while  engaged  in  the  task  of  oiling 
the  machinery  to  apprise  himself  of  the  dangers  which  he  ought  to 
have  seen  then  the  plaintiff  was  not  in  the  exercise  of  ordinary  cai-e 
or  prudence,  and  it  is  your  duty  to  so  find.  That  you  may  consider 
as  far  as  you  find  it  applicable.-^ 

§  1453.  Duty  of  Servant  to  Look  Out  for  Patent  and  Obvious  De- 
fects, (a)  The  jury  are  instructed  that  where  the  party  is  of  ma- 
ture age,  and  an  experienced  employe,  the  duty  does  not  rest  upon 
the  master  to  instruct  and  notify  him  of  the  patent  and  obvious  po- 
sitions of  structures  about  which  he  may  be  called  on  to  work.  It  is 
his  duty  to  look  out  for  them. 

ig—f^o.    K.    Ry.    Co.    v.    Sage.    —  mony  in   tho   case.     The   appellant 

Tex.    Civ.    App.   — ,    80    S.    W.    1038  was,     therefore,    entitled    to    have 

(1039).  them    g-iven    to    the    jury    without 

20 — Iroquois   Furnaee   Co.    v.    Mc-  modification.  It  is  plainly  the  duty 

Crea,    91    111.    App.    337    (341),    aff'd  of  the   court,   and  not   of  the  jury. 

191    III.    340,    61    N.    K.    79.  to    decide    when    a    lepral    pronosi- 

21 — Guina'rd   v.   Knnpp,   S.   <fe  Co.,  tion   is  applicable  to   the  evidence. 

95  Wis.  482,  68  N.  W.  625  ('627).  To   give  the   jury  a   legal    nrono- 

"The    instructions    above    nuotcd  sition,    nnd    s^y    to    them,    as    the 

stated   correct   propositions  of  law,  court    did.    'Ton    mav    use    this    as 

and   were   applicable    to   the   testl-  far     as     you     find     it     applicable,' 


§1454.]  NEGLIGENCE— MASTER  AND   SERVANT.  969 

(b)  The  jury  are  instructed  to  find  for  the  defendant  if  they 
find  from  the  evidence  that  the  car  was  too  close  to  the  warehouse, 
and  that  its  close  proximity  thereto  and  the  danger  thereof  was 
known  to  the  plaintiff,  or  that  the  proximity  of  said  track  to  said 
warehouse  was  apparent,  and  the  danger  to  plaintiff  open  and  obvious, 
and  that  the  position  of  said  track  and  said  warehouse  in  reference 
to  each  other  was  seen  by  the  plaintiff,  before  his  injury,  in  time  to 
have  avoided  the  same,  then  you  are  instructed  that  plaintiff  assumed 
the  risk  of  such  injurj^,  and,  if  you  so  believe,  your  verdict  will  be  for 
the  defendant. -- 

(c)  It  is  the  duty  of  the  servant  to  exercise  care  to  avoid  injuries 
to  himself.  He  is  under  as  great  obligation  to  provide  for  his  own 
safety  from  such  dangers  as  are  known  to  him,  or  are  discernible  by 
ordinary  care  on  his  part  as  the  master  is  to  provide  for  him.  He 
must  take  ordinaiy  care  to  learn  the  dangers  which  are  likely  to  beset 
him  in  the  service.  He  must  not  go  blindly  to  his  work,  where  there 
is  danger.     He  must  inform  himself.     This  is  the  law  everywhere.-^ 

(d)  The  court  instructs  you  that  if  there  be  risk  or  danger,  and 
that  such  risk  or  danger  is  patent  and  obvious  to  the  employe,  no  no- 
tice thereof  is  necessaiy.-^ 

§  1454.  Effect  of  Plaintiff's  Knowledge  that  Window  Was  of 
Great  Weight,  (a)  If  you  believe  from  the  evidence  that  the  said 
window  did  get  out  of  the  control  of  the  plaintiff  and  fall  by  reason 
of  its  great  weight,  and  that  the  plaintiff  knew  of  the  great  weight  of 
said  window,  or  by  the  exercise  of  reasonable  and  ordinary  prudence 
on  her  part  would  have  known  of  the  great  weight  of  said  window, 
then  she  assumed  the  risk  and  cannot  recover. 

(b)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence that  the  plaintiff  had  been  in  the  employment  of  the  defendant 
for  several  weeks  and  had  been  about  and  in  the  said  pi'emises  for 
such  time,  and  was  familiar  mth  the  said  window,  and  its  weight, 
the  method  of  raising  and  lowering  it,  the  method  of  propping  or 
holding  it  up  by  a  stick,  and  the  dangens,  if  any,  are  shown  by  the 
evidence,  incident  to  raising  or  lowering  said  window,  or  if  you  be- 
lieve from  the  evidence  that  such  time  was  sufficient  to  have  enabled 
a  person  of  ordinary  observation  to  become  familiar  with  such  condi- 

comes  very  near  being-  an  abdi-  the  proper  functions  of  the  court 
cation  of  the  functions  of  the  and  the  jury,  it  seems  very  plain 
court.  Under  such  an  instruction  that  the  court  erred  in  leaving-  it 
the  jury  is  given  full  license  to  de-  to  the  jury  to  decide  whether  the 
cide  thnt  the  proposition  has  no  instructions  were  applicable  to  the 
application  to  the  case,  and  dis-  case.  A  similar  remark  was  dis- 
regard it  entirelj'.  The  charge  approved  by  this  court  in  Duthie 
should  contain  only  such  propo-  v.  Town  of  Washburn,  87  Wis. 
sitinns  as  are  to  be  anplied  to  the  231.  58  N.  W.  380." 
evidence  in  the  case.  The  court  22 — G.,  H.  &  S.  A.  Ry.  Co.  v. 
sa-'-s  to  the  jury,  in  substarr-e;  Mortson.  31  Tex.  Civ.  App.  142.  71 
'Th'->af>   are  the   nropositions   of  law  S.    W.    770    ('771). 

applicable    to   the    evidence.      Take  23 — Russell    C.    C.    Co.    v.    Wells, 

them,  apply  them  to  the  case,  and  96  Va.   416,   31   S.   E.    614  (61ii). 

return    your  verdict.'      Such    being  24 — Swift    &    Co.    v.    Rutkowski, 


970  FORMS  OF  INSTRUCTIONS.  [§  1455. 

tions,  then,  in  that  state  of  the  proof,  you  are  instructed  that  she 
assumed  the  risk  incident  to  her  undertaking  in  lowering  the  said 
window,  and  you  should  in  that  state  of  the  proof  find  the  defendant 
not  guilty. 

(c)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence that  the  plaintiff  could  by  the  exercise  of  ordinary  care  and 
prudence  have  avoided  the  injury,  she  cannot  recover  and  you  should 
in  that  state  of  the  proof  find  the  defendant  not  guilty.-^ 

§  1455.  Prior  Knowledge  of  Condition  of  Ditch  by  Employe  of 
Municipal  Corporation.  If  you  believe  from  the  evidence  that  the 
plaintiff  did  know,  or,  by  the  exercise  of  ordinary  care  on  his  part, 
might  have  known,  of  the  condition  of  the  bank  or  sides  of  the  ditch, 
or  if  you  further  believe  from  the  evidence  that  he  had  as  good  an 
opportunity  of  knowing  of  the  condition  of  the  bank  or  sides  of  said 
ditch  as  the  defendant,  then  in  law  he  is  estopped  from  recovering  in 
this  action,  and  it  is  your  duty  to  find  for  the  defendant.^^ 

§  1456.  Danger  of  Falling  into  Chute  or  Excavation — When  As- 
sumed. The  defendant  has  pleaded  that  the  plaintiff  assumed  the 
risk  of  being  injured  by  the  accident  in  question.  Upon  this  point  I 
charge  you  that  if  you  believe  from  the  evidence  that  the  peril  of 
falling  into  the  chute  or  excavation  referred  to  in  the  evidence  was 
a  peril  incident  to  the  employment,  and  was  not  produced  by  a  want 
of  ordinary  care  on  the  part  of  the  defendant,  then  it  is  a  risk  as- 
sumed by  the  plaintiff,  and  he  cannot  recover.  But  if  you  believe 
from  the  evidence  that  the  danger  of  suffering  such  an  accident  was 
not  incident  to  his  employment,  and  could  have  been  guarded  against 
by  the  exercise  of  ordinary  care  on  the  part  of  the  defendant,  then 
plaintiff  did  not  assume  the  risk  of  such  an  accident,  and  if  he  was 
injured  without  fault  on  his  part,  then  he  is  entitled  to  recover.^''' 

§  1457.  Carrying  Grlass  Through  Passageway  Which  Servant  Knows 
to  Be  Obstructed.  It  is  the  law  that  an  employe  assumes  all  the  risk 
of  his  employment.  If  you  find  from  the  evidence  that  said  glass 
broke  by  reason  of  a  defect  therein,  and  that  it  was  one  of  the  risks 
incident  to  plaintiff's  calling,  or  if  you  find  that  plaintiff  knew  that 
said  passageway  was  obstructed,  and  that  with  such  knowledge  he 
proceeded  to  carry  said  glass  through  said  passageway,  and  that  said 
glass  was  broken  by  said  obstructions,  then  you  should  find  that  plain- 
tiff assumed  the  risk  of  carrying  the  glass  the  way  and  where  he  did, 
and  your  verdict  should  be  for  tlie  defendant.-^ 

§  1458.  Knowledge  of  Servant  as  to  Uncovered  Electric  Wires.  If 
the  plaintiff  had  actual  knowledge  that  the  uncovered  wires  were  at 
the  place  where  he  was  injured,  thait  destroys  his  right  of  action.    If 

167    111.     156     nnS),     47     N.     E.     362,  27— Downey  v.    Gemini    Min.    Co.. 

rev'ff   67   111.    App.    209.  24    Utah    431,    68    Pac.    414    (416),    91 

25— Maoon   Co.   Tel.    Co.    v.   West,  Am.    St.    79R. 

116   111.   App.   43.=)   (438).  2S— Kennard      v.      aro.=!.=!man,     — 

26— I^a    Ralle    v.    Kostka.    190   111.  Neb.   — ,   89  N.   W.  1025   (1027). 
130   (136),    60   N.    E.   72. 


§  1459.]  NEGLIGENCE— MASTER  AND  SERVANT.  971 

he  ought  to  have  known  them,  or  been  on  his  guard  against  them,  the 
result  must  be  the  same.^^ 

§  1459.  Assumption  of  Risk  by  Employes  of  Street  Car  Company — 
Poles  Too  Near  Track,  (a)  If  from  the  evidence  you  believe  the 
plaintift:  was  injured,  but  that  his  injuries  resulted  from  conditions 
and  risks  which  were  the  ordinary  incidents  of  the  service  and  work 
in  which  he  was  engaged,  and  were  not  due  to  any  negligence  of  de- 
fendant in  the  matters  recited  in  the  paragraph  above,  then  -in  such 
state  of  facts,  if  any,  you  will  find  for  the  defendant,  as  the  plaintiff 
in  entering  into  defendant's  employment  assumed  all  the  ordinary 
risks  of  said  business. 

(b)  You  are  instructed  that  if  you  believe  fi'om  the  evidence  that 
the  plaintiff  was  knocked  off  the  car  by  the  pole  as  alleged  by  him  in 
his  petition,  and  that  the  pole  was  so  near  the  track  that  in  the 
maintenance  of  same  the  receiver  failed  to  use  that  degi'ee  of  care 
that  would  have  been  used  and  exercised  by  ordinarily  prudent  per- 
sons under  the  same  or  similar  circumstances,  then  you  are  in- 
structed that  this  would  not  be  one  of  the  risks  ordinarily  incident 
to  his  employment. 

(e)  If  from  the  evidence  you  believe  the  plaintiff  was  injured  by 
a  defective  pole  as  alleged  by  plaintiff,  but  should  you  also  believe 
that  prior  to  the  time  of  said  accident  he  knew  of  such  defect,  if  any, 
in  said  pole,  and  with  such  knowledge  remained  in  the  employ  of  the 
company,  or  if  from  the  evidence  you  believe  that  he  must  have 
known  of  such  defect,  if  any,  in  the  pole,  in  the  exercise  of  ordinary 
care  in  the  performance  of  his  own  duties  as  conductor,  then  in  such 
state  of  facts  if  any,  the  risk  of  injury  from  said  pole  would  be  one 
of  the  assumed  risks  of  the  employment,  and  plaintiff  could  not  re- 
cover.^" 

§  1460.  Duty  of  Servant  as  to  Examination  of  Grip  Car  for  De- 
fects, (a)  The  jury  are  instructed,  as  a  matter  of  law,  that  an 
employe  himself  must  use  due  care  and  caution  to  avoid  injury;  and 
if  he  voluntarily  exposes  himself  to  any  danger  that  he  knew  or  by 
reasonable  attention  or  the  exercise  of  ordinary  prudence  might  have 
known,  he  thereby  assumed  all  lisks  and  cannot  recover  for  any  in- 
jury resulting  from  his  own  acts. 

(b)  The  court  instructs  the  jury  that  it  w^as  the  duty  of  the 
plaintiff,  before  starting  the  car,  to  examine  thofte  parts  of  the  gi-ip 
ear  which  appertain  to  the  grip  and  brakes,  and  if  he  failed  to  do  so, 
and  his  failure  directly  contributed  to  the  injury,  he  cannot  recover 
for  any  injuT-y  occasioned  to  him  because  of  any  defect  in  the  grip, 
brakes  or  appurtenances  thereof. 

(c)  If  the  plaintiff,  by  the  use  of  ordinary  care,  could  have  dis- 
covered  that  the   wrecking  ci'ew  had  not  properly  repaired  the  car, 

29— Indiana  I.  &:  I.  R.  Co.  v.  30— Houston  El.  Co.  v.  Robinson, 
Bundy,  152  Ind.  590,  53  N.  E.  175  —  Tex.  Civ.  App.  — ,  76  S.  W.  209 
CISO).  (210). 


972  FORMS  OF  INSTRUCTIONS.  [§  1461. 

and  if  he  failed  to  use  such  care,  and  that  his  failure  so  to  do  con- 
tributed directly  to  the  injury,  he  cannot  recover,  and  the  burden  of 
proving  the  use  of  such  care  is  on  the  plaintiftV^^ 

§  i461.  Assumption  of  Risk  in  Grinding  Planer  Tool  upon  Emery 
Wheel.  If  you  find  from  the  evidence  that  the  plaintiff  at  the  time 
of  his  injuiy  knew  that  the  said  manner  of  grinding  said  planer  tool 
upon  said  emery  wheel  in  the  way  it  was  ground  at  the  time  of  his 
injury  was  dangerous,  or  if  he  must  necessarily  during  the  course  of 
his  employment  have  known  said  fact,  then  and  in  such  case  the 
plaintiff,  in  attempting  to  so  grind  or  sharpen  said  tool  with  such 
knowledge,  assumed  the  risk  of  being  injured  thereby,  and,  if  you 
so  find,  your  verdict  should  be  for  the  defendant, ^- 

§  1462.  Using  Defective  Gas  Pipe  as  Lever.  The  count  instructs 
the  jury  if  they  believe  that  the  defect  in  the  gas  pipe  was  known 
to  the  plaintiff,  and  the  dangers  of  its  use  in  its  defective  condition 
was  also  known  to  the  plaintiff,  and  that  the  knowledge  of  the  plain- 
tiff on  the  point  above  mentioned  was  equal  or  superior  to  the  knowl- 
edge of  the  foreman  on  the  same  subjects,  and  you  believe,  from 
the  evidence,  that  a  reasonably  careful  and  prudent  man  would  not 
have  used  said  gas  pipe  under  the  same  or  similar  circumstances,  then 
you  are  instructed  that  the  plaintiff  cannot  recover,  and  they  must 
find  for  the  defendant,  and  in  that  case  it  makes  no  diffei-ence  whether 
a  promise  to  furnish  a  wooden  lever  was  made  or  not.^^ 

§  1463.  Assumption  of  Risk  in  Unloading  Timbers.  If  you  believe 
from  the  evidence  that  the  dangers,  if  any,  incident  to  vinloading  the 
timbers  under  the  circumstances  existing  at  the  time  of  his  injuries, 
if  any  were  received,  were  known  to  plaintiff,  or  so  open  and  obvious 
that  he  must  have  known  them,  if  any,  at  the  time  he  attempted  to 
unload  said  timber,  then  you  are  charged  that  plaintiff  assumed  the 
said  risk,  if  any,  and  you  will  find  for  defendant.-^* 

§  1464.  Carrying  Too  Heavy  a  Piece  of  Timber — Employing  In- 
sufficient Help — Assumed  Risk,  (a)  You  are  instructed  that  if  you 
believe  from  the  evidence  that  the  foreman  of  defendant  instructed 
plaintiff  and  three  other  employes  to  pick  up  and  carry  a  piece  of  the 
lumbei',  and  that  plaintiff  complained  to  said  foreman  that  the  same 
was  too  heavy  and  large  for  himself  and  the  other  employes  to  carry 
it  with  safety,  and  that  the  foreman  of  defendant  ordered  plaintiff 

"The    charges    present    the    issue  31 — W.     C.     St.     R.     R.     Co.     v. 

of  the  assumption  of  the  ordinary  Dwyer,    162   111.    4S2   (490),   44   N.    E. 

risks  incirlent  to  the  work  of  oper-  815,  aff'g  57  111.   App.   440. 

ating-     cars     upon     the     tracks     of  32— Gulf.   C.    &   S.   F.    Ry.    Co.   v. 

street    railway    companies,    and    as  Archainb:iult,    —    Tex.     Civ.     App. 

abstract    propositions    of   law    they     94   g    -y^    1108. 


3.3— T.    C.    R.    R.    Co.   v.    North,    97 


are    correct.      Int'l    &    G.    N.    Ry. 

Co.    V.    Empry,   —   Tex.    Civ.    App  j,,      .          ^^,    ...„„ 

— ,    40     S.     W.     149;     M.,     K.     &     T.  ■^"-    ^PP-    ^^^    ^^-'^'• 

Ry.    V.    Hannip,    91    Tex.    347,    43    S.  34— "RryRn    v.    Tnfl    &    G.    N.    R. 

W.  508;  Gnlvpston,  H.  &  S.  A.  Ry.  Co..    —    Tpx.    Civ.    App.    — .    90    S. 

Co.  V.  Pitts.  —  Tex.  Civ.   App.  — ,  W.    693    (697). 

42  S.   W.   255." 


§  1465.]  NEGLIGENCE— MASTER  AND   SERVANT.  973 

and  the  other  three  employes  to  pick  it  up  and  carry  it,  and  stated  to 
plaintiff  that  they  could  caiTy  it  easily  enough,  that  it  was  perfectly 
safe  for  them  to  carry  it,  or  that  he  would  stand  the  consequences, 
and  that  plaintiff  was  inexperienced  and  relied  upon  said  statements 
of  said  foi'eman,  if  any,  and  that  said  piece  of  lumber  was  too  heavy 
for  said  four  employes  to  cai-ry  it  with  reasonable  safety,  and  that 
while  plaintiff  and  the  other  three  employes  were  carrying  the  same, 
and  by  reason  of  the  weight  of  the  same  being  too  great,  one  of  the 
men  "gave  down"  and  that  an  extra  weight  was  thereby  thrown  up- 
on plaintiff  and  that  by  reason  thereof  plaintiff  was  injured,  substan- 
tially as  alleged  in  his  petition,  and  that  the  foreman  of  defendant 
was  guilty  of  negligence  in  ordering  said  plaintiff  and  the  other  three 
employes  to  carry  said  piece  of  lumber  under  the  facts  and  circum- 
stances of  this  case,  or  that  said  foreman  failed  to  provide  a  suf- 
ficient number  of  men  to  carry  said  piece  of  lumber  with  reasonable 
safety,  and  that  such  failure,  if  any,  constituted  negligence,  and  that 
said  negligence,  if  any,  was  the  proximate  cause  of  the  injury  to 
plaintiff  then  you  should  find  your  verdict  for  plaintiff,  unless  you 
find  from  the  evidence  that  plaintiff  had  assumed  the  risk,  as  herein- 
after set  forth. 

(b)  If  \x)u  believe  from  the  evidence  that  plaintiff  was  an  old  and 
experienced  hand  in  the  pai'ticular  business  of  caiTjang  said  lumber, 
and  that  the  danger,  if  any,  in  carrying  the  same,  was  as  equally  open 
to  the  observation  and  knowledge  of  plaintiff  as  it  was  to  the  fore- 
man of  defendant,  then  plaintiff  assumed  the  risk,  and  your  verdict 
should  be  for  defendant. 

(c)  In  this  connection  you  are,  however,  instinieted  that  if  you  be- 
lieve from  the  evidence  that  the  plaintiff  complained  to  the  defendant 
■that  said  piece  of  lumber  was  too  heavy  for  himself  and  the  other 
three  employes  to  carry,  and  that  the  foreman  of  defendant  stated  to 
him  that  said  four  men  could  carrj'^  it  easily  enough  or  that  said  four 
men  could  cany  it  safely,  or  stated  that  he,  the  said  foreman,  would 
stand  the  consequences,  then  the  said  plaintiff  was  entitled  to  rely  up- 
on the  supposed  better  knowledge  and  statements  of  his  employer,  and 
that  said  plaintiff  did  not  assume  the  risk  and  danger  incident  to  the 
carrying  of  said  piece  of  lumber,  unless  you  believe  from  the  evidence 
that  the  danger  or  risk,  if  any,  was  so  patent  or  obvious  that  an  or- 
dinarily prudent  person  would  have  declined  to  have  helped  to  carry 
said  piece  of  lumber  under  the  facts  and  circumstances  of  this  case.^^ 

§  1465.  Failure  to  Use  Precautions  Against  Known  Danger,  (.t) 
If  the  jury  believe  from  the  evidence  that  it  was  dangerous  for  R. 
to  stand  upon  the  strand  or  messenger  cable  which  made  a  perfect 
circuit  between  any  charged  electrical  agency  in  the  hands  of  R.  and 
the  ground,  and  that  R.  knew  or  by  the  exercise  of  ordinary  care 
would   have  known,   that   standing  upon   said  messenger  cable  was 

35— Haywood   v.    G.,   H.   &   S.    A.  _  Ry.    Co.,   —  Tex.    Civ.   App.   — ,   85 

S.    W.    43.3    (434). 


974  FORMS  OF  INSTRUCTIONS.  [§  1465. 

dangerous,  and  if  the  juiy  further  believe  from  the  evidence  that  a 
man  of  ordinary  prudence  under  such  circumstances  as  surrounded 
R,,  would  not  have  stood  upon  said  messenger  strand  or  messenger 
cable  while  holding  a  telephone  wire  suspended  over  electric  wires, 
then  the  jury  must  find  the  defenda-r;,*-,  not  guilty. 

(b)  If  the  jury  believe  from  the  evidence  that  a  man  of  ordinaiy 
prudence  exercising  ordinary  care  for  his  own  safety  under  such  cir- 
cumstances as  surrounded  R.  at  the  time  of  this  accident  would  have 
worn  and  used  a  safety  belt,  and  that  R.  did  not  at  the  time  of  this 
accident  wear  a  safety  belt,  and  if  the  jury  further  believe  from  the 
evidence  that  the  death  of  R.  would  have  been  prevented  if  the  de- 
ceased had  worn  a  safety  belt,  then  the  jury  must  find  the  defendant 
not  guilty.^^ 

(c)  If  you  believe  from  the  evidence  that  the  employes  of  de- 
fendant in  its  roundhouse  were  in  the  habit  of  leaving  the  coal  shovel 
or  scoop,  sometimes  with  the  scoop  of  the  shovel  under  the  coal  board, 
sometimes  under  the  coal  in  front  of  the  coal  board,  sometimes  on  top 
of  the  coal,  and  sometimes  lying  in  the  gangway  between  the  engine 
and  engine  tender  or  tank,  and  that  the  plaintiff  knew  of  the  custom, 
or  that,  with  ordinaiy  circumspection  which  a  prudent  man  would 
use  in  the  performance  of  his  particular  duty,  he  would  have  known 
of  that  custom,  and  that  at  the  time  the  plaintiff  was  injured  in  at- 
tempting to  board  defendant's  engine  in  its  roundhouse,  as  claimed 
by  him,  the  said  shovel  was  so  left  by  some  of  defendant's  employes 
in  the  gangway  of  said  engine;  and  if  you  further  believe  that  under 
such  circumstances,  in 'getting  ui3on  one  of  defendant's  engines  in  its 
roundhouse  at  S.  A.,  as  claimed  by  plaintiff,  for  the  purpose  of  put- 
ting oil  cans  in  the  oil  box  upon  said  engine,  tank  or  tender,  he 
stepped  upon  said  shovel  and  was  injured  thereby — then  in  such  case 
plaintiff  assumed  the  danger  to  himself  in  stepping  upon  said  shovel 
under  such  circumstances,  if  he  did  so  step  upon  the  same,  and  in 
such  case  you  will  return  a  verdict  in  favor  of  defendant.^'^ 

36— Commonwealth      E.      Co.      v.  rendering  the  place  his  master  has 

Rose,    114    111.    App.    181    (184).  assigned    him    to    work    dangerous 

37 — Claudius  v.   West  End   H.   A.  or   unsafe.     In   the   latter   class   of 

Co.,  —  Tex.  Civ.  App.  — ,  84  S.  W.  cases    the    servant    owes    no    duty 

254   (256).  of  inspection  of  defendant's  prem- 

"The     principles     stated     in     the  ises.     But   it   is   the  master's   duty 

preceding      part     of      the      special  to    exercise    ordinary    care    to    see 

charge  upon  which  the  part  copied  that      the      premises      where      the 

is  premised    are   such   as  are   gen-  servant   is    put    to    work    are   kept 

erally  applicable  to  the   system  or  reasonably  snfe,   and   if  the   prem- 

rules  and  methods  adopted  by  the  ises    were    rendered    dangerous    by 

master   in    conducting   or   carryin.g  obstacles  in  the  way,  of  which  the 

on  a  complex  and  dangerous  busi-  master      knew,      or      would      have 

ness  or  in  operating  intricate  and  known    by    the    exercise    of    ordi- 

dangerous      machinery,      and      not  nary  care,    and    it   persisted    in    nl- 

such    as   are   ordinarily    applied    in  lowing  such  obstacles  to  be  placed 

determining     the     master's     negli-  there,   it   would   be   its   duty   under 

gence  vel  non  in    cases  where  the  such     circumstances    to    warn     its 

Injury    to    the    servant    is    caused  servants     of     the     danger,     unless 

by    simply    placing   or    leaving    an  from     'actual     knowledge,     experi- 

obstruction    or   object    in   his   way,  ence     or     acquaintance     with     the 


§  1466.]  NEGLIGENCE— MASTER  AND   SERVANT.  975 

S 1466,  Servant  Knowing  Hazards,  Cannot  Recover  on  Ground 
There  ,Was  a  Safer  Way  of  Conducting  Business.  The  court  in- 
structs the  jury  if  they  believe  from  the  evidence  that  the  plaintiff 
knew  the  hazards  of  his  employment  as  the  business  was  conducted 
and  was  injured  while  engaged  therein,  he  cannot  maintain  an  action 
against  the  defendant  for  the  injury  merely  on  the  ground  that  there 
was  a  safer  mode  in  which  the  business  might  have  been  conducted, 
the  adoption  of  which  would  have  prevented  the  injury.^® 

§  1467.  Continuing  Work  in  Dangerous  Place  After  Notice  of  De- 
fect to  Master,  (a)  The  court  instructs  the  jury  that  an  employe 
who  continues  in  the  service  of  his  employer  after  notice  of  a  defect 
increasing  the  danger  of  the  service,  assumes  the  risk  as  increased  by 
the  defect,  unless  the  master  promises  to  remedy  the  defect;  and  in 
the  event  that  the  master  does  so  promise,  the  servant  may,  while  rely- 
ing upon  such  promise,  remain  in  the  service  of  the  master  only  for 
such  a  time  thereafter  as  would  be  reasonably  sufficient  to  enable 
the  master  to  remedy  the  defect,  and  if  the  master  does  not,  within  a 
reasonable  time  after  such  promise,  remedy  the  defect,  then  and  in 
such  event,  if  the  servant  continues  still  in  the  employ  of  the  master, 
he  assumes  the  risk  as  increased  by  the  defect;  and  the  court,  there- 
fore, instructs  the  jury  that  if  they  believe,  from  the  evidence  in  this 
case,  that  the  standing  upon  which  the  plaintiff  woi'ked  while  in  the 
employ  of  the  defendant  was  defective,  that  the  defendant  promised 
to  remedy  the  same  but  failed  to  do  so  within  a  reasonable  time  after 
such  promise,  and  that  the  plaintiff  continued  thereafter  to  work  for 
the  defendant  knowing  that  the  defendant  had  failed  to  remedy  the 
defect  within  a  reasonable  time  after  such  i^romise,  then  and  in  such 
event,  the  court  instructs  the  jury  that  the  plaintiff  assumed  the  ad- 
ditional risk  of  the  defect  in  the  condition  of  the  floor,  and  if  the  jury 
so  find,  they  will  return  their  verdict  for  the  defendant.^® 

premises   the  servant  knew  at  the  business  might  have  been  adopted, 

time  of  the  injury,  or  might  have  the  adoption  of  which  would,  have 

known,   of  the  presence  of  the   ob-  prevented    the    injury.      A    defense 

jeet      or     obstacle      rendering     the  of  that   kind   stated   generally  is  a 

place    dangerous   for  him    to   carry  good    one    in    a    proper    case.      See 

on   his  work.     G..   H.   &   S.   A.   Ry.  Simmons  v.  Chicago  &  Tomah  Ry. 

Co.    V.    Brown,    33    Tex.    Civ.    App.  Co.,    110    111.    340,    where    it    is    said 

589,    77    S.    W.    833.    and    authority  (p.    347):      'If    a    servant,    knowing 

cited:  Choctaw  O.  &  G.   Rv.  Co.  v.  the  hazards  of  his  employment  as 

Mcr»nde.   191    U.    S.    65.    24   Sun.   Ct.  the    business    is    conducted,    is    in- 

24,  48  L.  Ed.  96;  Chicago  &  A.  R.  R.  jured    while    engaged     therein.^  he 

V     Howell,    208    III.    155,    70    N.    E.  cannot  maintain   an   action  against 

^^■'l     _,  the    master  for   the    iniurv   merelv 

38— Guaranty       Cons.        Co.       V.  on    the    ground    that    there    was    a 

Brooker,    93   Til.    Apn.    272    (275).  safer  mode  in    which    the   business 

The  instruction  invoked  the  de-  might    have    been     conducted      the 

fen.se  that  if  the  nlnintiff  knew  the  adoption     of    which     would    'bave 

hnzard    of   his   employment    in    the  prevented    the   injui-y '  " 

manner    the    business    he    was    en-  39—111.    S.    Co.    v.    Mann,    170    n 

gaged    in   was  conducted,   ho   could  200   C204V    48  N.    E.   417,   62   Am     St 

not      recover     merely     because     a  370.    40    !>.    R.    A     781    '     " 

safer    method    of    conducting    the  "The  jury  should   h.ave  been  in- 


976  FORMS  OF  INSTRUCTIONS.  [§  1468. 

(b)  K  the  jury  find  from  the  evidence  that  the  defendant's  ship- 
ping room,  at  or  about  the  elevator  hole  mentioned  in  the  evidence, 
was  dark  and  unlighted;  and  if  the  jury  further  find  from  the  evi- 
dence, that  plaintiff  before  his  injury  knew  that  said  room  was  dark 
and  unlighted,  and  that  there  was  some  risk  or  danger  of  falling  into 
the  elevator  hole,  by  reason  of  said  condition  of  said  room,  while  un- 
dertaking to  use  the  elevator  in  the  discharge  of  the  duties  of  his  em- 
ployment; and  if  the  jury  find  from  the  evidence  that  defendant  was 
maintaining  said  elevator  opening  in  said  floor  without  causing  the 
same  to  be  effectually  bari-ed  or  closed  by  railing,  gate  or  other  con- 
trivance for  the  prevention  of  accidents  therefrom;  and  if  the  jury 
find  from  the  evidence  that  the  plaintiff  knew  before  his  injury  that 
defendant  was  maintaining  said  elevator  opening  without  such  guai'd 
or  protection  being  closed;  yet  if  the  jury  further  find  from  the  evi- 
dence that  said  condition  of  said  room  and  elevator  opening  and  the 
danger  arising  therefrom  was  not  such  as  to  threaten  immediate  in- 
jury to  plaintiff  while  in  defendant's  service  in  the  discharge  of  the 
duty  of  his  employment,  and  was  not  such  that  a  person  of  ordinary 
prudence,  while  exercising  care  and  caution,  would  not  have  under- 
taken to  have  remained  in  defendant's  service^  and  discharge  the 
duties  of  his  employment, — then  the  fact  alone  that  plaintiff  con- 
tinued in  defendant's  service  under  the  circumstances  will  not  of 
itself  defeat  this  action.^° 

§  1468.  Operating  Dangerous  Machine  After  Promise  of  Master  to 
Supply  Device  for  Lessening  Danger,  (a)  The  operator  of  a  danger- 
ous machine,  who  has  received  from  his  employer  a  promise  to  sup- 
ply a  device  calculated  to  lessen  the  danger  must,  if  he  elects  to  oper- 
ate the  machine  before  the  device  is  attached,  operate  his  machine 
with  due  and  proper  care,  considering  its  unprotected  condition,  in 
order  that  he  may  avoid  injury.  Therefore,  it  was  the  duty  of  the 
plaintiff,  while  he  was  relying  upon  the  promise  to  attach  the  spread- 
er or  guard,  if  such  promise  was  made  him,  to  handle  the  machine 
with  reasonable  care,  in  view  of  the  fact  that  the  spreader  or  guard 
had  not  been  attached;  and  if  he  did  not  so  handle  it,  he  forfeited 
the  promise,  and  cannot  now  recover  for  his  injury.*^ 

(b)  A  general  rule  of  law  is  that  a  person  working  with  a  de- 
fective or  unguarded  machine,  pnd  without  complaint,  and  knowing 
of  the  dangers  of  the  same,  assumes  the  danger  of  the  defect  or  un- 
guarded part;  but  there  is  no  longer  any  doubt  that,  where  an  oper- 
ator of  machinery  has  expressly  promised  to  repair  a  defect,  the 
workman  does  not  assume  the  risk  of  an  injuiy  caused  thereby,  with- 
in such  a  period  of  time  after  the  promise  as  would  be  reasonably 

structed  that  the  law  was  as  "This  instruction  was  rondpred 
stated  in  the  instruction,  which  necessary  to  meet  the  plea  of  con- 
should  have  been  priven,  and  it  tributory  neR-lifjfence,  and  it  does 
was  error  to  refuse  it."  not     seem    to    unfairly    state    the 

40 — Wendler     v.     People's    H.     F.  case." 

Co.,  165  Mo.  527.  65  S.  W.  737  (740).  41— Crooker    v.    Pac.    Lounge    & 


§  1468.]  NEGLIGENCE}— MASTER  AND   SERVANT.  977 

allowed  for  its  performance;  nor,  indeed,  is  any  express  promise  or 
assurance  from  the  master  necessary.  It  is  sufficient  that  the  work- 
man may  reasonably  infer  that  the  matter  will  be  attended  to.  So 
you  are  instructed  that  if  the  plaintiff,  at  the  time  of  his  employment 
and  at  the  time  of  the  accident,  saw  the  danger  from  the  lack  of  the 
guard,  and  complained  of  the  same  to  the  foreman,  and  the  foreman 
promised  to  put  on  a  guard,  and  the  plaintiff  w^ent  to  work,  and  con- 
tinued at  work,  on  the  promise,  and  you  further  find  that  the  danger 
was  not  so  imminent  and  immediate  that  a  reasonably  prudent  man 
would  not  go  to  work  or  continue  at  work  on  the  saw,  and  that  at  the 
time  of  the  accident  the  plaintiff  was  relying  upon  the  foreman's 
promise  to  place  on  a  guard,  then  you  are  instructed  that  the  plaintiff 
did  not  assume  the  risk  and  danger  of  an  injury  resulting  from  the 
lack  of  a  guard.*^ 

(e)  The  court  instructs  the  juiy  that  when  an  employer,  or  his 
superintendent  having  authority  to  remedy  defects  in  machineiy,  is 
notified  by  the  servant  of  the  employer  of  defects  in  machinery  that 
render  the  service,  which  such  servant  is  engaged  to  perform,  more 
hazardous,  and  such  employer  or  superintendent  thereupon  expressly 
promises  to  make  the  needed  repairs,  the  servant  may  rely  on  such 
promise,  and  may,  if  he  so  relies  on  such  promise,  continue  in  the  em- 
ployment a  reasonable  time  to  permit  the  performance  of  such  prom- 
ise without  being  guilty  of  negligence  in  so  remaining  in  such  employ- 
ment; and  if  in  such  ease  during  such  time  any  injuiy  results  from 
such  defects  to  the  servant  while  he  is  in  the  exercise  of  ordinary 
care  and  caution  for  his  own  personal  safety  from  the  negligence  of 
his  employer  in  manner  and  form  as  charged,  the  sei'vant  may  re- 
cover from  the  employer  his  damages  for  such  injury,  except  when 
the  danger  is  so  imminent  that  no  prudent  person  would  undertake  to 
perform  such  service  under  such  conditions.'*^ 

(d)     The  court  instructs  the  jury  that  if  you  believe,  from   the 

M.    Co.,    34  Wash.   191,   75   Pac.   632  man    v.    111.    Steel    Co.,    95    Wis.    6, 

(635).  69   N.    W.    993.    60  Am.    St.    66." 

"These     principles     of     law     are  43 — Taylor  v.   Felsing-,  164  111.  331 

amply     sustained     by     courts     and  (332).   45  N.    E.   161. 

elementary    writers    of    the    hig-h-  "This    instruction    states    an    ab- 

est     authority.       See     Indianapolis  stract    proposition     of    law.      That 

&    St.    L.    Ry.    Co.    V.    Watson,    114  form     of     instruction     is     not     ap- 

Ind.  20,  14  N.   E.   721,  15  N.  E.  824,  proved,    and    it    is    regarded    much 

5   Am.    St.   578."  better    that    the    court    should    ap- 

42 — Crooker  v.  Pac.  L.  &  M.   Co.,  ply   rules   of   law    to   the    evidence 

supra.  in    the    case,    but   a   judgment    will 

"This  instruction  is  sustained  not  be  reversed  for  the  failure 
by  the  principles  of  law  announced  to  make  such  application.  The 
in  the  former  opinion  and  the  principle  of  law  is  correctly  stated 
authorities  therein  cited.  To  the  in  this  instance,  and  the  giving: 
same  effect,  see.  further,  .Tnhnson  of  such  instruction  is  not  ei-^-nr 
V.  Anderson  &  Middletnn  T,umher  where  it  is  not  calculi t^d  to  mis- 
Co..  31  Wash.  554,  72  Pac.  107;  In-  lead  the  iury.  (Peenles  v.  l\Tc- 
dianapolis  &  St.  L,.  Pv.  Co.  v.  Kee.  92  111.  397;  Betting  v.  Hoh- 
Watson.  114  Tnd.  20,  14  N.  E.  721.  bett.  142  id.  73,  30  N.  E.  1048;  C, 
15  N.   E.   824,   5  Am.   St.   578;   Erd-  B.   &  Q.  R.   R.  Co.  v.  Dickson,  143 

111.    368,    32  N.   E.   380." 


978  FORMS  OF  INSTRUCTIONS.  [§  1468. 

evidence,  that  the  pl-aintiff  while  in  the  exercise  of  ordinary  eare  and 
caution  for  his  own  personal  safety  was  injured  in  consequence  of  the 
defective  condition  of  the  machinery  used  by  the  defendants,  as  al- 
leged in  the  second  count  of  the  declaration,  if  the  jury  believe,  from 
the  evidence,  that  the  same  was  so  defective;  and  if  they  further  be 
lieve,  from  the  evidence,  that  the  plaintiff  repeatedly  and  shortly  be- 
fore receiving  such  injury  called  the  attention  of  the  defendant's 
superintendent  to  said  defects,  if  any,  and  that  said  superintendent 
there  had  authority  to  remedy  said  defects,  if  any,  and  that  there- 
upon said  superintendent  repeatedly,  and  shortly  before  the  injury, 
promised  said  plaintiff  that  said  defects,  if  any,  should  be  remedied, 
and  that  said  plaintiff,  relying  upon  such  promises  remained  in  the 
employ  of  said  defendants  until  the  injury  as  aforesaid,  and  if  the 
jury  further  believe,  from  the  evidence,  that  the  danger  from  such 
defective  machinery,  if  any,  was  not  so  imminent  that  no  prudent 
person  would  have  undertaken  to  perform  the  service  required  of  the 
plaintiff,  then  by  so  remaining  for  a  reasonable  time  thereafter  the 
plaintiff  would  not  assume  the  risks  incident  to  such  defective  ma- 
chinery, if  same  was  defective,  during  such  reasonable  time.*'* 

(e)  The  court  instructs  the  jury  that,  if  you  believe,  from  the 
evidence  in  this  case,  that  the  hay-cutter  was  defective,  as  charged  in 
the  declaration,  and  that  the  plaintiff  notified  the  defendants  of  such 
defect,  and  if  you  further  believe,  from  the  evidence,  that  stich  de- 
fect, if  any,  rendered  the  services  which  plaintiff  was  engaged  to  per- 
form more  dangerous  and  that  the  defendant  thereupon  promised  the 
plaintiff  that  he,  the  defendant,  would  have  said  hay-cutter  repaired; 
and  if  you  fui'ther  believe,  from  the  evidence,  that  the  plaintiff  there- 
upon relied  upon  the  said  promise  of  the  said  defendant  to  repair  said 
hay-cutter,  and  that  the  said  plaintiff  continued  in  his  said  employ- 
ment a  reasonable  time  to  permit  the  defendant  to  repair  said  hay- 
cutter,  in  such  case  your  verdict  should  be  for  the  plaintiff,  unless 
you  further  find  from  the  evidence  that  the  danger  by  reason  of  said 
defect,  if  any,  was  so  great  that  no  prudent  person  would  have  used 
3aid  hay-cutter  in  its  then  condition,  as  shown  by  the  evidence.*^ 

(f)  The  court  instructs  the  juiy  that  if  they  believe,  from  the 
evidence,  that  the  plaintiff  complained  of  the  defective  condition  of 
the  machinery  which  he  was  operating,  and  that  the  defendant  prom- 
ised to  have  the  defects  in  said  machinery  remedied,  but  failed  so  to 

44 — Taylor   v.    Felsiner,    supra.  servant   may   continue   in   the   em- 

45 — Donley    v.    Douprherty,    75    111.  ployment     a     reasonable     time     to 

App.    ?.79   (381),   aff'd  174  111.   582,   51  permit      the      performance      of     a 

N.  K.  714.  promise    in     that    regard     without 

"The  Supreme  Court   say:     'It  is  being-  guilty   of   negligence,   and   if 

now  uniformly  stated  by  text  writ-  an     injury     results    therefrom     he 

ers    that    where    the    master,    upon  may  recover,   unless  the  danger  is 

beinjr    notified    by    the    servant    of  so  imminent   that   no  prudent  per- 

defects  that  render  the  service  he  son    wonld    undertake    to    perform 

is   engaged   to    perform   more   haz-  the    service.'     To    the    same    effect 

prdous,      expressly      promises      to  is    Swift    &    Co.    v.     Madden,.    165 

make     the     needejj     repairs,      the  111.    47,   45   N.    E.    979." 


§,1469.]  NEGLIGENCE— MASTER  AND  SERVANT.  979 

do  witliiu  a  reasonable  time,  and  in  consequence  thereof  the  injuries 
comijlained  of  were  inflicted  upon  the  plaintiff,  then  the  defendant  is 
liable,  and  the  jury  should  find  for  the  plaintiff  unless  the  jury  be- 
lieve that  the  plaintiff  failed  to  exercise  reasonable  care  and  caution 
in  doing  the  work  in  which  he  was  engaged,  taking  into  consideration 
the  plaintiff's  experience,  or  unless  the  damage  was  so  palpable,  im- 
mediate, and  constant  that  no  one  but  a  reckless  person  would  ex- 
pose himself  to  it,  even  after  receiving  such  promise  or  assurance.*^ 

(g)  It  is  the  law  that  when  a  sei-vant,  having  a  right  to  abandon 
the  service,  because  it  is  dangerous,  refrains  from  so  doing  in  conse- 
quence of  the  assurance  that  the  danger  shall  be  removed,  the  duty 
to  remove  the  danger  is  manifestly  imperative ;  and  the  master  is  not 
in  the  exercise  of  ordinary  care  unless,  or  until,  he  makes  his  as- 
surance good.  Were  these  assurances  and  promises  made  as  claimed 
by  the  plaintiff  here  ?  If  the  plaintiff  did  not  notify  the  defendant  of 
this  defect,  and  if  the  defendant  did  not, — as  claimed  by  the  plain- 
tiff,— make  the  promise  to  repair,  and  making  such  promise  induced 
the  plaintiff  to  continue  his  work  there,  then  the  plaintiff  cannot  re- 
cover in  this  case.  If  you  find  that  he  understood  the  increased  risk 
of  the  gears  being  uncovered,  the  defendant  cannot  be  held  respon- 
sible, if  he  continued  his  work  for  any  considerable  time,  knowing 
the  danger,  without  being  induced  by  his  master  to  believe  that  a 
change  would  be  made,  and  without  making  any  complaint  of  such 
dangers  or  defects,  or  calls  the  attention  of  the  master  to  them.  If 
the  servant,  with  full  knowledge  of  the  facts,  and  understanding  the 
increased  risk  and  danger  occasioned  thereby,  in  the  absence  of  any 
promise  of  the  master  to  remedy  the  same,  remains  in  the  master's 
employ,  then  the  plaintiff  voluntarily  incurs  such  increased  risk.*''' 

§  1469,  Continuing  in  Employment  After  Bolt  Had  Come  off 
Many  Times — Fellow  Servant,  (a)  The  coui-t  instructs  the  juiy 
that  by  continuing  in  the  employment  of  the  defendant,  after  know- 
ing that  the  bolt  had  come  off  10  or  20  times,  the  plaintiff  assented  to 
the  use  of  a  machine  liable  to  such  an  accident,  and  the  defendant 
was  entitled  to  continue  to  use  the  machine  as  it  was,  and  to  repair 
it  from  time  to  time  as  such  accident  occuiTed,  and  no  negligence 
may  be  imputed  to  the  defendant  from  so  continuing  to  use  the  ma- 
chine.*^ 

46_Va.    &    N.    C.    Wheel    Co.    v.  otherwise,     the      defendant     could 

Harris,  —  Va.  — ,  49  S.  E.  991  (994).  not    have   been    prejudiced    by    the 

"The  circumstance  that  the  omission,  since  the  allegation  of 
plaintiff  was  injured  while  oper-  the  declaration  and  the  uncon- 
ating-  the  saw  in  the  exercise  of  tradicted  testimony  of  the  plain- 
reasonable  care  and  caution,  aided  tiff  is  that  he  did  rely  upon  the 
by  common  knowledsre,  sufficient-  master's  promise  to  repair." 
ly  indicates  the  presence  of  dan-  47— Roux  v.  Blodgett  &  Davis 
per.  Upon  the  second  point,  the  L,.  Co.,  94  Mich.  607,  54  N.  W.  492 
fact   that  the   plaintiff  relied   upon  (494). 

the   master's    promise    to    repair    is  48— Loughlin  v.  Brassil,  187  N.  T. 

plainly   to   be   implied   from   a  fair  128  (131),  79  N.  K.  854. 

and    reasonable    interpretation    of  "The    words    'to    repair    it    from 

the    instruction.      But    if    it    were  time  to  time'  as  such  accident  oo- 


980 


FORMS  OF  INSTRUCTIONS. 


[§  1470. 


(b)  The  replacing  of  the  nut  on  the  screw  was  a  detail  of  the 
work,  and,  if  one  of  the  defendant's  employes  was  negligent  in  re- 
placing the  nut,  such  negligence  was  the  negligence  of  a  fellow 
servant,  for  which  the  defendant  is  not  responsible. 

(c)  Before  the  jury  can  impose  any  liability  on  the  defendant  for 
failure  to  tighten  the  nut,  they  must  find  that  the  defendant  had 
notice,  or  by  reasonable  care  could  have  obtained  knowledge,  that  the 
nut  had  become  loose  again  after  being  tightened  in  the  morning.*^ 

§  1470.  Defective  Machinery — Continuing  Work  with  Assurance 
of  Superintendent  that  Machine  Is  All  Right.  If  the  machine  was 
out  of  repair,  and  plaintiff  notified  the  superintendent  of  his  depart- 
ment of  its  condition,  and  was  assured  that  it  was  all  right,  and  on 
his  assurance  he  continued  to  work  with  it,  without  knowing  it  was 
dangerous,  and  was  injured  as  a  consequence  thereof,  he  can  have  re- 
covery. The  law  did  not  require  R.  to  inspect  the  machine,  but  did 
require  him  to  see  what  any  ordinarily  careful  and  prudent  opera- 
tive would  have  seen  of  its  condition.^" 

§  1471.  Minors — Assumption  of  Risk.  Infants  as  well  as  adults, 
assume  the  ordinary  risks  of  the  service  in  which  they  engage,  but  an 


curred,  are  •  shown  by  the  context 
to  refer  to  the  accident  of  the 
bolt  getting-  out  of  place.  Thus 
we  have  it  as  the  law  of  this 
case  that  no  recovery  can  stand 
against  the  defendant  because  he 
used  a  defective  machine,  and 
that  his  only  duty  in  respect 
thereto,  so  far  as  the  plaintiff 
was  concerned,  was  to  repair  it; 
that  is,  replace  the  bolt  from 
time  to  time  as  it  dropped  out. 
Under  this  rule,  I  do  not  see  that 
any  duty  was  left  upon  defendant 
in  respect  to  the  machine,  ex- 
cept to  use  reasonable  diligence 
and  care  in  inspecting  and  keep- 
ing watch  of  it  and  in  replacing 
the  bolt  when  the  nut  dropped 
off." 

49 — Laughlin  v.   Brassil,   supra. 

"Under  the  law  of  the  case  as 
finally  formulated  by  the  trial 
judge,  I  am  inclined  to  think  that 
the  first  refusal  was  error;  that 
the  defendant  being  entitled  to 
use  the  machine  as  against  the 
plaintiff  subject  only  to  an  obli- 
gation to  repair  it  by  replacing 
the  nut  from  time  to  time  as  it 
became  loose,  such  repairing  and 
replacing  was  a  detail  of  the  work 
which  might  be  committed  to  an 
employe  whose  negligence  would 
not  mnke  the  employer  liable, 
■put,  without  stopping  to  consider 
at  length  whether  this  is  so  it  Is 
auite    clear    that    the    second    re- 


fusal did  constitute  error.  Having 
the  right  to  use  the  machine,  the 
defendant  could  only  be  required 
to  exercise  reasonable  care  and 
prudence  in  detecting  a  loosening 
of  the  nut  and  replacing  the  same, 
and  the  instruction  should  have 
been  given  as  requested.  It  is 
suggested  that  this  request  as- 
sumes that  the  nut  was  tightened 
in  the  morning  and  was  improper 
in  that  respect.  There  was  no 
question  upon  the  trial  that  the 
nut  was  tightened  in  the  morning, 
not  only  an  employe  of  the  de- 
fendant, but  the  plaintiff  himself, 
swearing  to  this.  The  request  im- 
mediately preceding  the  one  un- 
der consideration  was  expressly 
predicated  upon  a  finding  by  the 
jury  that  the  nut  was  properly 
tightened  in  the  morning  before 
the  accident,  and,  whether  the  re- 
quest in  question  was  made.  I  have 
no  doubt  that  the  defendant's 
counsel  by  the  words  'after  being 
tightened  in  the  morning,'  as- 
sumed, and  must  have  been  un- 
derstood as  referring  to  a  finding 
by  the  jury  of  that  fact  as  a  basis 
for  the  rest  of  the  request.  The 
idea,  having  been  clearly  incor- 
porated in  the  request  immediate- 
ly preceding,  was  to  be  implied 
and  understood  in  interpreting  his 
following    language." 

50 — Record   v.   Chickasaw   C.   Co., 
108  Tenn.   657,    69  S.  W.   334   (335). 


§  1472.]  NEGLIGENCE— MASTER  AND  SERVANT.  981 

infant  engaging  in  a  hazardous  employment  is  entitled  to  a  warning 
against  dangers  which  a  person  of  his  age  and  experience  would  not 
ordinai'ily  comprehend.  Therefore  if  you  find  that  the  plaintiff  C. 
was  v.-arned  how  he  might  be  injured  by  the  machine,  and  that  he 
Avas  warned  in  such  a  way  as  would  be  sufficient  to  apprise  an  or- 
dinaiy  person  of  his  age  and  experience  of  the  danger,  then  he  as- 
sumed the  risk,  and  the  defendant  would  not  be  liable  for  the  in- 
jury received  from  causes  against  which  he  was  wamed.^^ 

CONTRIBUTORY  NEGLIGENCE. 

§  1472.  Contributory  Negligence  of  Servant — In  General — Servant 
Guilty  of  Cannot  Recover,  (a)  The  court  instructs  the  jury  that 
in  law  the  plaintiff  was  not  without  fault,  if  it  appears  from  the  evi- 
dence that  by  the  exercise  of  any  care  and  caution  which  was,  under 
the  circumstances,  reasonable,  practicable  and  available,  he  might 
have  avoided  the  injuries  charged.^^ 

(b)  The  court  insti'uets  the  jury  that  although  they  may  believe 
from  the  evidence  that  B.  H.  Avas  not  a  capable  man  to  run  the  ma- 
chine referred  to  by  the  evidence  in  this  cause,  and  did  not  run  such 
machine  in  a  capable  manner  at  the  time  of  the  injury  to  B.,  yet  if 
they  believe  from  the  evidence  that  the  said  B.  had  knowledge  of  the 
danger  of  said  machine  when  in  motion,  and  could  have  avoided  the 
injury  to  himself  by  the  use  of  ordinary  care  upon  his  part,  he,  the 
said  B.,  would  be  guilty  of  contributoiy  negligence,  and  the  jury 
should  find  for  the  defendant. ^^ 

(c)  If  you  believe  from  the  evidence  that  the  plaintiff  was  in- 
jured while  engaged  in  the  perfonnance  of  his  usual  duties  as  a 
servant  of  the  defendant,  I  charge  you  that  he  was  bound  to  exercise 
ordinary  care  for  his  own  safely,  or  that  degree  of  care  which  pru- 
dent persons  usually  exercise  imder  similar  circumstances  and  if  he 
was  injured  by  failure  to  exercise  such  eare,  then  the  defendant  is 
not  liable  in  this  action.^^ 

(d)  It  is  the  duty  of  an  emploj^e  to  exercise  ordinaiy  and  reason- 
able care  in  the  protection  of  himself  in  the  performance  of  his  work ; 
and  if  he  did  not  do  so,  and  his  want  of  care  contributes  in  any  de- 
gree, however  slight,  to  any  injui-y  to  himself,  then  he  is  guilty  of 
contributory  negligence,  and  cannot  recover  damages  from  his  em- 
ployer, even  though  the  employer  were  negligent.  If  you  find  from  a 
preponderance  of  the  evidence  that  plaintiff,  in  canning  said  glass 
the  way  he  did,  and  in  said  passageway,  did  not  exercise  what  was 
reasonable  prudence  and  care  under  all  the  circumstances,  and  that 

51_Evans  Laundry  Co.  v.  Craw-  53— McVey  v.  St.  Clair  Co.,  49  W. 

ford.  67  Neb.  153,   93  N.  W.   177,  94  Va.   412.   38  S.   E.   648  (651). 

N.    W.    814.  54— Fla.     C.     &     P.     R.     Co.     v. 

52— Espenlaub    v.    Ellis,    34    Ind.  Mooney,    45    Fla.    286,    33    So.    1010 

App.   163.   72   N.   E.    529.  (1012). 


982 


FORMS  OF  INSTRUCTIONS. 


[§,  1473. 


his  want  of  care  contributed  to  tiie  liappening  of  the  injury  com- 
plained of,  then  your  verdict  must  be  for  the  defendant.^^ 

§  1473.  Contributory  Negligonce  Defined.  Contributoiy  negli- 
gence is  the  want  of  ordinary  care  on  the  part  of  the  party  injured; 
that  is  to  say,  the  want  of  such  care  as  an  ordinarily  prudent  person 
would  have  exercised  under  the  same  or  similar  circumstances,  which, 
either  by  itself  or  concurring  with  the  negligence  of  the  defendant,  if 
any,  proximately  causes  the  injury.^^ 

§  1474.  Negligence  of  Servant  or  Fellow  Servant  Must  Be  Proxi- 
mate Cause  of  Injury  in  Order  to  be  Defense,  (a)  The  jury  are 
further  charged  that  the  defendant  company  is  not  an  insurer  of 
the  safety  of  its  employes,  but  is  only  bound  to  use  ordinary  care  to 
protect  them  from  injury;  and  you  are  further  instructed  that  it  was 
the  duty  of  plaintiff,  while  working  in  the  yards  of  defendant  com- 
pany, to  use  ordinary  care  to  avoid  injury  to  himself  while  the  cars 
of  defendant  were  being  operated  upon  its  tracks  in  said  yard;  and 
if  you  find  from  the  testimony  that  plaintiff  failed  to  use  such  care, 
and  that  such  failure,  if  any,  was  negligence,  and  that  such  negli- 
gence, if  any,  proximately  contributed  to  plaintiff's  injury,  if  any, 
then  plaintiff  cannot  recover  although  you  may  believe  defendant's 
agents  and  employes  operating  said  car  were  also  guilty  of  negligence 
in  causing  plaintiff's  injuiy,  if  any.'" 


55 — Kennard  v.  Grossman,  — 
Neb.   —    89   N.  W.   1025    (1027). 

56— Galveston,  H.  &  S.  Ry.  Co. 
V.  Smith,  —  Tex.  Civ.  App.  — ,  93 
S.   W.    185    (186). 

"In  view  of  the  fact  that  there 
was  no  evidence,  whatever,  in  the 
record  tending  to  show  contribu- 
tory negrligence  on  the  part  of  ap- 
pellee, the  definition  of  contribu- 
tory negligence,  if  incorrect, 
which  is  not  held,  could  not  have 
Injured  appellant.  A  charge  very 
similar  to  this  has  been  approved 
by  this  court  and  the  Supreme 
Court  in  the  case  of  Galveston,  H. 
&  S.  Ry.  Co.  V.  Pendleton,  30  Tex. 
Civ.    App.    431,    70    S.    W.    996." 

57— Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Pendleton,  30  Tex.  Civ.  App. 
431.    70    S.    W.    996    (997). 

"The  charge  complained  of  an- 
nounces a  correct  principle  of  law, 
which  we  think  applicable  to  this 
case.  The  same  element  of  prox- 
imate cause  enters  into  and  is  es- 
sential to  contributory  negligence 
as  to  the  negligence  which  is,  in 
the  absence  of  the  defense  of  con- 
tributory negligence,  actionable. 
To  make  want  of  ordinary  cnre  on 
the  part  of  plaintiff  a  defense  to 
a  claim  of  rlnmagfs  based  upon 
defendant's    actionable    negligence, 


it  must  appear  that  there  was  such 
a  relation  between  plaintiff's 
fault  and  the  injury  that  such  in- 
jury was  a  natural  and  probable 
result  thereof,  and  that  the  ac- 
cident and  consequent  injury  to 
the  plaintiff  might  naturally  and 
reasonably  have  been  expected  un- 
der the  circumstances.  Interna- 
tional &  G.  N.  R.  R.  Co.  V.  Cul- 
pepper, 19  Tex.  Civ.  App.  182,  46 
S.  W.  922;  G.  C.  &  S.  F.  Ry.  Co. 
V.  Moore,  28  Tex.  Civ.  App.  603, 
68  S.  W.  561;  Mauch  v.  Hartford, 
112  Wis.  40,  87  N.  W.  816.  The 
question  as  to  whether  the  negli- 
gence of  the  plaintiff  proximately 
contributed  to  his  injury  is  as 
much  a  question  of  fact  for  the 
jury  as  the  one  of  negligence  it- 
self. And  unless  the  evidence 
shows  it,  though  it  may  be  suffi- 
cient to  show  negligence  on  the 
part  of  the  plaintiff,  there  Is  a 
complete  failure  of  the  defense  of 
contributory  negligence.  'In  its 
legal  signification,  contributorv 
negligence  is  such  an  act  or  omis- 
sion on  the  part  of  plaintiff, 
amounting  to  the  want  of  ordi- 
nary care,  as,  concurring  with 
some  act  of  the  defendant,  is  a 
proximate  cause  of  the  injury  com- 
plained   of.'      Galveston,    H.    &    S. 


§  1475.J  NEGLIGENCE>— MASTER  AND   SERVANT.  983 

(b)  Mere  negligence  on  the  part  of  the  deceased,  or  of  the  fellow- 
workmen  or  co-laborers,  "will  not  be  sufficient  to  prevent  recovery  by 
plaintiff  for  injury  caused  by  the  negligence  of  the  defendant.  You 
must  find  from  the  preponderance  of  the  testimony  that  the  negli- 
gence of  the  deceased  or  his  fellow  servant,  if  any,  was  not  remote 
but  was  the  proximate  cause,  or  proximately  conti'ibuted  to  the  death 
of  the  deceased.  Where  the  negligence  of  a  fellow  servant  is  com- 
bined with  the  negligence  of  the  maister,  and  this  combined  negli- 
gence causes  an  injury,  the  company  is  liable.^® 

§  1475.  Contributory  Negligence — Surrounding  Facts  and  Circum- 
stances in  Evidence  Should  Be  Considered.  In  determining  the  issue 
of  plaintiff's  contributor}^  negligence,  you  may  look  to  all  the  sur- 
rounding facts  and  circumstances  in  evidence  before  you,  and  de- 
termine therefi'om  whether  or  not  the  plaintiff  used  such  care  as  a 
person  of  ordinary  prudence  would  have  used  under  the  same  or 
similar  circumstances.  If  you  believe  from  the  evidence  that  in  the 
manner  of  doing  the  work  of  placing  said  cans  of  oil  in  the  oil  box, 
or  in  stepping  down  from  the  said  oil  bos,  the  plaintiff  failed  to  use 
such  oare  as  a  person  of  ordinary  prudence  would  have  used  under 
the  same  or  similar  circumstances,  and  that  such  failure,  if  there  was 
such  failure,  contributed  to  or  caused  his  injuries,  if  any,  then  plain- 
tiff cannot  recover.^^ 

§  1476.  Contributory  Negligence  of  Plaintiff  Must  Be  Pleaded  by 
Defendant — (South  Carolina.)  I  charge  you,  under  these  pleadings, 
that  if  you  believe  that  the  master,  the  defendant  in  this  case,  was 
negligent,  and  if  you  believe  that  the  plaintiff  was  also  negligent. — 
that  both  were  negligent — then  your  verdict  should  be  not  for  the  de- 
fendant, but  for  the  plaintiff,  for  the  reason  that  the  defendant  in 
this  case  has  not  pleaded  what  is  known  as  contributoiy  negligence.^'* 

§  1477.  Burden  of  Proof  as  to  Contributory  Negligence — Rule  that 
it  is  Ordinarily  on  Defendant,  (a)  The  jury  are  instructed  that 
the  burden  of  proof  is  on  the  defendant  to  show  contributoiy  negli- 
gence of  the  plaintiff,  unless  it  appears  from  the  plaintiff's  own  evi- 
dence.   If  it  does  so  appear,  you  will  find  for  the  defendant. ^^ 

(b)  The  court  has  charged  the  jury  that,  unless  the  jury  believe 
from  the  evidence  in  this  case  that  the  ear  upon  which  plaintiff  was 
riding,  by  defendant's  employes  or  employe  stopped,  or  the  speed 

A.    Ry.    Co.    V.    Henning,    —    Tex.  Manns    (Tex.),    84    S.    W.    254    (257). 

Civ.    App.    — ,    39    S.    W.    302."  "It    seems    to    us    that    this    part 

58 — Sroufe    v.    Moran    Bros.    Co.,  of  the  charge  is  g-ood  law,  direct- 

28  Wash.   381,   68  Pac.   896   (902),  92  ly  applicable  to  the  case  made  by 

Am.  St.  847.  the    pleadings    and    evidence,    and 

"This   is   a   correct    statement   of  when  taken  and  considered  in  con- 

the   law.     Grand   Trunk   R.    Co.   v.  nection     with     the     charge     as     a 

Cummings.    106    U.    S.    700.    1    Sup.  whole,  is  entirely  free  from  the  ob- 

Ct.    493,    27    L.    "Pd.    266;    Towns   v.  jections    urged    against    it." 

Railroad   Co..    37    La.    Ann.   630,    55  60— Strickland      v.       Capital      C. 

Am.    Rep.     508;    Ellis    v.    Railroad  Mills.   70   S.   C.  211.   49  S.   E.  478. 

Co..   95  N.   Y.   546."  61— Reeves     v.     R.Tilway     Co.,    — 

59— G.,      H.     &     S.      A.     Ry.     v.  Tex.  — .   98  S.   W.  929. 


984  FORMS  OF  INSTRUCTIONS.  [§  1478. 

thereof  was  suddenly  checked,  or  said  car  was  otherwise  unusually 
jarred,  then  their  verdict  must  be  for  the  defendant.  The  court  does 
not  mean  to  charge  the  jury  by  this  that,  if  the  stopping  or  checking 
of  the  train,  if  any,  was  with  no  greater  force  than  was  usual  under 
other  circumstances  than  those  in  the  case  under  consideration,  plain- 
tiff could  not  recover,  but  it  is  true  that,  if  such  stopping  or  checking, 
if  any  is  shown  by  the  evidence,  was  not  gi'eater  than  is  usual  under 
the  same  circumstances,  then  plaintiff  could  not  recover. 

(c)  The  burden  of  proving  contributory  negligence  is  on  the  de- 
fendant, and,  unless  the  jury  are  reasonably  satisfied  from  the  evi- 
dence that  plaintiff  was  guilty  of  negligence  himself  which  proximate- 
ly helped  to  bring  about  his  own  injuries,  defendant  fails  on  his  pleas 
of  contributory  negligence.*^" 

(d)  The  court  charges  the  juiy  that  the  burden  of  proving  con- 
tributoiy  negligence  rests  upon  the  defendant.^^ 

§  1478.  Voluntarily  Doing  Work  in  More  Dangerous  of  Possible 
Different  Ways.  The  juiy  are  instructed  that  if  they  believe  from 
the  evidence  that  the  plaintiff  took  hold  of  the  rail  upon  which  the 
crane  ran,  and  that  when  he  did  so  he  knew  that  the  crane  at  irregu- 
lar intervals,  ran  along  upon  this  rail,  and  that  he  could  have  taken 
hold  of,  or  rested  his  hand  upon  the  girder  which  supported  said  rail, 
or  on  the  water-pipes  or  other  parts  of  the  girder  there,  instead  of 
taking  hold  of  said  rail,  and  could  thereb}^  have  supported  himself  so 
that  he  could  have  done  the  painting  Avhich  he  was  doing,  in  safety, 
and  that  to  take  hold  of  said  rail  was  a  dangerous  way  of  doing  said 
work,  and  that  to  take  hold  of  or  rest  his  hand  upon  the  girder  which 
supported  said  rail,  or  the  water-pipes  or  other  parts  of  the  girder 
there,  was  a  safe  way  of  doing  said  work,  and  that  the  plaintiff  vol- 
untarily selected  a  way  which  he  knew  was  a  dangerous  way  instead 
of  a  way  which  he  knew  was  a  safe  way  of  doing  said  work  then  the 
juiy  should  find  the  defendant  not  guilty.^* 

"The     ground     of     complaint     is  only  way  he  could  work  at  the  tie 

that  there  is  nothing  in  plaintiff's  was  by  getting  astride  of  it.     The 

evidence     suggesting     contributory  jury    had    the    right    to    disbelieve 

negligence.       We      ascertain      that  this    from    the    physical    facts    he 

plaintiff's     own     testimony     shows  himself   related,    and.  to   find    from 

that    the   trench   was   wide   enough  them    that   he   was   negligent,   and 

to   admit   of   the   jury   finding   that  assumed    a    position    of    danger    in 

he  could  have  stood  in  the  trench  going  about  as  he  did.    See  Texas  & 

and    worked    at    this    tie    without  P.    Ry.    Co.    v.    Reed,    88    Tex.    447, 

having   to    straddle    it.      From   his  31  S.  W.  1058,  for  a  similar  charge 

own  testimony,   without  the  aid  of  sustained." 

any    other,    such    a    finding    could  62— L.   &  N.   R.  Co.  v.   Smith,  129 

be  sustained.     We  understood  him  Ala.  553.  30  So.   571  (573). 

to     testify    that     the     trench    was  63— M.,    J.    &    K.    C.    R.    Co.    v. 

flush  up  against  the  adjoining  ties.  Bromberg,  141   Ala.   258,   37  So.   395 

and   narrowed    toward    the   bottom,  (402). 

where  it  was  about  14  or  15  inches  64— Til.   Steel  Co.   v.  McNulty,  105 

clear,     and     ties     were     9     inches  111.    A  pp.    594    (600-601). 

wide,     and     were    about    9    or    10  "W^ile   this    instruction    may   be 

lnr>heq    apart.      Yet    plaintiff    testi-  snbiect    to    some    minor    criticism, 

fled  that  he  could  not  get  into  the  still    under    the    circumstances    of 

trench  as  directed  by  W.,  and  the  this    case,     it    should     have     been 


§  1479.]  NEGLIGENCES— MASTER  AND   SERVANT. 


985 


§  1479.  Doing  Work  in  Way  Other  Than  Ordered  hy  Master.  If 
the  jury  fiud  from  the  evidence  that  the  plaintifi:  was  directed  in  re- 
moving the  lumber  from  the  kiln  to  go  behind  or  in  the  rear  of  the 
trucks  and  apply  pressure  from  behind  or  in  the  rear  of  the  trucks  in 
order  to  remove  the  same  from  the  kiln  and  you  further  find  that  this 
was  a  safe  way,  and  that  if  it  had  been  done,  the  plaintiff  would  not 
have  been  injured,  and  you  further  find  that  the  plaintift',  instead  of 
adopting  this  method,  went  under  the  truck  which  was  to  be  re- 
moved from  the  kiln  and  api3lied  force  from  under  and  below  the 
truck,  and  was  injui'ed  in  consequence  of  so  doing,  then  the  plaintiff's 
own  negligence  was  the  proximate  cause  of  the  injury,  and  you 
should  answer  the  first  issue  ''No. "^^ 


given.  The  party  has  no  right  in- 
tentionally to  put  himself  in  a 
place  of  danger  which  he  could 
have  avoided,  and  in  such  case  al- 
though he  exercised  every  con- 
ceivable care  in  so  doing,  his  in- 
jury would  result  from  his  vol- 
untary act.  Armour  v.  Brazeau, 
191  111.  126,  60  N.  E.  904;  Howe  v. 
Medaris,    183   111.  288,   55  N.    E.   724. 

"It  is  a  general  principle  ap- 
plicable to  cases  of  this  kind  that 
where  an  employe  has  the  power 
to  adopt  his  own  methods  of  do- 
ing work,  and  he  wantonly,  know- 
ing and  appreciating  the  dangers 
of  both,  selects  of  the  two  ways 
the  most  dangerous,  he  does  so 
at  his  peril  and  can  not  recover 
for  any  injury  resulting  from  such 
relation.  Star  Elev.  Co.  v.  Carl- 
son, 69  111.  App.  212;  W.  R.  R.  Co. 
V.   Propst,  92  111.   App.    485." 

65— Whitson  v.  Wrenn,  134  N.  C. 
86,    46    S.    E.    17    (18-19). 

"The  plaintiff  in  this  case  has 
simply  done  something  which  his 
master  virtuallv  told  him  not  to 
do.  He  substituted  his  own  will 
for  that  of  his  employer,  and  his 
ease  comes  within  the  maxim, 
'Volenti  non  fit  injuria.'  No  man 
by  his  own  voluntary  and  wrong- 
ful act  can  impose  a  liability  on 
another,  nor  will  he  be  permitted 
to  take  any  advantage  of  his  own 
wrong  and  willfulness.  The  doc- 
trine that  a  servant  is  not  negli- 
gent in  undertaking  tlje  perform- 
ance of  a  dangerous  work  for  his 
master,  unless  there  is  obvious 
danger  in  it.  is  a  correct  principle, 
and  is  strikingly  illustrated  by 
several  cases  decided  by  this 
court.  Thomas  v.  R.  &  A.  Air  Line 
R.  R.  Co..  129  N.  C.  392.  40  S.  E. 
201:  Allison  v.  Southern  R.  R.. 
129  N.  C.  336.  40  S.  E.  91:  Patton 
V.    W.    N.    C.    R.    R.    Co.,   96   N.    C. 


455,  1  S.  E.  863.  A  passenger  who 
has  been  injured  by  alighting 
from  a  moving  train,  under  the 
direction  of  the  conductor,  may 
recover  for  the  injuries  received, 
unless  the  act  itself  was  obviously 
so  dangerous  that  in  its  careful 
performance  the  inherent  proba- 
bilities of  injury  were  greater  than 
those  of  safety.  Hinshaw  v.  R. 
&  A.  A.  L.  R.  R.  Co.,  lis  N.  C. 
1047,  24  S.  E.  426.  But  this  prin- 
ciple has  no  place  in  this  case.  In- 
stead of  the  plaintiff  having  been 
commanded  to  do  a  dangerous  act, 
it  is  assumed  in  the  instruction, 
and  there  was  evidence  to  show, 
that  he  was  ordered  to  do  the 
particular  work  assigned  to  him 
in  a  safe  way,  but  elected  to  do  it 
in  his  own  way.  which  turned  out 
to  be  a  dangerous  one,  and  which 
actually  resulted  in  his  injury. 
The  law,  under  such  circum- 
stances, refers  the  injury  to  his 
own  fault,  and  not  to  any  wrong 
on  the  part  of  his  employer.  It 
must  be  admitted  that  he  was 
the  author  of  his  own  injury.  If 
it  was  necessary  that  the  method 
adopted  by  him  should  have  been 
not  only  in  disobedience  of  his  or- 
ders, but  in  itself  dangerous,  in 
order  to  visit  upon  him  the  conse- 
quence of  his  refusal  to  observe 
his  master's  directions,  it  surely 
is  not  required  that  it  should  have 
been  obviously  dangerous.  It  is 
quite  sufficient  to  bar  his  recovery 
if  he  knew  that  his  method  was  a 
dangerous  one  and  chose  to  do  his 
work  in  that  way  rather  than  in 
the  manner  pointed  out  by  his 
master.  Why  should  the  danger 
be  obvious  if  he  had  knowledge  of 
it?  If  it  had  apneared  that  obedi- 
ence to  his  master's  orders  as  to 
the  manner  of  moving  the  truck 
was   obviously   dangerous,   he   had 


986  FORMS  OF  INSTRUCTIONS.  [§  1480. 

§  1480.  Servant  Continuing  Work  Without  Repairing  Defects 
After  Being  Warned  of  Danger.  You  are  instructed  that  if  you 
should  find  from  the  evidence  that  the  injury  in  tliis  case  was  caused 
by  the  slipping-  of  the  cogs  or  pinions,  and  that  the  deceased  had  been 
told  of  the  danger  if  he  did  not  fix  it,  and  continued  to  run  the  en- 
gine after  being  so  told,  without  fixing  the  same,  your  verdict  should 
be  for  the  defendants.^*^ 

§  1481.  Intoxication  of  Servant  as  Contributory  Negligence,  (a) 
The  court  instructs  the  jury  that  if  you  believe  from  the  evidence, 
that  the  said  J.  J.,  at  the  time  of  the  accident,  was  intoxicated  or  in 
a  state  of  intoxication ;  and  if  you  believe  that  because  of  such  intoxi- 
cation he  slipped  and  fell  in  front  of  or  underneath  one  or  more 
of  the  wheels  of  said  engine ;  and  if  you  believe  that  he  was  guilty  of 
negligence  in  being  intoxicated,  or  in  a  state  of  intoxication,  if  you 
find  he  was  at  said  time  and  place ;  and  if  you  believe  such  negli- 
gence if  any,  caused  or  contributed  to  cause  his  injury  and  death — ■ 
then  in  that  event  you  will  find  for  the  defendant;  but  if  you  find 
that  said  J.  J.  was  intoxicated  or  in  a  state  of  intoxication,  that 
would  not  defeat  a  recovery,  unless  you  further  believe  that  the  same 
was  negligence,  and  that  such  negligence  caused  or  contributed  to 
cause  the  injury. 

(b)  If  you  believe  from  the  evidence  that  at  the  time  of  the  ac- 
cident J.  J.  was  in  a  state  of  intoxication,  and  that  such  state  of  in- 
toxication placed  him  in  such  a  condition  that  he  was  unable,  and 
failed,  to  exercise  the  caution  and  care  required  of  him  under  the 
general  instructions  of  the  court  heretofore  given  you,  and  if  you 
furfher  believe  that  by  reason  of  such  condition  he  was  injured,  then, 
in  that  event  the  plaintifi's  cannot  recover.^''' 

§  1482.  Minor's  Rule  as  to  Contributory  Negligence — Safe  Ma- 
chinery and  Appliances — Safe  Place  to  Work,  (a)  Before  you  find 
against  plaintitf  on  the  ground  of  contributory  negligence,  you  must 
believe  from  the  evidence  that  the  plaintiff  did  not  use  such  care  and 
caution  as  a  person  of  his  age  and  experience  would  have  ordinarily 
used  under  the  circumstances  surrounding  him  at  the  time.^^ 

a  right  to  refuse  to  do  the  work,  condition,  and  failed  to  repair  the 
but  even  then  he  could  not  select  defect  though  it  was,  according  to 
another  and  dangerous  way  to  do  the  undisputed  evidence,  his  duty 
it  and  charge  his  master  with  the  so  to  do.  The  court  should  there- 
consequence  thereof,  and  especial-  fore  have  given  the  instruction, 
ly  if  the  danger  of  the  method  and,  as  it  was  not  covered  by  any 
which  he  adopted  was  known  to  other  instruction  given  by  the 
him   at   the   time."  court,    we    conclude    that    its    re- 

66 — Prescott  &  S.   W.   Ry.   Co.  v.  fusal     was     prejudicial     error    for 

Weldy,    80   Ark.   454,   97   S.    W.   452.  which  the  case  must  be  reversed." 

"The    testimony    was    conflicting  67— M.,   K.   &  T.   Ry.   Co.  of  Tex. 

as    to    the    cause    of    the   accident,  v.   Jones,  ."^5  Tex.  Civ.  App.  584,  80 

and   this    instruction    was   applica-  S.   W.   852  (854). 

ble    to    the    defendant's    theory    of  68— Stanley   v.    C,    M.    &    St.    P. 

the   cnse.     There   was  direct   testi-  Ry.   Co.,  —  Mo.   App.  — ,  87  S.  W. 

mony  that  the  accident  was  caused  112    (113). 

by    the    cogs    or    pinions    slipping.  "The    court    held    thnt    this    in- 

That   W.   knew   of   this   dangerous  struction    was    faulty,    in    that    it 


§  1482.]  NEGLIGENCE— MASTER  AND   SERVANT.  987 

(b)  The  jury  are  further  instructed  that  the  duties  of  the  master 
to  provide  safe  and  suitable  machinery  and  appliances  for  the  busi- 
ness, and  to  furnish  a  safe  place  in  which  his  servant  is  to  work,  are 
duties  which  the  master  can  either  perform  personally,  or  delegate 
their  performance  to  some  one  else;  but  if  both  the  master  and  the 
pei-son  to  whom  such  duties  are  delegated  fail  in  the  performance  of 
any  of  said  duties,  and  injurj'  results  to  the  servant  by  reason  of 
said  failure,  the  master  is  liable  for  such  injury. 

(c)  The  juiy  are  further  instructed  that  the  right  of  the  plaintiff, 
L.  to  recover  in,  this  action,  if  the  juiy  believe  from  the  evidence  he 
is  entitled  to  recover,  is  not  affected  by  his  having  contributed  to  the 
injury  complained  of,  if  the  jury  believe  from  the  evidence  that  he 
did  contribute  to  his  own  injury,  unless  he  was  in  fault  in  so  doing. 

(d)  The  jury  are  further  instructed  that  in  determining  whether 
the  plaintiff  L.,  a  boy  sixteen  years  of  age,  was  guilty  of  contributory 
negligence,  the  jurj'  have  the  right  to  take  into  consideration  his  age, 
capacity  and  experience,  and  although  he  may  have  been  guilty  of  an 
act  or  acts  which  in  an  adult  would  have  amounted  to  an  assumption 
of  the  risk  of  injury  and  a  waiver  of  the  duty  the  master  owes  him^ 
yet  he  cannot  be  held  to  have  assumed  any  such  risk  or  waived  any 
such  duty  which  one  of  his  age,  discretion  and  experience  could  not 
fully  comprehend  and  appreciate. 

(e)  The  jury  are  further  instructed  that,  while  it  is  a  general  rule 
that  an  employe  accepts  service  subject  to  risks  incidental  to  it,  and 
when  the  appliances  or  means  or  methods  of  work  are  known  to  the 
employe  he  can  make  no  claim  upon  the  employer  to  change  them,  and 
if  injury  results  thei'efrom,  can  recover  no  damages,  yet  this  does 
not  relieve  the  employer  from  the  obligation  which  makes  it  his  im- 
perative duty  to  warn  the  employe  of  danger  and  instruct  him  how  to 
avoid  the  danger,  even  when  the  danger  is  visible  and  open  to  ob- 
servation, if  through  youth,  inexpei'ienee,  or  lack  of  ability  the  em- 
ploye is  incompetent  to  understand  fully  and  appreciate  the  nature 
and  extent  of  the  danger.*^^ 

should  have  told  the  jury  the  law  skill  as  applied  to  the  business  in 
required  of  the  boy  'exercise  of  which  plaintiff  was  engag-ed  at  the 
care  and  prudence  equal  to  his  ca-  time  he  was  injured — that  is,  in 
pacitv,  age,  knowledge,  and  ex-  manipulating  the  handle  of  the 
perience,  regardless  of  what  care  car  in  question — which  labor  at 
and  prudence  boys  of  his  age  and  most  required  little  or  no  skill, 
capacity  are  required  to  exercise.'  only  practical  experience.  We  are 
The  fault  in  the  construction  un-  not  to  consider  that  the  court,  in 
der  consideration,  if  any,  is  that  saying  that  certain  words  should 
the  words  'age  and  experience'  be  used  in  an  instruction,  was 
are  used,  instead  of  the  words  the  prescribing  a  formula  for  the  pur- 
court  said  should  have  been  used,  pose,  but  that  language  of  similar 
'capacity,  age.  knowledge  and  ex-  import  should  have  been  used.  We 
perience.'  "The  word  'experience'  do  not  think  the  instruction  was 
means  'to  have  practical  ac-  so  faultv  as  to  be  misleading." 
quaintance  with,'  which  is  equiva-  69 — "We  think  said  instructions 
lent  to  knowledge.  And  the  word  were  pertinent  and  properly  giv- 
'capacity,'  in  the  sense  in  which  en."  Giebell  v.  Collins  Co.,  54  W. 
it    was    used,    means    capacity    or  Va.  518,  46  S.  E.  569  (573). 


988  FORMS  OF  INSTRUCTIONS.  [§  1483. 

§  1483.  Working  Near  Dangerous  Lumber  Pile,  (a)  If  you  be- 
lieve plaintiff  was  injured  by  reason  of  some  timber  or  lumber  fall- 
ing against  or  upon  him,  and  throwing  him  upon  the  saw,  and  if  you 
find  that  the  condition  in  which  same  was  piled  up  was  open  and  ob- 
vious to  plaintiff,  and  considering  his  age  and  intelligence,  he  should 
and  ought  to  have  known  the  danger,  if  any,  surrounding  him  at  the 
time,  and  if  you  believe  that  the  plaintiff,  considering  the  circum- 
stances surrounding  him  at  the  time,  was  not  exercising  such  care 
and  piaidence  in  doing  or  undertaking  to  do  the  work  at  which  he 
was  engaged  that  would  or  should  ordinarily  be  exercised  by  a  per- 
son of  like  age  and  intelligence  of  plaintiff  under  similar  circum- 
stances, then  plaintiff  cannot  recover,  even  though  the  plaintiff  at 
the  time  was  following  the  instructions  of  defendant's  foreman, 
and  in  such  case  you  will  find  for  the  defendant. 

(b)  If  you  believe  the  plaintiff  Ava«  injured  by  reason  of  some 
pieces  of  lumber  or  timber  falling  against  him  and  throwing  him  up- 
on the  saw,  which  lumber  or  timber  was  lying  or  piled  up  to  the 
side  or  back  of  where  plaintiff  was  at  work,  and  if  you  find  that  the 
condition  and  manner  in  which  said  lumber  was  piled  up  was  open 
and  obvious  to  plaintiff,  and  if  you  believe  that  plaintiff  was  of  suf- 
ficient intelligence  and  understanding  to  comprehend  and  know,  and 
ought  to  have  known,  considering  his  age  and  intelligence,  the 
danger,  if  any,  surrounding  him,  then  plaintiff  cannot  recover  any- 
thing in  this  case,  even  if  defendant  was  at  fault  and  negligent  in 
allowing  the  lumber  or  timber  to  be  piled  up  and  remain  in  the 
manner  it  was  at  the  time,  and  in  such  case  you  will  return  your 
verdict  for  the  defendant.'^" 

§  1484.  Raising  Beam  in  Obviously  Dangerous  Way.  The  court 
instructs  the  jury  that  if  you  believe  from  the  evidence  that  if  the 
plaintiff  and  his  co-workers  could  have  raised  the  beam  in  question 
in  a  safe  way,  and  nevertheless  adopted  the  method  used  by  them  on 
the  occasion  in  question,  and  if  you  further  believe  that  the  method 
adopted  by  them  was  dangerous,  and  that  the  danger  thereof  was 
obvious  to  plaintiff,  and  that  the  plaintiff  in  adopting  said  method 
under  said  circumstances  Avas  guilty  of  negligence,  and  that  such 
negligence  continued  down  to  the  time  of  plaintiff's  fall,  and  di- 
rectly contributed  thereto,  then  and  in  that  case  your  verdict  must 
be  for  the  defendant.''^ 

S 1485.  Failure  to  Heed  Warning  of  Foreman  to  Get  Away  from 
Falling  Timber,  (a)  If  ynn  find  from  the  evidence  that  tlie  fore- 
man, A.  B.,  prior  to  the  accident,  wai-ned  the  plaintiff  to  get  away 
from  the  place  where  he  was,  and  that  such  warning  w^as  given 
loudly  enough  and  distinctly  enough  to  have  been  understood  by  a 

70— "Roth    of    these    instrnntions        71— Sack    v.    St.    L.    Car    Co.,    - 
shoulfl  hnve  hnen   Riven."     HiUlon-      Mo.   A  pp.  — ,   87  S.    W.   79  (S3"). 
brand    v.    Marahnll,     30    Tex.    Civ.         "This     instruntion     correotlv     de- 
App.   135,   69   S.   W.   492   (493).  rlnrerl  the  Inw  in  respect  to  the  de- 

fense  of   contributory   ncglig-ence." 


§  1486.]  NEGLIGENCE— MASTER  AND  SERVANT.  989 

person  of  ordinary  hearing  at  the  place  where  the  plaintiff  then  was^ 
and  A.  B.  then  had  reasonable  grounds  to  believe  that  such  warning 
would  be  heard  by  plaintiff,  and  if  you  further  find  that  after  giv- 
ing such  warning  there  was  time  enough  for  plaintiff  to  get  awaj*  by 
exercising  reasonable  care  and  bpeed  before  the  timber  dropped,  then 
your  verdict  may  be  for  the  defendants. 

(b)  The  defendants  were  not  insurers  of  the  plaintiff  against  ac- 
cident while  in  their  employ.  On  the  contrary,  the  plaintiff  assumed 
all  the  ordinary  and  usual  risks  and  hazards  incident  to  the  em- 
ployment in  which  he  was  engaged.  And,  if  you  find  that  he  was 
injured  while  at  work  in  the  employ  of  the  defendant,  still  your 
verdict  should  be  for  the  defendants,  unless  you  further  find  from  the 
evidence  that  such  injury  was  caused  by  the  negligence  of  the  fore- 
man, A.  B.,  in  failing  (if  he  did  fail)  to  warn  the  plaintiff  that  the 
timber  was  about  to  be  dropped,  in  time  for  the  prudent  man  of 
ordinary  activity,  placed  as  plaintiff  then  was,  to  remove  beyond 
danger  before  it  fell.'^^ 

§  1486.  Want  of  Ordinary  Care  of  Both  Master  and  Servant — 
Going  Under  Dangerous  Roof  in  Coal  Mine — Series,  (a)  If  the 
plaintiff  was  negligent,  which  contributed  to  his  own  injury,  even  in 
the  slightest  degree,  then,  in  that  case,  he  cannot  recover  in  this 
action,  although  you  may  find  that  the  defendant  was  negligent, 
and  that  its  negligence  was  the  proximate  cause  of  the  injuiy  of  the 
plaintiff.  The  law  requires  the  plaintiff  to  use  all  ordinary  care  to 
avoid  any  injury  to  himself;  that  is,  such  care  as  an  ordinarily  pru- 
dent and  careful  man  would  have  used  under  like  or  similar  cir- 
cumstances. You  are  to  measure  the  care  that  he  did  use,  as  you 
shall  find  it  from  the  testimony,  by  the  standard  that  I  have  given 
you  in  charge;  that  is,  the  care  that  an  ordinarily  prudent  and  care- 
ful man  would  have  used  under  like  circumstances.  In  determining 
this  question,  gentlemen,  you  are  to  look  to  all  the  evidence;  look  to 
the  knowledge  that  the  plaintiff  had  of  this  particular  mine;  look  to 
the  knowledge  that  he  had  of  the  character  of  this  roof;  of  what 
it  was  composed;  its  liability  to  slip,  or  the  liability  of  the  stone  to 
fall.  Look  to  that,  and  also  look  to  the  knowledge — as  you  may  find 
it  from  the  evidence — that  he  may  have  had  as  to  the  condition  of 
this  roof  on  Friday,  when  he  left  the  mine.  Also  look  to  the  evi- 
dence in  determining  what  he  knew  of  its  condition  on  Monday,  at 
the  time  he  set  up  these  posts,  in  determining  whether  an  ordinarily 
prudent  and  careful  man  would  have  gone  under  this  stone  at  the 
time  of  the  happening  of  this  accident.  It  is  claimed  by  plaintiff 
that  he  was  injured  some  little  time  after  these  posts  had  been  set; 
that  he  went  under  this  particular  stone  that  fell,  and  between  these 
posts,  to  get  a  sledge,  preparatory  to  going  home;  that  while  stoop- 
ing over  to  pick  up  this  sledge,  this  stone  fell,  and  he  was  injured 
thereby.     You  are  to  measure  his  conduct  at  the  time  of  the  acci- 

72— McGee     v.      Smitherman,      69     Ark.  632,  65  S.  W.  461  (463). 


990  FORMS  OF  INSTRUCTIONS.  [§  I486. 

dent  with  the  knowledge  that  he  possessed  before  that  time;  con- 
sider that,  and  look  at  his  conduct  at  the  time  of  the  happening  of 
this  accident.  It  would  not  be  sufficient  to  defeat  the  plaintiff  in 
this  case  to  show  that  he  was  negligent  at  a  time  prior  to  the  hap- 
pening of  the  accident,  unless  such  negligence  contributed  to  his  own 
injury.  Look,  then,  gentlemen,  to  all  the  circumstances  that  have 
been  proved  that  bear  upon  this  particular  question.  If  you  are  not 
satisfied  by  a  preponderance  of  the  evidence  that  the  plaintiff  is 
guilty  of  negligence  which  contributed  to  his  own  injury, — as  I  have 
explained  to  you  in  these  instructions, — and  if  you  are  satisfied  that 
the  defendant  was  guilty  of  negligence,  and  that  such  negligence 
was  the  proximate  cause  of  his  injury,  then,  in  that  case,  the  plain- 
tiff will  be  entitled  to  recover.  But  if,  upon  the  other  hand,  you 
are  not  satisfied  that  the  defendant  was  guilty  of  negligence  under 
the  instructions  I  have  given  you,  or  if  you  are  satisfied  that  it  was, 
and  are  not  satisfied  that  such  negligence  was  the  proximate  cause 
of  the  injuiy  which  plaintiff  has  sustained,  or  if  you  are  satisfied 
that  it  was  the  proximate  cause  of  his  injury,  and  you  are  satisfied 
by  a  preponderance  of  the  evidence  that  the  plaintiff  was  negligent, 
and  that  such  negligence  contributed  to  his  own  injury,  even  in  the 
slightest  degree,  then,  in  that  case,  your  verdict  should  be  for  the 
defendant. 

(b)  If  a  part  of  the  roof  of  the  room  in  which  plaintiff  worked 
was  unsafe  and  liable  to  fall,  and  props  were  needed  for  its  sup- 
port and  the  defendant  neglected  to  furnish  the  props  when  needed, 
and  the  plaintiff  knew  the  roof  was  in  that  unsafe  condition,  and 
remained  in  the  room  or  otherwise  exposed  himself  to  the  danger 
from  the  fall  of  the  roof,  Avhen  he  could  have  left  the  room,  then 
plaintiff  cannot  recover  in  this  case. 

(c)  If  a  part  of  the  roof  of  the  room  in  which  plaintiff  worked 
was  unsafe  and  liable  to  fall,  and  props  were  needed  for  its  support, 
and  the  defendant  neglected  to  furnish  the  props  when  needed,  and 
the  plaintiff  had  the  means  of  knowing  the  roof  was  in  that  unsafe 
condition,  and  remained  in  the  room  or  otherwise  exposed  himself  to 
the  danger  from  the  fall  of  the  roof,  when  he  could  have  left  the 
room,  then  plaintiff  cannot  recover  in  this  case. 

(d)  Under  the  most  careful  circumstances,  mining  coal  is  at- 
tended with  danger,  and  persons  engaged  therein  are  presumed  to 
incur  the  risks  incident  thereto,  and  if  the  plaintiff  in  this  case  knew, 
or  had  the  means  of  knowing,  that  a  part  of  the  roof  of  the  room  in 
which  ho  worked  was  unsafe  and  liable  to  fall,  he  cannot  recover  in 
this  case. 

(e)  If  tlie  defendant  in  this  case  neglected  to  fumish  props  at 
the  room  in  which  plaintiff  worked  and  the  roof  of  the  room  was 
in  a  dnngernns  condition,  and  the  plaintiff  knew  its  condition,  then 
plaintiff  cannot  recover  in   this  case. 

(f)  If  the  plaintiff  knew  the  dangerous  condition  of  the  room,  and 


§  1487.]  NEGLIGENCE— MASTER  AND   SERVANT.  991 

continued  in  the  sendee  in  the  room,  or  remained  therein,  he  cannot 
recover  in  this  case. 

(g)  If  the  plaintiff  knew  of  the  unsafe  or  dangerous  condition  of 
the  roof  of  the  room  iu  which  he  was  at  work,  then  he  cannot  recover 
in  this  case. 

(h)  If  the  defendant  in  this  case  neglected  to  furnish  props  at 
the  room  in  which  plaintiff  worked,  and  the  roof  of  the  room  was 
in  a  dangerous  condition,  and  the  plaintiff  had  the  means  of  know- 
ing that  the  roof  was  in  a  dangerous  condition,  then  the  plaintiff  can- 
not recover  in  this  case. 

(i)  If  the  defendant  in  this  case  neglected  to  furnish  props  at  the 
room  in  which  plaintiff  worked,  and  the  roof  of  the  room  was  in  a 
dangerous  condition,  and  the  plaintiff  by  the  exercise  of  ordinary 
care  could  have  discovered  the  dangerous  condition  of  the  roof  of 
the  room,  then  plaintiff  cannot  recover  in  this  case. 

(j)  If  the  plaintiff,  by  the  exercise  of  ordinary  care,  could  have 
ascertained  that  the  part  of  the  roof  which  fell  and  injured  him  was 
in  an  unsafe  condition  and  liable  to  fall,  and  exposed  himself  to  the 
danger  by  going  thereunder,  he  cannot  recover  in  this  case. 

(k)  If  the  plaintiff  knew,  or  had  reason  to  apprehend,  that  it 
would  be  risky  to  go  under  this  stone,  referred  to  in  the  testimony, 
that  fell  on  the  plaintiff,  and  with  this  apprehension  and  knowledge 
he  took  the  risk,  he  cannot  recover  of  the  defendant. 

(1)  If  the  plaintiff  knew,  or  had  the  means  of  knowing,  that  the 
stone  which  fell  and  injured  plaintiff  was  loose  and  liable  to  fall, 
and  went  under  the  stone,  then  plaintiff  cannot  recover.''^ 

§  1487.  Contributory  Negligence  in  Lowering  Air  Pump.  If  j^ou 
find  that  the  said  C.  R.  was  injured  in  lowering  said  air  pump,  as 
alleged  by  plaintiff,  and  that  such  injury,  if  any,  directly  resulted 
in  his  death,  yet,  if  you  further  find  that  the  deceased,  C.  R.,  failed 
to  exercise  ordinary  care  in  looking  out  for  his  own  safety  in  lower- 
ing said  air  pump,  and  that  such  failure,  if  any,  either  proximately 

73 — Coal    Co.    V.    Estievenard,    53  it   is   caused   by  the  want   of  ordi- 

Ohio  St.   43,  40  N.  E.   Rep.  725   (727  nary  care  on  part  of  the  employer, 

and   728).  "  _  combined    with    want    of    ordinary 

"These  requests  were  all  perti-  care  on  the  part  of  the  employe.  If 
nent  to  the  case  upon  the  facts  as  it  took  the  want  of  ordinary  care 
claimed  by  defendant  below,  and  of  both  the  employer  and  em- 
were  all  sound  law  when  applied  ploye  to  produce  the  injury,  both 
to  such  facts.  The  plaintiff  below  are  at  fault,  and  there  can  be 
was  under  obligation  to  use  ordl-  no  recovery  by  either.  Where 
nary  care  for  his  own  safety,  both  parties  are  neglig-ent,  and  the 
Whntever  he  knew,  or  oug-ht  to  injury  is  caused  by  such  combined 
have  known,  and  failed  to  act  upon  negligence,  there  can  be  no  recov- 
with  ordinary  care  for  his  own  ery  by  either  party.  B.  &  O.  R. 
safety,  constituted  such  negligence  Co.  v.  M^heeling,  P.  &  C.  Tr.  Co., 
on  his  part  as  would  prevent  a  re-  32  Ohio  St.  116.  147;  Railway  Co! 
covery.  To  warrant  a  recovery,  it  v.  Elliott,  28  Ohio  St.  340;  Ker- 
must  appear  that  the  injury  was  whaker  v.  Railroad  Co..  3  Ohio  St. 
caused  by  the  want  of  ordinary  172,_  62  Am.  Dec.  246;  Timmons  v. 
care  on  part  of  the  employer,  and  Railroad  Co.,  6  Ohio  St.  105,  109.'* 
the  injury  is  not  so  caused,  when 


992 


FORMS  OF  INSTRUCTIONS. 


[§  1488. 


caused  or  contributed  to  his  injuiy,  if  any,  then  plaintiff  cannot  re- 
cover, and  you  will  so  find.''* 

§  1488.  Using  Defective  Shaft  of  Wagon  in  Alighting.  The  court 
instructs  the  jury  that  if  they  believe  from  the  evidence  in  this  case 
that  the  plaiutilf,  A.  B.,  at  and  before  the  time  he  went  upon  said 
wagon  on  the  day  of  the  accident  in  question,  had  personal  knowl- 
edge that  the  shaft  and  step  of  said  wagon  were  defective,  broken 
and  unsafe,  and  that  the  plaintiff  made  use  of  such  defective  shaft 
in  attempting  to  alight  from  said  wagon,  knowing  it  to  be  defective, 
•broken  and  unsafe  at  the  time,  then  the  jury  should  consider  such 
fact  in  determining  whether  the  plaintiff  was  in  the  exercise  of  due  or 
ordinary  care  at  the  time  of  the  injury.''^ 

§  1489,  Contributory  Negligence  in  Unloading  Cattle.  If  you  find 
from  the  evidence  that  the  plaintiff,  in  performing  his  duties  in  pre- 
paring the  car  and  the  chute  for  unloading  the  cattle,  obtained  the 
aid  and  assistance  of  C,  who  was  not  employed  by  defendant  to 
perfonn  the  services,  and  who  was  not  accustomed  to  do  so,  and 
stood  in  the  way  of  the  running  board,  and  failed  to  exercise  due 
care  in  the  placing  of  the  board,  and  that  this  was  negligence  on  the 
part  of  the  plaintiff,  which  contributed  to  his  injuries,  if  any  he  re- 
ceived, you  will  find  for  the  defendant.  Contributory  negligence  must 
be  established  by  a  preponderance  of  the  evidence.''^ 


74— Ramm  v.  R.  R.  Co.,  —  Tex. 
Civ.    App.   — ,    92   S.    W.    426. 

"The  charge  is  not  open  to  the 
criticism  that  the  court  assumed 
that  deceased  had  been  guilty  of 
negligence.  The  finding  of  negli- 
gence was  clearly  left  to  the  jury 
when  they  were  instructed  to  find 
whether  deceased  had  failed  to 
exercise  ordinary  care  in  lower- 
ing the  pump,  because  the  fail- 
ure to  exercise  ordinary  care  is 
negligence,  as  the  court,  in  a  para- 
graph immediately  following  the 
one  copied,  correctly  informed  the 
Jury,  and  also  gave  a  definition  of 
ordinary  care.  Similar  charges 
have  been  approved  by  the  Su- 
preme Court.  St.  L.  S.  W.  Ry. 
Co.  v.  Casseday,  92  Tex.  526,  50  S. 
W.  125.  The  case  of  M.,  K.  &  T. 
Ry.  v.  Rogers,  91  Tex.  52,  40  S.  W. 
946,  cited  by  .appellant,  is  not  per- 
tinent or  applicable.  In  that  case 
a  requested  charge  made  a  fail- 
ure to  look  and  listen  when  cross- 
ing a  railroad  negligence,  without 
allowing  the  jury  to  pass  on 
whether  or  not  it  was  negligence, 
and  the  court  said  It  was  prop-- 
eriy  refused,  but,  if  It  had  charged 
the  jury  that  if  fhoy  found  the 
party  had  brfn  guilty  of  a  failure 
to    exercise    ordinary    care,    which 


was  defined,  and  such  failure  had 
contributed  to  the  injury,  the  Su- 
preme Court  would  not  have  held 
the  charge  to  be  incorrect.  The 
difference   is   apparent." 

75— Wink  v.  Weiler,  41  111.  App. 
336    (342). 

76— Galveston  H.  &  S.  A.  Ry.  Co. 
V.  Mohrmann,  —  Tex.  Civ.  App. 
— ,    93   S.    W.    1090   (1092). 

"This  charge  is  complained  of 
as  error.  The  charge  submits  the 
issue  of  contributory  negligence  in 
the  very  language  pleaded  by  the 
appellant.  As  all  the  facts  relied 
upon  to  constitute  contributory 
negligence  are  pleaded  conjunctive- 
ly, if  appellant  deemed  that  there 
was  evidence  tending  to  prove  one 
or  more  of  the  facts  alleged — less 
than  all — and  that  such  proof 
would  warrant  the  jury  in  finding 
the  appellee  guilty  of  contribu- 
tory negligence,  it  should  have 
prepared  and  requested  a  special 
charge,  submitting  such  theory  of 
contributory  npgligence  to  the 
jury.  G..  C.  &  S.  P.  Ry.  Co.  v. 
Hill,  95  Tex.  629,  69  S.  W.  136; 
Ratterree  v.  G.,  H.  &  S.  A.  Ry.  Co., 
36  Tex.  Civ.  App.  197.  81  S.  W. 
566;  I.  &  G.  N.  Ry.  v.  Vanlanding- 
ham,  —  Tex.  Civ.  App.  — ,  85  S.  W. 
849;    Crowder   v.    St.    Louis    S.    W. 


§  1490.]  NEGLIGENCE— MASTER  AND   SERVANT.  993 

§  1490.  Contributory  Negligence  in  Grinding  Tool.  If  you  be- 
lieve from  the  evidence  that,  through  the  negligence  of  the  de- 
ceased, the  tool  deceased  was  grinding  was  caught  between  the  rest 
and  the  wheel,  thereby  causing  it  to  break,  then  your  verdict  should 
be  for  the  defendant.'^ 

§  1491.  Injury  through  Careless  Use  of  Hammer.  The  court  in- 
structs the  juiy  that  if  thej-  believe  from  the  evidence  that  the  only 
tools  used  by  this  plaintiff  to  perform  his  work  were  a  hammer  and 
a  mandrel,  and  that  said  tools  were  reasonably  safe  and  suitable 
tools  for  the  plaintiff  to  use  in  the  performance  of  his  duties,  but  that 
this  'plaintiff  used  the  hammer  in  so  careless  a  manner  as  to  strike 
the  mandrel  instead  of  the  wire  handle  of  the  utensil,  and  thereby 
caused  a  piece  of  the  hammer  to  chip  off  and  fly  up  and  strike  him 
in  the  eye,  thus  causing  the  injury,  then  the  plaintiff  himself  was 
negligent,  and  cannot  recover.'^® 

§  1492.  Working  with  Split,  Frayed,  Raveled  or  Untwisted  Rope. 
The  juiy  are  instructed  that  even  if  they  believe  from  the  evidence 
that  the  rope  referred  to  in  the  evidence  in  this  ease  was  split, 
frayed,  raveled  or  untwisted,  and  even  if  they  believe  from  the  evi- 
dence that  the  plaintiff  was  directed  by  J.  H.  to  put  said  rope  on  the 
spool  just  before  he  was  injured,  yet  the  jury  are  further  instructed 
that  if  they  believe  from  the  evidence  that  the  plaintiff  at  the  time 
he  put  the  rope  on  the  spool  knew  of  the  condition  of  the  rope,  and 
knew  and  appreciated  the  danger,  and  further  believe  that  the  dan- 
ger was  so  imminent  that  an  ordinarily  prudent  man  would  not  in- 
cur it,  but  would  disobey  the  order,  there  can  be  no  recovery.''^ 

INSmiANCE. 

§  1493.  Agreements  Between  Employers  and  Employes  as  to  Insur- 
ance Against  Accidents,  (a)  The  court  instructs  the  jury  that  a 
contract  of  insurance  may  be  entered  into  by  and  between  parties 
not  engaged  in  the  insurance  business;  and,  if  the  jury  And  from  the 
evidence  in  this  ease  that  defendant  agreed  to  insure  the  plaintiff 
against  accidents  causing  injury  to  person,  it  would  be  binding  upon 
it,  although  the  defendant  was  not  in  the  insurance  business. 

(b)  The  burden  of  proof  in  this  case  is  upon  the  plaintiff  to 
show  by  a  preponderance  of  the  evidence  that  the  defendant  en- 
gaged, for  a  consideration  paid  to  it,  as  an  insurer,  to  insure  the 
plaintiff  against  accidents  causing  injury  to  person  as  stated  in  the 
complaint;  and  in  this  ease,  if  you  believe  from  the  evidence  that 

Ry.  Co.,  —  Tex.  Civ.  App.  — ,  87  S.  was    a    correct    statement    of    the 

W.  166.    Certainly  the  paragraph  of  law."      Duerst   v.    St.    L.    Stamping 

the    charge    presented    no    afflrma-  Co..  163  Mo.  607,  63  S.  W.  827  (831). 

tive  error."  79—111.   S.    Co.   v.   Wierzbicky,   107 

77— Skelton    v.    Pac.    L.    Co.,    140  Til.    App.    69   (76),    aff'd   206   111.   201, 

Cal.  507.  74  Pac.  13  (15).  68  N.  E.  1101. 

78 — "This       refused       instruction 
63 


994  FORMS  OF  INSTRUCTIONS.  [§  1494. 

the  defendant  was  merely  acting  as  trustee  for  its  employes,  among 
whom  was  the  plaintiff,  you  will  find  your  verdict  for  the  defendant.^" 

(c)  The  court  instructs  the  jury  that  if  you  find  and  believe  from 
the  evidence  that  a  policy  of  insurance  to  indemnify  plaintiff  against 
loss  or  damage  by  injury  received  by  him  while  in  defendant's  em- 
ploy was  procured  from  the  A.  Life  Insurance  Company  by  an  ar- 
rangement between  the  plaintiff  and  defendant,  each  paying  one-half 
of  the  premium  for  such  insurance,  and  that  defendant  complied  with 
its  part  of  the  contract  and  paid  all  of  the  premiums  due  from  it 
up  to  the  time  plaintiff  received  his  injuries,  and  that  defendant  re- 
ceived from  said  insurance  company  the  sum  of  $ in  settlement 

of  the  injuries  received  by  him,  and  executed  a  release  and  receipt 
to  such  insurance  company,  then,  in  that  event,  plaintiff  cannot  re- 
cover any  further  sum  as  against  the  defendant.  And  further  find 
that  such  insurance  was  intended  by  plaintiff  and  defendant  to  be 
in  lieu  of  any  claim  of  plaintiff  against  the  defendant  for  any  injury 
received  by  him  while  in  defendant's  employ. 

(d)  The  court  instructs  the  jury  that  if  you  believe  and  find  from 
the  evidence  that  a  contract  for  indemnity  insurance  was  procured 
by  plaintiff,  and  he  was  entitled  to  receive  from  the  insurance  com- 
pany for  his  injury  indemnity  for  a  period  of  fifty-two  weeks  at 
the  rate  of  $1  per  day,  and  further  find  that  he  accepted  the  sum 

of  $ in  full  settlement  of  his  claim  in  said  insurance  policy,  then 

you  may  take  such  facts  into  consideration  in  determining  the  extent 
and  character  of  his  injuries  and  in  mitigation  of  damages,  if  any, 
to  which  you  may  believe  he  is  entitled  on  account  of  injuries.^^ 

RELEASES. 

§  1494.    Release  of  Right  of  Action  by  Servant.    If  you  believe 

from  the  evidence  that  on  or  about  the  ,  the  plaintiff  agreed 

with  the  defendant  upon  a  compromise  of  his  claim  for  the  damages 
sued  for  in  this  cause  for  the  sum  of  $1  and  the  promise  to  employ 
him  for  one  day  as  section  foreman,  and  the  further  promise  of  the 
general  claim  agent  of  the  defendant  company  to  pay  to  the  plain- 
tiff the  full  time  lost  by  him  on  account  of  his  injuries,  the  same 
to  be  ascertained  by  a  statement  of  the  attending  pln^sicians ;  and  if 
you  believe  that  the  plaintiff  then  and  there  accepted  said  promise 
and  agreement,  together  with  $1,  and  the  employment  of  him  for  one 
day  as  a  section  foreman  in  satisfaction  and  discharge  of  his  original 

80— Arkadplphia  L.   Co.  v.  Posey,  his     employer,     and     also     empha- 

74  Ark,   377  (?.7^).  85  S.  W.  1127.  sized    appellant's    claim    of    partial 

81— Dover  v.   M.   R.  ^  B.   T.   Ry.,  payment    bv    it    of    accruing    pre- 

—  Mo.  — .  7.3  S.  W.  298  C299).  "These  miums,  and  directed  the  jury  that 

Instructions,  as  piven  by  the  court,  the  acceptance  of  the  sum  paid  by 

fairly  prc.sentpd   for  the  considera-  the    insurance    company    mig-ht    be 

tjon  of  tho  Jury  the  issue  that  the  taken    into    consideration    in    miti- 

beneflta    received    under   the   policy  p-ntion    of    damajre.s,    and    were    as 

were  In  satisfaction  and   discharpre  favorable     to     defendant     as     the 

or  any   claim  for  damages  against  proof  sanctioned." 


§  1494.]  NEGLIGENCE— MASTER  AND   SERVANT.  995 

cause  of  action  on  account  of  his  injuries,  and  that  he  agreed  and 
expected  to  look  to  and  demand  of  the  defendant  the  sum  of  the 
time  lost  by  him  on  account  of  such  injuries  when  same  were  ascer- 
tained by  his  physician,  under  said  promise  and  agreement,  and  not 
to  demand  of  defendant  damages  on  account  of  his  original  cause  of 
action  as  it  stood  befoi'e  such  promise  and  agreement  was  made — ■ 
then  you  will  find  a  verdict  for  the  defendant.^- 

82— Gulf,    C.    &    S.    F.    Ry.    Co.    v.     Minter,  —  Tex.   Civ.  App.  — ,  93  S. 

W.    516    (517). 

See  "Negligence,  Master  and  Servant,    Railway   Companies,"    chap- 
ter LXIV. 


CHAPTER  LXIV. 

NEGLIGENCE— MASTER    AND     SERVANT— RAILWAY     COM- 
PANIES. 


See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


IN  GENERAL. 

§  1495.  Duty  of  raih-oad  compa- 
nies. 

§  1469.  Master  cannot  delegate  duty 
to  furnish  reasonably 
safe  places  for  servants 
to  work  in. 

APPLIANCES. 

§  1497.  Railroad  companies  bound 
to  furnish  safe  and  ap- 
propriate   appliances. 

§1498.  Employe  may  assume  that 
appliances  furnished  by 
master  'are  reasonably 
safe. 

§  1499.  Duty  of  railway  company 
to  provide  suitable  and 
safe  material  and  skillful 
workmanship. 


KOLLING  STOCK. 

§  1500.  Duty  of  railway  company  to 
provide  safe  rolling  stock. 

§  1501.  Duty  as  to  inspection  of  car 
received  from  other 
I'oads. 

§  1502.  Furnishing  car  strong 
enough  for  the  transpor- 
tation  of  steel   nails. 

§  1503.  Cars  must  be  in  condition 
to  be  uncoupled  with  rea- 
sonable safety. 

5 1504.  Not  negligence  for  railroad 
to  use  couplings  or  dead- 
woods   of   unequal    height. 

§  1505.  Defects  in  coupling  appara- 
tus between  caboose  and 
locomotive. 

9 1506.  Injuries  through  defective 
drawbars   or  drawheads. 

5 1507.  Injury     to     brake      through 

brake    staff    breaking. 

5 1508.  Latent   defect   in   brake   rod. 
81509.  Using     car     without     hand- 
holds. 

11510.  Defect  In  hand-hold  of  car- 
Competency   of   inspector. 

996 


§  1511.  Ordinarily  no  obligation  to 
provide  steps  at  end  of 
freight  cars  for  use  of  em- 
ployes. 

§  1512.  Injury  to  engineer  through 
defective    step    on    engine. 

§  1513.  Notice  by  engineer  to  fore- 
man of  roundhouse  of  de- 
fect in  engine. 

§  1514.  Injury  to  fireman  from  side 
rod    on  engine  breaking. 

§  1515.  Furnishing  trucks  for  re- 
moval of  trestles  from 
roundhouse. 


§  1516. 
§  1517. 
§  1518. 

§  1519. 

§  1520. 

§  1521. 

§  1522. 
§  1523. 
§  1524. 

§  1525. 
§  1526. 

§  1527. 
§  1528. 


TRACK  AND  ROAD-BED. 

Obligation  to  keep  roadbed 
and  track  free  from  ob- 
structions. 

Master  must  use  ordinary 
care  to  see  that  they  are 
safe. 

Right  of  locomotive  en- 
gineer to  assume  that 
railroad  track  is  reason- 
ably safe. 

Tracks  and  sidings  must 
not  be  in  too  close  prox- 
imity to   other  structures. 

Failure  to  keep  track  in 
repair  as  proximate  cause 
of    injury. 

Injury  to  employe  through 
insufficient  ballasting  of 
roads. 

Side  track  slanting  and 
sidling. 

Injury  by  protruding  cross 
tie   and   hole   in    track. 

Allowing  timber  to  stick 
out  of  shed  and  over 
transfer  table. 

Allowing  derrick  to  swing 
over   track. 

Negligence  of  master  in  al- 
lowing clinker  to  remain 
at  side  of  track. 

Wreck  of  train  on  defective 
bridge. 

Law  fixes  no  exact  stand- 
ard for  height  of  bridges 
over    railroadSj 


NEGLIGENCE— MASTER  AND   SERVANT. 


997 


OPERATION  AND  MANAGEMENT  OF 
TRAINS  AND   CARS. 

§  1529.  Necessity  of  lookout  at 
points  where  employes 
commonly  pass  in  dis- 
charge  of   their   duties. 

§  1530.  Injury  through  Act  of  God 
and  concurient  negligence 
of   defendant. 

§  1531.  Injury  to  servant  through 
failure  to  obey  ordinances 
as  to  speed  or  ringing 
bell. 

§  1532.  Failure  of  engineer  or  fire- 
man to  obey  signals  to 
slow  up  train. 

§  1533.  Neglect  of  engineer  to  obey 
signal  to  stoj?  train  run 
at  dangerous  rate  of 
speed. 

§  1534.  Failure  to  give  such  a  warn- 
ing of  approach  of  engine 
as  could  be  heard  by  per- 
sons   of    ordinary   hearing. 

§  1535.  Telegraph  operator  injui-ed 
while  delivering  order  to 
engineer  of  train — Second 
train   giving   no    signals. 

§  1536.  Collision  through  failure  of 
engineer  to  give  flag  sig- 
nal. 

§  1537.  Injury  through  passenger 
train  colliding  with  loose 
car. 

§  1538.  Injury  to  plaintiff  while 
coupling  cars  or  throwing 
wrong   switch. 

§  1539.  Duty  to  set  brakes  while 
couplings  are  being  ad- 
justed. 

§  1540.  Using  hand-car  without  a 
brake. 

§  1541.  Sending  hand-cars  at  great 
speed  immediately  after 
one  another. 

§  1542.  Kicking  car  upon  track  at 
a  high  and  dangei'ous  rate 
of   speed. 

§  1543.  Injury  to  person  repairing 
track  by  cars  being 
kicked  back  without 
warning. 

§  1544.  Engine  leaving  track 

through  brakeman  lock- 
ing switch  to  wrong 
track. 

§  1545.  Injury  to  servant  while  re- 
moving tie  from  gravel 
deck — Orders  of  vice-prin- 
cipal. 

§  1546.  Laborers  working  on  or 
about  gravel  cars — Duty 
to   avoid   injury   to. 

§  1547.  Duty  of  section  foreman 
toward  servant  while  un- 
loading car. 


RULE   AND   REGULATIONS. 

§  1548.  Duty  to  make  proper  rules 
for   safety   of   servants. 

§  1549.  Railroad  not  liable  for  in- 
jury through  disregard  of 
its    plain    instructions. 

§  1550.  Disobeying  rules  as  to  coup- 
ling cars. 

§  1551.  Rule  against  coupling  cars 
in  motion  may  be  waived. 

§  1552.  Authority  to  remove  ashes 
and  fire  no  authority  to 
move  engines. 

§  1553.  Failure  of  engineer  to  re- 
port defects  at  end  of  run 
as    required   by    company. 

FELLOW  SERVANTS. 

§  1554.  Fellow   servants    defined. 

§  1555.  Negligence  of  the  company 
in    employing   servant. 

§  1556.  Fellow  servants  of  brake- 
man. 

§  1557.  Fellow    servants   of   fireman. 

§  1558.  Fellow  servants  of  mechanic 
on  railroad. 

§  1559.  Section  boss  as  vice-princi- 
pal. 

§  1560.  Injuries  while  operating  car 
with  fellow  servants. 

ASSUMPTION   OF   RISK. 

§  1561.  Employe  assumes  all  ordi- 
nary risks. 

§  1562.  What  is  a  "risk  ordinarily 
incident  to  his  employ- 
ment." 

§  1563.  Servant  must  report  defects 
to    master. 

§  1564.  Servant  having  knowledge 
of  defects. 

§  1565.  Locomotive  engineer  as- 
sumes all  risks  incident  to 
prosecution  of  employ- 
ment in  usual  and  ordi- 
nary way. 

§  1566.  Risks  assumed  by  locomo- 
tive engineer. 

§  1567.  Assuming  risk  of  working 
with  engineer  on  first  trip. 

§  1568.  Knowledge  of  fireman  that 
engine  was  without  brake 
shoes. 

§  1569.  Assumption  of  risk  by  fire- 
man as  to  brakes  on 
wheels. 

§  1570.  Assumption  of  risk  by 
switchman. 

§  1571.  Risks  assumed  by  conductor 
of   passenger   train. 

§  1572.  Railway  company  not  liable 
for  injuries  from  obvious 
or  patent  defects. 

§  1573.  Rule  in  South  Carolina  as 
to  obviously  defective  ap- 
pliances. 


998 


FORMS  OF  INSTRUCTIONS. 


[§  1495. 


§  1574.  Railroad  employe  need  not 
search    for    latent    defects. 

§  1575.  Continuing-  in  employment 
with  knowledge  of  dan- 
gerous   conditions. 

§  1576.  Engineer's  knowledge  of  de- 
fect in  head-light. 

§  1577.  Assumption  of  risk  as  to  de- 
fective stirrup  after  prop- 
er inspection. 

§  1578.  Failure  of  servant  to  dis- 
cover absence  of  ladder, 
handles  or  steps  at  end 
of   car. 

§  1579.  Servant  assumes  risks  of 
usual  jarring  and  shak- 
ing   of    car. 

§  1580.  Assuming  risk  as  to  defect- 
ive track. 

§  1581.  Assuming  risk  of  working 
on   side  track. 

§  1582.  Knowledge  of  presence  of 
dangerous  culvert  or  cat- 
tle-guard. 

§  1583.  Equal  knowledge  of  master 
and  servant  as  to 
"dodged"  or  low  joint  in 
track. 

CONTRIBUTORY  NEGLIGENCE. 

§  1584.  Failure  of  engineer  to  exer- 
cise ordinary  care  in  oper- 
ating engine. 

§  1585.  Contributory  negligence  of 
plaintiff  in  wetting  deck 
and  apron  of  engine. 

§  1586.  Failure  of  engineer  to  keep 
proper  lookout  to  avoid 
collision. 

§  1587.  Failure  to  check  train  run 
at  dangerous  speed  when 
in  servant's  power  to  do 
so. 

§  1588.  Bleeding  reservoir  of  car  on 
bridge    unnecessarily. 

5  1589.  Shifting  cars  by  "kicking"' 
them  back  not  negligence 
per  se. 

§  1590.  Contributory     negligence    of 


§  1591.  Voluntarily  disconnecting 

cars  while  in  motion. 

§  1592.  Failure  to  guard  against 
danger  of  known  custom 
of  kicking  cars  while 
switching. 

§  1593.  Failure  to  have  switch 
thrown  back  after  enter- 
ing  spur  track: 

§  1594.  Care  due  by  employe  for  his 
own  safety  while  signal- 
ling   returning    section. 

§  1595.  Failure  to  use  stirrup  and 
hand  hold  in  boarding 
car. 

§  1596.  Contributory  negligence  of 
servant  in  failing  to  keep 
lookout  for  signals. 

§  1597.  Failure  to  heed  whistle  or 
bell. 

§  1598.  Failure  to  discover  ap- 
proaching  train. 

§  1599.  Boarding  rapidly  moving 
engine. 

§  1600.  Contributory  negligence  of 
yardmaster  in  boarding 
moving   engine. 

§  1601.  Jumping  from  moving  train 
at    defendant's    command. 

§  1602.  Conducting  oneself  in  dan- 
gerous   way    on   'hand-car. 

§  1603.  Negligently  striking  mauls 
one  against  another  while 
laying    railroad    track. 

§  1604.  Employe  voluntarily  placing 
himself  in  place  of  danger 
between  engine  and  car. 

§  1605.  Riding  on  foot-board  of  en- 
gine —  Engine  colliding 
with    other    cars — Series. 

§  1606.  Employe  sleeping  in  caboose 
— Another  train  colliding 
with  caboose — Knowledge 
of  custom  to  sleep  in  ca- 
boose   by    company. 

§  1607.  Employe  riding  on  work 
train. 

§  1608.  Remaining  in  dangerous  po- 
sition in  reliance  on  fore- 
man. 


employe  in   coupling  cars. 
See  "Negligence,  Master  and  Servant,"  Chapter  LXIII. 
m  GENERAL. 
§  1495.     Duty  of  Railway  Companies — To-wards  Employes.     The 
jury  are  instructed,  that  it  is  the  duty  of  a  railway  company,  as 
employer,  to  use  all  reasonable  care  and  foresight  to  provide  safe 
structures,  competent  employes,  and  all  appliances  necessary  to  the 
safety  of  the   employed,   and   to   adopt   such  rules   and  regulations 
for  running  its  trains  as  will  avoid  injui-y  to  its  employes,  so  far 
as  this  can  reasonably  be  done;  and  having  adopted  such  rules,  to 
use  all  reasonable  efforts  to  conform  to  them,  or  the  company  will 
be   responsible   for   consequences   resulting   from   a   departure   from 
them.* 
1— Chicago,  etc.,  Rd.   Co.  v.  Taylor,  69  111.  461. 


§  1496.]  NEGLIGENCE>-MASTER  AND   SERVANT.  999 

§  1496.  Master  Cannot  Delegate  Duty  to  Furnish  Reasonably 
Safe  Places  for  Servants  to  Work.  It  is  the  duty  of  a  railway 
company  not  only  to  provide  but  maintain  reasonably  safe  places 
for  its  servants  to  work  in;  and  it  cannot  delegate  this  duty  to 
another,  and  thereby  relieve  itself  from  responsibility.  And  a  serv- 
ant engaged  in  the  sei'vice  of  a  railroad  company  has  a  right  to 
rely  upon  the  company  to  furnish  him  with  a  reasonably  safe  place 
in  which  to  work,  and  it  is  the  duty  of  the  company  to  maintain 
such  place  in  a  reasonably  safe  condition  while  the  service  continues.^ 

APPLIANCES. 

§  1497.  Railroad  Companies  Bound  to  Furnish  Ordinarily  Safe 
and  Appropriate  Appliances,  The  court  instructs  the  jury  that  it 
is  the  duty  of  railroad  companies  to  use  reasonable  care  in  fur- 
nishing to  their  employes  implements  and  appliances  with  which 
the  said  employes  are  to  perform  their  work,  and  to  see  that  such 
implements  are  ordinarily  safe  and  appropriate  ones  to  be  used. 
The  care  which  said  companies  are  bound  to  use  is  such  as  an 
ordinai'ily  prudent  person  would  use  in  such  matters.^ 

§  1498.  Employe  May  Assume  That  Appliances  Furnished  by 
Master  Are  Reasonably  Safe.  The  court  instructs  the  jury  that  it 
is  the  duty  of  a  railway  company  to  exercise  ordinary  care  to  fur- 
nish its  servants  and  emploj^es  reasonably  safe  and  suitable  machin- 
ery and  appliances  with  which  to  perform  the  duties  required  of 
them;  and  when  a  person  enters  the  employment  of  a  railroad  com- 
pany he  has  the  right  to  rely  upon  the  assumption  that  the  ma- 
chinery and  appliances  with  which  he  is  called  upon  to  work  are 
reasonably  safe,  and  he  is  not  required  to  use  ordinaiy  care  to  see 
whether  this  has  been  done  or  not,  and  he  does  not  assume  the 
risk  arising  from  the  failure  of  the  railroad  company  to  do  its  duty 
(if  there  is  a  failure)  unless  he  knows  of  the  failure  and  the  at- 
tendant risk,  or  in  the  ordinaiy  discharge  of  his  own  duty  must 
necessarily  have  acquired  such  knowledge,  or  unless,  by  the  tenns 
or  nature  of  his  employment,  it  is  made  the  duty  of  such  person 
to  inspect  the  machinery  and  appliances  with  which  he  is  called 
upon  to  work,  and  he  has  failed  to  make  such  inspection.* 

§  1499.  Duty  of  Railway  Company  to  Provide  Suitable  and  Safe 
Material  and  Skillful  Workmanship.     A  railroad  company  is  bound 

2— B.    &    O.    S.    W.    Ry.    Co.    V.  3— Ohi..    R.    I.    &    P.    Ry.    Co.    V. 

SpauldinpT,  21  Ind.  App.   323,  52  N.  Long-.   32   Tex.    Civ.   App.   40,   74   S. 

E.   410   (412).  W.  59  (60). 

"It   states  the  law  in  strict  har-  "This    is    sanctioned    by    the   de- 

mony  with  what  we  have   said   in  cisions.     Galveston,  H.  &  S.  A.  Ry. 

the    former    part    of    this    opinion  Co.   v.   Gormley,   91   Tex.   393,   43  S. 

in  regard  to  the  duty  of  a  master  W.    877.   66   Am.    St.    Rep.    894;   Int'l 

to    provide    and    maintain    a    safe  &    G.    N.    Ry.    Co.    v.    Williams,    82 

place  or  safe  premises  in  which  his  Tex.  342.  IS  S.  "W.  700." 

servants  are  required  to  work."  4 — Mo.,  K.  &  T,  Ry.  Co.  of  Texas 


1000  FORMS  OP  INSTRUCTIONS.  [§  1500. 

to  use  all  reasonable  care  and  caution  to  provide  suitable  and  safe 
material  and  skillful  Avorkmanship  in  the  construction  of  its  road 
and  appurtenances  and  to  exercise  reasonable  care  and  watchfulness, 
to  keep  the  same  in  good  repair  and  safe  condition,  and  if  the  com- 
pany do  not  do  S'O,  and  in  consequence  thereof  an  injury  happens 
to  one  of  its  servants  or  employes,  while  in  the  exercise  of  rea- 
sonable care  and  caution  himself,  the  company  will  be  liable  for 
the  injury  thus  sustained.^ 


ROLLING  STOCK. 

§  1500.  Duty  of  Railway  Company  to  Provide  Safe  Rolling  Stock, 
(a)  A  railroad  company  must  use  reasonable  care  and  caution 
in  the  selection  of  its  rolling  stock,  and  in  the  employment  of 
competent  persons  to  manage  its  business,  so  that  no  unnecessary 
risk  shall  be  incurred  by  any  of  its  servants  in  the  discharge  of  their 
duties;  and  if  the  company  does  not  do  so,  and  an  injury  happens  to 
one  of  its  servants,  by  reason  of  such  neglect,  the  company  will  be 
liable  for  the  injury  thus  sustained,  provided  the  person  injured  is 
using  reasonable  care  and  caution  to  avoid  the  injury. 

(b)  It  is  a  duty  the  law  imposes  upon  railroad  companies  that 
they  shall  do  everything  that  reasonably  can  be  done  to  furnish 
safe  cars  to  its  employes,  to  be  used  by  them  in  working  on  the 
railroad,  and  it  is  not  a  duty  that  can  be  delegated  to  its  officers 
and  agents,  so  as  to  avoid  liability  on  the  part  of  the  company. 

(c)  And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  company,  through  the  negligence  and  want  of  reasonable  care 
of  its  servants  and  agents,  neglected  and  failed  to  furnish  a  safe  car 
upon  the  occasion  in  question,  but  did,  through  negligence  and  want 
of  reasonable  care  and  caution,  furnish  one  that  was  out  of  repair, 
as  charged  in  the  declaration,  and  that  by  reason  of  such  defect  the 
plaintiff  (or  the  deceased),  while  using  ordinary  care,  and  in  the 
discharge  of  his  duty,  was  injured  (or  killed),  then  the  jury  should 
find  the  defendant  guilty;  provided,  they  further  believe,  from  the 
evidence,  that  the  plaintiff  (or  the  deceased)  did  not  know  of  such 
defect,  and  could  not  have  known  the  same,  by  the  use  of  reasonable 
care  and  caution  on  his  part." 

V.    Blackman,    32    Tex.    Civ,    App.  Ry.  Co.  v.  Engelhorn,  24  Tex.  Civ. 

200.    74    S.    W.    74    (75).  App.   324,  62  S.  W.  561,  65   S.  W.   68 

"The    above   corrortly   announces  So.     Pac.     Ry.     Co.    v.    Winton,    27 

the  nbstract  principles  of  law  per-  Tex.    Civ.    App.    503,    66    S.    W.    481 

tninliitr    to    the    phase    of   the    case  Galveston,  Hi  &  S.  A.  Ry.  v.  Davis 

to    whifh    it    relates    made   by    the  27    Tex.    Civ.    App.    279,    65    S.    W 

pleafllDKS    and    the    evidence.      M.,  217." 

K.    &    T.    Ry.    V.    Hannlpr,    91    Tex.  5— Briekman    v.    S.    C.    Rd.    Co.,    8 

347.    43   H.   W.    508;    T.    <<fe   N.    O.    Rv.  S.    C.   173. 

V.    Rlnf,'le,    91    Tex.    287.    42    S.    W.  6— Perea  S.  Co.  v.  Kraft,  31   Ohio 

971;  T.  *:  P.  Ry.   v.  O'Fiel,  78  Tex.  St.   287. 
486,    15   S.    W.    33;    San   A.    &   A.    P. 


§  1501.]  NEGLIGENCE— MASTER  AND   SERVANT.  1001 

§  1501.    Duty  as  to  Inspection  of  Cars  Received  from  Other  Roads. 

The  court  instructs  the  jury  that  it  is  the  duty  of  the  defendant 
company  to  exercise  reasonable  and  ordinary  care  to  see  that  cars 
received  by  them  from  other  roads  are  in  a  reasonably  safe  and 
sound  condition  when  incorporated  in  its  moving  trains,  so  as  not  to 
subject  its  employes  when  handling  and  moving  its  trains,  to  unneces- 
sary or  unusual  danger  and  risk.  But  a  railway  company  is  not  an 
insurer  of  the  safety  of  its  employes  while  in  the  discharge  of  their 
duties,  nor  an  insurer  of  the  safety  and  suitableness  of  the  cars 
used  and  operated  on  its  road  by  its  emi^loyes,  but  it  is  held  only  to 
the  use  of  ordinary  care  to  see  that  the  cars  are  in  a  reasonably 
safe  condition  and  to  use  of  such  care  to  maintain  them  in  such 
reasonably  safe  condition.  The  defendant,  however,  cannot  be  held 
liable,  in  any  event,  if  he  has  exercised  ordinary  care  in  inspecting 
the  car  and  keeping  it  in  reasonably  safe  repair;  nor  would  the  de- 
fendant be  liable  if  the  alleged  defect  was  hidden,  and  could  not 
have  been  discovered  by  the  exercise  of  ordinary  care  on  the  part 
of  the  defendant.'' 

§  1502.  Furnishing  Car  Strong  Enough  for  the  Transportation  of 
Steel  Rails — Series,  (a)  The  court  instructs  the  jury  that  under 
the  evidence  in  this  cause  J.  M.  is  a  minor,  and  that  T.  M.  was  duly 
appointed  next  friend  of  the  said  J.  M.  The  court  instructs  the  jury- 
that  plaintiff  had  a  right  to  assume  that  the  car  furnished  for  his 
use  by  the  defendant  was  reasonably  safe  and  sufficient  for  the 
purpose  of  handling  steel  rails ;  and  it  was  not  incumbent  on  plaintiff 
to  search  for  hidden  defects  in  the  said  car,  but  it  was  the  duty  of 
the  defendant  to  use  reasonable  care,  diligence  or  caution  to  have 
said  ear  in  a  reasonably  safe  condition  for  use.  If  you  believe  from 
the  evidence  that  the  car  mentioned  in  the  evidence,  and  in  the  peti- 
tion, was  at  the  time  it  is  alleged  the  plaintiff  was  injured,  in  a 
defective  condition,  and  not  reasonably  safe,  and  that  the  agents 
or  servants  of  defendant  whose  duty  it  was  to  furnish,  inspect  or 
repair  such  ears,  knew,  or  by  the  exercise  of  reasonable  diligence 
might  have  known  the  condition  of  said  car,  then  such  knowledge  is 
knowledge  of  defendant,  and  such  neglect  or  failure  to  obtain  such 
knowledge  is  the  negligence  or  failure  of  defendant. 

(b)  The  court  instructs  the  jmy  that  if  you  believe  from  the 
evidence  that  on  or  about  the  18th  day  of  August,  1899,  J.  M.,  the 
plaintiff,  was  in  the  employ  of  defendant,  and  that  while  in  the 
discharge  of  his  duties  as  such  employe,  he  was  without  carelessness 
on  his  part,  which  contributed  directly  thereto,  struck  and  injured 
by  a  rail  falling  from  defendant's  car  because  said  car  was  weak, 
defective  and  not  reasonably  safe,  then  your  verdict  will  be  for 
plaintiff,  if  you  believe  the  weak,  defective  and  unsafe  condition  of 
said  car  was  unknown  to  plaintiff  and  could  not  have  been  known 

7— Int.  &  G.  N.  R.  Co.  v.  Hawes,     Tex.   Civ.  App.  — ,  54   S.  W.   325  (326) 


1002  FORMS  OF  INSTRUCTIONS.  [§  1502. 

by  ordinary  care  and  caution  on  his  part,  and  that  said  condition  of 
said  car  was  known  to  defendant,  or  might  have  been  known  to 
defendant  by  reasonable  diligence  and  inspection  on  its  part. 

(c)  The  court  instructs  the  juiy  that  it  is  the  duty  of  defendant 
to  supply  its  employes  with  cars  in  a  reasonably  safe  condition,  and 
it  is  the  duty  of  said  defendant  in  constructing  its  cars  for  the 
use  of  its  employes  to  exercise  ordinary  care  and  skill  in  construct- 
ing the  same,  and  in  selecting  the  materials  with  which  to  construct 
and  build  said  cars,  and  in  this  cause,  if  you  believe  defendant 
failed  or  neglected  to  discharge  these  duties  above  specified,  and  in 
consequence  of  such  neglect  the  car  broke  down  and  a  rail  on  said 
ear  fell  upon  and  injured  the  plaintiff  while  the  said  plaintiff  was 
in  the  exercise  of  ordinary  care,  then  the  verdict  will  be  for  the 
plaintiff. 

(d)  The  court  instructs  the  jury,  that  if  you  believe  from  the 

evidence,  that  on  or  about  the  of  ,  plaintiff  was  in 

the  employ  of  defendant,  and  was  ordered  by  foreman  of  defendant 
to  lift  and  place  upon  a  truck  or  push  car  used  by  defendant  a 
number  of  steel  rails,  and  while  so  employed,  and  whilst  said  car  was 
being  loaded  and  pushed  over  defendant's  track,  said  car  and  truck 
gave  way,  broke  and  fell,  causing  a  steel  rail  to  fall  from  said  car 
upon  the  plaintiff  and  injured  him,  then  your  verdict  will  be  for  the 
plaintiff,  if  you  believe  from  the  evidence  that  said  push  car  gave 
way  and  fell  because  the  same  was  defective  and  constructed  of 
improper,  unsuitable  and  insufficient  material,  and  not  reasonably 
safe  for  an  ordinary  load,  and  that  defendant  knew,  or  might,  by  the 
proper  inspection,  or  by  the  exercise  of  ordinary  care,  have  discov- 
ered and  known,  the  condition  of  said  car. 

(e)  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  the  rubble  ear  was  made  of  brash,  brittle,  weak  and 
unsuitable  material,  and  not  reasonably  safe  for  the  purposes  for 
which  it  was  being  used  when  loaded  with  an  ordinaiy  load,  and  for 
this  cause  the  said  car  broke,  then  the  fact  (if  it  be  a  fact)  that  it 
was  overloaded  at  the  time  it  broke  down  does  not  absolve  the 
defendant  from  liability, 

(f)  The  jury  are  instructed  that  if  you  find  for  plaintiff  you 
will,  in  assessing  the  damages,  take  into  consideration  the  physical 
condition  he  was  in  before  the  injuries  in  question,  the  physical  pain 
and  mental  anguish  he  has  suffered  occasioned  by  said  injuries,  and 
the  physical  pain  and  mental  anguish,  if  any,  he  is  likely  to  suffer  in 
the  future  because  of  said  injuries;  and  in  addition  to  this  you  may 
also  consider  to  what  extent,  if  any,  plaintiff's  capacity  for  earning 
a  livelihood  after  his  majority,  to-wit,  after  he  arrives  at  the  age 
of  twenty-one  years  will  be  impaired  by  said  iniuries:  and  you  will 
return  a  verdict  for  him  in  such  sum  as  you  will  believe  to  be  just 
and  reasonable,  not  exceeding  five  thousand  dollars.^ 

8— Mltoholl  V.  Wab.  R.  Co.,  97  Mo.        "The    InRtructinn     for    appellant, 
App.   411,  76  S.   W.   647   (648).  on    the    other    hand,    in    effect   de- 


1503.] 


NEGLIGENCE— MASTER  AND  SERVANT. 


1003 


§  1503.  Cars  Must  be  in  Condition  to  be  Uncoupled  with  Reason- 
able Safety.  Tlie  court  instructs  the  jury  that  it  was  the  duty  of 
the  defendant  to  exercise  reasonable  care  to  have  and  to  keep  its  cars 
in  proper  condition,  so  that  they  could  be  uncoupled  with  reasonable 
safety;  and  plaintiff  had  a  right  to  assume,  unless  he  had  informa- 
tion to  the  contrary,  that  defendant  had  performed  its  duty  in  this 
respect.^ 

§  1504.  Not  Negligence  for  Railroad  to  Use  Couplings  or  Dead- 
woods  of  Unequal  Height.  The  court  instructs  the  juiy  that  it  is 
not  negligence  for  the  defendant  company  to  use  ears  on  its  railroad 
and  in  its  yards,  the  couplings  or  deadwoods  of  which  were  not  of 
uniform  or  equal  height,  provided  the  said  deadwoods  or  couplings 
were  in  other  respects  safe  appliances.^" 


clared  the  law  to  be  that,  if  the 
car  was  overloaded  and  broke 
down  because  overloaded,  then  re- 
spondent was  g-uilty  of  contribu- 
tory negligence  and  could  not  re- 
cover. In  short,  it  was  left  to  the 
jury  by  these  instructions  to  say 
whether  the  car  broke  down  from 
inherent  weakness,  or  on  account 
of  the  overload.  "Whether  the  car 
would  have  broken  down  under  an 
ordinary  load  and  the  accident 
happened,  is  perhaps  under  the 
evidence  somewhat  problematic. 
Yet  there  was  evidence  tending  to 
show  that  it  was  incapable  of  car- 
rying an  ordinary  load  of  steel 
rails,  and  we  think  it  was  proper 
to  submit  the  question  to  the 
jury." 

9— L.  &  N.  R.  Co.  V.  Baker,  106 
Ala.  624,  17  So.  452  (453). 

"This  charge  given  for  the  plain- 
tiff states  the  law  as  declared  by 
the  statute  itself  and  by  the  de- 
cisions of  this  court — i.  e.,  that 
the  employe  may  recover  for  in- 
juries resulting  from  defects  in 
the  conditions  of  the  ways,  works, 
machinery,  or  plant  connected  with 
or  used  ip  the  business  of  the  em- 
ployer, unless  he  knew  of  the  de- 
fect, and  failed  in  a  reasonable 
time  to  give  notice  of  it.  Until 
he  has  such  knowledge  he  has  a 
rifrht  to  presume  there  are  no  de- 
fects. Code  §  2590;  G.  P.  Ry.  Co. 
v.  Davis.  92  Ala.  300,  9  So.  252,  25 
Am.  St.  Rep.  47:  L.  &  N.  Ry.  Co. 
V.  Orr.  91  Ala.  554,  8  So.  360;  L,.  & 
N.  Ry.  Co.  V.  Hawkins,  92  Ala. 
241,   9  So.  271." 

10— Penn.  Co.  v.  Ebaugh,  144  Ind. 
687,    43   N.    E.    936    (937.    93S). 

"The  following  decisions  sustain 
the  rule  that  it  is  not  negligence 
for  a  railway  company  to  use,  of 
its  own  or  those  of  another  com- 


pany in  regular  transportation, 
cars  constructed  with  uneven 
couplings  or  deadwoods.  M.  C. 
Rd.  Co.  v.  Smithson,  45  Mich.  212, 
7  N.  W.  791;  Smith  v.  Potter,  46 
Mich.  258,  9  N.  W.  273;  Ft.  W.,  J. 
&  S.  Rd.  Co.  V.  Gildersleeve,  33 
Mich.  133;  Hulett  v.  Railwav  Co., 
67  Mo.  239;  Toledo,  W.  &  W.  Ry. 
Co.  V.  Black,  88  III.  112;  Toledo, 
W.  &  W.  Ry.  Co.  V.  Asbury,  84 
III.  429;  Ind.  B.  &  W.  Rd.  Co.  v. 
Flannigan,  77  III.  365;  Whitwam 
V.  Railroad  Co.,  58  Wis.  408,  17  N. 
W.  124;  Kelly  v.  Abbot,  63  Wis. 
307,  23  N.  W.  890,  53  Am.  Rep.  292: 
Way  V.  Raijroad  Co.,  40  Iowa  341; 
Baldwin  v.  Railroad  Co..  50  Iowa 
680;  St.  L.,  I.  M.  &  S.  Ry.  Co.  V. 
Higgins,   44  Ark.   293. 

"The  obligation  of  railway  com- 
panies is  to  use  ordinary  care  to 
supply  reasonably  safe  appliances 
for  coupling,  and  they  are  not  re- 
quired to  furnish  safe  appliances 
wTiere,  from  the  nature  of  the  busi- 
ness, safety  is  not  possible.  Nor 
are  they  required  to  provide  the 
best  or  the  most  approved,  or  any 
particular  design  of  appliances. 
L.  S.  &  M.  S.  Ry.  Co.  v.  McCor- 
mick,  74  Ind.  440;  Indiana  Car  Co. 
V.  Parker,  100  Ind.  181;  Jenney 
Elec.  L.  &  P.  Co.  V.  Mn-'-hy,  115 
Ind.  566.  18  N.  E.  30;  and  cases 
cited  above.  In  the  first  of  the 
cases  just  cited  it  was  said:  'The 
master's  obligation  is  not  to  sup- 
ply the  servant  with  absolutely 
safe  machinery,  or  with  any  par- 
ticular kind  of  machinery,  but  his 
obligation  is  to  use  ordinary  and 
reasonable  care  not  to  subject  the 
servant  to  extraordinary  or  un- 
reasonable danger.  When  a  mas- 
ter employs  a  servant  to  do  a  par- 
ticular kind  of  work,  with  particu- 
lar   kind    of    implements    and    ma- 


1004  FORMS  OF  INSTRUCTIONS.  [§  1505. 

§  1505.  Defects  in  Coupling  Apparatus  Between  Caboose  and  Lo- 
comotive. If  you  believe  from  the  evidence  that  the  coupling  ap- 
paratus was  out  of  repair  as  charged  in  the  declaration  and  that  its 
condition  and  the  effect  thereof  on  the  operation  of  the  knuckle  was 
not  discoverable  by  the  use  of  ordinary  care,  then  and  in  such  ease 
the  plaintiff  cannot  under  the  law  be  held  to  have  assumed  the  risk 
of  such  defect.^ ^ 

§  1506.  Injuries  Through  Defective  Drawbars  or  Drawheads.  The 
court  instructs  the  jury  that  if  you  believe  from  the  evidence  that 
the  defendant  did  not  use  reasonable  care  in  providing  ears  with, 
sound  coupling  appliances,  but  used  two  cars  with  split  and  slivered 
drawbars  and  drawheads,  and  that  the  plaintiff  while  attempting  to 
make  a  coupling  between  the  two  cars,  was  injured  by  reason  of  a 
defective  drawbar  or  drawhead  attached  to  said  cars,  and  further 
believe  from  the  e\ddence  that  the  plaintiff  in  attempting  to  make 
such  coupling,  used  reasonable  care  and  caution  for  his  personal 
safety,  you  should  find  defendant  guilty.^- 

§  1507.  Injury  to  Brake  Through  Brake  Staff  Breaking.  Bearing 
in  mind  the  foregoing  instructions,  if  you  believe  from  the  evidence 
that  the  plaintiff  C.  was  in  the  employ  of  the  defendant,  the  M.,  K. 
&  T.  R.  Co.  of  T.,  in  the  capacity  of  a  brakeman,  and  that  while  he 
was  engaged  in  performing  the  duties  of  his  employment,  exercising 
ordinary  care  for  his  own  safety,  ti-jdng  to  set  a  brake  on  one  of 
defendant's  coal  cars  in  the  city  of  D.,  the  staff  of  said  brake  broke 
and  caused  the  plaintiff  to  fall  and  be  injured,  and  if  you  believe 
further  from  the  evidence,  that  the  said  unsafe  condition  of  said 
brake  staff  could  have  been  discovered  and  remedied  by  the  de- 
fendant before  plaintiff  received  his  injuries,  if  the  defendant  had 
exercised  ordinary  care  to  furaish  a  brake  staff  on  said  car  reason- 
ably safe  for  use,  then,  if  you  believe  all  these  facts  from  the 
testimony,  you  will  find  for  the  plaintiff.^^ 

chinery,  the  master  does  not  agree  of  repair.  The  objection  is  with- 
that  the  implements  and  machin-  out  merit.  The  lifting  lever  mu?t 
ery  are  free  from  danger  in  their  be  held  to  be  a  part  of  the  coup- 
use;  but  he  agrees  that  such  im-  ling  apparatus  and  the  latter  can- 
plements  and  machinery  to  be  used  not  be  said  to  have  been  in  good 
by  the  servant  are  sound,  and  fit  repair  when  the  lever  necessary  to 
for  the  purpose  intended,  so  far  operate  it  was  out  of  repair.  The 
as  ordinary  care  and  prudence  can  instruction  as  given  stated  the  law 
di.scover.  As  we  have  already  seen,  more  favorably  to  appellant  than 
the  question  here  at  issue  ,did  it  was  entitled  to,  because,  as 
not  involve  any  inquiry  as  to  we  have  heretofore  held,  appellee 
an  imperfection  or  danger  in  the  did  not  assume  the  risk  of  oper- 
appllances  named,  excepting-  in  ating  a  coupler  which  would  not 
the  lack  of  .uniformity  in  hoight.' "  couple  the  caboose  and   locomotive 

11 — C.   &  A.   Ry.   Co.   V.   "Walters,  without  the  necessity  of  his  going 

120  Til.  App.   152  (158),  aff'd  217  111.  between   the   cars." 

87.  75  N.  -R.  441.  12—1.    C.    R.    R.    Co.    v.    Harris, 

"The   objoction   urged   to  this  in-  6.3   111.   Apn.   172   (174),   aff'd   162   111. 

fitru<tion      i.s.     that      the     evidence  200  (202),  44  N.  R.  498. 

shows  that  the  coupling  apparatus  1.3— Mo.,  K.  &  T.  Ry.  Co.  of  Tex. 

was  In  excellent  repair;   that  only  v.  Crowder.  —  Tex.   Civ.   App.  — , 

the  lever-rod  used  to  raise  the  pin  55  S.  "W.  380  (381). 
for  uncoupling   purposes    was    out 


§  1508.]  NEGLIGENCE— MASTER  AND  SERVANT.  1005 

§  1508.  Latent  Defect  in  Brake  Rod.  The  court  instructs  the  jury 
that  even  if  you  should  find  that  the  brake  rod  was  improperly 
bolted,  and  that  it  fell  and  injured  the  plaintiff,  as  alleged  in  his 
petition,  still,  if  any  defect  which  caused  it  to  fall  was  latent,  and 
could  not  have  been  discovered  by  the  defendant  by  the  use  of 
ordinary  care,  then  your  verdict  should  be  for  the  defendant;  or, 
if  you  find  that  the  plaintiff  was  not  injured  as  claimed  by  him,  then 
you  will  find  for  defendant.^* 

§  1509.  Using  Car  Without  Hand-holds— Series,  (a)  It  was  the 
duty  of  the  defendant  railway  company  to  use  ordinaiy  care  and 
diligence  to  furnish  safe  machinery,  and  cars  properly  equipped,  and 
supplied  with  appliances  reasonably  necessary  and  proper  to  enable 
its  emploj^es  to  perfonn  the  duties  required  of  them  with  reasonable 
degree  of  safety. 

(b)  It  was  also  the  duty  of  the  plaintiff  to  exercise  ordinaiy  care 
and  prudence  in  the  performance  of  his  duties,  to  avoid  injury  to 
himself. 

(c)  By  the  term  "negligence,"  as  used  in  this  charge,  is  meant 
the  doing  of  that  which  a  pei-son  of  ordinary  car&  and  prudence 
would  not  have  done  under  similar  circumstances,  or  the  failure  to 
do  that  which  such  a  pei-son  would  have  done  under  like  circum- 
stances. 

(d)  By  the  term  ''ordinary  care,"  as  used  in  this  charge,  is 
meant  such  degree  of  care  as  a  person  of  ordinary  prudence  would 
exercise  under  similar  circumstances. 

(e)  The  plaintiff  when  he  entered  the  service  of  the  defendant 
company  as  a  brakeman,  assumed  the  risks  and  dangers  ordinarily 
incident  to  such  employment,  but  did  not  assume  any  risks  arising 
from  the  negligence  of  the  defendant,  if  any  there  was,  unless  the 
plaintiff  knew  of  such  negligence  in  time  to  have  avoided  injurji 
therefrom. 

(f)  Now,  if  you  find  from  a  preponderance  of  the  evidence  that 
the  plaintiff,  H.  R.  M.,  was  in  the  employment  of  the  defendant  as  a 
brakeman,  as  alleged  in  his  petition  and  that  while  engaged  in  his 
duties  as  such  brakeman  in  coupling  cars  for  said  defendant,  he  was 
injured  as  alleged  in  his  petition;  and  you  further  find  from  the 
evidence  that  the  stationary  car  which  plaintiff  was  endeavoring  to 
couple  at  said  time  was  not  provided  with  a  hand-hold  or  grab-iron 
on  the  end  thereof,  and  that  the  defendant  knew,  or  by  the  exercise 
of  ordinary  care  and  diligence  could  have  known,  that  said  ear  was 
not  so  equipped  with  the  hand-hold,  if  you  find  it  was  not  prior  to 
said  accident,  and  that  a  hand-hold  in  the  end  of  said  car  was  a 
necessary  appliance  to  said  car,  to  enable  brakemen  to  perform  their 
duties  in  coupling  said  car  with  safety,  and  that  such  hand-hold  was 

14 — G..  a.  &  S.  A.  Ry.  Co.  v.  "We  cannot  see  anything  in  this 
Buch,  27  Tex.  Civ.  App.  283,  65  of  which  the  appellant  can  com- 
S.  W.   681   (684).  plain." 


1006  FORMS  OF  INSTRUCTIONS.  [§  1509. 

such  au  appliance  as  defendant  company  rested  under  an  obligation 
to  provide  in  the  discharge  of  its  general  duty  to  use  ordinary  care 
to  furnish  reasonably  safe  appliances  in  coupling  cars,  as  heretofore 
explained  to  you  in  this  charge,  and  that  the  failure  of  defendant 
companj'  to  provide  said  stationary  car  with  such  hand-hold,  if  you 
find  there  was  such  failure,  amounted  to  negligence  on  the  part  of 
said  company,  as  that  term  has  been  hereinbefore  defined  in  this 
charge,  and  that  such  negligence,  if  any,  caused  plaintiff  to  receive 
the  injuries  complained  of  in  his  petition  or  any  of  them — then  you 
will  find  a  verdict  for  the  plaintiff,  unless  you  further  find  that 
plaintiff  was  himself  guilty  of  negligence  which  contributed  to  bis 
injuries,  as  will  be  hereinafter  explained. 

(g)  You  are  further  instructed  that  if  you  find  from  the  evidence 
that  plaintiff  was  himself  guilty  of  negligence  in  the  manner  in 
which  he  attempted  to  make  said  coupling,  which  contributed  to  his 
injuries,  then  he  cannot  recover,  even  though  you  should  find  the 
defendant  company  was  negligent  in  using  said  ear  without  hand- 
holds, if  it  did  so  use  it. 

(h)  Now,  if  you  find  from  the  evidence  that  said  stationary  ear 
was  without  a  hand-hold,  and  that  the  defendant  company  was  guilty 
of  negligence  in  using  said  car  in  such  condition,  if  you  find  it  did 
so  use  it,  but  you  further  find  that  plaintiff  knew  or  ascertained  that 
said  car  was  not  supplied  with  a  hand-hold  in  the  end  thereof  in 
time  to  have  avoided  the  injuries  received  by  him,  if  any,  by  the 
exercise  of  ordinary  care  on  his  part,  then  he  cannot  recover;  and,  if 
you  so  find,  you  will  return  'a  verdict  for  the  defendant. 

(i)  You  ai*e  further  instructed  that  if  you  find  from  the  evidence 
that  the  plaintiff,  at  the  time  he  attempted  to  make  the  coupling  in 
which  he  was  injured,  if  he  was  injured,  went  between  the  cars  with 
]jis  face  turned  towards  the  moving  car,  and  attempted  to  make  the 
coupling  in  that  position,  and  that  this  was  more  dangerous  than  to 
couple  cars  with  the  face  turned  towards  the  stationary  ear,  and 
that  such  act,  if  any,  on  plaintiff's  part,  was  negligence,  as  that 
term  has  been  heretofore  explained,  land  that  same  contributed  to 
plaintiff's  injuries,  then  in  that  event  plaintiff  would  be  chargeable 
with  contributory  negligence,  and  could  not  recover;  and,  if  you  find 
the  facts  to  be  as  above  set  out,  you  will  return  a  verdict  for  the 
defendant,  even  though  you  should  find  the  defendant  was  guilty  of 
negligence  in  failing  to  provide  handholds  on  the  end  of  said  station- 
ary car,  if  it  did  so  fail. 

(j)  You  are  further  instructed  that  unless  you  find  from  the 
evidence  that  the  hand-hold  was  not  on  the  end  of  the  stationary 
(=nr  at  the  time  of  the  accident,  and  that  the  absence  of  the  hand- 
hold was  neglifrence  on  the  part  of  defendant,  and  was  the  proximate 
cnnsn  of  plaintiff's  injuries,  you  will  return  a  verdict  for  the 
defendant. 

(k)     Unless  you  find  from  a  preponderance  of  the  evidence  that 


§  1510.]  NEGLIGENCE— MASTER  AND   SERVANT.  1007 

the  statiouai-y  ear  plaintiff  was  endeavoring  to  couple  at  the  time  of 
the  accident  was  not  provided  with  a  hand-hold  or  gi'ab-iron  in  the 
end  thereof,  and  unless  you  find  that  the  defendant  company  was 
guilty  of  negligence  in  using  such  oar  in  such  condition,  if  you  find 
it  did  so,  3^ou  will  return  a  verdict  for  the  defendant  company;  or 
if  you  find  the  plaintiff  was  guilty  of  contributory  negligence,  as 
heretobefore  defined,  you  will  return  a  verdict  for  defendant  company. 

(1)  If  you  find  a  verdict  for  the  plaintiff  under  the  foregoing  in- 
structions, you  will  find  in  such  sum  as  will  reasonably  and  fairly 
compensate  him  for  the  mental  and  physical  pain  he  suffered,  if  any, 
as  the  result  of  such  injuries,  and  also  the  reasonable  value  of  his 
services  for  the  time  lost  by  reason  thereof,  if  any,  and  also  for  his 
diminished  capacity  to  labor  and  earn  money  in  the  future,  if  any. 

(m)  The  evidence  'admitted  before  you  as  to  the  statements 
claimed  to  have  been  made  by  the  witness  F.  to  the  witness  C.  as 
to  the  hand-hold,  or  absence  thereof,  on  the  stationary  car,  was  only 
admitted  for  the  purpose  of  affecting  the  credibility  of  the  witness 
F.,  and  not  as  evidence  of  the  facts  stated  by  said  F.  to  said  C,  if 
he  made  any  such  statement,  and  if  you  will  only  consider  such 
testimony  for  the  purpose  for  which  it  was  admitted,  and  none  other. 

(n)  The  burden  of  proof  is  on  the  plaintiff  to  show  by-  a  pre- 
pondei'anee  of  the  evidence  the  facts  which  will  entitle  him  to  recover. 

(o)  In  the  defenses  of  contributory  negligence  on  part  of  the 
plaintiff,  the  burden  of  proof  is  on  the  defendant  to  establish  the 
same  by  a  like  preponderance  of  the  evidence. 

(p)  The  jury  are  the  exclusive  judges  of  the  credibility  of  the 
witnesses,  the  facts  proven,  and  the  weight  to  be  given  the  testi- 
mony, but  must  receive  the  law  from  the  court,  and  be  govenied 
thereby.^^ 

§  1510.  Defect  in  Handhold  of  Car — Competency  of  Inspector, 
(a)  You  are  charged,  at  the  instance  of  the  defendant,  that  a  rail- 
way company  does  not  insure  the  safety  of  the  tools  and  appliances 
which  it  furnishes  to  its  Servant  for  his  use.  The  law  requires  that 
it  use  ordinaiy  care  and  caution  to  provide  its  servant  with  tools 
and  appliances  reasonably  safe  for  the  doing  of  the  work  for  which 
he  is  employed.  So,  in  this  case,  although  you  may  believe  from 
the  evidence  that  the  handhold  on  the  ear  was  defective,  yet  if  you 
believe  from  the  evidence  that  defendant  exercised  ordinary  care  and 
caution  to  discover  such  defects — that  is  to  say,  that  it  used  that 
care  and  caution  which  an  ordinarily  prudent  person  would  have  used 
under  similar  circumstances — then  it  will  be  your  duty  to  return  a 
verdict  for  defendant;  and  this,  though  you  may  believe  that  the 
plaintiff  was  injured  by  reason  of  the  handhold  on  the  ear  being 
defective. ^^ 

15— Mo..  K.  &  T.  Ry.  Co.  of  Tex-  16— St.  L.  S.  W.  Ry.  Co.  of  Toxas 
a"  V.  Milam.  20  Tex.  Civ.  App.  v.  Corrigan,  —  Tex.  Civ.  App.  — , 
68S.  50  S.   W.  417  C418).  81    S.   W.   554    (555). 


1008  FORMS  OF  INSTRUCTIONS.  [§  1511. 

(b)  If  you  believe  from  the  evidence  that  plaintiff,  while  in  the 
discharge  of  the  duties  of  his  employment  was  upon  a  box  ear  in 
use  by  defendant,  and  attempted  to  descend  from  said  car,  and  in 
such  attempt,  that  he  took  hold  of  a  handhold  on  the  top  of  said 
car,  provided  for  the  purpose ;  and  if  you  believe  that  while  holding 
to  such  handhold,  it  pulled  loose  from  the  car  and  caused  plaintiff 
to  be  thrown  to  the  ground  and  injured  as  alleged;  and  if  you  find 
from  the  evidence  that  the  wood  to  which  said  handhold  was  fas- 
tened by  screws  had  become,  and  was,  rotten  or  decayed,  so  that  it 
would  not,  and  did  not  hold  said  screws,  and  that  defendant  knew 
of  such  condition  (if  defective),  or  by  the  exercise  of  ordinaiy  care, 
it  ought  to  have  known  of  the  same;  and  if  you  believe  that  on 
account  of  such  rotten  and  decayed  condition  of  said  wood  (if  any) 
said  handhold  was  caused  to  and  did  pull  loose  from  said  car;  and 
that  the  furnishing  by  defendant  for  plaintiff's  use  such  defective 
handhold  (if  the  same  was  defective  as  aforesaid)  was  negligence, 
and  that  such  negligence  (if  any)  was  the  proximate  cause  of  the 
plaintiff's  injuries  (if  any)  you  will  find  for  the  plaintiff  unless  you 
find  for  the  defendant  under  other  issues  submitted  to  you.'-''^ 

§  1511.  Ordinarily  no  Obligation  to  Provide  Steps  at  End  of 
Freight  Cars  for  Use  of  Employes.  The  jury  are  instructed,  as  a 
matter  of  law,  that  the  defendant  was  under  no  obligation  to  provide 
steps  at  the  end  of  its  freight  cars  for  the  use  of  employes  whose 
business  it  was  to  uncouple  cars,  provided  the  jury  believe,  from 
the  evidence,  that  the  use  of  freight  oars  without  such  steps  did  not 

"This  proposition   is   unquestion-  said    handhold    pulled    off,    it    was 

ably,  the  law  and  applicable  to  the  defective,    and    also    assumes    that 

case'     G.    C.    &    S.    F.    Ry.    Co.    v.  it   pulled   off  because  defective,  as 

Smith,   87   Tex.    348,    28   S.    W.    520;  a  result  of  its  use  by  the  plaintiff 

G.  H.  &  S.  A.  Ry.  Co.  v.  Gormley,  in   the   course  of  the  duties   of  his 

91  Tex.  393,  43  S.  W.  877,  66  Am.  St.  employment;    (4)    that    the    charge 

894;   Bering   Mfg.   Co.   v.   Peterson,  assumes      that     if     the     handhold 

28  Tex.  Civ.  App.  124,  67  S.  W.  133.  pulled  off,  it  did  so   solely  because 

The  master  is  not  required  to  ex-  of   the   rotten    and    decayed   condi- 

ercise  more   than   ordinary   care  to  lion  of  the   wood  to  which  it  was 

select  and  furnish  his  servant  suit-  fastened   and    thereby   ignored   the 

able      instrumentalities      and      re-  testimony    tending    to    show    that 

sources    to    accompli-sh    the    work  the  handhold  may  have  been  pried 

the  servant  is  put  to."  off   by   some   instrument   and    was, 

17— Mo.,  K.  &  T.  Ry.  Co.  of  Tex-  when   inspected   shortly   before  the 

as   V.    Box,    —   Tex.    Civ.    App.   — ,  accident   and   started    to   the   place 

93  S.  W.  134  (136).  of  the  accident,   securely  fastened; 

"The    objections    ui-gcd     to    this  (5)    that   said   charge   is   erroneous, 

charge  are  contained  in  four  prop-  because  plaintiff's   right  to  recover 

ositions    propounded    under    appel-  is    not    made    to    depend    upon    its 

lant's  first  assignment  of  error,  the  having    been    pulled    off    as    a    re- 

Kub.stance    of    all    of    which    is    as  suit    of   plnintiff's   use    of   it   while 

follows:     Said   charge  is  upon  the  descending    from    the    car    in    the 

weight    of    the    evidence,    and    does  discharge    of    his     duties,    and,    as 

not    present    for   the   determination  framed,  was  calculated  to  impress 

of    the    jury:      (1)    Whether    or    not  the    jury    with    the    iden    that    the 

the    handhold     was    defective;     (2)  court     was     of     the     opinion     said 

wheth'T   it   was    pulled    off  by   the  handhold      was      defective.         We 

plaintiff    in     desnending    frnm     the  think  none  of  the  objections  should 

car    In    the    cr)urse    of    his    duties-  be   sustained." 
(.3)    said    charge    as:-;umes    that    ii. 


§1512.]  NEGLIGENCE— MASTER  AND   SERVANT.  1009 

render  the  work  of  uncoupling  by  such  employes  unreasonably  dan- 
gerous and  unsafe. ^^ 

§  1512.    Injury  to  Engineer  Through  Defective  Step  on  Engine. 

If  you  believe  from  the  evidence  that  on  or  about  the  day  of 

,  19 — ,  the  plaintiff,  C,  was  in  the  employ  of  the  defendant 

in  the  capacity  of  a  locomotive  engineer,  and  that  on  said  date  he 
was  in  the  perfonnance  of  his  duty  upon  an  engine  running  west- 
ward toward  the  city  of  S,  and  that,  when  said  engine  reached  the 
station  of  S,  it  became  plaintiff's  duty  to  alight  from  said  engine, 
and  that,  in  order  to  do  so,  it  was  his  duty  to  use  one  of  the  steps 
upon  said  engine,  and  that  said  step  was  provided  by  the  defendant 
for  the  purpose  of  alighting  from  the  engine ;  and  if  you  further 
believe  from  the  evidence  that,  as  plaintiff  stepped  upon  said  step, 
the  step  and  stem  upon  which  it  was  fixed  came  off  and  gave  way 
and  caused  plaintiff  to  fall,  and  that  thereby  he  sustained  any  of 
the  injuries  alleged  in  his  petition;  if  you  further  believe  from  the 
evidence  that  the  said  step  and  stem  upon  which  it  was  fixed  was 
loose,  defective,  and  insecurely  fastened,  and  that,  by  reason  thereof, 
the  said  step  and  stem  thereof  came  off  with  the  plaintiff  and  caused 
him  to  fall,  if  you  find  it  did  come  off  and  cause  him  to  fall;  and  if 
you  further  believe  from  the  evidence  that  the  defendant  knew,  or 
by  the  exercise  of  ordinary  care  would  have  known,  that  said  step 
and  the  stem  thereof  was  in  a  loose,  defective,  and  insecure  condi- 
tion, if  you  find  it  was  in  such  condition;  and  that  it  was  negligence 
on  the  part  of  the  defendant  to  permit  said  step  and  the  stem 
thereof  to  be  in  such  condition;  and  that  such  negligence,  if  any, 
directly  caused  plaintiff's  injuries,  if  any;  and  you  further  believe 
from  the  evidence  that  the  plaintiff  was  not  guilty  of  contributory 
negligence  and  did  not  assume  the  risk,  then  I  charge  you  that  your 
verdict  must  be  for  the  plaintiff.^^ 

§  1513.  Notice  by  Engineer  to  Foreman  of  Roundhouse  of  Defect 
in  Engine,  (a)  The  court  instructs  the  juiy  that  you  will  next 
inquire  whether  the  defendant  knew  of  the  defective  condition  of  said 
locomotive  engine  long  enough  before  the  time  of  the  accident  to  have 
repaired  the  same,  and  negligently  used  and  required  its  servants  to 

18 — C,   B.   &   Q.    R.   Co.   v.   "War-  the  cTiarge  should  have  read:  'Was 

ner,   123   111.   38   (48),  14   N.   E.   206.  not    guilty    of    contributory    negli- 

19 — Galveston,    H.    &    S.    A.    Ry.  gence  or  did  not  assume   the  risk, 

Co.    V.    Cherry,    —   Tex.    Civ.    App.  because  defendant   was    entitled   to 

— ,  98  S.  W.  898;  St.  L.  &  S.  F.  Ry.  a    verdict    on    either    one    of    such 

Co.    v.    Skasrgs,    32    Tex.    Civ.    App.  findings.'     The  charge  in  our  opin- 

363.  74  S.  W.  783  (785).  ion   was   not   subject   to   be    under- 

"The  criticism  is  that  the  words,  stood   as   appellant   contends.     The 

'and   you   further  believe  from   the  impression    it    conveyed    was    that 

evidence     that     plaintiff     was     not  plaintiff    could    recover    unless    the 

guilty    of    contributory    negligence  jury  believed  that  he  was  both  not 

and   did   not  assume   the  risk,   then  guilty    of    contributory    negligence 

I    charge    you    that    your    verdict  and  did  not  assume  the  risk.     Un- 

must     be    for    plaintiff,'     placed     a  der    the    chnrge    they    had    to    find 

burden    on    defendant    more    oner-  both    in    order    to    find    for    plain- 

ous  than  was  required  of  it;  that  tiff." 
64 


1010  FORMS  OF  INSTRUCTIONS.  [§  1514. 

use  it  on  the  day  of  said  accident  in  such  defective  condition.  And 
in  this  connection  you  are  instructed  that  notice  thereof  to  the 
foreman  of  defendant's  machine  shop  at  L.,  Ky.,  if  given  by  the 

engineer on  the  evening  before  the  accident,  was  notice  to  the 

defendant,  and  would  charge  the  defendant  with  knowledge  of  its 
defective  condition, 

(b)  If  the  engineer  in  charge  of  the  locomotive  on  which  the 
cylinder  cock  on  one  of  its  engines  was  broken  off,  and  the  opening 
plugged  up,  took  said  locomotive  into  the  roundhouse  or  machine 
shop  of  the  defendant  at  L.,  and  notified  the  foreman  in  charge  of 
said  shop  of  said  defect,  and  if  you  find  that  repairs  of  such  defects 
were  not  then  made  at  such  shop,  then  you  will  find  defendant  had 
notice  of  said  defects. 2° 

§  1514.    Injury  to  Fireman  from  Side  Rod  on  Engine  Breaking. 

If  you  believe  from  the  evidence  that  on  or  about  ,  that 

plaintiff  was  in  the  employ  of  defendant  as  a  fireman  on  one  of  its 
engines,  and  that  while  so  employed  the  side  rod  of  said  engine 
broke,  and  injured  plaintiff,  as  alleged  in  his  petition;  and  if  you 
further  believe  from  the  evidence  that  the  side  rod  was  old,  defective 
and  unfit  for  service,  as  alleged  in  plaintiff's  petition,  and  that  the 
metal  of  the  side  rod  was  weak  and  defective;  and  if  you  further 
believe  from  the  evidence  that  it  was  negligence  on  the  part  of 
defendant  to  allow  said  side  rod  to  be  in  such  condition  as  you  find 
it  was,  and  that  such  negligence,  if  any,  was  the  direct  and  proxi- 
mate cause  of  said  side  rod  breaking,  and  the  plaintiff's  injuries,  if 
any;  and  if  you  believe  from  the  evidence  that  the  plaintiff  did  not 
assume  the  risk,  then  you  will  find  for  plaintiff.^^ 

20 — Ohio   &  M.   Ry.   Co.   v.   Stein,  often    as    custom    and     experience 

140  Ind.  61,  39  N.  E.  246   (248).  require.'      .      .      .      Ordinary    care 

"It  was  proven  that  the  en-  requires  that  a  master  shall  take 
gineer  did  give  such  notice,  and  notice  of  the  liability  of  the  parts 
we  think  the  instructions  form  a  of  the  machinery  to  decay  from 
correct  statement  of  the  law  in  age  or  wear  out  by  use.'  The  mas- 
relation  thereto.  Because  the  fore-  ter's  duty  is  a  continuing  one. 
man  of  the  roundhouse  or  machine  When,  also,  he  appoints  some  other 
shop  at  Louisville  was  in  some  re-  person  to  perform  the  duties 
spects  the  fellow  servant  of  ap-  which  are  thus  owed  primarily 
pellee,  it  does  not  follow  that  he  from  himself,  then  the  appointee 
was  so  in  all  respects.  In  Indiana  represents  the  master;  and  though 
Car  Co.  V.  Parker,  100  Ind.  181,  in  the  performance  of  such  duties 
the  court  says:  'The  duty  of  the  the  appointee  may  be  and  is  a 
empVoyer  to  provide  safe  machin-  servant  to  the  master,  yet  in  these 
cry  and  appliances  is  a  continuing  respects,  that  is,  as  performing 
one.'  Thompson  (2  Neg.  984)  says:  the  duties  of  the  master,  he  is  not 
'But  the  master  does  not  discharge  a  co-employe.  Beach,  Contrib. 
his  fiuty  in  this  regard  by  pro-  Neg.  paras.  349,  356,  and  notes; 
viditig  proper  and  safe  machinery,  Mitchell  v.  Robinson,  80  Ind.  281, 
or  fit  servants,  in  the  first  in-  41  Am.  Rep.  812;  Nail  v.  R.  R. 
stance,  and  then  remaining  pas-  Co..  129  Ind.  260,  28  N.  E.  183,  611." 
Klve.  It  is  a  duty  to  be  afflrma-  21— G.  H.  &  S.  A.  Ry.  Co.  v.  Par- 
tivoly  and  positively  fulfilled  and  vin,  27  Tex.  Civ.  App.  60,  64  S.  W, 
performed.  Ho  must  supervise.  1008. 
examine  and   test  his  machines  as 


§  1515.]  NEGLIGENCE— MASTER  AND  SERVANT.  1011 

§  1515.  Furnishing  Trucks  for  Removal  of  Trestles  from  Round- 
house. The  court  instructs  the  jury  that  it  was  the  duty  of  the 
defendant  company  to  use  ordinary  care  to  furnish  trucks  to  be 
used  by  the  plaintiff  in  removing  trestles  from  the  roundhouse,  rea- 
sonably sufficient  and  safe  for  the  pui"pose,  and  to  use  the  same  care 
to  keep  the  same  repaired  and  in  a  reasonablj^  safe  and  sound  con- 
dition, and  if  it  failed  to  use  such  care,  such  failvire  would  be 
negligence;  and  if  plaintiff  was  injured  as  alleged,  and  if  such  negli- 
gence of  the  defendant  company  was  the  proximate  cause  thereof, 
'then  plaintiff  could  recover.^^ 


TRACK  AND  ROADBED. 

§  1516.  Obligation  to  Keep  Roadbed  and  Track  Free  From  Ob- 
structions. It  is  the  duty  of  railroad  corporations  to  furnish  reason- 
ably safe  appliances  for  the  perfonnance  of  the  work  required  to  be 
performed  by  their  employes,  and  furnish  a  reasonably  safe  place  for 
the  performance  of  such  work  as  they  are  required  to  perform,  and 
this  obligation  extends  to  the  keeping  of  their  roadbed  and  track 
free  from  obstructions  that  may  be  dangerous  to  the  persons  of  such 
employes  in  the  perfonnance  of  their  duties  on  such  train,  so  far 
as  the  exercise  of  reasonable  care  on  the  part  of  such  railroad  cor- 
poration can  secure  such  safety.^^ 

§  1517.  Master  Must  Use  Ordinary  Care  to  See  That  They  Are 
Safe,  (a)  You  are  instnieted  that  the  plaintiff,  B.  K.,  while  emploj-ed 
by  the  defendant,  unless  he  knew  to  the  contrary,  had  the  right  to 
rely  upon  the  assumption  that  the  defendant  would  use  and  exer- 
cise ordinary  care  in  the  operation  of  its  track.  It  was  plaintiff's 
duty  to  use  his  senses,  and  take  note  of  and  observe  whatever  was 
open  and  patent  to  common  observation,  and  to  use  ordinary  care  to 
protect  himself  from  injury;  and,  if  you  believe  from  the  evidence 
that  the  plaintiff  could  have  seen  the  obstruction  on  the  track  in 
time  to  have  prevented  injury  to  himself,  by  the  exercise  of  ordinary 

22— Gulf,    C.    &    S.    F.    Ry.    Co.    v.  cism  is  that  the  instruction  should 

Davis,   35  Tex.   Civ.  App.  285,  80  S.  have   been    modified    so    as    to   pre- 

W.  253   (254).  sent  the    qualification    that   knowl- 

"The  charg-e  is  an  absolutely  cor-  edge   of  the   conditions   would    bar 

rect  proposition.     If  appellee  knew  a  recovery. 

of  the  defect  in  the  truck,  the  "The  g-eneral  proposition  an- 
proximate  cause  of  the  injury  was  nounced  is  riot  objected  to,  but 
his  negligence;  and  the  jury  could  the  argument  is,  that  in  view  of 
not,  under  subsequent  charges,  the  evidence,  the  suggested  modi- 
have  found  that  the  injury  was  fication  was  necessary.  We  think 
the  proximate  result  of  the  negli-  not.  There  is  no  objection  to  such 
gence  of  appellant."  a   statement   of   the  general   rule — 

2?— Torre     H.     <fe    I.     Ry.     Co.    v.  leaving  it  to   the  defendant  to  ask 

Williams,    Adm.,    69    111.    Ap^^-    392  for  a  statement  of  any  exceptions, 

(397).    nff'd    172    111.    379,    50    X.    E.  limitations     or    qualifications     that 

116,  64  Am.   St.  44.  might  be  deemed  relevant  in  view 

"As  we   understand   it,   the   criti-  of   the   proof." 


1012  FORMS  OF  INSTRUCTIONS.  [§  1518. 

care    on    his    part,    then   youi'   verdict    should   be    in   favor   of   the 
defendant.^^ 

(b)  The  company  should  have  used  all  reasonable  precaution  and 
ordinaiy  care  to  secure  the  safety  of  its  employes  by  keeping  a  suffi- 
cient force  at  command,  and  of  sufficient  capacity,  to  keep  its  road- 
way reasonably  safe  for  the  passage  of  its  trains  and  the  employes 
in  charge  thereof.  It  cannot,  for  want  of  watchfulness,  expose  its 
employes  to  unreasonable  risk  and  escape  liability,  but  the  duty 
imposed  is  that  of  ordinary  care.  The  ordinary  care  required  must 
'be  measured  by  the  danger  of  the  service  and  proportioned  by  it.-^ 

§  1518.  Right  of  Locomotive  Engineer  to  Assume  that  Railroad 
Track  is  Reasonably  Safe.  The  court  instructs  the  jury  that  it  is 
the  duty  of  a  railroad  company  to  exercise  ordinary  care  to  keep 
and  maintain  its  railway  track  in  such  condition  that  it  will  be  rea- 
sonably safe  to  operate  its  trains  thereon  in  the  ordinary  and  usual 
cari'ying  on  of  its  business  as  a  railway  corporation;  and  a  loco- 
motive engineer  employed  by  a  railroad  company  has  the  right  to 
rely  upon  the  assumption  that  the  railway  track  is  kept  and  main- 
tained by  the  company  in  a  reasonably  safe  condition;  and  he  may 
rely  upon  said  assumption  unless  he  knows  of  a  defect  in  the  rail- 
way track,  or  unless  in  the  discharge  of  his  duty  he  must  neces- 
sarily have  acquired  such  knowledge.^^ 

§  1519.  Tracks  and  Sidings  Must  not  be  in  Too  Close  Proximity 
to  Other  Structures.  The  court  instructs  the  jury  that  it  is  the 
duty  of  a  railway  company  to  use  ordinary  care  to  see  that  its  tracks 
and  sidings  are  not  in  such  close  proximity  to  other  structures  as  to 

24 — Texas  &  N.  O.  R.  Co.  v.  principal  end  and  aim  of  the  opera- 
Kelly,  34  Tex.  Civ.  App.  21,  80  S.  tion  of  a  railroad  is  the  safety 
W.    1073   (1077).  of    its    employes.      The    instruction, 

"It  was  the  duty  of  the  defend-  in  our  opinion,  is  not  erroneous, 
ant  to  exercise  ordinary  care  to  It  is  the  duty  of  the  railroad  com- 
furnish  a  safe  track  for  the  plain-  pany  to  use  all  reasonable  pre- 
tiff  to  travel  over  to  and  from  caution  to  secure  the  safety  of  its 
his  work,  and  the  plaintiff  had  the  employes,  and  to  keep  a  sufficient 
right  to  assume  that  it  would  do  force  at  command  to  keep  its  road- 
so.  The  plaintiff  assumed  the  way  i-easonably  safe  for  the  pas- 
risks  of  Which  he  had  knowledge,  sage  of  its  trains  and  the  employes 
or  by  the  exercise  of  ordinary  care  in  charge  thereof,  and  this  was 
could  have  discovered,  but  he  was  What  the  court  advised  the  jury." 
under  no  obligation  to  look  out  26 — Southern  K.  Ry.  Co.  of  Tex. 
for  the  master's  negligence.  San  v.  Sage,  —  Tex.  Civ.  App.  — ,  SO 
Antonio  &  A.  P.  Ry.  Co.  v.  Brook-  S.  W.  1038  (1039). 
ing.  —  Tex.  Civ.  App.  — .  51  S.  W.  "We  are  of  the  opinion  that  the 
539;  Bonnet  v.  Ry.  Co.,  89  Tex.  76,  charge  complained  of  is  a  correct 
33  S.  W.  334;  Smith  v.  Ry.  Co.,  —  statement  of  a  well  established 
Tex.  Civ.  App.  — ,  65  S.  W.  85;  I.  principle  of  law  applicable  to  the 
A-  (<.  N.  Ry.  Co.  V.  Bnarden,  31  facts  of  this  case.  See  Missouri, 
Tex.  Civ.   App.   58.  71   S.   W.   5.59."  K.    &  T.   Ry.   Co.   v.   Hoskins.  79  S. 

25— Dr-nver    &    R.    G.    R.    Co.    V.  W.    369,    9    Tex.    Ct.  ,Rep.    648,    and 

W.'irrliig,    —   Colo.    — ,    86    Pac.    305  authorities    there   cited.      The    only 

(312).  care    or   diligence    which   could    be 

"This      is      objectionable,      it     is  required    of   appellee   was   imposed 

claimed,    because    It    advised     the  upon    him    in   other   paragraphs   of 

jury,    In    effect,    that    the    sole   and  the  court's  charge." 


§  1520.]  XEGLIGENCE— MASTER  AND  SERVANT.  1013 

unnecessarily  endanger  its  servants  and  emploj'es  who  may  be  en- 
gaged in  the  discharge  of  their  duties  upon  trains  or  cars  passing 
along  such  tracks  or  sidings.^'^ 

§  1520.  Failure  to  Keep  Track  in  Repair  as  Proximate  Cause  of 
Injury.  The  court  instructs  the  jury  that  if  the  evidence  shows 
that  the  injury  to  plaintiti  was  received  by  him  in  the  reversing  of 
the  engine ;  that  the  reversing  of  his  engine  at  that  particular  time 
was  rendered  necessary  or  prudent  by  the  fact  that  part  of  the  ti'ain 
was  leaving  the  track;  and  that  the  train,  or  part  of  it,  was  leaving 
the  track  on  account  of  the  negligence  of  defendant  in  keeping  the 
track  in  repair — this  showing  would  trace  the  cause  of  the  injury 
directly  to  the  negligence  of  defendant.  But  unless  this  train  of 
connection  is  shown  by  the  evidence,  as  above  stated,  it  will  not  be 
shown  that  the  negligence  of  defendant  was  the  proximate  cause  of 
the  injury-;  and  if  there  is  a  failure  on  this  point,  the  plaintiff  can- 
not recover,  even  though  the  defendant  may  have  been  negligent  in 
the  maintaining  of  its  traek.^^ 

§  1521.  Injury  to  Employe  Through  Insufficient  Ballasting  of 
Road.  The  court  instructs  the  jury  that  if  they  shall  believe  from 
the  evidence  that  the  switch  or  siding  in  defendant's  yard  where 
the  plaintiff  was  injured  was  insufficiently  ballasted,  and  that  by 
reason  thereof  it  was  dangerous  to  the  employes  of  defendant  neces- 
sarily using  the  same  in  coupling  ears,  and  that  because  of  the 
insufficient  ballasting  the  plaintiff  received  the  injuries  of  which  he 
complains,  and  that  the  plaintiff  did  not  know  of  the  insufficient 
ballasting,  and  did  not  have  an  equal  opportunity  with  the  employes 
of  the  defendant  who  were  charged  with  the  duty  of  looking  after 
its  tracks  to  know  of  its  condition,  and,  further,  that  the  defendant, 
or  its  agents  or  employes  who  are  charged  with  the  duty  of  looking 
after  its  tracks,  knew  or  might  have  known  of  its  insufficient  and 
dangerous  condition  by  the  exercise  of  ordinary  care,  if  such  was 
its  condition,  then  the  law  is  for  the  plaintiff,  and  the  jurs''  should  so 
find,  prox-ided  that  they  shall  further  believe  from  the  evidence  that 
the  plaintiff  did  not  contribute  to  cause  his  injuries  by  negligence 
upon  his  part,  but  for  which  he  would  not  have  been  injured.-® 

§  1522.  Sidetrack  Slanting  and  Sidling.  The  court  instructs  the 
jury  that  if  you  believe,  from  the  evidence,  that  the  plaintiff  while 

27— Galveston,  H.  &  S.  A.  Ry.  Co.  sustained   by  plaintiff  should  have 

V.   Mortson,    31   Tex.    Civ.   App.  142,  been   left  for  determination  by  the 

71   S.   W.    770   (771).  jury,   and,   in  support  of  this  posi- 

28 — Knapp  v.   Sioux  C.   &  P.  Ry.  tion,   declare  that   the  cause   when 

Co.,   71    Iowa  41,   32   N.  W.   18   (21),  here   before   was    reversed    for    the 

54    Am.    Rep.    1.  reason  that  the  court  did  not  sub- 

"This  instruction  is  in  harmony  mit  the  question  to  the  jury.  Thi 
with  the  doctrine  recognized  by  question  is  clearly  one  of  law.  and 
this  court  in  the  opinion  in  this  is  so  recogrnized  in  our  prior  de- 
case  when  it  was  here  before.  65  cision  in  this  case." 
Iowa  91.  21  N.  W.  198.  Counsel  29— Louisville  &  N.  R.  Co.  v. 
insist  that  the  question  involving  Rnss.  21  Ky.  L.  1826.  56  S.  W.  14. 
the  proximate  cause  of  the  injury  "It  is  well  settled  that  the  mas- 


1014 


FORMS  OF  INSTRUCTIONS. 


[§  1522. 


in  the  employ  of  the  defendant  as  freight  brakeman,  and  in  the  dis- 
charge of  his  duties  as  such  brakeman,  attempted  to  couple  two 
freight  cars  on  the  defendant's  road,  and  in  so  doing  used  that  care 
and  caution  for  his  own  safety  that  the  ordinary  careful  man  would 
have  exercised,  and  if  you  believe,  from  the  evidence,  that  the  side- 
track where  the  ears  were  slanting  and  sidling  and  as  a  result  thereof 
not  a  reasonably  safe  place  to  work,  then  and  in  such  case,  if  you 
believe  from  the  evidence  that  the  plaintiff  was  injured,  as  charged 
in  the  declaration  as  a  result  thereof,  and  that  the  unsafe  condition 


ter  owes  it  to  his  servant  to  fur- 
nish him  a  reasonably  safe  place 
la  which  to  work.  This  duty  is 
not  only  one  at  the  beginning  of 
the  business  or  employment^  but 
remains  throughout  the  service. 
If  the  machinery  or  place  is  rea- 
sonably safe  at  the  beginning,  the 
obligation  is  not  discharged,  but 
the  master  must  use  ordinary  care 
to  keep  the  appliances  and  place 
reasonably  safe.  It  is  known  by 
all  men,  by  common  experience 
and  observation,  that  railroad 
tracks,  as  well  as  machinery,  need 
attention  and  repair,  and  this  duty 
is  on  the  master.  The  servant, 
presumably  knowing  of  this  duty 
of  the  master,  may  reasonably 
expect  its  discharge,  and  he  may 
act  with  the  expectation  that  the 
master  has  performed  his  duty. 
However,  when  the  servant  be- 
comes aware  that  there  exist  de- 
fects, he  then  assumes  the  risk  of 
those  defects,  if  he  remains  in 
the  service,  unless  the  master  as- 
sumes the  risk  by  a  promise  to 
repair.  If  the  defects  be  not 
known  to  the  servant  injured 
thereby,  yet,  if  he  has  opportu- 
nities to  discover  the  defect  equal 
with  the  servant  whose  duty  it  is 
to  repair  or  look  after  such,  then 
the  servant  injured  cannot  com- 
plnin  that  it  was  not  discovered 
and  remedied.  This  is  true,  be- 
cause he  could  have  made  the 
discovery,  and  should  have  done 
so,  as  readily  and  as  so'on  as  the 
servant  charged  with  the  duty  to 
repair.  We  are  of  opinion  that  to 
have  given  the  instruction  asked 
for  by  appellant  would  have  re- 
quired of  appellee  to  have  assumed 
the  duty  imposed  on  the  master; 
i.  e.,  to  exercise  orrlinary  care 
to  discover  a  defect  in  the  place 
where  appellee  worked.  This  duty 
rests  on  appellant.  In  the  case 
of    Louisville    &    N.    R.    R.    Co.    v. 


Foley,  94  Ky.  220,  21  S.  W.  866, 
this  coui^t  said:  'The  lower  court 
therefore  properly  instructed  that 
if  the  injury  was  caused  by  im- 
proper or  defective  appliances  fur- 
nished plaintiff  by  defendant  with 
which  to  perform  the  duties  re- 
quired of  hiin,  and  defendant  knew 
or  might  have  known  of  their  con- 
dition and  character  by  use  of 
ordinary  care,  and  plaintiff  did  not 
know  thereof,  the  law  was  for  him, 
and  the  jury  should  so  find. 
.  .  .  The  rule  requiring  an  em- 
ployer to  pi'ovide  reasonably  safe 
and  suitable  machinery  and  appli- 
ances for  use  of  employes,  and  to 
keep  them  in  reasonable  repair 
while  being  used,  is  so  just  and 
fair  that  it  has  never  been  called 
in  question  by  this  court.  But  if 
an  employer  may  in  every  case  es- 
cape liaibility  for  an  injury  to  a 
subordinate  employe  by  reason  of 
defective  machinery  and  appli- 
ances provided  for  his  use,  merely 
because  the  latter  does  not  show 
he  exercised  care  and  diligence  to 
discover  the  character  and  condi- 
tion thereof,  the  rule  would  not 
amount  to  mucl\,  as  either  an  in- 
centive to  the  employer  to  do  his 
duty,  or  protection  to  the  employe 
against  personal  injury.  The  limit 
of  injury  in  such  cases  as  this  is 
whether,  as  a  matter  of  fact,  the 
employe  did,  before  exposing  him- 
self to  danger,  know  the  machin- 
ery or  implements  causing  the  in- 
jury to  be  defective.'  If  appellee 
had  the  same  or  an  equal  oppor- 
tunity as  appellant  to  discover  the 
defect,  it  was  his  duty,  by  the  in- 
struction sriven,  so  to  do;  and,  if 
he  failed  in  this,  he  could  not  re- 
cover. As  the  duty  to  furnish 
reasonably  safe  appliances,  ma- 
chinery, and  place  to  work  is  a 
continuing  duty  on  the  master,  it 
seems  to  us  that  the  instruction 
Riven  by  the  court  correctly  states 
the  law  of  the  case." 


§  1523.]  NEGLIGENCE— MASTER  AND   SERVANT.  1015 

of  the  track,  if  you  believe  from  the  evidence,  it  was  so  unsafe,  was 
caused  by  the  defendant  not  exercising  reasonable  care  to  provide  a 
reasonably  safe  track,  it  will  be  your  duty  to  find  for  the  plaintiff.^" 

§  1523.    Injury  by  Protruding  Cross-Tie  and  Hole  in  Track,     (a) 

The  court  instructs  the  jury  that  the  i:)laintiff  sues  the  defendant  to 
recover  damages  for  alleged  injuries  to  him,  while  an  employe  on 
the  railway  of  defendant  caused  by  stepping  upon  the  end  of 
a  protruding  cross-tie,  and  into  a  hole  upon  defendant's  tracks, 
which  projecting  cross-tie  and  hole  were  permitted  upon  said  track 
and  roadbed  by  reason  of  the  negligence  of  the  defendant,  upon  and 
in  which  plaintiff  stepped  while  carrying  an  iron  rail  for  defendant, 
by  reason  of  which  plaintiff  was  injured,  and  that  such  injury  was 
without  the  fault,  negligence  or  want  of  care  of  the  plaintiff.^^ 

(b)  If  the  juvy  believe  from  the  evidence  that  the  defendant,  in 
constructing  and  keeping  its  roadbed  and  premises  where  plaintiff 
was  engaged  in  work,  permitted  one  of  its  cross-ties  to  project  above 
the  gi'ound,  and  a  hole  to  exist  beside  its  track,  and  that  in  per- 
mitting this  it  failed  to  exercise  ordinaiy  care;  and  if  you  further 
believe  that  the  plaintiff,  while  in  the  performance  of  his  duty,  and 
while  in  the  exercise  of  ordinary  care  stepped  upon  said  cross-tie  and 
into  said  hole,  and  was  thereby  injured,  you  will  find  for  the  plaintiff. 

(c)  If  the  place  where  plaintiff  was  at  work  was  reasonably  safe 
for  the  doing  of  the  work  for  which  plaintiff  was  engaged ;  or  if  you 
believe  from  the  evidence  that  thei'e  was  a  tie  in  the  track  which 
stuck  up  above  the  other  ties  in  the  yard,  and  thei'e  was  a  hole  by 
the  side  of  the  track,  and  that  such  proti-uding  tie  and  hole  made 
the  place  not  reasonably  safe  for  the  particular  kind  of  work  then 
being  done  there,  and  that  defendant  used  ordinary  care  to  make  and 
keep  said  premises  reasonably  safe ;  *  *  *  or  if  you  believe  from 
the  evidence  that  the  sticking  up  of  the  tie  and  the  hole  in  the 
track,  if  such  you  find  to  be  the  fact,  were  open  and  patent  to  com- 
mon observation,  and  could  have  been  seen  and  known  by  plaintiff- 
then  you  will  find  for  the  defendant.^^ 

§  1524.  Allowing  Timber  to  Stick  Out  of  Shed  and  Over  Transfer 
Table.  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  plaintiff  and  his  gang  were  negligent  in  leaving  the 
timber  sticking  out  of  the  shed,  and  over  the  tracks  of  the  transfer 
table,  and  thereby  caused  or  directly  contributed,  plaintiff's  injury, 
then  the  plaintiff  cannot  recover.  The  court  instructs  the  jury  that 
if  you  believe  from  the  evidence  that  the  plaintiff  himself  was 
guilty  of  negligence  which  directly  contributed  to  cause  his  injury, 
the  plaintiff  cannot  recover.^^ 

30— Malott    v.    Hood,    201    111.    202,  33— Ibid. 

66  N.  E.   247,   aff'ff  99   111.  App.   360.  33— Gayle    v.    Mo.    C.    &    F.    Co., 

31— Sherman   S.   &   S.   Ry.   Co.   v.  177  Mo.  427,  76  S.  W.  987  (995). 
Bell,    —    Tex    Civ.    App.    — ,    58    S. 
W.   147   (149). 


1016  FORMS  OF  INSTRUCTIONS.  [§  1525. 

§  1525.  Allowing  Derrick  to  Swing  Over  Track.  The  court  in- 
stnicts  the  jury  that  it  was  the  duty  of  the  defendant  in  this  case 
to  keep  its  roadbed  and  track  in  a  reasonably  safe  condition  for 
the  passage  of  its  train  along  and  over  the  same,  and  to  keep  the 
same  clear  of  obstructions  thereon,  or  in  close  and  dangerous  prox- 
imity thereto;  and  if  the  juiy  believe  from  the  evidence  in  this  case 
that  there  was  standing,  near  the  plaintiff's  railroad  and  track  at 
the  point  where  it  is  alleged  in  the  declaration  that  the  accident 
herein  occurred,  a  derrick  with  an  arm  or  boom  attached  thereto, 
and  that  said  arm  or  boom  of  said  derrick  was  of  sufficient  length 
to  swing  over  the  roadbed  or  track  of  the  defendant,  and  thereby 
endanger  the  passage  of  trains  along  and  over  said  track  at  said 
point,  then  it  was  the  duty  of  the  defendant  to  either  cause  said 
den'ick  and  arm  or  boom  attached  thereto  to  be  removed,  or  to  see 
that  the  same  was  kept  securely  fastened  in  such  a  way  and  manner 
as  not  to  obstruct  the  passage  of  trains  along  said  track  at  said  point. 
And  this  duty  devolved  upon  the  defendant  although  said  derrick 
may  not  have  been  upon  the  right  of  way  of  defendant,  nor  upon 
lands  under  its  immediate  control.^'* 

§  1526.  Negligence  of  Master  In  Allowing  Clinker  to  Remain  at 
Side  of  Track.  If  you  fuiiher  find  and  believe  from  the  evidence 
that  defendant  in  permitting  said  clinker  to  be  and  remain  on  its 
said  premises  at  such  time  and  place,  if  you  find  it  did  permit  the 
same,  was  an  act  of  negligence,  and  if  you  further  find  and  believe 
from  the  evidence  that  such  negligence,  if  any  there  was,  proximately 
caused  jDlaintiff's  injuries,  then  you  will  find  for  the  plaintiif,  unless 
you  find  for  the  defendant  under  other  instructions  hereinafter  given 
you.^^ 

§  1527.  Wreck  of  Train  on  Defective  Bridge,  (a)  The  court  in- 
structs the  jury  that,  before  the  plaintiff  can  recover  in  this  action, 
he  must  prove  to  the  reasonable  satisfaction  of  the  jury,  by  the 
greater  weight  of  the  evidence  in  the  cause,  that  his  injuries  are  due 
to  the  negligent  conduct  of  the  defendant,  its  agents  or  servants, 
and  that,  had  it  not  been  for  such  negligence  in  constructing  or  main- 
taining the  bridge  in  question,  he  would  not  have  been  injured;  and, 
if  he  has  failed  to  so  prove,  your  verdict  will  be  for  the  defendant. 
And  j'ou  are  further  instructed  that  the  defendant  was  not  bound  to 
furnish  its   employes   any  particular  kind  or  style  of  bridge  over 

34 — McCreery's    Adm'x    v.    O.    R.  was  no  evidence  that  appellant  had 

R.  Co.,  43  W.  Va.  110.  27  S.  E.  327  knowledge   that   the   clinker   which 

(328).  caused  the  injury  was  in  its  yards. 

35 — Mo.,    K.     &    T.     Ry.     Co.    v.  When    the   charge   is   construed   as 

Kecfe,    —    Tex.    — ,    84    S.    W.    679  a  whole,    the  jury   could   not   have 

(682).  been    misled     by    the    use    of    the 

"It  Is  contended   that  there  is  no  word  'permit.'     The  evidence  fairly 

evidence  to  authorize  the  giving  of  raised    the    issue    embraced    in    the 

this  ch.'irgo.     It  is  arguorl   that  the  charge,    and   the   court  did   not   err 

word  'permit,'  used  in  this  charge,  In  submitting  the  same." 
Imports  kHQwledge.  and  that  there 


§  1527.]  NEGLIGENCE— MASTER  AND   SERVANT.  1017 

R.  B.,  or  other  streams  its  railroad  crosses;  that  defendant  has 
discharged  its  full  duty  to  plaintiff  when  it  has  constructed  and 
maintained  a  bridge  over  R.  B.  such  as  is  in  ordinary  use  by  itself 
and  other  railroads,  and  reasonably  safe  to  carry  trains  over  it  under 
ordinary.'  conditions  and  circumstances ;  that  defendant  was  not  bound 
to  anticiiDate  unprecedented,  extraordinaiy  or  unusual  rainfalls,  or  to 
build  such  a  bridge  as  would  resist  or  stand  against  such;  and  if  the 
jury  believe  that  the  bridge  over  R.  B.,  as  constructed  and  main- 
tained, was  reasonably  safe  for  the  purpose  for  which  it  was  built 
in  times  of  usual  and  ordinary  rainfall,  then  plaintiff  cannot  recover. 

(b)  The  court  instructs  the  jury  that  the  defendant  is  not  bound 
to  furnish  any  particular  kind  or  style  of  bridge  over  R.  B. 
to  the  plaintiff,  and  it  is  in  no  sense  an  insurer  of  his  safety;  that 
all  the  law  requires  of  the  defendant  toward  its  employes  is  that 
it  shall  furnish  a  bridge  over  its  streams  that  is  reasonably  safe  for 
carrying  trains  over  them  under  ordinary  conditions. 

(c)  The  court  instructs  the  juiy  that  if  they  believe,  from  the 
evidence,  that  plaintiff  was  in  deferidant's  employ  as  conductor  of 

the  east-bound  passenger  train  on  the  day  of ,  • , 

and  that  said  train  was  wrecked  by  the  falling  of  defendant's  bi'idge 
across  R.  B.,  and  plaintiff  was  thereby  injured,  and  the  said  wreck 
was  caused  by  reason  of  the  defective  condition  of  said  bridge 
in  any  of  the  particulars  hereinafter  mentioned,  and  that  said 
bridge  was  a  pile  bridge,  and  on  account  of  the  character  of  the 
stream  and  the  country  drained,  it  (said  bi'idge)  -was  not  reason- 
ably safe  at  that  place,  or  that  the  piling  that  supported  said  bridge 
had  become  rotten,  unsound  or  defective,  or  that  there  was  not  suf- 
ficient earth  around  some  of  said  piling,  and  that  from  any  or  all 

of  said  causes  said  bridge,  on  said  day  of  ,  ,  was 

not  reasonably  safe  for  the  passage  of  defendant's  said  train  over 
the  same,  and  that  defendant  knew  of  the  defective  and  unsafe  con- 
dition of  said  bridge,  or  by  the  exercise  of  reasonable  care  and  dili- 
gence could  have  ascei'tained  the  same  before  the  arrival  of  the  train, 
upon  which  plaintiff  was  conductor,  at  said  bridge,  then  the  verdict 
must  be  for  the  plaintiff. 

(d)  The  juiy  are  instructed  that,  while  the  defendant  was  not 
bound  to  provide  against  the  effects  of  a  storm  which  it  could  not 
reasonably  anticipate,  yet  if  they  believe,  from  the  evidence,  that 
the  bridge  over  R.  B.  was  not  reasonably  safe  on  account  of  its 
being  a  pile  bridge,  or  because  some  of  the  pilino:  had  become 
rotten  and  decayed,  or  because  there  was  not  sufficient  earth  or 
dirt  around  said  piling,  and  that  the  fall  of  the  bridge  was  caused 
by  its  defective  condition  in  any  of  the  particulars  aforesaid,  and 
not  by  reason  of  the  extraordinaiy  force  of  the  storm,  then  the 
fact  that  the  bridge  fell  during  said  storm  wdll  not  prevent  a  recovery 
in  this  case.^® 

36— Copeland   v.   Wabash   R.    Co.,    175  Mo.   650,  75  S.  W.  106  (109). 


1018  FORMS   OF  INSTRUCTIONS.  [§  1528. 

§  1528.  Law  Fixes  no  Exact  Standard  for  Height  of  Bridges  Over 
Railroads.  (a)  The  court  instructs  the  jury  that  the  defendant 
company,  under  the  laws  of  Illinois,  is  not  required  to  build  its 
bridges  of  such  height  that  brakemen  can  stand  on  them  (on  the 
cars)  and  pass  through  and  under  them  with  safety.  The  laAV  fixes 
no  exact  height  or  standard,  but  only  requires  that  such  bridges 
shall  be  of  such  height  that  the  employes  can  perform  their  duties 
with  reasonable  safety  to  themselves.^ ^ 

(b)  The  court  instructs  you  that  it  was  the  duty  of  the  defendant, 
in  the  construction  and  maintenance  of  the  overhead  portion  of  the 
bridge,  where  decedent,  A.  B.,  was  injured,  to  construct  and  main- 
tain it  of  sufficient  height  that  the  brakemen  on  the  freight  cars 
could  pass  under  said  overhead  portion  while  engaged  in  the  dis- 
charge of  their  duties,  with  reasonable  safety  to  their  person  while 
standing  or  walking  on  top  of  the  freight  ears;  and  if  they  believe 
from  the  evidence  that  the  bridge  where  decedent  was  injured  was 
not  so  constructed  and  maintained  as  to  the  height  thei"eof,  and 
that  by  reason  thereof  decadent  was  injured,  and  that  the  injury 
caused  his  death,  you  must  find  for  plaintiff,  unless  you  believe  from 
the  evidence  that  decedent  was  not  in  the  discharge  of  his  duty 
as  brakeman  at  the  time  he  was  struck,  or  that  he  knew  the  over- 
head portion  of  said  bridge  was  insufficient  in  height  to  enable  him 
to  pass  under  it  safely  while  standing  or  walking  on  the  top  of  a 
freight  car  upon  which  he  was  at  the  time  he  was  struck,  and  that 
he  recklessly,  and  with  indifference  to  the  consequences,  and  not  in 
the  discharge  of  his  duty,  exposed  himself  to  the  danger  of  being 
struck  by  the  bridge,  in  which  later  state  of  case  you  will  find  for 
the  defendant;  or,  if  you  believe  from  the  evidence  that  the  injury 
was  not  the  cause  of  decedent's  death,  you  will  find  for  the  de- 
fendant.^^ 

OPERATION  AND  MANAGEMENT  OF  TRAINS  AND  CARS. 

§  1529.  Necessity  of  Look-out  at  Points  Where  Employes  Com- 
monly Pass  in  Discharge  of  Their  Duties.  The  court  instructs  the 
juiy  that  it  is  the  duty  of  a  railway  company's  servants,  who  operate 
its  engines  along  a  portion  of  its  track  that  is  commonly  used  by  its 
emplf)yes,  or  over  and  about  which  its  employes  commonly  pass  in  the 
discharge  of  their  duties,  to  exercise  "ordinary  care"  in  keeping  a 
look-out  to  discover  the  pi-esence  of  such  employes  on  or  in  close 
proximity  to  the  track  at  such  point,  and  to  use  all  the  means  in 
their  power,  consistent  with  safety  of  the  engine  and  its  operatives, 
to  stop  the  engine  to  prevent  a  collision  with  or  injuiy  to  such 
employes.^^ 

37— Cleveland,  C,  C.  &  St.  L.  Ry.     Adm'r,   23  Ky.    Law.   1929,   65  S.  W. 
Co.    V.    W.Tlter,    Adm'r,    147    III.    60     453  (456). 
(64).  ?,r,  N.  E.   529.  39— Mo.,     K.     &     T.     Ry.     Co.     V. 

38— L.    &    N.    R.    Co.    v.    Tucker's     Jones,   35  Tex.    Civ.   App.  584,   80  S. 

W.  852  (853). 


§  1530.]  NEGLIGENCE— MASTER  AND   SERVANT.  1019 

§  1530.  Injury  Through  Act  of  God  and  Concurrent  Negligence  of 
Defendant.  If  you  believe  from  the  evidence  that  the  pL^intiff  L., 
while  in  defendant's  employ,  and  while  in  the  performance  of 
his  duties,  was  injured  by  a  collision  between  a  passenger  train, 
and  a  loose  ear  on  the  main  line  of  defendant's  railway,  and  that 
the  said  loose  car  escaped  from  the  side  track  at  M.  City  by  reason 
of  an  unusual  and  unprecedented  windstorm,  and  that  defendant  was 
not  guilty  of  negligence  under  the  charges  herein  given  you  proxi- 
mately causing  the  escape  of  said  car  and  said  collision  and  plaintiff's 
injuries,  then  you  will  find  for  the  defendant.  If  however  you  be- 
lieve from  the  evidence  that  the  plaintiff,  while  in  defendant's 
employ,  and  in  the  performance  of  his  duty  was  injured  by  a  collision 
between  a  passenger  train  and  a  loose  car  on  the  main  line  of  defend- 
ant's railway,  and  that  such  ear  was  blown  out  of  the  side  track  at 
M.  City  by  an  unusual  or  unprecedented  windstorm,  and  that  such 
unusual  or  unprecedented  windstorm  was  a  proximate  cause  of  the 
collision  and  of  plaintiff's  injuries;  and  if  you  further  believe  from 
the  evidence  that  the  brakes  on  the  said  car  while  in  the  side  track 
were  not  set  and  the  wheels  were  not  blocked  and  that  the  failure  to 
have  the  said  brakes  set  or  the  wheels  blocked,  if  you  believe  there  was 
such  failure,  was  negligence  on  the  part  of  the  defendant ;  and  if  you 
further  believe  from  the  evidence  that  such  negligence  of  the  de- 
fendant, if  any,  and  such  unusual  or  unprecedented  windstonn  Avere 
concurring  causes  of  the  said  collision  and  of  plaintiff's  injuries, 
and  together  were  the  direct  and  proximate  cause  of  the  collision 
and  of  plaintiff's  injuries' — then  defendant  would  be  liable,  and  you 
would  find  your  verdict  for  the  plaintiff.*" 

§  1531.  Injury  to  Servant  Through  Failure  to  Obey  Ordinances  as 
to   Speed  or  Ringing  Bell.     If  you  believe  from  the  evidence  that 

plaintiff   was   an   employe   of   the   defendant  Company,   as 

alleged  in  his  petition,  and  that  when  en  route  from  his  residence 

to  the  tinshop  of  the  Company  in  the   city  of  D.  for  the 

purpose  of  having  his  torch  repaired,  at  a  point  at  or  near  the  place 
where  N.  street  and  the  railroad  tracks  cross  ]\I.  avenue  in  the  said 
city  of  D.  plaintiff  started  to  cross  one  of  said  tracks,  and  was  struck 
and  injured  by  the  tender  of  an  engine  then  and  there  being  operated 
and  run  along  and  over  said  track;  and  if  you  believe  from  the  evi- 

40-Galveston.  H.  &  S.  A.  Ry.  Co.  216,  36  S.  W.   800;  Galveston,   H.   & 

V    Lvnch    22  Tex.  Civ.  App.  336,  55  S.    A.    Ry.    Co.    v.    Croskell.    6    Tex. 

S'  W    389  (391)  Civ.   App.   160,  -25   S.   W.   486;   St.   L. 

'"Its    clear   import    is    that    if   the  &    S.    F.    Ry.     Co.    v.    McClain,    80 

windstorm    and    appellant's    negli-  Tex.  85,  15  S.  W.  789.     If  appellant 

g-ence    in    leaving    the    cars    unse-  was    negligent    in    leavmg    the   box 

cured  were  concurrent  causes,  and  cars    upon    the    side    track    without 

together  were  the  direct  and  prox*  having    brakes    set    or    the    wheels 

imate    cause    of    plaintiff's    hijury,  blocked,  and   they  were  blown  out 

the  railroad  would  be  liable  there-  on  the  main  track  by  a  storm,  such 

for.     This  we  understand  to  be  the  negligence      was      necessarily      the 

law.      Galveston,    H.    &    S.    A.    Ry.  proximate    cause    of    the    collision 

Co.  v.    Sweeney,  14  Tex.   Civ.  App.  and    appellee's    injury." 


1020  FORMS  OF  INSTRUCTIONS.  [§  1532. 

denee  that  the  employe  or  employes  in  charge  of  the  engine  at  the 
time  did  or  omitted  to  do  any  one  or  more  of  the  following  acts  or 
things  as  charged  in  the  plaintiff's  petition,  namely,  if  at  the  time 
they  were  running  said  engine  at  a  greater  rate  of  speed  than  six 
miles  an  hour,  or  if  they  failed  to  ring  the  bell  on  said  engine  as 
required  by  said  ordinance  of  said  city  of  D.,  or  if  they  did  not  keep 
such  lookout  to  discover  persons  on  the  track  at  said  point  as  an  or- 
dinarily prudent  person  would  have  done  under  like  circumstances,  or 
if  they  did  not  give  such  signals  or  warning  on  approaching  the  place 
of  the  accident  as  an  ordinarly  prudent  person  would  have  given 
under  similar  circumstances;  and  if  you  further  so  believe  that  such 
acts  or  omissions  which  you  find  have  been  so  done  or  omitted  by  such 
employes  were  the  proximate  cause  of  the  plaintiff's  injuries, 
and  that  such  employes  were  guilty  of  negligence  as  negligence  has 
been  hereinbefore  defined  in  doing  or  omitting  to  do  any  of  the  said 
acts  or  things  which  you  find  to  have  caused  plaintiff's  injuries;  and 
if  you  find  that  plaintiff  was  not  himself  guilty  of  contributory  negli- 
gence proximately  causing  or  contributing  to  cause  his  injuries — then 
you  will  return  a  verdict  for  plaintiff.*^ 

§  1532,  Failure  of  Engineer  or  Fireman  to  Obey  Signals  to  Slow 
Up  Train,  (a)  The  court  instructs  the  jury  that  if  they  shall  be- 
lieve from  the  evidence  that  the  plaintiff  gave  the  signal  to  hold  up 
the  engine  to  a  very  low  rate  of  speed,  and  also  gave  the  signal  to 
stop  the  train,  upon  the  occasion  mentioned  in  the  petition,  and  the 
fireman  or  engineer  of  the  train  failed  to  observe  and  obey  the  said 
signals,  and  that  the  failure  to  observe  or  obey  was,  under  all  the 
facts  and  circumstances  in  evidence,  gross  negligence,  and  by  reason 
thereof  the  plaintiff  received  the  injury  of  which  he  complains,  and 
that  the  plaintiff  did  not,  by  negligence  upon  his  part,  contribute 
to  cause  his  injury,  but  for  which  he  would  not  have  been  injured, 
the  law  is  for  the  plaintiff,  and  they  should  so  find.'*- 

(b)  But  if  the  plaintiff  did  not  give  the  said  signals,  or  if  he  did 
give  them,  and  the  engineer  or  fireman  did  not  fail  to  observe  or 
obey  them,  or  if  they  did  so  fail,  yet  if  the  failure  was  not,  under  all 
the  facts  and  circumstances  admitted  in  evidence,  gross  negligence, 
the  law  is  for  the  defendant,  and  they  should  so  find. 

(c)  Or  if  the  plaintiff,  by  negligence  upon  his  part,  contributed 
to  cause  his  injuiy,  and  he  would  not  have  been  injured  but  for  his 
contributory  negligence,  if  any  there  was,  the  law  is  for  the  de- 
fendant.''" 

§  1533.  Neglect  of  Engineer  to  Obey  Signal  to  Stop  Train  Run  at 
Dangerous  Rate  of  Speed.  If  you  find  from  the  evidence  that  the 
dc'C(;;isc(l,  I),  while  in  the  employ  of  the  defendant  as  a  brakeman 
upon  one  of  its  trains,  and  while  using  ordinaiy  care  in  discharging 

41— Mo.,     K.     &     T.     Ry.     Co.    v.        42— Southern    Ry.    v.    Clifford,    23 
Owens.   —  Tex.  Civ.   App.  — ,  75  S,     Ky.   T..   Ill,   62   S.   W.   514. 
W.  578  (581).  43— Ibid. 


§  1534.]  NEGLIGENCE— MASTER  AND  SERVANT.  1021 

the  duty  assigned  to  him,  was,  on  or  about  the  date  alleged  in  plain- 
tiff's petition,  engaged  with  other  sei-vants  of  defendant  in  placing 
cars  upon  the  defendant's  coal  chute  at  H  S,  and  while  so  engaged 
the  deceased  was  riding  upon  the  farthest  car  from  the  engine;  and 
if  you  believe  from  the  evidence  that  the  engineer  or  person  in 
charge  of  defendant's  engine  ran  said  engine  and  cars  upon  said 
coal  chute  at  an  unusually  rapid  and  dangerous  rate  of  speed;  or  if 
you  find  that  the  deceased  and  others  of  defendant's  employes,  in 
time  to  have  avoided  the  accident,  gave  a  signal  or  signals  to  the 
engineer  or  person  in  charge  of  said  engine  to  discontinue  the  un- 
usually rapid  and  dangerous  rate  of  speed  (if  you  find  that  such  speed 
was  unusually  rapid  and  dangerous),  land  to  immediately  stop  said 
train,  and  that  the  signals  so  given  (if  given)  were  the  usual  and 
customary  signals  for  that  purpose  in  use  by  the  defendant;  and  if 
you  believe  the  defendant  or  person  in  charge  of  its  engine  was 
guilty  of  negligence,  as  that  term  is  above  defined,  in  regard  either 
to  the  rate  of  speed  at  which  the  cars  were  run,  the  engineer's  fail- 
ure to  obey  signals  (if  he  did  fail),  or  the  unfamiliarity  of  the  en- 
gineer with  said  coal  chutes  (if  you  believe  that  he  was  unfamiliar) 
in  the  manner  and  form  alleged  by  plaintiffs,  and  if,  by  reason  of 
the  negligence  of  the  defendant  or  said  engineer  in  any  one  or  all 
of  the  respects  above  mentioned,  you  find  that  the  car  upon  which 
deceased  was  riding  was  pushed  against  the  bumping  post,  and  broke 
said  post  down,  and  said  ear  was  thereby  thrown  off  said  coal  chute, 
and  deceased,  D,  thereby  killed;  and  if  you  believe  the  negligence 
of  the  defendant  or  of  said  engineer,  in  the  manner  and  form  above 
submitted,  caused  the  death  of  said  deceased;  and  if  j^ou  further 
find  that  the  deceased  was  the  son  of  plaintiffs,  M  and  J;  and  if 
5'ou  believe  that  plaintiffs  had  a  reasonable  expectation,  then  and  in 
the  future,  of  receiving  pecuniary  benefits  from  said  D,  had  he  not 
been  killed — then  you  will  find  for  the  plaintiffs,  unless  you  find  for 
the  defendant  under  other  issues  submitted  to  you.^* 

§  1534.  Failure  to  Give  Such  a  Warning  of  Approach  of  Engine 
as  Could  Be  Heard  by  Person  of  Ordinary  Hearing.  The  jury  are 
instructed  that  if  the  defendant  undertook  through  its  employes  to 

44 — Mo.,     K.     &    T.     Ry.     Co.    V.  reg-ard   thereto.     In   no   event,   un- 

O'Connor,  —   Tex.   Civ.   App.  — ,  78  der   the   charge,    was   the  jury  au- 

S.    W.    374   (376).  thorized    to    find    for   plaintiffs    un- 

"Thxis    it    will    be    seen   that   the  less  they  believed  the  death  of  ap- 

jury    was    distinctly   told,    in   effect  pellee's   son   was   the   result    of  de- 

— negligence   having  been   defined —  fendant's    neg-ligence.      The    charge 

that    before    they    would    be    war-  is  not  subject  to  the  objection  that 

ranted   in    returning-   a   verdict   for  it    made    it    the    absolute    duty    of 

the    plaintiffs,     they    must    believe  appellant's    engineer    to    have    dis- 

from    the    evidence    that    the    en-  continued   the   speed    of    the   train, 

gineer  in  charge  of  defendant's  en-  and   to   have   stopped    the   same.  It 

gine    failed    to    use    ordinary    care  only  imposed  ordinary  care  to  ob- 

in  respect   to  the  i-ate  of  speed   at  serve    the    signals     and    stop     the 

which   the  cars  were   run,   or   that  train,   and   this,  under  the   circum- 

he    failed    to    obey    signals    which  stances,  was  certainly  as  favorable 

involved  the  stopping  of  the  train,  as  appellant  had  the  right  to  ask." 
and    failed    to    use    such    care    in 


1022  FORMS  OF  INSTRUCTIONS.  [§  1535. 

give  any  warning  of  the  approach  of  the  engine  and  ears  into  the 
shed  room,  it  was  its  duty  to  give  such  warning  as  might  have  been 
heard  by  a  person  of  ordinary  hearing,  considering  the  distance 
between  the  person  giving  the  warning  and  the  plaintiff  at  the  time; 
and  although  the  jury  may  believe  that  the  defendant  upon  the  ap- 
proach of  the  engine,  gave  warning  thereof,  yet  if  they  believe  that 
it  Avas  not  such  warning  as  could  have  been  heard  by  a  person  of 
ordinary  hearing,  at  the  distance  where  plaintiff  was  working,  then 
such  warning  does  not  avail  defendant  anything  in  this  suit.*^ 

§  1535.  Telegraph  Operator  Injured  While  Delivering  Order  to 
Engineer  of  Train — Second  Train  Giving  No  Signals.  If  the  jury 
believe  fi'om  the  evidence  that  the  plaintiff,  who  was  in  the  employ 
of  the  defendant  as  a  telegraph  operator  at  the  U  station,  was  di- 
rected by  the  train  dispatcher  of  the  defendant  to  leave  his  office 
and  go  out  and  deliver  to  the  officers  of  train  No.  244,  going  east, 
a  clearance  order,  then  you  are  charged  that  the  defendant  company 
owed  the  plaintiff  the  duty  to  exercise  ordinary  care  to  prevent  in- 
jury to  him  while  so  engaged  in  the  performance  of  such  duty,  if 
any;  and  if  the  jury  further  believe  from  the  evidence  that  the 
plaintiff,  in  obedience  to  said  order,  if  he  was  so  ordered,  Avithout 
negligence  on  his  pai't,  left  his  office  to  hand  to  the  engineer  of  the 
train  No.  244  said  clearance  order,  and  that  he,  after  having  done 
so,  as  he  was  backing  in  the  direction  of  the  depot,  train  No.  243 
came  in  from  the  east,  without  sounding  the  whistle  or  giving  warn- 
ing of  its  approach,  and  did  strike  and  run  over  the  plaintiff,  and 
inflict  on  him  the  injuries  which  terminated  in  the  loss  of  his  leg; 
and  the  jury  further  find  that  the  defendant  was  negligent  in  so 
operating  its  said  train,  and  that  said  negligence,  if  you  find  it  was 
negligence,  was  the  proximate  cause  of  the  plaintiff's  injuiies,  then 
you  should  find  for  the  plaintiff.'**^ 

§  1536.  Collision  Through  Failure  of  Engineer  to  Give  Flag  Sig- 
nal. If  the  jury  believe  that,  luider  the  rules  of  the  defendant,  it 
was  the  duty  of  the  engineer  to  give  a  flag  signal  by  blowing  five 
short  blasts  of  the  whistle  when  the  train  stopped,  or  as  soon  as  he 
knew  the  train  was  going  to  stop;  and  if  you  further  believe  that 
he  failed  to  give  the  flag  signal  at  the  time  when,  under  the  rules  of 
the  defendant,  he  was  required  to  give  it;  and  if  you  believe  he 
was  guilty  of  negligence  in  failing  to  give  such  signal,  if  he  failed; 
*  *  *  and  if  you  believe  the  negligence,  if  any,  of  the  engineer 
in  failing  to  give  the  signal,  if  he  failed,  was  the  proximate  cause  of 
the  collision,  you  should  find  for  the  plaintiff.*^ 

§  1537.  Injury  Through  Passenger  Train  Colliding  With  Loose 
Car.     If  you  believe  from  the  evidence  that  the  plaintiff,  I.  0.  L.,  was 

45— Miss.    C.-O.    :.:.    Co.    V.    Ellis,     v.    Jenkins.    29   Tex.    Civ.    App.   440, 
72   Miss.  191.   17  So.   114   (21:";).  69  S.  W.  2.33. 

46— Galveston,  H.  &  S.  A.  Ry.  Co.         47— Mo.,   K.   &  T.    Ry.   Co.   v.   Bo- 


§  1538.]  NEGLIGENCE— MASTER  AND  SERVANT.  1023 

in  the  defendant's  employ  as  a  fireman  on  one  of  its  passenger 
trains,  and  that  while  he  was  so  employed,  he  was  injured  by  a  col- 
lision between  such  passenger  train  and  a  loose  ear  on  the  main  line 
of  defendant's  railway,  as  alleged  in  plaintiff's  petition;  and  if 
you  further  believe  from  the  evidence  that  the  said  car  escaped  from 
a  side  track  at  M.  City  and  run  down  upon  the  main  line,  and  that 
the  said  car,  while  in  the  said  side  track,  did  not  have  the  brakes 
set  or  the  wheels  blocked,  and  that  this  caused  its  escape  from  said 
side  track;  and  if  you  further  believe  fi'om  the  evidence  that  the 
defendant  negligently  permitted  said  ear  to  be  and  remain  upon  said 
side  track  without  having  the  brakes  set  or  the  wheels  blocked,  and 
that  the  failure  to  have  the  brakes  set  or  the  wheels  blocked,  if  you 
believe  there  was  such  failure,  was  negligence  on  the  part  of  the 
defendant,  and  that  such  negligence,  if  any,  was  the  proximate 
cause  of  the  collision  and  the  plaintiff's  injuries,  then  j^ou  will  find 
your  verdict  for  the  plaintiff.^* 

§  1538.  Injury  to  Plaintiff  While  Coupling  Cars  by  Throwing 
Wrong  Switch.  The  jmy  are  instructed  that  if  they  believe  and 
find  from  the  evidence  that  on ,  the  plaintiff  Avas  attempt- 
ing to  couple  a  certain  stationary  freight  car  to  a  certain  moving 
car  backing  toward  the  same,  for  the  defendant  railroad  company, 
and  his  right  hand  and  wrist  were  caught  between  the  corners  of 
said  cars  and  injured,  and  that  the  said  injury  was  caused  by  the 
negligence  and  carelessness  of  the  switch  tender  in  throwing  the 
switch  for  track  No.  17  instead  of  No.  18,  thus  causing  the  corners 
of  the  car  at  which  plaintiff  was  standing,  to  collide  and  come  to- 
gether with  force  and  violence,  and  that  the  plaintiff,  at  the  time, 
was  in  the  exercise  of  ordinary  care  himself,  then  j^our  verdict  must 
be  for  the  plaintiff.*^ 

§  1539.  Duty  to  Set  Brakes  While  Couplings  Are  Being  Adjusted. 
If  the  jury  believe  from  the  evidence  that  plaintiff,  while  in  the  em- 
ployment of  defendant,  in  the  exercise  of  his  duties  under  such  em- 
ployment, was  engaged  in  inspecting  a  train  of  defendant  at  T.,  Texas, 

on   the   day  of  ,  ,   and   securing  and  adjusting 

the  couplings  and  coupling  attachments  thereof,  and  if  you  believe 
that  the  defendant,  in  the  exercise  of  ordinary  care  for  the  safety  of 
plaintiff  and  its  other  employes  engaged  in  work  of  the  same  nature, 

die,    32    Tex.    Civ,    App.    168,    74    S.  to    this     criticism.       We     think     it 

W.  100  (101).  plainly    required    the    jury    to    find 

48 — G.,    H.    &    S.    A.    Ry.    Co.    v.  that  the  injury  was  caused  by  the 

Lynch.    22    Tex.    Civ.    App.    336,    55  neplig-ence  and   carelessness   of  the 

S.   W.  389  (390).  switch    tender.      An    instruction    in 

49— Phippin   v.    Missouri    Pac.    R.  all    respects    similar    to    this    was 

Co.,  196  Mo.  321,  93  S.  W.  410  (417).  sustained      in      Dammann      v.      St. 

"The    defendant    urges    that    this  Louis.    152    Mo.    186,    53    S.    W.    932. 

instruction    was    erroneous    in    that  See    also,     Geary    v.    Ry.     Co..    138 

it      assumes      that      throwing      the  Mo.    251.    39    S.    W.    774.  "60   Am.    St. 

switch    for    track    17    was    a    negli-  555:    State    v.    Grayor,    89    Mo.    605, 

g-ent  and  careless  act.     We   do  not  1    S.  W.   .365;    O'Connell  v.   Ry.    Co., 

think  the  instruction   is  obnoxious  106  Mo.   482,   17  S.   W.   494." 


1024  FORMS  OP  INSTRUCTIONS.  [§  1540. 

should  have  set  or  caused  to  be  set  the  brakes  on  each  and  every 
car  thereof  before  attaching  any  other  car  thereto  while  making  up 
said  train,  and  that  defendant  failed  to  set  said  brakes  or  have 
the  same  set  in  this  manner,  and  by  reason  of  such  failure  plaintiff 
was  injured,  and  if  you  further  believe  from  the  evidence  that  it 
was  usual  and  customary  to  set  said  brakes  in  making  up  defend- 
ant's passenger  trains  at  said  time  and  place,  and  you  further 
believe  defendant  was  guilty  of  negligence  in  not  setting  said  brakes, 
as  negligence  is  hereinbefore  explained  to  you,  and  you  further  be- 
lieve from  the  evidence  that  plaintiff  was  exercising  such  care  for  his 
own  safety  as  a  man  of  ordinary  prudence  would  have  exercised 
under  like  circumstances,  then  in  either  of  these  events  you  will 
find  for  the  plaintiff,  unless  you  should  find  for  the  defendant  under 
succeeding  instructions.^*' 

§  1540.  Using  Hand-car  Without  a  Brake.  If  you  should  believe 
from  the  evidence  that  the  plaintiff's  superior  officer  directed  him  to 
use  the  hand-ear  without  a  brake,  then  you  are  further  instiaicted 
that,  unless  the  danger  of  using  said  hand-ear  in  that  condition  was 
so  apparent  that  an  ordinarily  prudent  man  would  not  have  used  the 
same  under  the  same  or  similar  cii'cumstances,  the  plaintiff  would 
not  be  guilty  of  contributory  negligence  in  that  respect. ^^ 

§  1541.  Sending  Hand-cars  at  Great  Speed  Immediately  After  One 
Another,  (a)  If  the  jury  believe  from  the  evidence  that  B.  S.  was 
section  boss  and  J.  J.  was  one  of  the  hands  in  the  employ  of  B.  S., 
and  that  said  B.  S.  had  control  of  the  running  of  the  two  hand-cars 
spoken  of  by  the  witnesses,  and  that  while  crossing  the  bridge  over 
the  C.  river,  in  accordance  with  his  orders  at  a  great  rate  of  speed, 
and  that  said  hand-cars  were  running  about  15  or  20  feet  apart,  and 
that,  just  after  the  two  cars  had  crossed  the  iron  part  of  the  bridge, 
he  gave  the  signal  to  the  hands  on  the  front  cars  to  check  up,  without 
first  giving  warning  to  those  on  the  rear  car;  and  if  they  further 
believe  from  the  evidence  that,  at  the  time  said  B.  S.  gave  a  signal 
to  those  on  the  front  car,  W.  put  his  foot  on  the  brake  and  checked 
it  up;  and  if  they  further  believe  from  the  evidence  that  the  check- 
ing up  of  the  front  car  caused  G.  to  put  his  foot  on  the  brake  of  the 
second  car,  and  that  the  handle  of  the  lever  was  jerked  out  of  J. 

50— St.  L.  S.  W.  Ry.  Co.  of  Tex-  act  which  caused  the  injury  intro- 

as  v.  Rea,  —  Tex.  Civ.   App.  — ,  84  duces    into    the    situation    a   differ- 

S.    W.   428   (430);    Mo.,   K.   &  T.    Ry.  entiating    circumstance    which    will 

Co.  V.  Avery,  —  Tex.  Civ.  App.  — ,  render   his   contributory   negligence 

64  S.  W.  935  (936).  a   question    for   the   jury    in    nearly 

51 — Texas    &     N.     O.     R.     Co.     v.  every  concoiv.able  state  of  the  evi- 

Kelly.   34   Tex.   Civ.   App.   21,   80   S.  dence.     It  does  not  follow  that  be- 

W.    1073    (1076).  cause   the   servant   could   justify    a 

"The  rule   stated   in  a  note  in  48  disobedience    of    the    order    lie    is 

L.    R.    A.    755    commends    itself    as  guilty  of  negligence  in  obeying  it.' 

correct.      It    is    thus    stated:      'But  The    question    therefore    seems    to 

by  almost  all  courts  it  is  held  that  have    been    properly    submitted    to 

the    fact    of    the    servant's    having  the   jury." 
been    directly    ordered    to    do    the 


§1542.]  NEGLIGENCE— MASTER  AND   SERVANT.  1025 

J. 's  hands  by  the  putting  on  of  the  brake  by  G.,  and  that  said  rear 
car  ran  into  the  front  ear  and  threw  J.  J.  to  the  ground  and  killed 
him,  then  the  jury  must  find  for  the  plaintiff. 

(b)     If  the  j\xry  believe  from  the  evidence  that  at  the  time  J.  J. 
was  killed,  he  was  in  the  employ  of  the  A.  M.  R.  Company,  and  that 

B.  S.  was  the  foi'eman  or  section  boss,  and  that  the  deceased  was  on 
a  hand-oar  at  the  time  of  the  accident;  and  if  they  further  believe 
that  said  hand-ears  were  operated  under  the  direction  of  said  B.  S., 
and  that  B.  S.  told  the  deceased  and  the  other  hands  to  go  over  the 

C.  river  as  fast  as  they  could,  and  that  in  compliance  with  said 
orders  the  hands  started  across  the  bridge  at  a  gi'eat  rate  of  speed, 
and  that  they  were  running  about  15  or  20  feet  apart,  and  that  just 
after  they  passed  the  iron  part  of  the  bridge,  the  said  B.  S.  waved 
his  hand  to  those  on  the  front  car  to  slow  up,  and  that  J.  W.  at 
once  placed  his  foot  on  the  brake  of  the  front  cai',  and  cheeked  it 
up;  and  if  they  further  believe  that  L.  B.  as  soon  as  J.  W.  put  his 
foot  on  the  brake  waved  to  the  hindmost  car  to  check  up,  and  that 
G.  at  once  placed  his  foot  on  the  brake ;  and  if  they  further  believe 
that  the  placing  of  G. 's  foot  on  the  brake  suddenly  cheeked  the 
speed  of  the  car,  jerked  the  handle  of  the  lever  out  of  J.  J.  's  hands ; 
and  if  they  further  believe  that  before  he  could  recover  and  get  hold 
of  the  handle  the  hindmost  car  ran  into  the  front  car  and  threw  J. 
J.  off,  and  he  was  killed,  then  the  plaintinff  is  entitled  to  damages. ^- 

§  1542.    Kicking  Car  Upon  Track  at  a  High  and  Dangerous  Rate 

of  Speed.    If  you  find  from  the  evidence  that  on  or  about  the 

day  of  ,  ,  the  plaintiff,  while  in  the  employ  of  the  de- 
fendant company,  was  engaged  in  the  performance  of  his  duty  in 
the  work  of  watering  a  train  of  passenger  coaches,  and  that,  while 
he  was  stooping  over  a  water  hydrant  in  the  performance  of  his 
duty,  he  was  struck  by  a  moving  coal  car  on  the  track  of  defendant 
known  as  Davis  No.  2,  and  that  he  was  thereby  injured  as  alleged  in 
his  petition,  and  you  further  find  that  said  ear  was  kicked  and  pro- 
pelled upon  said  track  at  a  high  and  dangerous  rate  of  speed  under 
the  circumstances,  and  that  there  was  no  warning  nor  notice  given  to 
plaintiff  of  the  approach  of  said  car,  and  that,  in  so  kicking  and 
propelling  said  ear  at  said  time  and  place,  if  you  find  it  was  so 
kicked  and  propelled,  defendant  company  was  guilty  of  negligence, 
and  that  such  negligence,  if  any,  was  the  pi'oximate  cause  of  plain- 
tiff's injury,  if  any;  and  if  you  further  find  that  plaintiff  was  not 
guilty  of  any  negligence  which  either  caused  or  contributed  to  his 
injury,  if  any,  and  that  plaintiff's  injuries,  if  any,  did  not  result 
from  the  risks  oi'dinarily  incident  to  his  employment,  then  you  will 
find  for  plaintiff.^^ 

52— Jones   v.    Ala.    M.   R.    Co.,   107        53— Galveston,  H.  &  S.  A.  Ry.  Co. 
Ala.  400.  18  So.  30  (32).  v.  Pendleton.  30  Tex.  Civ.  App.  431. 


70  S.  W.  996  (997). 


65 


1026  FORMS  OP  INSTRUCTIONS.  [^1543. 

§  1543.  Injury  to  Person  Repairing  Track  By  Cars  Being  Kicked 
Back  Without  Warning.  If  you  find  from  the  evidence  that  plaintiff 
was  in  the  employ  of  defendant  at  the  time  of  the  injury  complained 
of,  and  was  employed  in  repairing  defendant's  track  at  the  point 
where  the  accident  occurred;  that  while  so  employed  his  attention 
was  necessarily  engaged  by  reason  of  the  nature  of  the  duties  he 
was  then  engaged  in;  that  while  so  engaged  in  performing  such 
duties  a  train  was  approaching  him  on  said  track,  and  that  it  was 
near  to  him  Avhen  discovered  for  the  first  time  by  him;  that  in  the 
emergency  and  hurry  to  get  out  of  the  way  of  such  train  so  ap- 
proaching, plaintiff  stej^ped  back  from  said  track,  and  near  to  the 
track  lying  next  thereto,  and  running  parallel  therewith  across  the 
street  crossing  at  C  avenue ;  that  while  so  standing  cars  had  been 
cut  loose  from  an  engine  on  defendant's  track,  and  were  being 
kicked  back  with  such  force  that  they  were  running  on  said  parallel 
track  at  a  rate  of  speed  exceeding  six  miles  per  hour;  that  no  one 
was  stationed  on  or  near  the  end  of  said  cars  nearest  to  and  ap- 
proaching plaintiff,  in  order  to  check  speed  and  warn  persons  on 
said  track  of  their  approach;  that  plaintiff  did  not,  in  the  exer- 
cise of  ordinary  care  and  diligence,  discover  the  approach  of  said 
cars  in  time  to  avoid  injury  to  himself;  that  plaintiff  was  not  guilty 
of  any  negligence  which  directly  contributed  to  his  injury,  then 
plaintiff  will  be  entitled  to  recover,  and  you  should  find  for  plain- 
tiff. If  you  fail  to  so  find,  then  plaintiff  will  not  be  entitled  to  re- 
cover, and  you  should  find  for  defendant.^* 

§  1544.  Engine  Leaving  Track  Through  Brakeman  Locking  Switch 
to  Wrong  Track.  If  you  believe  from  the  evidence  that  a  brakeman 
of  the  defendant  was  under  a  duty  to  set  the  north  switch,  as  it 
was  called  in  the  evidence,  so  as  to  make  the  main  track  secure  for 
the  passage  of  the  engine  that  Mr.  B.  was  driving,  and  he  failed  to 
use  ordinary  care  in  discharging  his  duty,  and  so  did  not  set  the 
switch  and  lock  it  to  the  main  track,  but  set  it  and  locked  it  to  the 
side  track,  so  as  to  cause  the  engine  to  leave  the  rail  at  that  point, 
you  ought  to  find  that  the  defendant  was  negligent  in  that  re- 
gard.°^ 

54— Tobey  v.  B.,  C.  R.  &  N.  Ry.  Iowa   150,    25   N.    W.    104;    Mathews 

Co.,  94  Iowa  256,  62  N.  W.  761  (763).  v.    Cedar    Rapids,    SO    Iowa    463,    45 

33   L.    R.   A.   496.  N.   W.   894;   Schmidt   v.   Ry.   Co.,   75 

"Generally,   the   que.stion   of   neg-  Iowa    609,    39   N.    W.   916.      It    must 

ligence    is    for    the    jury,    but    this  be    remembered    that    in    this    case 

Is  not  always  so.     The  rule  is,   if,  no    evidence    was    offered    by    the 

from     the     undisputed     facts,     but  defendant;  that  there  is  no  dispute 

one   conclusion    can    reasonably    be  as    to    the    facts    of   the    case,    nor, 

drawn,    then    the    question    is    one  as    it   seems    to   us,    nny   room    for 

of    law;    but    if,    under    the    facts,  controversy    as    to   the    conclusions 

different    minds    might    reasonably  which   must  be   drawn   from   them, 

reach    .-i    different    conclusion,    it    is  We  think  the  instruction  was  cor- 

a    r|i]cstion    of    fact    for    the    iury.  rect." 

MiliM-    V.    W.-ilker.    59    Iowa    186.    13  55— Western  &  A.   R.  Co.  v.  Rus- 

N.   VV.  101;  Whitsett  v.  Ry.  Co..  67  sey,   95   Ga.    584,   23   S.   E.    207   (211), 


§.1545.]  NEGLIGENCE— MASTER  AND   SERVANT.  1027 

§  1545.  Injury  to  Servant  While  Removing  Tie  From  Gravel  Deck 
— Orders  of  Vice  Principal.  If  from  a  preponderance  of  tlie  evi- 
dence you  believe  that  "W.  was  intrusted  by  the  defendant  with  the 
power  to  superintend,  direct,  control,  and  manage  plaintiff  while 
in  the  perfoiTnanee  of  his  work,  and  that  in  virtue  of  such  power 
the  said  W  ordered  and  directed  the  plaintiff,  while  the  plaintiff 
was  engaged  in  removing  a  tie  from  a  gravel  deck  to  get  down  into 
a  trench  and  to  lift  the  tie  off  the  guard  rail,  and  that  such  order 
of  direction,  if  such  there  was,  was  given  in  such  a  way  and  under 
such  circumstances  as  to  reasonably  justify  plaintiff  in  believing, 
and  that  he  did  believe,  that  said  W,  by  the  exercise  of  ordinary 
care,  could  and  would  hold  the  other  end  of  the  tie  under  the  rail 
of  the  track,  so  that  it  would  not  slide  out  or  turn  over  and  injure 
him,  and  if  you  further  believe  that  said  W,  by  the  exei'cise  of 
ordinary  care,  could  have  held  the  other  end  of  said  tie  under  the 
rail  of  the  track,  so  that  it  Avould  not  slide  out  or  turn  over  and  injure 
plaintiff,  and  that,  acting  in  obedience  to  such  direction  and  belief, 
that  the  plaintiff  took  a  position  astride  of  said  tie  and  began  lifting 
the  same  as  directed  by  said  W,  and  that,  while  doing  so,  the  said 
W  failed  to  hold  the  other  end  of  said  tie  to  prevent  the  tie  from 
sliding  out  from  under  the  rail,  and  that  it  was  negligence  on  the 
part  of  said  W  to  fail  to  hold  the  end  of  said  tie,  and  that  such 
negligence,  if  any,  directly  caused  plaintiff's  injuries,  if  any,  and 
that  the  plaintiff  has  been  thereby  damaged,  you  will  return  a  ver- 
dict for  the  plaintiff,  unless  you  further  find  that  plaintiff  was  guilty 
of  contributory  negligence,  or  that  he  assumed  the  risk,  or  that 
plaintiff  and  said  "W  were  fellow  servants.^^ 

56— Reeves    v.    Ry.    Co.,    —   Tex.  words,    if,    under   the   first   portion 

— ,  98   S.   W.   929.  of    the    paragraph,    they    concluded 

"The  charge  is  attaclced  (1)  be-  from  _  the  evidence  that  W.  had 
cause,  if  W.  was  a  vice-principal,  superintendence.  direction,  and 
and  if  plaintiff  was  injured  in  control  of  plaintiff,  they  could  not 
obeying'  his  order,  with  the  assur-  have  been  confused  nor  misled  by 
ance  that  W.  would  assist  and  pro-  the  reference  to  the  same  issue 
tect  him,  he  was  not  chargeable  in  the  concluding  part  of  the  para- 
with  contributory  negligence  or  graph,  particularly  when  the  court, 
assumption  of  risk  fis  a  matter  of  in  the  course  of  its  charges,  de- 
law,  and  the  reference  to  the  is-  fined  a  fellow  servant  to  be  one 
sues  of  contributory  negligence  who  did  not  have  superintendence. 
and  assumed  risk  was  unauthor-  control,  and  direction  of  the  plain- 
ized,  and  was  calculated  to  con-  tiff.  The  first  objection  proceeds 
fuse  and  mislead  the  jury;  and  upon  the  idea  that,  if  the  act  is 
(2)  because  the  charge  was  con-  done  in  obedience  to  the  master's 
tradictory  in  this:  That,  after  in-  direction,  it  eliminates  entirely  the 
structing  the  jury  to  find  for  plain-  defense  of  contributory  negligence 
tiff  on  the  theory  of  vice-principal,  or  a.«sumed  risk.  This  is  not  true 
it  told  them  not  to  do  so  if  they  in  all  cases.  Jones  v.  G.,  H.  &  S. 
found  them  to  be  fellow  servants.  A.  Ry.  Co..  11  Tex.  Civ.  App.  39, 
This  latter  criticism  is  not  sound.  31  S.  W.  706;  Ry.  Co.  v.  Sanchez, 
No  jury  of  common  intelligence  —  Tex.  Civ.  App.  — ,  65  S.  W.  894; 
would  be  supposed,  after  finding  Haywood  v.  Ry.  Co.,  —  Tex.  Civ! 
In  favor  of  plaintiff  on  the  fellow  App.  — ,  85  S.  W.  434.  The  facts  of 
servant  issue,  to  find  to  the  con-  this  case  demonstrate  the  inapplic- 
trg,ry  on  the  same  issue.     In  other  ability  of  such  rule.  Plaintiff  testi- 


1028  FORMS  OF  INSTRUCTIONS.  [§  1546. 

§  1546.  Laborers  Working  on  or  About  Gravel  Cars — Duty  to 
Avoid  Injury  to.  It  was  the  duty,  under  the  law,  of  those  in  charge 
of  the  engine,  in  eariying  it  and  pushing  the  ears  down  B  street 
to  connect  with  the  gravel  ears,  to  use  that  degree  of  care,  and  to 
take  that  measure  of  precaution,  by  looking  out  or  giving  signals, 
or  otherwise,  to  avoid  injury  to  the  laborers  on  or  about  the  gravel 
cars,  that  ordinarily  prudent  persons  in  like  position  as  they  occu- 
pied, and  having  like  knowledge  of  the  usual  or  existing  conditions 
that  they  had,  would  have  used,  the  measure  and  extent  of  their 
duty  being  in  proportion  to  what  they  knew,  or  by  the  exercise  of 
ordinary  care  could  have  known;  and,  if  they  failed  to  use  such 
degree  of  care,  such  failure  was  negligence,  in  law.^'' 

§  1547.  Duty  of  Section  Foreman  Toward  Servant  While  Unload- 
ing Push  Car.  It  was  the  duty  of  the  foreman  to  exercise  ordinary 
care  for  the  safety  of  the  plaintiff  while  working  under  him  in  un- 
loading the  push  car;  and  if  you  find  from  the  evidence  that  the  sec- 
tion foreman  knew  the  danger  to  the  plaintiff  by  reason  of  the  near 
approach  of  the  train,  and  that  he  failed  to  notify  him  of  such 
danger,  and  that  such  action  on  his  part  was  negligence,  as  herein- 
before defined,  then  the  defendant  would  be  liable,  if  such  negligence 
caused  the  injury  complained  of,  unless  you  further  find  that  the 
plaintiff  knew  himself  of  such  danger,  or  by  the  use  of  ordinary  care 
could  have  known.^^ 


RULES  AND  REGULATIONS. 

§  1548.  Duty  to  Make  Proper  Rules  for  Safety  of  Servant,  (a) 
That  it  is  the  duty  of  a  railway  company  to  make  all  reasonable  and 
proper  regulations  for  the  safety  of  its  employes.  And  this  being  an 
affirmative  fact,  it  devolves  upon  the  company  to  show  an  observance 
of  the  duty  when  sued  by  a  servant  for  an  injury  received  when  in  its 
service,  and  negligence  is  shown.^^ 

fied  that  W.   did  not  order  him  to  58— Int'l   &    G.   N.    R.    Co.   v.   Tis- 

pet  astride  the  tie,  but  ordered  him  dale,    —   Tex.    Civ.    App.    — ,    87    S. 

to  got  into    the  trench  and    lift   it.  W.   1063    (1065). 

He  te.«itified,  further,  that  he  could  "In    our    opinion,    the    above    in- 

not    lift    it    without    straddling    it;  struction    is   a   proper   and    correct 

there    being    hardly    room    in    the  statement   of    the    duty,    under   the 

trench  for  him  to  stand  in  it.     As  law,    of    a    section    foreman    under 

we  shall  show    in   another  conneo-  the      circumstances      alleged      and 

tlon,    the    jury    could    have    found  proven  in  this  case;   and,  if  nppel- 

from   the  testimony   (and   from   his  lant  dt-sirod  a  specific  definition  of 

own    testirnony)    that    it    was    not  'ordinary   care'    given    to    the   .jury 

necessary  to  straddle  the  tie  in  or-  it     should     have    requested     same. 

der  to  execute  the   order,  ns  there  Texas   &   P.    Ry.   Co.   v.    Lewis,   — 

was  clearly  room  for  such  defense  Tox.    Civ,    App.    — .    26    S.    W.    S73; 

as    contributory   negligence   or   as-  Stephens   v.    H.    &   St.    J.   Ry.    Co., 

sumed    risk."  96  Mo.  207,  9  S.  W.  591;  Ry.    Co.  v. 

57— Texas  &  N.  O.  R.  Co.  v.  Mc-  Carter,  —  Tex.   Civ.  App.  — ,  73  S. 

Donald.   —    Tex.    Civ.    App.   — ,    85  W.  50." 

S.   W.   493   (49.^j).  59— Shearm.  &  Red.  on  Ncg.  §  93. 


§  1549.]  NEGLIGENCE— MASTER  AND   SERVANT.  1029 

(b)  The  court  instructs  the  jury  that  the  defendant  railroad  com- 
pany had  the  right  to  establish  and  enforce  reasonable  rules  and 
regulations  for  the  government  of  its  employes  in  the  management 
and  operation  of  its  trains.^" 

§  1549.  Railroad  Not  Liable  For  Injury  Through  Disregard  of  Its 
Plain  Instructions,  (a)  A  railroad  company  is  not  liable  for  an 
injury  which  happens  to  an  employe  in  consequence  of  a  disregard 
of  its  plain  instructions,  if  known  to  the  person  injured,  although 
other  employes  also  disregard  the  same  instructions. 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
before  the  injmy  in  question,  had  adopted  a  rule  for  the  conduct 
of  its  employes  requiring  them,  etc.,  and  that  the  plaintiff  had  knowl- 
ledge  of  such  rule,  but  neglected  to  avail  himself  of  its  provisions, 
and  in  consequence  of  such  neglect  sustained  the  injuiy  complained 
of,  then  he  cannot  hold  the  defendant  liable  therefor. 

(c)  The  defendant  had  the  right  to  inake  such  rules  and  regulations 
for  the  conduct  of  its  servants  and  agents,  while  engaged  in  its 
service,  as  in  its  judgment  was  reasonable  and  proper,  or  would  con- 
duce to  the  safety  and  comfort  of  its  employes;  and  all  servants, 
while  engaged  in  such  service,  with  a  knowledge  of  such  rules  and 
regulations,  are  bound  to  act  in  conformity  therewith;  and  if 
injuries  are  sustained  by  them,  while  acting  in  violation  thereof,  no 
recoveiy  can  be  had  of  the  defendant  therefor  if  such  violation  was 
the  cause  of,  or  materially  contributed  to,  such  injurj'-.  Whether, 
before  the  injury  complained  of,  the  defendant  in  this  case  had 
adopted  a  rule  requiring,  etc.,  and  whether  the  jjlaintifl:  had  knowl- 
edge of  such  rule,  and  whether  he  was  violating  such  rule  when  he 
was  injured,  and  whether,  if  he  was  so  violating  it,  such  violation 
contributed  to  the  injury,  are  questions  of  fact,  to  be  determined  by 
the  jury  from  the  evidence. "^^ 

§  1550.  Disobeying  Rules  as  to  Coupling  Cars.  The  railroad  com- 
pany's rules  provide  that,  before  ex}Dosing  himself  to  dangei',  it  was 
the  duty  of  the  plaintiff  to  examine  the  condition  of  all  machinery, 
tools,  cars,  engine  or  track  that  he  was  required  to  use  in  the  per- 
foraiance  of  his  duties,  and  to  satisfy  himself,  so  far  as  he  reason- 
ably could,  that  they  w^ere  in  safe  working  order,  and  that  it  was  the 
plaintiff's  right  and  duty  to  take  sufficient  time  to  make  such  ex- 
amination, and  to  refuse  to  obey  any  ox-der  which  would  expose  him 
to  danger;  that  the  rules  provide  that  entering  between  ears  and 
engines  in  motion  to  couple  or  uncouple  them  should  never  be  done, 
except  under  favorable  conditions,  such  as  low  rate  of  speed,  absence 
of  frogs,  switches,  guard  rails,  etc.,  and  where  good  footing  could  be 
obtained,  and  then  only  when  neeessaiy.     If  the  evidence  shows  that 

60— De    Witt's    Adm'r    v.    Louis-        61— TVolsey    v.    Railroad    Co.,    33 
ville   &   N.   R.   Co.,  29   Ky.   L.   1161,     Ohio   St.   227. 
96  S.  W.  1123. 


1030  FORMS  OF  INSTRUCTIONS.  [§  155L 

the  plaintiff  did  not  obey  this  rule,  then  the  verdict  should  be  for 
the  defendant. "- 

§  1551.  Rule  Against  Coupling  Cars  in  Motion  May  "be  Waived, 
(a)  I  charge  you  that  a  rule  forbidding  railway  emi3loyes  going 
between  railway  cars  in  motion,  for  the  purpose  of  coupling  or 
uncouiDling  them,  or  where  attached  to  an  engine,  within  itself,  is  a 
reasonable  requirement,  but  such  rule  must  be  taken  with  the  qualifi- 
cation that  the  company  will  provide  other  means  for  performing  the 
necessai-j'  service,  and,  if  it  fails  to  do  this,  the  rule  is  no  protection 
to  the  company  against  liability  for  damages  for  injury  sustained 
in  doing  the  w^ork  required  to  be  done,  and  in  the  perfonnanee  of 
v^hieh  said  male  is  violated. 

(b)  I  charge  you  that  the  rule  of  the  railway  company  with 
reference  to  coupling  or  uncoupling  cars  with  a  pin  and  stick  while 
the  ears  are  attached  to  an  engine  or  in  motion  has  no  application  to 
a  case  where  the  master  fails  to  furnish  to  the  servant  a  pin  and  stick 
sufficient  to  effect  the  said  coupling. 

(e)  If  the  jury  find-  that  the  rule  forbidding  the  going  between 
the  ears  in  motion  or  when  attached  to  an  engine,  and  forbidding 
the  setting  of  pins  and  links  except  with  a  stick,  was  adopted  by  de- 
fendant railway  company  when  a  method  of  coupling  cars  prevailed 
by  the  use  of  a  pin  and  link,  and  if  the  jury  find  that  the  said  method 
of  coupling  ears  has  been  superseded  by  a  method  whereby  no  pins 
need  be  set,  or  pins  and  links  need  be  used,  then  it  is  for  the  jury  to 
say  whether  or  not  said  rule  was  at  the  time  of  the  injury  complained 
of  in  force,  and  whether  or  not  plaintiff  was  then  bound  by  the 
same.**^ 

§  1552.  Authority  to  Remove  Ashes  and  Fire  no  Authority  to 
Move  Engines.  The  fact  that  A.  B.  was  employed  by  the  defendant 
to  remove  ashes  and  fire  from  its  engines  does  not  tend  to  prove  that 
he  was  employed  to  move  engines,  or  that  he  had  any  implied  or  ap- 
parent authority  to  move  them.®* 

§  1553.  Failure  of  Engineer  to  Report  Defects  at  End  of  Run  as 
Required  by  Company.  You  are  further  charged  that,  if  you  find 
from  the  testimony  that  it  was  the  duty  of  the  plaintiff,  under  the 
rules  and  customs  governing  plaintiff  in  the  discharge  of  his  duty  as 
an  engineer  in  defendant's  service,  to  look  over  and  inspect  his 
engine  and  make  report  at  the  end  of  the  run,  in  Avriting,  of  all 
defects  in  and  about  the  engine,  and  you  further  find  that  plaintiff 
failed  to  perform  said  duty,  if  any,  and  that  had  he  performed 
such  duty  he  would  have  discovered  the  defect,  if  any,  in 
the    fastening   of    said    step,    and    you    further    find    in    failing    to 

62— Jarvis   v.    Flint    &    P.    M.    R.  Co.,    105    Iowa    46,    74    N.    W.    751 

Co.,    128    Mich.    61,    87    N.    W.    136  (753). 

(139).  "We  think  that  this  or  something 

63 — Car.son  v.   So.   Ry.    Co.,    68   S.  of  a  .similar  character  should  have 

C.    55,    46   S.    E.    524    (535).  been   given." 

64— Morbey   v.    C.    &    N.   W.    Ry. 


§  1554.]  NEGLIGENCE— MASTER  AND  SERVANT.  1031 

discover  said  defect,  if  any,  in  the  fastening-  of  said  step,  should  you 
find  that  he  did  fail  to  discover  it,  plaintift  was  guilty  of  negligence, 
and  such  negligence  if  any,  either  proximately  caused  or  contributed 
to  his  injuiy,  if  any,  then  plaintiff  cannot  recover,  and  you  will  so 
flnd.«5 

FELLOW  SERVANTS. 

§  1554.  Fellow  Servants  Defined,  (a)  That  when  the  employ- 
ment of  a  person  working  for  a  railroad  company  is  in  a  different 
department  of  labor  from  other  servants,  and  when  he  is  not  asso- 
ciated with  such  other  servants  in  the  perfoiTuance  of  their  respective 
duties,  but  is  wholly  separated  and  disconnected  from  them,  in  the 
performance  of  his  duties,  then  the  railroad  company  is  liable  for  the 
negligence  of  such  other  servant,  if  proven,  and  if  it  results  in  injury 
to  the  person  so  employed,  without  his  fault.®^ 

(b)  The  court  instructs  the  jury  that  to  constitute  defendant's 
servants,  who  were  switching  the  caboose  in  question,  fellow  servants 
of  B,  deceased,  so  as  to  exempt  the  defendant  from  liability  on 
account  of  the  death  of  deceased  from  the  negligent  acts  of  defend- 
ant's said  sen^ants  (provided  you  believe  from  the  evidence  de- 
ceased's death  was  caused  by  the  negligent  acts  of  said  servants), 
said  servants  and  deceased  should  be  actually  co-operating,  just  be- 
fore, and  at  the  time  of,  the  collision  which  caused  deceased's  death, 
in  the  particular  business  in  hand,  or  their  usual  duties  should  bring 
them  into  habitual  consociation  with  each  other,  so  that  they  might 
exercise  an  influence  upon  each  other  promotive  of  proper  caution 
for  their  personal  safety.'^'^ 

(c)  The  law  is  that  an  employer  is  not  liable  to  an  employe  for 
injuries  received  by  such  employe  by  reason  of  the  negligent  act  or 
default  of  a  fellow  servant. 

(d)  And  two  employes  of  a  common  employer  are  fellow  servants 
to  each  other  when  they  are  engaged  in  a  common  duty  in  the  same 
line  of  emplojTnent,  or  when  their  relations  to  each  other  are  such 
as  to  enable  them  to  have  an  oversight  over  each  other  promotive  of 
due  care  and  caution.^^ 

(e)  And  in  this  case,  if  you  believe,  from  the  evidence,  that  there 
was  a  common  duty  imposed  by  the  defendant  upon  both  the  engineer 
and  fireman  on  arri\'ing  at  the  end  of  their  run,  or  before  starting 
out  again,  or  both,  to  inspect  and  report  defects,  then  even  if  you 

65— Galveston,  H.  &  S.  A.  Ry.  Co.  "This    instruction    is    in    accord- 

v.  Cherry,  —  Tex.   Civ.  App.  — ,  98  ance    with    the    language    used    by 

S.  W.   898.  this  court  in  C.   &  A.  R.   R.   Co.  v. 

66— Schroeder  v.  Rd.  Co.,  47  Iowa  O'Brien,  155  111.   630,   40  N.    E.   1023, 

375;    Lombard   v.    Rd.    Co.,   47   Iowa  28    L.     R.    A.     568,     and    North     C. 

494.  Rolling    Mill    Co.    v.    Johnson,    114 

67— Pittsburg,     C,     C     &     St.     L.  111.  57,  29  N.  E.  186." 

Ry.    Co.    V.     Bovard,    223    111.    176,  68— See   note   69. 
79  N.  E.  128. 


1032  FORMS  OP  INSTRUCTIONS.  [§  1555. 

believe,  from  the  evidence,  the  engineers,  or  either  of  them,  was  or 
were  negligent  either  in  making  the  inspections  or  inspection,  or  in 
reporting  any  defect  or  defects  as  ascertained  by  such  inspection  or 
inspections,  yet  if  you  believe,  from  the  evidence,  they  were  fellow 
servants  of  plaintiff,  such  negligence,  if  any,  was  that  of  a  fellow 
servant  or  fellow  servants  of  the  plaintiff,  for  which  the  defendant  is 
not  liable.*^^ 

§  1555.  Negligence  of  the  Company  in  Employing  Servant.  The 
jmy  are  instructed,  as  a  matter  of  law,  that  if  a  servant  of  a  railroad 
company,  while  himself  using  reasonable  care  and  caution,  to  avoid 
injury,  be  injured  through  the  incompetency  and  unskillfulness  of  a 
fellow  servant,  or  in  consequence  of  defects  in  the  machinery  or  track, 
and  the  jury  believe,  from  the  evidence,  that  the  company  was  guilty 
of  a  want  of  ordinary  care  and  attention  in  the  employment,  or  in 
the  retention  of  such  fellow  servant,  or  in  the  construction  or  repair 
of  its  machinery  or  track,  the  company  will  be  liable  in  damages, 
which  result  from  such  negligence,  if  any  such  damage  is  proved.'^'* 

§  1556.  Fellow  Servants  of  Brakeman.  (a)  If  the  jury  believe, 
from  the  evidence,  that  at  the  time  of  the  accident  complained  of,  the 
plaintiff  was  in  the  employ  of  the  defendant,  as  brakeman  on  one  of 
its  freight  ti^ains,  and  that  while  so  employed,  and  in  the  line  of  his 
duty,  he  received  an  injui*y,  resulting  from  a  defective  brake  on  one 
of  defendant's  cars,  and  that  there  were  other  persons  in  the  employ 
of  the  company,  whose  duty  it  was  to  examine  the  cars  and  see 
that  the  brakes  were  in  good  repair  and  safe  condition,  then  the  court 
instructs  the  jury,  as  a  matter  of  law,  that  the  plaintiff  and  such 
other  persons  were  not  fellow  servants  engaged  in  the  same  grade  or 
line  of  service,  within  the  meaning  of  the  law.''^ 

(b)  If  the  jury  believe,  from  the  evidence,  that,  at  the  time  of 
the  accident  in  question,  the  plaintiff  was  in  the  employ  of  the 
defendant  company  as  a  brakeman  on  one  of  its  trains,  and  that 
while  so  employed  he  received  an  injui-y  which  was  occasioned  by  the 
ties  on  the  track,  at  the  point  Avhere  the  accident  occurred,  being 
rotten  and  unfit  for  use,  and  that  the  failure  to  replace  such  ties 
with  sound  ones  resulted  from  the  negligence  of  the  road  master  and 
section  men  having  charge  of  that  part  of  the  road,  and  that  the 

69— C.    &   A.    R.    R.    Co.  V.    Mer-  phase   of  the   case,   we   are   of  the 

riman,    95    111.    App.    628    (632).  opinion  the  court  erred  in  refusing 

"In  the  above  case,  there  was  to  g-ive  to  the  jury  the  above  in- 
some  evidence  tending  to  show  struction  reouested  by  appellant." 
that,  in  addition  to  the  lesal  duty  70 — Haurathy  v.  N.  C.  Rd.  Co., 
imposed  upon  the  enprineer  and  46  Mo.  280:  Harkins  \\  Standard, 
fireman  to  report  defects  in  the  etc.,  122  Mass.  400;  Hunting:,  etc., 
enpine  discovered  by  them  in  their  Rd.  Co.  v.  Decker,  84  Penn.  St. 
ordinary  duties,  they  had  assumed  419. 

the   further  duty  of  examinine:  for  71— T.nne'    v.    P.    Rd.    Co.,    ()?i    Mo. 

!=uch    defects   as    might    appear   by  225:   Nashville   Rd.   Co.    v.   Jones,  9 

such  inspection  as  they  were  com-  Heisk.  27. 
petent  to  make,  and  in  view  of  this 


§1557.]  NEGLIGENCE— MASTER  AND   SERVANT.  1033 

plaintiff  was  himself  guilty  of  no  negligence  contributing  to  the  in- 
jury, then  the  plaintiff  has  a  right  to  reeover.'^^ 

§  1557.  Fellow  Servants  of  Fireman.  If  the  jury  believe,  from 
the  evidence,  that  at  the  time  of  the  accident  in  question,  the  plaintiff 
was  in  the  employ  of  the  defendant  as  fireman  on  one  of  its  loco- 
motives, and  that  while  so  employed,  and  in  the  line  of  his  duty,  he 
received  an  injuiy,  resulting  from  the  negligence  or  want  of  ordinaiy 
care  and  skill  of  the  engineer  in  charge  of  the  same  locomotive,  then 
the  court  instructs  the  jui-y,  as  a  matter  of  law,  that  the  plaintiff 
and  engineer  were  fellow  servants,  engaged  in  the  same  grade  or  line 
of  service,  within  the  meaning  of  the  law,  and  the  defendant,  if 
otherwise  without  fault,  would  not  be  liable  for  such  injury."^ 

§  1558.  Fellow  Servants  of  Mechanic  on  Railroad.  If  the  juiy 
believe,  from  the  evidence,  that  at  the  time  of  the  accident  in  question 
the  plaintiff  was  in  the  employ  of  the  defendant  corporation  as  a 
mechanic  engaged  in  the  repairs  of  its  cars,  and  that,  while  so  em- 
ployed and  in  the  line  of  his  duty,  he  received  an  injury,  resulting 
from  the  negligence  or  want  of  ordinary  care  and  skill  of  an  engineer, 
in  charge  of  a  locomotive  engaged  in  switching  cars,  then  the  court  in- 
structs the  jury,  as  a  matter  of  law,  that  the  said  plaintiff  and  the 
said  engineer  were  not  fellow  seiwants  engaged  in  the  same  gi'ade  or 
line  of  service,  and  the  plaintiff  is  entitled  to  recover  in  this  suit,  pro- 
vided the  jury  further  believe,  from  the  evidence,  that  the  plaintiff,  at 
the  time  of  the  injur}-,  was  exercising  reasonable  care  and  caution 
to  avoid  such  injuiy.'* 

§  1559.  Section  Boss  as  Vice-Principal,  (a)  The  court  instructs 
the  jury  that  if  you  believe  from  the  evidence  that  the  plaintiff  was 
a  section  hand,  and  M.  was  a  track  foreman  or  section  boss  in  the 
employment  of  defendant  company,  and  was  a  vice  principal  of  the 
plaintiff,  and  the  duties  of  the  plaintiff  and  M.  are  as  set  out  in  the 
printed  rules  introduced  in  evidence,  and  that  M.  ordered  his  hand 
car  put  on  the  track  by  plaintiff  and  others,  and  ordered  plaintiff 
and  others  to  go  on  said  car  towards  Old  Fort — said  M.  knowing 
there  was  a  past-due  train  liable  to  come  along  the  track,  meeting 
them — and  the  said  M.,  without  infonning  plaintiff  of  the  danger, 
met  the  train  at  a  point  where  it  could  not  be  seen  by  those  on  the 
hand  car  until  it  was  within  510  feet  of  them,  and  would  reach  the 
point  where  the  hand  car  was  in  from  nine  to  ten  seconds,  and  said 
M.  had  not  sent  out  a  flagman  or  taken  other  precaution  to  protect 
the  plaintiff,  this  would  be  negligence  on  the  part  of  defendant,  and 
the  plaintiff  would  not  be  guilty  of  negligence  in  liding  on  said 
hand  car. 

72 — Houston,     etc..     Rd.     Co.     v.  Rag'sdale    v.     Memphis,     etc.,     Rd. 

Dunham,    49    Tex.    181.  Co.,   59   Tenn.   426. 

73— Valtez    v.    O.    &    M.    Rd.    Co.,  74— PittpburR,     etc.,     Rd.     Co.     v. 

So    111.    500;    Lehig-h    Valley    Co.    v.  Powers,    74    111.    341;    contra,    Sulli- 

Jones,    89    Perm.    St.    432;    Besel    v.  van  v.  Toledo,  etc.,  Rd.  Co.,  58  lud. 

N.   Y.   etc.,   Rd.   Co.,   70   N.   Y.   171;  26. 


1034  FORMS   OF  INSTRUCTIONS.  [§  1560. 

(b)  It  was  his  duty  to  listen  and  look,  and,  in  ease  danger  was 
reasonably  to  be  apprehended  from  a  belated  train  or  otherwise,  to 
send  a  flagman  in  front  of  the  hand  car  to  notify  the  engineer  on 
the  train,  so  that  the  train  might  be  stopped  or  slowed  vip,  or  by  bell 
or  whistle  give  notice  of  its  approach,  in  order  that  the  hand-car 
crew  might  save  themselves  from  danger.  If  you  find  that  there  was 
negligence  on  the  part  of  the  track  foreman  in  his  duties,  as  just 
defined  to  you,  and  find  that  he  was  the  defendant's  agent,  as  I  have 
described  the  agency  to  you,  and  plaintiff's  superior,  and  further  find 
that  the  injury  occurred,  if  it  did  occur,  in  the  performance  of  the 
duties  conferred  on  the  agent,  and  that  M.  negligently  ordered  plaintiff 
to  go  on  the  track  to  remove  the  car,  and  that  the  injury  was  the  result 
of  the  negligence  of  M.,  then  you  will  answer  the  first  issue  ' '  Yes. '  ''^^ 

§  1560.  Injuries  while  Operating  Hand  Car  with  Fellow  Servants. 
If  the  jury  find  from  the  evidence  in  this  case  that  the  injuiy  to  the 
plaintiff  at  the  time  and  place  in  question  was  caused  solely  by  any 
want  of  care  on  the  part  of  the  plaintiff  in  connection  with  the  other 
servants  of  the  defendant  then  and  there  engaged  with  plaintiff  in 
operating  the  hand  car  on  the  railroad  of  defendant,  and  that  the 
injuries  here  sued  for  were  the  result  of  such  want  of  care  on  the 
part  of  the  plaintiff  and  of  his  fellow  servants,  at  said  time  and  place, 
then  they  are  instructed  that  the  plaintiff  cannot  recover  in  this 
action,  and  your  verdict  must  be  for  the  defendant.^® 

75 — Allison  v.  So.   Ry.  Co.,  129  N.  pany   in   respect    to   track   foremen 

C.  336,  40  S.   E.  91.  were    introduced,    and    from    them 

"There  was  evidence  on  the  part  it  appeared  that  the  track  fore- 
of  the  plaintiff  going  to  show  that  man  had  charge  of  the  .track,  la- 
the plaintiff  and  others  were  at  borers  and  road  watchmen  em- 
the  time  of  the  plaintiff's  injury  ployed  upon  that  section;  that  a 
under  the  control  and  management  constant  lookout  should  be  kept 
of  a  man  by  the  name  of  M.,  and  for  trains;  and  that,  when  there 
that  he  was  the  section  master  or  was  not  a  clear  view  of  the  track 
track  foreman  of  the  defendant  far  enough  to  ensure  absolute 
company,  and  that  he  hired  and  safety,  flagmen  must  be  sent  out 
discharged  hands  without  consul-  with  danger  signals  to  protect 
tation  or  advice  from  anybody;  them.  There  was  also  evidence 
that  a  day's  labor  on  the  part  on  the  part  of  the  plaintiff  tending 
of  M.'s  employes  began  dn  the  to  show  that  the  whole  party 
morning  when  they  put  the  car  on  jumped  from  the  hand  car  when 
the  track,  and  ended  after  the  they  saw  the  rapidly  approaching 
car  was  put  in  the  tool  house;  that  train  about  a  hundred  yards  off. 
when  the  day's  work  was  over,  and  were  in  places  of  safety,  but 
and  M.  and  the  hands  upon  the  at  the  sudden  and  peremptory 
hand  car  were  returning  to  their  command  of  M.  the  plaintiff  at- 
homes,  they  met  suddenly  a  freight  tempted  to  go  back  and  lift  the 
train  that  was  known  to  be  late  hand  car  from  the  track,  and  in 
by  both  M.'  and  the  plaintiff,  and  so  doing  was  struck  by  the  engine 
at  a  distance  of  about  100  j'ards  and  badly  hurt.  Upon  that  testi- 
off  before  it  was  seen, — the  view  mony,  we  can  see  no  error  in  the 
of  the  approaching  train  being  ob-  instructions  of  his  honor  which 
atructed  by  a  curve  in  the  shape  have  been  comnlained  of.  The  de- 
of  an  S;  that  no  signals  or  pre-  fendant's  agent  was  negligent, 
caution  had  been  taken  by  M.  to  whether  he  informed  the  plaintiff, 
discover  the  approach  of  the  be-  or  did  not  inform  him,  of  the  dan- 
lated  train,  as  was  required  by  ger  of  a  collision." 
the  rules  pf  the  company.  The  76 — Rice  v.  W.  Ry.  Co..  101  Mo. 
rules  and  regulations  of   the   com-  App.    459,  74  S.   W.   428  (429). 


§  15G1.J  NEGLIGENCE— MASTER  AND   SERVANT.  1035 


ASSUMPTION  OF  RISK. 

§  1561.  Employe  Assumes  all  Ordinary  Risks.  The  jury  are  in- 
structed, that  where  a  person  enters  into  the  service  of  a  railroad 
company,  he  thereby  undertakes  to  run  all  the  ordinary  risks  inci- 
dent to  the  employment,  including  his  own  negligence  or  unskillful- 
ness,  and  that  of  his  fellow  servants,  who  are  engaged  in  the  same 
line  of  duty,  provided  the  company  has  taken  reasonable  care  and 
precaution  to  engage  comjDetent  servants  to  discharge  the  duties 
assigned  to  them.'^^ 

§  1562.  What  is  a  "Risk  Ordinarily  Incident  to  His  Employment?" 
(a)  You  are  instructed  that  the  plaintiff  while  in  the  employ  of  the 
defendant  assumed  as  a  matter  of  law  all  of  the  risks  of  injury  that 
were  ordinarily  incident  to  the  employment  in  which  he  was  engaged; 
and  if  you  believe  from  the  evidence  that  his  injuries,  if  any  he 
received,  grew  out  of  a  risk  that  was  ordinarily  incident  to  his  em- 
ployment, then  your  verdict  should  be  for  the  defendant.  But  you 
are  further  instructed  in  this  connection  that  by  the  use  of  the 
expression  "a  risk  ordinarily  incident  to  the  employment"  is  meant 
a  risk  of  injury  that  does  not  arise  or  grow  out  of  an  act  of  negli- 
gence on  the  part  of  the  defendant  or  its  servants,  and  that  whenever 
a  risk  is  created  by  an  act  of  negligence  on  the  part  of  a  railroad 
company  or  its  employes,  this  is  not  a  risk  ordinarily  incident  to  the 
employment. "^^ 

(b)  One  who  enters  the  service  of  a  railroad  company  assumes 
the  risks  ordinarily  incident  to  the  work,  but  he  does  not  assume 
any  risk  arising  by  reason  of  the  company's  negligence,  unless  he 
knows  it."^ 

"The  court  modified  tlie  instruc-  "It  correctly  defines  'risks  inci- 
tion  by  omitting  the  words  'or  of  dent  to  the  employment'  assumed 
both'  as  drafted  by  defendant,  and  by  one  entering  the  service  of  a 
substituting  'and'  in  lieu  of  the  railroad  company,  and  in  doing  so 
disjunctive  'or;'  thus  declining  to  correctly  informed  the  jury  that  a 
instruct  that  defendant  was  enti-  risk  arising  from  the  negligence 
tied  to  the  verdict  if  the  injuries  of  the  master  or  his  servants  is 
suffered  were  the  result  of  such  'not  ordinarily  incident  to  the  em- 
want  of  care  on  the  part  of  plain-  ployment;'  but  it  is  not  said  that 
tiff  or  his  fellow  servants,  or  of  such  risk  when  known  to  the  em- 
both,  and  properly  instructing  ploye  is  not  assumed  as  counsel 
them  that  such  injuries,  to  pre-  for  plaintiff  in  error  seem  to  think, 
elude  recovery,  must  have  been  In  another  paragraph  of  the 
the  result  of  such  want  of  care  charge,  the  court  instructed  the 
on  the  part  of  the  plaintiff  and  of  Jury  at  the  request  of  the  rail- 
his  fellow  servants,  as  in  the  road  company,  that  'the  employe 
original  form  the  defendant  would  is  deemed  in  law  to  have  assumed 
have  been  relieved  of  liability  for  .  .  •  such  risks  as  he  knows  of, 
negligence  of  its  own  servants  not  or  would,  in  the  exercise  of  ordi- 
participated  in  by  plaintiff."  nary   care   in   the   discharge   of  his 

77 — T.,  W.  &  W.  Rd.  Co.  v.  Dur-  own    duties    have    known    of.'      The 

kin,  7P  111.  39.5.  subject    was    well    covered    in    the 

7S— Texas    &     N.     O.     R.     Co.     v.  charge   given." 

Kelly,  98  Tex.  123,  80  S.  W.  79  (80).  79— San    A.    &    A.    P.    Ryi    Co.   v. 


1036  FORMS   OP   INSTRUCTIONS.  [§  1563. 

§  1563.  Servant  Must  Report  Defects  to  Master,  (a)  It  is  the 
duty  of  the  servants  of  the  company  to  use  all  reasonable  care  and 
diligence  to  see  that  the  machinery  used  by  them  in  the  pei'formance 
of  their  duties,  is  in  fit  condition  for  use,  and  report  the  defects,  if 
any,  to  the  company,  and  if  they  do  not  do  so,  it  will  be  negligence 
on  their  part.^*^ 

(b)  The  jury  are  instx'ucted  that  although  machinery  furnished 
by  a  railroad  company,  for  the  use  of  its  employes,  may  be  unsafe, 
yet  if  an  employe,  knowing  the  character  of  the  machinery,  continues 
to  use  it,  he  is  bound  to  exercise  care  and  caution,  reasonably  oona- 
mensurate  with  the  apparent  danger,  and  if  he  fails  to  do  so,  and  is 
injured,  his  negligence  will  preclude  a  recovery  against  the  eom- 
pan}-,  on  account  of  such  injury.^^ 

§  1564.  Servant  Having  Knowledge  of  Defects,  (a)  The  jury  are 
further  instructed,  as  a  matter  of  law,  that  an  employe  of  a  railroad 
company  cannot  recover  from  the  company  for  an  injury  suffered 
in  the  course  of  the  business  about  which  he  is  employed,  from 
defective  machinery  used  thei'ein,  or  from  the  dangerous  condition  of 
the  track,  after  he  has  knowledge  of  such  defect  or  dangerous  condi- 
tion, and  continues  his  work  without  objection.^- 

(b)  The  jury  are  instructed,  as  a  matter  of  law,  that  it  is  the 
duty  of  one  in  the  employ  of  a  railroad  company,  to  see  that  the 
maciiinery  which  he  uses  is  in  repair,  so  far  as  this  can  be  done  by 
the  exercise  of  such  care  and  prudence  as  would  be  exercised  by  a 
prudent  and  careful  man  engaged  in  the  same  business;  and  when 
such  machinery  is  found  to  be  out  of  repair,  to  report  the  fact  to 
the  company;  and  if  he  does  not  do  so,  it  is  negligence  on  his  part, 
and  the  company  will  not  be  liable  for  any  injury  sustained  by  him, 
occasioned  by  such  machinery  being  out  of  repair.^^ 

(c)  The  jui'y  are  instructed,  that  if  a  servant  discovers  that 
machinery,  used  in  the  line  of  his  employment,  is  out  of  order,  and 
dangerous  to  himself,  and  he  does  not  stop  using  the  same,  and  give 
notice  thereof  to  his  employer  or  his  agents,  and  wait  until  it  is 
put  in  proper  condition,  but  continues  to  use  it,  and  is  injured  by 

Eng'elhorn,    24   Tex.    Civ.    App.    324,  and   the  paragraph  stated  the  rule 

62   S.   W.  561   (562).  generallv.    but    not    incorrectly." 

"This  i.s  substantially  the  rule  80— C.  &  N.  W.  Rd.  Co.  v.  Jack- 
announced  in  M.,  K.  &  T.  Ry.  son,  55  111.  492;  Lumley  v.  Caswell, 
Co.    V.    Hannig,    91    Tex.    347,    43    S.  47    Iowa    159. 

W.  508,  in  this  language:     'He  (the  81— Toledo,   W.   &    W.    Rd.   Co.   v. 

servant)  does  not  assume  the  risks  Ashbury,    84    111.    429. 

arising    from    the    failure    of    the  82 — C.   &   A.    Rd.    Co.   v.    Munroe, 

master   to   do   his   duty,   unless   he  85    III.    25;    Fort    Wayne,    etc.,    Rd. 

knows   of    the   failure   and   the   at-  Co.    v.    Gildersleeve,    33    Mich.    133; 

tendant   risks,    or    in    the   ordinary  Johnson  v.   Western,   etc.,  Rd.   Co., 

discharge   of  his   duty  must   neces-  55   Ga.   133;    Way   v.    111.    Cent.    Rd. 

sarily   have   acquired    that   knowl-  Co.,      40    Iowa     341;      Swoboda    v. 

edge.'       Knowledge,     therefore,     of  Ward,    40    Mich.    420. 

the     master's    negligence,     and    of  83— Toledo,   W.   &   W.   Rd.   Co.  v. 

the    danger    arising    therefrom,    is  Eddy,   72   111.  138;   Cent.   Rd.   Co.  V. 

the    foundation    of    assumed    risk;  Kenney,    58   Ga.   485. 


§  1565.]  NEGLIGENCE— MASTER  AND   SERVANT.  1037 

reason  of  its  being  in  such  unsafe  condition,  then  the  employer  will 
not  be  liable  for  the  injury,  if  he  is  otherwise  without  fault.*** 

S 1565.  Locomotive  Engineer  Assumes  All  Risks  Incident  to  Prose- 
cution of  Employment  in  Usual  and  Ordinary  Way.  (a)  ^Yhen  plain- 
tiff entered  the  service  of  defendant  as  a  locomotive  engineer,  he 
assumed  all  the  risks  which  are  incident  to  the  prosecution  of  that 
employment  in  the  usual  and  ordinal-}'  way,  and  under  the  circum- 
stances usually  surrounding  the  running  of  a  locomotive  engine  in 
the  operation  of  a  railway;  and  he  cannot  recover  for  any  injury 
which  may  have  come  to  him  in  the  usual  and  ordinary  prosecution 
of  that  business.  But  the  plaintiff,  when  he  entered  such  employment, 
had  a  right  to  assume  that  defendant  would  use  all  reasonable  care 
in  the  keeping  of  its  road  and  appliances  in  good  order  and  repair; 
and  if  any  injury  came  to  him  by  I'eason  of  any  negligence  of  the 
defendant  or  its  employes,  other  than  his  own  negligence,  this  would 
not  be  a  risk  which  he  assumed  as  one  incident  to  his  employment.*^ 

§  1566.  Risks  Assumed  by  Locomotive  Engineer.  One  who  enters 
the  employment  of  a  railway  company  as  a  locomotive  engineer  as- 
sumes all  the  risks  that  are  ordinarily  incident  to  the  business,  but 
he  may  presume  that  the  company  will  furnish  him  with  a  reasonably 
safe  track  over  which  to  operate  its  locomotives  and  trains,  and  he 
does  not  assume  any  risks  that  may  be  brought  about  by  reason  of 
the  company's  negligence,  unless  he  knew  of  such.^° 

§  1567.  Assuming  Risk  of  Working  with  Engineer  on  First  Trip. 
If  you  believe  from  the  evidence  that  the  engineei-,  S.,  was  on  his  first 
run  on  the  route  when  the  accident  occurred,  and  was  unacquainted 

84— Richardson  v.   Cooper,  88  111.  Ry.    Co.,   —   Tex.    Civ.   App.   —    57 

270.  S.    W.    919;    Bonnet   v.    Gal.,    h!    & 

85— Knapp  v.   Sioux  C.   &  P.  Ry.  S.  A.  Ry.   Co.,  89  Tex.  72,  33  S    W 

Co.,  71  Iowa  41,  32  N.  W.  18  (21).  334;   Texas   &   N.    O.    R.    R.    R.    Co. 

"This    instruction    is    correct."  v.  Bingle,  91  Tex.  287,  42  S.  W    971- 

86— Texas    &    P.    Ry.    Co.    v.    Mc-  Mo.,   K.    &    T.    Ry.    Co.    v.   Hannig! 

Clane,   24  Tex.   Civ.  App.   321,   62  S.  91    Tex.    347,    43   S.    W.   508.     In   the 

W.   565.  last-named    case    it    is    said:      'We 

"It  was  the  duty  of  appellant  to  understand  the  law  to  be  that 
use  ordinary  care  in  keeping  its  when  the  servant  enters  the  em- 
roadbed  in  a  reasonably  safe  con-  ployment  of  the  master  he  has  the 
dition,  and  the  trainmen  were  au-  right  to  rely  upon  the  assumption 
thorized  to  assume  that  appellant  that  the  machinery,  tools,  and  ap- 
had  exercised  such  care  and  dili-  pliances  with  which  he  is  called 
gence,  and  that  the  ti^ack  was  in  upon  to  work  are  reasonably  safe. 
a  reasonably  safe  condition.  Tay-  and  that  the  business  is  conducted 
lor  B.  &  H.  R.  Ry.  Co.  v.  Taylor,  in  a  reasonably  safe  manner.  He 
79  Tex.  104,  14  S.  W.  918.  ...  is  not  required  to  use  ordinary 
Deceased  was  authorized  to  as-  care  to  see  whether  this  has  been 
sume  that  the  track  was  in  a  rea-  done  or  not.  He  does  not  assume 
sonably  safe  condition,  and  he  the  risks  arising  from  the  failure 
could  not  be  held  to  have  assumed  of  the  master  to  do  his  duty,  un- 
the  risks  arising  from  the  condi-  less  he  knows  of  the  failure  and 
tion  of  the  track  unless  he  was  the  attendant  risks,  or,  in  the  or- 
chargeable  with  knowledge  of  dinary  discharge  of  his  duties, 
such  condition.  Gal.,  H.  .fe  S.  A.  must;  necessarily  have  acquired  the 
Ry.  Co.  V.  Slinkard,  17  Tex.  Civ.  knowledge.'  " 
App.  585,  44  S.  W.   35;  Bookrum  v. 


1038  FORMS  OF  INSTRUCTIONS.  [§  1568. 

with  the  same  and  that  in  consequence  of  his  lack  of  acquaintance 
with  the  road  the  pkiintiff  was  injured,  but  if  you  further  believe 
that  when  plaintiff  commenced  the  run  or  trip  he  knew  that  the 
engineer  was  on  his  first  run  and  was  unacquainted  with  the  road, 
then  the  plaintiff  assumed  the  risks  and  dangers  attending  his  work- 
ing with  said  engineer  with  the  knowledge  that  he  was  on  his  first 
run  and  unacquainted  with  the  road,  and  you  should  find  for  the 
defendant. ^'^ 

§  1568.  Knowledge  of  Fireman  that  Engine  was  Without  Brake 
Shoes.  The  court  instructs  the  jury  that  a  man  cannot  shut  his  eyes 
and  say  he  does  not  want  to  see  anything  which  a  reasonable  man 
could  not  help  but  see  if  he  keeps  his  eyes  open.  Now,  if  for  that 
reason — that  is,  if  the  fact  that  there  were  not  any  brake  shoes  on 
that  engine  was  obvious  to  any  reasonably  prudent  man  who  runs  on 
it  as  a  fireman  for  several  hours,  as  the  evidence  shows  that  plaintiff 
did  for  six  hours,  from  H  to  B,  before  he  went  back  again  before 
the  accident  happened,  that  is  perfectly  obvious  to  a  man  who  is 
fireman  and  traveling  for  six  hours  (without  hunting  for  it),  then 
the  court  will  tell  you  that  he  had  knowledge  of,  and  ought  to  have 
known  it,  and  he  is  chargeable  with  it  as  if  he  had  known  it.^** 

§  1569!  Assumption  of  Risk  by  Fireman  as  to  Brakes  on  Wheels. 
You  will  go  inside  and  try  to  put  yourselves  only  in  the  same  place 
that  the  fireman  would  naturally  occupy,  and  then,  occupying  that 
place,  you  are  to  determine  whether  the  wheels  of  the  engine  on 
which  the  brakes  would  be  can  be  seen  from  there  without  looking 
for  them,  while  a  man  is  employed  for  several  hours  doing  work  on 
the  engine  as  a  fireman — that  is,  whether  he  could  easily  see  them 
by  just  keeping  his  eyes  open.^^ 

§  1570.  Assumption  of  Risk  by  Switchman,  (a)  It  is  the  duty 
of  the  railway  company  to  use  ordinary  care  in  the  operation  of  its 
trains  and  cars,  so  that  its  employes  shall  be  reasonably  safe  in  the 
discharge  of  their  duties. 

(b)  If  you  believe  from  the  evidence  that  under  defendant's 
method  of  conducting  the  switching  it  was  the  duty  of  switchmen  to 
watch  out  for  the  cuts,  and  determine  the  number  of  ears  in  them, 
then  you  are  instinicted  that  the  plaintiff  assumed  the  risk  in  doing 
switching  in  this  way,  and  it  was  the  duty  of  himself  to  look  out  for 
the  cuts,  and  determine  the  number  of  cars  in  them;  and,  if  he  was 
injured  by  a  risk  thus  assumed,  you  will  return  a  verdict  for 
defendant. 

(c)  The  jury  are  further  instructed  tliat  the  plaintiff,  in  entering 
upon  the  employment  of  a  switchman  with  the  defendant  company, 
assumed  the  risks  and  dangers  ordinarily  incident  to  such  employ- 

87— Galvoston.    H.    &    S.    A.    Ry.  loway,  191  U.   S.  334  (337),  24  S.  Ct. 

Ck).    V.    Gib.son,    —    Tex    Civ.    App.  102. 

— ,  54  S.  W.  779  (780).  89— C,  O.,  etc.,  R.  R.  Co.  v.  Hol- 

88— C,  O.,  etc.,  R.  R.  Co.  v.  Hoi-  loway,   supra. 


§  1570.]  NEGLIGENCE— MASTER  AND   SERVANT.  1039 

ment,  but  did  not  assume  any  risks  arising  from  the  negligence  of 
defendant,  if  any  you  find  there  was. 

(d)  If  you  believe  from  the  evidence  that  plaintiff's  injuries,  if 
any,  were  caused  by  one  or  more  of  the  risks  or  dangers  which  were 
ordinarily  incident  to  his  employment  as  a  s\vitchman,  or  if  from  the 
evidence,  you  believe  that  plaintiff's  injuries,  if  any,  were  the  results 
of  an  accident — that  is,  that  they  were  not  caused  by  any  negligence 

of  said  or  of  plaintiff — then,  in  either  of  these  events,  you 

will  find  for  the  defendant.^'' 

(e)  The  court  instructs  the  juiy  that  when  the  plaintiff's  in- 
testate, D ,  entered  the  service  of  the  defendant  railway  company 

as  a  brakeman  on  its  mixed  train  mentioned  in  the  pleadings,  he 
assumed  all  the  ordinai-y  risks  and  hazards  of  that  employment  or 
occupation ;  and,  if  they  shall  believe  from  the  evidence  that  said 
D's  injuries  complained  of  were  the  direct  and  natural  result  of  some 
or  more  of  said  risks  or  hazards,  they  must  find  for  the  defendant.^^ 

(f)  The  court  instructs  the  juiy  that  when  plaintiff  entered  the 
employ  of  the  defendant  he  assumed  all  the  ordinary  risks  of  the 
employment  and  it  was  his  duty  to  exercise  reasonable  care  and  dili- 
gence in  protecting  himself  from  injuries;  and  if  the  jury  believe 
from  the  evidence  in  the  case  that  plaintiff  was  an  experienced  rail-* 
road  switchman  and  he  could,  by  the  exercise  of  reasonable  care  and 
diligence,  have  ascertained,  in  time  to  avoid  the  accident,  that  the  car 
that  was  approaching  him  from  the  east  was  on  track  No.  17  and 
the  stationary  car  was  on  track  No.  18  so  that  the  corners  of  the 
two  ears  would  come  together,  then  he  is  not  entitled  to  recover,  and 
it  is  your  duty  as  jurors  to  find  a  verdict  for  the  defendant.  By 
"reasonable  care  and  diligence"  is  meant  such  care  and  diligence  as 
an  ordinarily  prudent  and  careful  man  would  usuallj'  exercise  under 
the  same  or  similar  circumstances. 

(g)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence in  the  case  that  the  number  of  men  employed  in  switching  at 
the  time  that  the  accident  occurred  were  sufficient  to  handle  the  cars 
with  safety,  by  the  exercise  of  reasonable  care,  then  the  plaintiff  is 
not  entitled  to  recover  on  account  of  any  insufficiency  in  the  number 
of  men  employed  in  that  work. 

(h)  The  court  instructs  the  jury  that  the  plaintiff  has  been  a  wit- 
ness in  his  own  behalf  in  this  case,  and  the  jury  are  the  sole  judges 
of  his  credibility.  All  statements  made  by  him,  if  any,  which  are 
against  his  own  interest,  must  be  taken  as  true,  but  his  statements 
in  his  own  favor  are  only  to  be  given  such  credit  as  the  jury,  under 
all  the  facts  and  circumstances  in  evidence,  deem  them  entitled  to. 

(i)     The   court   instructs   the  juiy   that  if   the   physical   facts,   as 

90— The     above    instructions     ap-  &   N.   R.    Co.,  29  Ky.  L.  1161,  96  S. 

proved  in  Mo..  K.   &  T.  Ry.  Co.  of  W.  1123. 

Texas    v.     Schining-,     32    Tex.     Civ.         "This  instruction    s  approved  be- 

App.   417.   75    S.    W.   64   (65).  cause     it    gives    the    jury    a    fair, 

91 — De  Witts'  Adm'r  v.  Louisville  substantial,    and    correct    view    of 


1040  FORMS   OF  INSTRUCTIONS.  [§  1571. 

shown  by  the  evidence  in  this  case,  are  in  conflict  with  the  statements 
of  any  witness,  who  has  testified  in  this  case,  then  it  is  your  duty  to 
take  into  consideration  what  is  shown  by  the  physical  facts  and  to 
disregard  the  statements  of  witnesses  in  conflict  with  such  physical 
facts,  if  any. 

(j)  The  court  instructs  the  jury  that  in  passing  on  this  case  you 
should  take  into  consideration  the  facts  and  circumstances  developed 
by  the  evidence  in  the  case,  and  in  arriving  at  a  verdict  you  should 
be  governed  alone  by  the  evidence  and  the  instructions  of  the  court, 
which  are  given  for  your  guidance,  and  should  not  suffer  yourselves 
to  be  in  any  way  influenced  by  the  fact  that  the  plaintiff  is  an 
individual  and  the  defendant  a  railroad  oompany.^^ 

(k)  If  you  should  believe  from  the  evidence  that  the  plaintiff 
suffered  the  injuries  complained  of,  and  has  sustained  the  damages 
resulting  therefrom,  as  complained  of  in  his  petition,  but  should  find 
from  the  evidence  that  the  injuiies  sustained  were  on  account  of  the 
ordinary  risks  incident  to  his  employment  as  a  brakeman;  or  should 
you  find  that  the  defect  in  the  brake,  if  there  was  any  defect  in  the 
brake,  was  plain  to  the  plaintiff  at  or  before  the  time  he  attempted 
to  use  same,  and  the  danger,  if  any,  of  such  use,  was  at  said  time 
known  to  him,  and  you  should  find  that  in  such  use  of  such  brake 
the  plaintiff  was  guilty  of  negligence — you  will  find  a  verdict  in  either 
event  for  the  defendant."^ 

§  1571.  Risks  Assumed  by  Conductor  of  Passenger  Train.  The 
juiy  are  instructed  that  the  risks  assumed  by  the  plaintiff  in  accept- 
ing employment  from  defendant  as  conductor  of  its  passenger  train 
were  only  such  as  were  incident  to  said  employment  and  did  not  include 
any  risks  arising  from  negligence  upon  defendant 's  part  (if  there  was 
such  negligence)  in  failing  to  use  reasonable  care  and  diligence  to 
see  that  its  tracks  and  bridges  wei^e  in  a  reasonably  safe  condition.^* 

§  1572.  Railway  Company  not  Liable  for  Injuries  from  Obvious  or 
Patent  Defects,  (a)  The  jury  are  instructed  that  a  railway  com- 
pany is  not  liable  to  its  employes  for  injuries  resulting  from  obvious 
or  patent  defects  in  tools  or  appliances  with  which  they  are  fur- 
nished to  discharge  their  duties — that  is,  defects  which  are  as  open 
to  the  observation  of  the  employes  as  to  the  company — and  in  such 
case  the  employe  assumes  the  risks  incident  to  the  use  of  said 
defective  tools  or  appliances.^^ 

(b)  The  court  instructs  the  jury,  although  you  may  believe,  from 
the  evidence,  that  the  plaintiff's  intestate,  A.  B.,  was  not  employed 
to  do  the  work  he  was  engaged  in  at  the  time  of  his  injury,  yet  if 

the    law    as    to    the    question    in-  —  Tex.    Civ.   App.   — ,   S6   S.   W.   21 

volved."  (23). 

92 — These    five    linstructions    ap-  94 — Copeland   v.   Wabash   R.    Co., 

proved   in    Phippln    v.   Mo.   Pac.    R.  17!^  Mo.    650,    75   S.   W.   106   (108). 

Co..  196   Mo.   .321.  93  R.   W.  410   (413).  9.5— Moore    v.    Mo..'K.    &    T.    Ry. 

93 — Tex.    Cent.   R.    Co.   v.   Powell,  Co.    of    Texni?^    30    Tox.    Civ.    App. 

266,    69    S.    W.    997    (999). 


§  1573. J  NEGLIGENCE— MASTER  AND   SERVANT.  1041 

the  jury  further  believe,  from  the  evidence,  that  he  was  engaged  in 
said  work  without  objection,  and  that  the  risks  and  dangers  thereof, 
if  it  had  any,  were  open  and  plain  to  his  sight  and  understanding, 
then  he  occupies  in  this  case  the  same  position  he  would  have  occu- 
pied if  he  had  been  originally  employed  to  do  this  work;  and  if  he 
was  injured  while  employed  by  reason  of  such  open  and  plain  risk, 
his  injury  was  the  result  of  risks  which  were  assumed  by  him,  and 
plaintiff  is  not  entitled  to  recover  in  this  action,  and  your  verdict 
should  be  in  favor  of  the  defendant. 

(c)  The  court  instructs  you  that,  if  a  servant  of  full  age  and 
ordinary  intelligence,  upon  being  required  by  his  employer  to  perform 
other  duties  more  dangerous  and  complicated  than  those  embi'aced 
in  his  original  hiring,  undertakes  the  same  knowing  and  understand- 
ing their  dangerous  character,  he  assumes  the  risk  of  the  new  duties 
which  are  equally  open  and  apparent  to  him  as  to  his  employer.^® 

§  1573.  Rule  in  South  Carolina  as  to  Obviously  Defective  Appli- 
ances, (a)  I  charge  you  that  the  risk  which  a  railway  employe 
assumes  when  he  enters  the  employ  of  a  railway  company  does  not 
extend  to  such  risks  as  he  is  expKDsed  by  reason  of  defective  machinery 
or  appliances. 

(b)  I  charge  you  that  contributoiy  negligence  on  the  part  of  the 
servant,  by  using  appliances  obviously  defective,  furnished  by  a  rail- 
way company,  is  no  longer  of  force  in  South  Carolina,  under  the 
Constitution  of  1895." 

§  1574.  Railroad  Employe  Need  not  Search  for  Latent  Defects. 
Railroad  employes  are  presumed  to  understand  the  nature  and  hazard 
of  the  emploj^ment  when  they  engage  in  the  sel'^'ice,  and  they  assume 
all  ordinaiy  risks  and  obvioi;s  perils  incident  thereto.  Such  risks  are 
presumably  within  the  employe's  contract  of  service.  This  does  not 
mean,  however,  that  the  latter  may  not  repose  confidence  in  the 
prudence  and  caution  of  the  employer,  and  rest  on  the  presumption 
that  he  has  also  discharged  "his  duty  by  supplying  machinery  free 
from  latent  defects  which  expose  the  employe  to  extraordinary  and 
hidden  perils.  While  the  employer  may  expect  that  an  employe  will 
be  vigilant  to  obsen^e,  and  that  he  will  be  on  the  alert  to  avoid,  all 
known  and  obvious  perils,  even  though  they  may  arise  from  de- 
fective tools  and  maehineiy,  yet  the  latter  is  not  bound  to  search  for 
defects,  or  inspect  the  appliances  furnished  him,  to  see  whether  or 

96 — C,    R.    I.    &    P.    Ry.    Co.    v.  circuit   judge   was   careful   to   say: 

Kinnare,  91  111.  App.  508  (513),  aff' d  'Provided,     the    negligence    of    the 

190  III.  9,  60  N.  E.  57.  master   wa§   the   direct   and    proxi- 

97— Carson   v.    So.    Ry.    Co.,   68   S.  mate     cause    of    the     injury.'     etc. 

C.    55.  46  S.  E.  525  (535).  The    servant    does   not   assume   the 

"We  do  not  see  that  the  judge's  risks    of    the    master,    and    as    we 

charge  was  Impropor.     He  ch?irged  have  seen  it,  it  is  the  master's  duty 

the  law  of  this   state.     He  did  not  to  furnish  safe  machinery  and   ap- 

use  language  which  made  the  mas-  pliances,    and    keep    the    same    in 

ter  a   guarantor  of  the   machinery  proper  repair." 
and    appliances,    especially    as    the 
66 


1042  FORMS  OF  INSTRUCTIONS.  [§  1575. 

not  there  are  latent  imperfections  in  and  about  them  which  render 
their  use  more  hazardous.  These  are  duties  of  the  master,  and,  unless 
the  defects  are  such  as  to  be  obvious  to  anyone  giving  attention  to  the 
duties  of  the  occasion,  the  employe  has  a  right  to  assume  that  the 
employer  had  performed  his  duy  in  respect  to  implements  and  ma- 
chinery furnished.^^ 

§  1575.  Continuing  in  Employment  with  Knowledge  of  Dangerous 
Conditions,  (a)  The  jury  are  further  instructed,  as  a  matter  of 
law,  that  an  employe  of  a  railroad  company  cannot  recover  for  an 
injury  suffered  in  the  course  of  the  business  about  which  he  is  em- 
ployed from  defective  machinery  used  therein,  or  from  dangerous  con- 
dition of  the  track,  or  improper  manner  of  running  and  operating 
of  a  train,  after  he  has  knowledge  of  svieh  dangerous  conditions  and 
continues  his  work  without  objection ;  and  in  this  case,  if  you  believe 
from  the  evidence  that  Brakeman  C.  knew  that  there  was  no  turn- 
table at  W.,  that  the  engine  must  back  up  on  return  trips,  and  that 
there  was  no  regular  headlight  upon  the  engine  in  question,  and  that 
there  was  no  pilot  upon  the  tender  of  such  engine,  and  that  he  con- 
tinued in  such  employment  with  knowledge  of  such  conditions,  with- 
out objection,  and  if  the  injuries  in  question  resulted  from  any  of 
said  conditions,  plaintiff  cannot  recover  on  those  issues,  and  your 
verdict  should  be  for  the  defendant.^^ 

(b)  The  court  instructs  the  jury  that  if  an  employe,  knowing  that 
a  machine  is  unsafe,  works  upon  it,  consents  to  work  upon  it,  has 
preknowledge,  understands  its  condition,  understands  that  it  is  in  an 
unsafe  condition,  and  knoAvingiy  continues  to  work  with  it,  he  as- 
sumes the  risks  that  are  liable  to  follow.  If  he  does  that  without 
finding  any  fault,  he  assumes  them  the  more,  and  he  also  assumes 

98— Wab.    W.    Ry.    Co.    v.    Mor-  of  ordinary  care,  are  not  perils  in- 

gan.    122    Ind.    430,    32    N.    E.    85,    31  cident  to  the  service,  and  lience  are 

N.   E.   661.  not     assumed      by     the     employe. 

"The  employer  is  bound  to  make  Rog-ers    v.    Leyden,    127   Ind.    50,    26 

reasonable  inspection  of  the  appli-  N.    E.    210,    and    cases    cited;    O.    & 

ances    furnished    the    employes    to  M.    R.    R.    Co.    v.    Pearcy,    supra; 

discover  latent  defects,  and  a  neg-  Matchett    v.    Railway    Co.,    supra, 

lect    to    make    such    an    inspection  It   was   therefore   not   error   to    di- 

Is   a   culpable   breach   of   duty.     N.  rect   the  jury   that   the   employer's 

P.    R.    R.    Co.    v.    Herbert,    116    U.  duty     was     to     furnish     appliances 

S.    642,    6    S.    Ct.    590;    Matchett    v.  free    from    latent    defects,    nor   was 

Clnn.   &  W.   Ry.   Co.,  132  Ind.  334,  it    error    to    direct    them    that    the 

31  N.   E.  792;  Ohio  &  M.  R.   R.  Co.  duty    to    search    for    such    defects 

V.    Poarcy,    128    Ind.    197,    27    N.    E.  did    not    rest    upon    the    employe. 

479;     C.     H.     &    D.     R.     R.     Co.     v.  "See     also     authorities     cited     in 

McMulIen,    117    Ind.    439,    20    N.  -E.  this  opinion  on  the  degree  of  care 

287.     This  duty  to  inspect  Implies,  required   of  employes." 

of   course,    that    the    employer   will  99 — C,     B.     &     Q.     R.     R.     Co.     v 

not    subject  the    employe    to    con-  Camper,   l'!)9   111.   569,   65   N.   E.   448, 

cealed     defects    which    an    Inspec-  rev'g  100  111.   App.  21. 

tlon   conducted  with   ordinary  care  "We  are  of  the  opinion  that  the 

would  have  revealed.     Obvious  de-  defendant    was     entitled     to     have 

fects,    open    to    ordinarily    careful  this  instruction   given   to  the  jury, 

observfitloii,  nre  perils  of  the  serv-  and    that   it   was   prejudicial   error 

ice,    but    latent    defects,    or   defects  to  refuse  it." 
not    discoverable    bv    the    exercise 


§1576.]  NEGLIGENCE— MASTER  AND   SB-RVANT.  1043 

them  even  if  he  does  find  fault,  unless  as  a  result  of  his  finding  fault, 
some  promise  is  made  to  him  by  his  employer  to  repair  or  correct, 
and  there  is  a  failure  to  do  it  within  the  time  promised,  or  within  a 
reasonable  time.^°'^ 

§  1576.  Engineer's  Knowledge  of  Defect  in  Headlight.  If  you 
believe  that  the  headlight  of  the  engine  upon  which  the  plaintiff 
was  emploA'ed  at  the  time  of  the  alleged  accident  was  defective,  or  so 
defective  that  it  gave  an  insufficient  light,  and  that  the  plaintiff 
knew  the  same  before  or  at  the  time  of  his  starting  upon  his  run 
from  A,  and  that  the  night  Avas  dark  and  stormy,  and  that  the 
plaintiff  knew,  or,  in  the  ordinary  discharge  of  his  duty,  must  neces- 
sarily have  acquired  the  knowledge  that  it  was  dangei'ous  to  run  his 
engine  with  the  headlight  in  such  a  condition,  then  he  must  be  held 
to  have  assumed  the  risk  and  danger  of  running  the  engine  with  such 
headlight,  and,  if  he  was  injured  under  such  circumstances  in  conse- 
quence of  the  headlight  being  defective,  and  independently  of  any 
other  act  of  negligence,  or  negligent  omission  on  the  j^art  of  the 
defendant,  your  verdict  should  be  for  the  defendant.^ 

§  1577.  Assumption  of  Risk  as  to  Defective  Stirrup  After  Proper 
Inspection.  You  are  further  charged  that  if  3'ou  find  from  the  testi- 
mony that  the  defendant's  insi^ectors,  pi-evious  to  said  accident,  in- 
spected said  car  to  which  said  stirrup  was  fastened,  and  you  further 
find  that  said  inspectors  inspected  said  car  in  the  usual  and  cus- 
tomary manner;  and  you  further  find  that  in  making  said  inspection 
of  said  car  said  inspectors  used  ordinary  care  and  diligence  to  ascer- 
tain whether  said  stirrup  was  reasonably  safe  for  the  purposes  for 
which  it  was  being  used,  and  failed  to  discover  that  said  stirrup  was 
not  securely  fastened,  if  you  find  it  was  insecurely  fastened — then  I 
charge  you  that  the  accident  which  it  is  claimed  caused  A's  death, 
was  one  of  the  risks  ordinarily  incident  to  his  employment,  and  your 
verdict  must  be  for  the  defendant. - 


100— Breig-  v.  C.  &  W.  M.  Ry.  Co.,  W.    912;    Int'l   &    G.   N.    Ry.    Co.   v. 

98    Mich.   222,   57  N.   W.   118.  Hawes,    —    Tex.    Civ.    App.    — ,    54 

"This   is,   in   the  abstract,   a  cor-  S.    W.    325;    Mo.,    K.    &   T.    Rd.    Co. 

rect  statement  of  lavv*.     Sjogren  v.  v.    Crowder,   —   Tex.    Civ.    App.   — , 

Hall,    53    Mich.    274.    IS   N.    W.    812;  55  S.  W.  380;  Houston  &  T.  C.  Rd. 

Prentiss  v.    Mfg-.    Co.,   63   Mich.   478,  Co.    v.    Milam.    —    Tex.    Civ.    App. 

30  N.  W.  109;  Kean  v.  Rolling  Mills,  — ,   58   S.    W.   735;    Texas   Cent.    Rd. 

66   Mich.  277,   33  N.  W.  395;  Melzer  Co.   v.    Fox,   —   Tex.    Civ.    App.   — , 

V.    Car   Co.,  76   Mich.   94,   42   N.   W.  59  S.  W.  49;  De  La  Verg-ne  Refrig. 

1078."  Machine  Co.  v.   Stahl,  —  Tex.   Civ, 

1— Galveston,    H.    &    S.     A.    Ry.  App.    — ,    60    S.    "W".    319;    Jones    v. 

Co.     v.    Fitzpatrick,    —    Tex.    Civ.  Shaw,  16  Tex.   Civ.   App.   296,  41  S. 

App.  — ,   91   S.   W.  355   (337).  W.    690;    San    Antonio    Edison    Co. 

2— Galveston,     H.     &    S.     A.    Ry.  v.    Dixon.    17    Tex.    Civ.    App.    320, 

Co.    V.    Dnvis,    27    Tex.    Civ.    App.  42  S.  W.  1009;  Gulf  C.  &  S.  F.   Ry. 

279.  65   S.   W.   217   (218).  Co.   v.    Delnney,   22   Tex.    Civ.   App. 

"Its    correctness    Is    sustained   by  427,  55  S.  W.  538;  Gal.,   H.  &  S.   A. 

an    unbroken     line    of    authorities.  Ry.    Co.   v.   Templeton,   87   Tex.   42, 

Galveston.    H.   &   S.    A.   Ry.    Co.   v.  26  S.  W.  1066;  Eddy  v.  Prentice,  8 

Nass,   —   Tex.    Civ.    App.   — ,   57   S.  Tex.    Civ.    App.    58,   27   S.   W.    1063; 


1044  FORMS  OP  INSTRUCTIONS.  [§,1578. 

§  1578.  Failure  of  Servant  to  Discover  Absence  of  Ladder,  Handles 
or  Steps  at  End  of  Car.  The  jury  are  instructed  as  a  matter  of  law 
that  a  servant,  when  he  enters  into  the  service  of  an  employer, 
impliedly  agrees  that  he  will  assume  all  risks  which  are  ordinarily 
and  naturally  incident  to  the  particular  service;  and  the  master  or 
employer  impliedly  agrees  that  he  will  not  subject  his  servants, 
through  fraud,  negligence  or  malice,  to  greater  risks  than  those  which 
fairly  and  properly  belong  to  the  particular  service  in  which  the 
servant  is  to  be  engaged.  The  master's  obligation  is  not  to  supply 
the  servant  with  absolutely  safe  machinery  or  with  any  particular 
kind  of  machinery,  but  his  obligation  is  to  use  ordinary  and  reason- 
able care  not  to  subject  the  servant  to  extraordinaiy  or  unreasonable 
danger.  Hence,  in  this  case,  unless  the  jury  find  from  the  evidence, 
that  the  absence  of  a  ladder  or  steps  and  handles  from  the  end  of  the 
car  in  question  subjected  the  plaintiff  to  extraordinary  or  unreasonable 
danger,  the  plaintiff  cannot  recover.  And  if  the  jury  find,  from  the 
evidence,  that  the  plaintiff  might,  by  the  exercise  of  ordinaiy  care, 
have  discovered  the  absence  of  a  ladder,  or  steps,  or  handles  from 
the  end  of  the  ear  in  question  and  so  averted  the  accident,  the  ver- 
dict should  be  not  guilty.^ 

§  1579.  Servant  Assumes  Risks  of  Usual  Jarring  and  Shaking  of 
Car.  Although  the  jury  may  believe  from  the  evidence  that  said  car 
was  suddenly  stopped,  and  that  the  speed  of  said  car  was  suddenly 
checked,  and  that  said  car  was  otherwise  jarred  at  the  time  plaintiff 
was  injured,  yet  they  must  find  for  the  defendant  unless  they  further 
believe  from  the  evidence  that  said  stopping  of  said  ear,  or  the  sudden 
checking  of  said  car,  caused  an  unusual  shaking  or  jarring  of  said 
car.'* 

§  1580.  Assuming  Risk  as  to  Defective  Track,  (a)  The  court  in- 
structs the  jury  that  every  person  in  entering  upon  the  employment 
of  another  assumes  all  the  usual  risks  of-  that  employment.  If  such 
employe  is  set  to  work  upon  a  defective  track  and  continues  in  that 
employment  after  having  had  an  opportunity  to  observe  and  know 
the  condition  of  the  track,  then  he  assumes  the  risks  of  working  upon 
such  track,  and  for  any  accident  occurring  through  the  condition  of 
said  track  he  can  not  recover  damages.^ 

Texas   &    P.    Ry.   Co.   v.    O'Fiel,   78  "If  the  jerking   and   jarring   -was 

Tex.   486,  15   S.   W.  33;   Shear  &  R.  such  as  was  customary  and  usual, 

Neg.   (5th  ed.)   par.  194a.     The  last  and_   not    an    unusual    jerking    or 

authority  shows  that  the  master  is  jarring,  then  the  incident  risk  was 

chargeable    with    constructive    no-  one     that     was     assumed     by     the 

tice    of    whatever,    by    the    use    of  plaintiff    In    his    said    employment. 

ordinary    care    and     diligence,     he  We    are    of    the    opinion    that    the 

might   haye  discovered;   hence,   the  charge     was     proper,     and     should 

use  of  the  word  'diligence'  was  not,  have   been  given  as   requested.     B. 

as   is   contended   by   appellant,   im-  M.    R.    R.    Co.    v.    Wilmer.    97    Ala. 

prnpf-r."  165,   11   So.    8S6;  H.   A.   &   B.    R.   Co. 

3— C.  B.  &  Q.  R.  R.  Co.  V.  War-  v.    Miller,    120  Ala.   543,   24   So.   9!55." 

ner,  123  111.  38  (48),  14  N.  E.  206.  .5— C.    &    G.    T.    Ry.    Co.    v.    Kin- 

4— L.   &  N.   R.    Co.   v.   Smith,   129  nare.    76    111.    App.    394    (^^9^). 

Ala.    553,   30   So.   571   (574).  "This  instruction  was  modified  by 


§  1581.]  NEGLIGENCE— MASTER  AND   SERVANT. 


1045 


(b)  The  court  instructs  the  jury  that  it  is  the  duty  of  a  railroad 
company  to  keep  and  maintain  its  tracks  in  a  reasonably  safe  condi- 
tion for  the  running  of  its  trains  thereon,  and  that  its  employes  have 
the  right  to  rely  upon  the  assumption  that  it  does  so,  and  they  are  not 
required  to  exercise  ordinaiy  care  to  see  if  the  company  has  done  so, 
and  they  do  not  assume  the  risk  arising  from  the  failure  of  the 
company  to  do  so,  unless  they  know  of  the  failure,  or  unless,  in  the 
discharge  of  their  duties,  must  necessarily  have  acquired  the 
knowledge.*' 

§  1581.  Assuming  Risk  of  Working  on  Side-track.  The  jury  are 
instructed  that  the  plaintiff,  in  undertaking  to  work  for  the  P. 
company,  and  thereafter  to  Avork  on  a  side-track  of  such  company, 
assumed  all  the  risk  of  injury  whilst  working  in  that  capacity,  which 
existed  when  the  business  was  carried  on  in  the  usual  and  ordinary 
way  and  with  reasonable  eare.'^ 

§  1582.  Knowledge  of  Presence  of  Dangerous  Culvert  or  Cattle- 
guard.  You  are  instructed  that  while  it  was  the  dut}'  of  defendant 
to  provide  a  reasonably  safe  roadbed  and  sti'ucture,  yet  it  was  also 
A's  duty  to  be  mindful  of  the  known  dangers  of  his  work;  and  if 
you  believe  from   the  evidence   that  he  knew   the  culvert  or  cattle- 


adding  the  words  'and  know'  aft- 
er the  word  'observe.'  The  court 
say:  'It  is  not  enough  to  prevent 
the  servant's  recovery  that  he  ob- 
serves a  condition  existing,  but  he 
must  know,  or  by  the  exercise  of 
ordinary  care  should  know,  the  at- 
tendant danger  of  such  condiUoTi.' 
Cons.  Coal  Co.  v.  Haenni,  146  111. 
614-25,  35  N.  E.  162;  111.  Steel  Co. 
V.  Schym:inowski,  162  111.  447-59, 
44  N.   E.   876." 

6— So.  K.  Ry.  Co.  of  Texas  v. 
Sage,  —  Tex.  Civ.  App.  — ,  80  S. 
W.    1038    (1040). 

"We  know  of  no  principle  of  law 
that  would  impose  upon  a  servant 
the  duty  of  exercising  care  to  dis- 
cover defects  in  the  premises  or 
appliances  furnished  him  by  the 
master.  The  charge  is  not  incor- 
rect in  this  respect.  Nor  is  it  er- 
roneous as  giving  undue  promi- 
nence to  the  requirement  that  the 
railroad  company  must  keep  its 
track  in  a  reasonably  safe  condi- 
tion for  the  running  of  its  trains. 
It  is  not  every  repetition  that 
amounts  to  undue  prominence. 
Lumsden  v.  C.  R.  I.  &  T.  Ry. 
Co..  73  S.  W.  428,  7  Tex.  Ct.  Rep. 
170." 

7— Penn.  Co.  v.  Backes,  133  111. 
255   (261),    24   N.    E.    563. 

"If  a  servant  knowing  the  haz- 
ards of  his  employment  as  the 
"business  is  conducted  is  injured 
while   engaged    therein,    he    cannot 


maintain  an  action  against  the 
master  for  the  injury  merely  on 
the  ground  that  there  was  a  safer 
mode  in  which  the  business  might 
have  been  conducted,  the  adop- 
tion of  which  would  have  pre- 
vented the  injury  (Simmons  v.  C. 
&  T.  Ry.  Co.,  110  111.  347j  see  also 
Stafford  v.  C,  B.  &  Q.  Ry.  Co., 
114  111.  244,  2  N.  E.  185;  and  U.  S. 
Rolling  Stock  Co.  v.  Wilder,  116 
111.  100,  5  N.  E.  92),  but  in  this 
case  the  relation  of  master  and 
servant  did  not  exist  between  the 
plaintiff  and  the  railway  company. 
And  we  are  inclined  to  hold  that 
the  exemption  of  the  master 
growing  out  of  the  relation  of 
master  and  servant  and  the  serv- 
ant's contract  to  assume  the  or- 
dinary risks  incident  to  the  busi- 
ness does  not  apply.  But,  even  if 
the  relation  of  master  and  servant 
existed  between  appellee  and  ap- 
pellant, the  appellant  was  required 
in  switching  its  cars  to  do  so.  not 
in  a  reckless  manner,  but  with  due 
regard  to  the  safety  of  those  who 
might  be  engaged  in  unloading 
cars  on  the  switch  or  side-track. 
N.  C.  Rolling  Mill  Co.,  v.  Johnson. 
114  111.  59,  2  N.  E.  185.  The  ruling 
in  this  case  was  approved  in  C. 
&  N.  W.  Ry.  Co.  V.  Goebel,  119 
111.  516,  10  N.  ,E.  369.  Under  the 
rule  as  established  in  these  cases, 
the  appellant  was  required  to  use 
reasonable    care    to    avoid    injury." 


1046  FORMS  OF  INSTRUCTIONS.  [§  1583. 

guard,  in  its  then  condition,  was  there,  or  by  the  exercise  of  ordinary 
observation  might  have  known  it,  then  he  was  bound  to  guard  against 
it;  and  if,  with  such  knowledge,  he  was  injured  in  consequence  of 
such  culvert,  the  defendant  can  not  be  held  liable  in  this  case,  and 
your  vei'dict  should  be  not  guilty.^ 

§  1583.  Equal  Knowledge  of  Master  and  Servant  as  to  "Dodged" 
or  Low  Joint  in  Track,  (a)  If  the  jury  shall  find  from  the  evidence 
that  there  Avas  a  defect  in  the  defendant's  track,  in  regard  to  a 
"dodged  joint"  or  a  low  joint,  and  shall  further  find  that  such 
defect  was  the  proximate  cause  of  the  plaintiff's  injury,  yet,  if  the 
jury  shall  further  find  that  both  plaintiff  and  defendant  had  equal 
knowledge  of  the  existence  of  said  defect,  then  plaintiff  cannot 
I'ecover. 

(b)  If  the  jury  shall  find  from  the  evidence  that  the  proximate 
cause  of  the  plaintiff's  injury  was  a  "dodged  joint"  or  a  low  joint 
in  defendant's  track,  and  that  plaintiff  had  knowledge  of  the  exist- 
ence of  such  defect,  or,  in  the  course  of  his  employment,  should  have 
known  of  the  existence  of  the  same,  the  plaintiff  cannot  recover  of 
defendant  damages  for  such  injury.^ 

CONTRIBUTORY  NEGLIGENCE. 

§  1584,  Failure  of  Engineer  to  Exercise  Ordinary  Care  in  Oper- 
ating Engine.  It  was  the  duty  of  the  plaintiff,  S.,  to  exercise  the 
care  that  an  ordinarily  prudent  person  would  take  under  the  same  or 
similar  circumstances  in  operating  his  engine  while  running  over 
defendant's  track,  and  if  he  failed  to  exercise  such  care  at  the  time 
he  was  injured,  he  was  guilty  of  contributory  negligence,  and  there- 
fore, if  at  the  time  of  the  wrecking  of  the  train  and  the  injury  to  him, 
he  was  not  exercising  such  care,  and  his  injuries  resulted  from  such 
want  of  the  exercise  of  ordinaiy  care,  he  cannot  recover  in  this  case.^" 

§  1585.  Contributory  Negligence  of  Plaintiff  in  Wetting  Deck  and 
Apron  of  Engine.  You  are  ehai-ged  that  if  you  find  from  the  testi- 
mony that  prior  to  the  time  plaintiff  claims  he  slipped  and  fell  upon 
said  apron  he  wet  the  deck  of  said  engine  and  said  apron,  and  that 
by  reason  thereof  said  apron  became  slippery,  if  you  find  it  was  slip- 

8 — P.,  D.  &  R.  Ry.  Co.  v.  Puckett,  ceased   know  it  was  there,   it  must 

52    III.    App.    222    (225,    226).  be    presumed,    in     the    absence    of 

"The   question    whether    the   cat-  objection   on   his  part,   that   he  as- 

tle-Ruard   was   'properly  construct-  sumed     the    extra    hazard    arising 

ed,'  so  far  as  the  evidence  referred  therefrom.       Mo.     Furnace     Co.    v. 

to  it,  mainly  depended  on  whether  Abend,  107  III.  44,  47  Am.  Rep.  425; 

it     was     necessarily      or     properly  Wharton    on    Neglis-ence,    sec.    206; 

where  it  was.     It  was  not  so  much  Stafford   v.    C,   B.   &   Q.   R.   R.,   114 

a    question    of    proper    construction  111.   244.   2  N.   E.  185." 

as   of  proper  location.     Perhaps   it  f> — Wilkie  v.    R.   &   C.   F.   R.   Co., 

was  not   necessarily  there.  Perhaps  127   N.    C.   203,    37   S.    E.    204   (205). 

it    should    or    mi{?ht    as    well    have  10 — So.    K.    Ry.    Co.    v.    Sa^e,    — 

been    further    on.  Tex.    Civ.    App.    — ,    80    S.    W.    1038 

"But,   be   this   as   it   may,    if   de-  (1040). 


§  1586.]  NEGLIGENCE— MASTER  AND  SERVANT.  1047 

pery,  and  caused  plaintiff  to  fall,  and  you  further  find  that  in  wetting 
said  deck  and  apron,  at  said  time,  if  you  find  it  was  so  Avet,  plaintiff 
was  guilty  of  negligence,  and  that  such  negligence,  if  any,  directly 
caused  or  contributed  to  his  injury,  if  any  or  if  you  find  that  the 
plaintiff  failed  to  exercise  ordinary  care  in  stepping  upon  said  apron, 
and  that  such  failure,  if  any,  proximately  caused  or  contributed  to 
his  injury,  if  any,  then  your  verdict  must  be  for  the  defendant. ^^ 

§  1586.  Failure  of  Engineer  to  Keep  Proper  Lookout  to  Avoid 
Collision.  If  you  believe  from  the  evidence  that  the  plaintiff  failed 
to  keep  a  proper  lookout  as  he  ran  his  train  into  K.  and  that  such 
failure,  if  any,  proximately  caused  or  contributed  to  cause  the  col- 
lision and  plaintiff's  injuries,  you  will  find  for  the  defendant.^- 

§  1587.  Failure  to  Check  Train  Run  at  Dangerous  Speed  When  in 
Servant's  Power  to  do  So.  If  you  believe  from  the  evidence  that 
the  plaintiff,  just  before  the  accident  occurred,  knew  that  the  train 
was  being  run  in  violation  of  the  rules  of  the  company,  and  at  a 
dangerous  rate  of  sjDeed,  and  that  he  sat  with  his  hand  upon  the  lever 
•of  the  air  brakes,  with  full  power  to  cheek  the  speed  of  the  train, 
or  to  stop  it,  before  the  accident  happened ;  and  if  you  further  believe 
from  the  evidence  that  the  accident  resulted  from  the  running  of  the 
train  at  a  dangerous  rate  of  speed,  and  in  violation  of  the  rules  of 
the  company ;  and  you  further  believe  from  the  evidence  that  a  person 
of  ordinary  prudence  occupying  the  position  by  the  plaintiff  in  this 
ease  under  the  circumstances  would  have  applied  the  air  brakes, 
and  reduced  the  speed  of  the  train,  or  stopped  it ;  and  you  further 
believe  from  the  evidence  that  the  plaintiff  could  have  checked  or 
stopped  the  train  in  time  to  have  prevented  the  accident,  and  did 
not  do  so — then  the  court  instructs  you  that  he  was  guilty  of  con- 
tributory negligence,  cannot  recover  herein,  and  you  will  return  your 
verdict  for  the  defendant.^^ 

11— Galveston,    H.    &    S.    A.    Ry.  correct,    and    if    appellant    desired 

Co.    v.    Udalle,    —    Tex.    Civ.    App.  the  other  phase  of  the   case  as  to 

— ,    91    S.    W.    330    (333).  the    wet    apron    presented     to    the 

"It    will    be    noticed    how    strik-  jury  it  should  have  asked  for  it." 

ingly  similar   the   language   of    the  12 — Int'l    &    G.    N.    R.    R.    Co.    v. 

charge    is    to    the    language   of   the  Brice,  —  Tex.   — ,   97   S.   V/.   461. 

plea,  and  yet  appellant  claims  that  "The  charge  correctly  stated  the 

the    court    erred    in    presenting    its  law,    and    should   have   been   given, 

defense  to  the  jury,  because  it  led  B.'s  duty  to   keep  a  lookout   while 

the   jury   to    believe   that   although  approaching     the    station     did    not 

appellee    may    have    fallen    on    ac-  depend     upon     his     knowledge     of 

count  of  the  apron  being  wet,  and  whether  or  not  there  was   a   train 

not  on  account  of  its  defects,  that  standing   at   that   station.     A  want 

the    jury    must    find    for    him    un-  of    knowledge    of    the    fact    would 

less  he  was  guilty  of  contributory  create   a   greater  necessity   for  his 

negligence.  Although  it  was  alleged  keeping    a   lookout    in    anticipation 

that    appellee    was    guilty    of    con-  that   a    train    might    be   there,    and 

tributory     negligence     in     wetting  that  a  collision  might  occur  in  ap- 

the   apron,    it    is   contended    in   the  proaching   the   station." 

brief  that  it  was  not  contributory  1.3— Int'l  &  G.  N.  R.  Co.  v.  Coch- 

negligence    to    wet    the   apron,    be-  rane,   —   Tex.    Civ.    Aj>p.   — ,    71    S. 

cause    it    was    his    duty    to    wet    it.  W.    41    (42). 
Clearly    the    charge    as    given   was 


1048  FORMS  OF  INSTRUCTIONS.  [§  1588. 

§  1588.    Bleeding  Reservoir  of  Car  on  Bridge  Unnecessarily.    The 

jury  are  instructed  that  if  they  shall  believe  from  the  evidence  in 

this  case  that  A.  was  in  charge  of  train  No.  ,  on  the  day 

of ,  that  it  was  unnecessary  for  him  to  bleed  the  reservoir  of 

ear  No.  9,202  while  standing  on  the  bridge  at  F.,  and  that  he  could 
have  waited  until  bridge  was  crossed  by  said  ear,  and  then  have  bled 
it  in  safety,  he  is  not  entitled  to  recover  in  this  case,  and  they  must 
find  for  the  defendant. i'* 

§1589.  Shifting  Cars  by  "Kicking"  Them  Back  not  Negligence 
Per  Se.  If  in  the  i^erformance  of  his  duties  M.  had  no  instructions 
to  pursue  a  particular  method,  and  two  or  more  methods  were  open 
to  him  he  cannot  be  said  to  have  been  negligent  if  he  in  good  faith 
adopted  that  method  which  was  more  hazardous  than  another,  if  the 
one  adopted  be  one  which  reasonable  and  prudent  persons  would 
adopt  under  like  circiimstances. 

Shifting  cars  by  means  of  the  kicking  back  process  is  not  neces- 
sarily at  all  times  an  act  of  negligence  per  se,  even  though  there 
may  be  a  safer  method  of  shifting  them.^^ 

§  1590.  Contributory  Negligence  of  Employe  in  Coupling  Cars. 
You  are  charged  that  if  you  believe  from  the  evidence  in  this  ease 
that  the  plaintiff,  in  attempting  to  make  the  coupling  at  the  time  he 
was  injured,  was  negligent,  and  negligently  failed  to  use  ordinary 
care  as  herein  defined,  and  attempted  to  make  said  coupling  without 
knowing  the  engineer  had  received  his  signal  and  had  acted  upon  the 
same  by  stopping  the  cars,  and  that  in  his  doing  so  he  was  negligent 
as  herein  described,  and  that  in  doing  so  he  failed  to  exercise 
ordinary  care  for  his  own  safety,  and  that  such  negligence  was  the 
proximate  cause  of  his  injury,  then  and  in  that  event  you  will  find 
for  the  defendant. ^"^ 

§  1591.  Voluntarily  Disconnecting  Cars  While  in  Motion.  You 
are  further  instructed  that  if  you  believe  from  the  evidence  the  de- 

14 — Norfolk    &     W.     Ry.     Co.     v.  watching  said  cars,  so  as  to  avoid 

Mann,  99  Va.  180,  37  S.  E.  849  (850).  injury,    and    that    in    so    doing    his 

"That      instruction,      we      think,  failure  to  watch  and  look  out  was 

should  have  been  g-iven.     It  states  negligence   as   herein   charged,   and 

the  law  plainly  and  concisely,  and  was  a  failure   to   exercise   ordinary 

there   is   evidence  tending  to  prove  care    as    herein    charged,    and    that 

the  facts  upon  which  it  is  based."  such     negligence    was    the    proxi- 

15 — Florida    C.    &    P.    R.    Co.    v.  mate    cause    of    the    injury,     then 

Mooney,    45    Pla.    286,    33    So.    1010  you    will    find    for    the    defendant.' 

(1011).  These  charges,   in   our  opinion,   are 

16 — So.    Const.    Co.    v.    Hinkle,   —  in     all    essential     particulars     sub- 

Tex.    Civ.    App.    — ,    89    S.    W.    309  stantially    the    same    as    those    re- 

(310).  quested   by   appellant   and   refused. 

"In  the  eleventh  paragraph  of  They  more  nearly  conform  to  ap- 
his charge  they  were  instructed  as  pcllant's  special  plea  of  contribu- 
follows:  'You  are  further  in-  tory  negligence  than  the  special 
structed  that  if  you  believe  from  charges.  They  satisfy  the  de- 
the  evidence  that  at  the  time  mands  of  the  rule  above  stated, 
plaintiff  attempted  to  make  said  and  are  at  least  as  favorable  to 
coupling  of  said  cars  he  went  in  .'ippollant,  we  think,  as  it  was  en- 
betwer-ii  said  cars  as  one  ap-  titled  to  ask." 
proached    from     the    rear    without 


§  1592.]  NEGLIGENCE— MASTER  AND   SERVANT.  1049 

ceased,   ,   was    employed   by   defendant    company    as   railway 

brakeman  upon  a  freight  train,  and  that  he,  at  the  time  of  his  injury 
and  immediately  prior  thereto,  had  charge  of  the  switching  of  the  cars 
and  the  mode  and  manner  in  which  they  should  be  connected  and  dis- 
connected, and  that  he  could  have  chosen  a  safe  way  of  disconnecting 
cars  by  doing  so  while  they  were  stationary,  but  instead  thereof  he 
voluntai'ily  chose  to  disconnect  the  cars  while  in  motion,  then  if  that 
was  a  dangerous  method  and  so  known  to  him,  and  he  was  injured  in 
consequence  thereof,  there  can  be  no  recovery  in  this  case,  and  your 
verdict  should  be  not  guilty.^^ 

§  1592.  Failure  to  Guard  Against  Danger  of  Known  Custom  of 
Kicking  Cars  While  Switching.  The  court  instructs  the  jury  that  if 
from  the  evidence  you  believe  that  a  programme  had  been  arranged 
between  H.  and  the  other  employes  of  defendant  in  the  switch  crew 
for  the  switching  of  the  car,  and  that  under  said  programme  the  said 
H.  knew  that  at  or  about  the  time  he  went  to  uncouple  the  car  the 
train  Avould  be  put  in  backward  motion  and  started  backwards  for 
the  purpose  of  giving  the  end  ear  a  kick,  that  it  might  roll  into  the 
side  track,  and  that  such  was  the  usual  and  customary  method  at  the 
G.  yards  of  doing  the  work,  and  that  said  H.  knew  of  such  fact,  if 
any,  and  knew  when  he  went  to  do  the  work  that  said  car  would  be 
kicked  in  said  manner  without  signal  or  notice  to  him,  and  that, 
notwithstanding  such  knowledge  on  the  part  of  H.,  he  put  himself 
in  a  position  to  be  struck  by  the  backward  movement  of  the  train, 
if  any,  if  you  so  find  the  facts,  you  will  return  your  verdict  for 
defendant,  as  in  such  state  of  facts  he  would  have  assumed  the  risk 
of  such  backward  movement.^^ 

§  1593.  Failure  to  Have  Switch  Thrown  Back  After  Entering  Spur 
Track.  If  you  believe  from  the  evidence  that  plaintiff  was  guilty  of 
negligence  in  failing  to  cause  the  switch  to  be  thrown  back  for  the 
main  line  after  entering  the  spur  track  with  his  engine,  or  if  you 
believe  that  rule  104a  was  in  force  at  the  time  of  plaintiff's  injury 
and  intended  by  the  company  to  be  observed  by  plaintiff,  and  that  by 
his  failing  to  have  the   switch  closed  after  entering  the  spur  track 

17— Peoria,    D.    &    E.    Ry.    Co.    v.  Texas  397, 14  S.  W.  1034.  The  case  of 

Puckett,   52   111.   App.    222   (226,   227).  Texas  &  N.   O.   Ry.   Co.  v.  Conroy, 

"We    are    clearly    of    opinion    the  83  Tex.  214,  18  S.   W.  609,  seems  to 

principle    stated    in    these    instruc-  be   in   conflict   with   the   two   cases 

tions  was  correct  and   that  it  was  cited;  but  the  report  of  the  case  is 

applicable   to  the  facts   before   the  so  meager,  and  the   opinion  of  the 

jury."  court     so    indefinite,     that    we    are 

18— Gulf,    C.    &    S.    F.    Ry.    Co.    v.  unable     to     determine    upon     what 

Hill,   95  Tex.  629,  69  S.  W.  136  (138,  ground   the  decision   is   based.     We 

140).  do   not  believe  that  it  was  the  in- 

"The  charge  of  the   court   stated  tention   to    overrule    the   cases    be- 

a   correct   proposition    of   law,    and  fore  cited.     However  that  may  be. 

nothing     appears     which     indicates  we  are  satisfied   with   the  rule  an- 

that  the  jury  was  probably  misled  nounced   in    S.   &   E.   T.   Ry.   Co.   v. 

by   it.     Sabine   &    E.   T.   Ry.   Co.   v.  Wood    and    T.     &    P.     Ry!     Co.    v. 

Wood,    69    Tex.    679.    7    S.    W.    372;  Brown." 
Texas  &  P.   Ry.   Co.   v.   Brown,  78 


1050 


FORMS  OP  INSTRUCTIONS. 


[§  1594. 


with  his  engine  in  obedience  to  the  requirements  of  said  rule,  he  was 
guilty  of  negligence — you  will  find  a  verdict  for  defendant.^'' 

§  1594.  Care  Due  by  Employe  for  His  Own  Safety  While  Sig- 
naling Returning  Section.  If  you  believe  from  the  evidence  that 
the  deceased  had  taken  his  station  on  the  railway,  track  for  the 
purpose  of  signalling  the  returning  section,  it  was  his  duty  to  exer- 
cise for  his  own  safety  such  care  and  prudence  as  men  of  ordinai-y 
prudence  would  exercise  for  their  own  safety  under  like  circum- 
stances. If  you  further  believe  from  the  evidence  that  deceased, 
while  occupying  this  place  on  the  track,  failed  in  any  respect  to 
exercise  that  degree  of  care  and  prudence,  and  that  the  killing  would 
not  have  occurred  if  he  had  done  so,  then  you  will  find  for  the 
defendant.^** 

§  1595.    Failure  to  Use  Stirrup  and  Hand-hold  in  Boarding  Oar. 

The  jury  are  instructed  that  if  there  was  a  stirrup  and  a  hand-hold 
on  the  car,  provided  for  the  purpose  of  enabling  the  employes  of  the 


19— Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Parrott,  —  Tex.  — ,  92  S. 
W.    795. 

20— L.  &  N.  R.  Co.  v.  Sliumak- 
er's  Admx.,  112  Ky.  431,  67  S.  W. 
829   (830). 

"The  annotator  of  the  American 
Decisions  in  his  notes  to  Freer  v. 
Cameron,  55  Am.  Dec.  606,  says: 
'Scarcely  any  theme  in  the  whole 
range  of  legal  science  has  been 
more  fruitful  in  adjudications  than 
the  subject  of  contributory  negli- 
gence, but  the  multiplicity  of  de- 
cisions on  this  point  has  not  by 
any  means  cleared  it  of  difficulties. 
On  the  contrary,  it  has  in  some 
respects  seemed  to  'darken  coun- 
sel' by  the  introduction  of  a  great 
variety  of  metaphysical  refine- 
ments and  subtile  distinctions. 
Mr. ,  Thompson  declares  himself 
convinced  after  a  study  of  the  ad- 
judications of  both  the  English 
and  American  courts,  that  the 
whole  subject  of  contributory  neg- 
ligence remains  in  a  state  of  great 
confusion  and  uncertainty.'  Mr. 
Thompson,  in  his  recent  Commen- 
taries on  the  Law  of  Negligence 
(vol.  1,  §  23)  says:  'In  most  situa- 
tions and  employments  the  stand- 
ard of  care  which  the  law  imposes 
upon  persons,  to  the  end  of  avoid- 
ing injury  to  themselves  or  others 
is  designated  by  the  descriptive 
words  'ordinary  care'  or  some- 
times bv  the  words  'ordinary  or 
reasonable  care,'  'ordinnry  care* 
and  'rensonable  care"  have  been 
regarded  ns  meaning  substantially 
the  same  thing.  Sometime.s  again 
we  meet   with   such    expression  as 


'due  care'  though  it  has  been  held 
that  this  expression  in  a  request 
for  an  instruction,  is  properly 
changed  to  'ordinary  care'  or  'rea- 
sonable care.'  Moreover  it  is  to 
be  kept  in  mind  that  the  standard 
of  ordinary  care  is  not  the  stand- 
ard of  the  law  under  all  circum- 
stances, but  that  where  human  life 
is  the  subject  of  a  bailment,  so  to 
speak,  as  in  the  case  of  carriers 
of  passengers,  the  law,  at  least  for 
the  purpose  of  instructing  a  jury, 
lays  down  a  more  exact  standard. 
But,  as  we  shall  see  further  on, 
ordinary  care  is  a  care  propor- 
tioned to  the  risks  of  the  business 
or  of  the  particular  situation.  It 
is  such  care  as  prudent  men  are 
accustomed  to  use  under  the  same 
circumstances,  and.  if  the  danger 
is  great,  it  may  rise  to  the  grade 
of  a  very  exact  and  unremitting 
attention.  With  the  exceptions 
elsewhere  noted,  the  standard  of 
care  by  which  to  determine 
whether  actionable  negligence  has 
been  committed  is  the  standard 
which  ordinarily  prudent  men  are 
accustomed  to  exercise  under  the 
same  circumstances.  What  a  rea- 
sonably prudent  man  would  Ordi- 
narily do  under  a  given  state  of 
fact  is  as  near  an  approximate  to 
the  true  standard  as  can  be  well 
expressed  in  words.'  It  places 
both  parties  on  an  equal  footing 
as  to  the  rule  to  be  applied  in  as- 
certaining whether  there  has  been 
negligence.  The  instruction  given 
by  the  court  presents  fully  this 
view  of  the  law." 


§  1596.]  NEGLIGENCE— MASTER  AND  SERVANT. 


1051 


defendant  to  get  on  the  said  coal  car,  and  the  plaintiff  knew  that 
the  stirrup  and  hand-hold  were  on  the  coal  car,  or,  in  the  exercise  of 
ordinary  care  and  diligence,  would  have  known  it,  then  it  was  his 
duty  to  have  boarded  the  car  by  the  use  of  the  stirrup  and  the 
hand-hold;  and  if,  under  such  facts,  he  failed  to  do  so,  he  cannot 
recover  in  this  action.-^ 

§  1596.  Contributory  Negligence  of  Servant  in  Failing  to  Keep 
Lookout  for  Signals.  I  charge  you,  gentlemen  of  the  juiy,  that  it 
was  the  duty  of  the  plaintiff,  in  riding  the  car,  to  have  kept  a  lookout 
for  any  and  all  signals  that  might  have  been  given  by  the  employe 
of  the  defendant.-^ 

§  1597.  Failure  to  Heed  Whistle  or  Bell.  If,  however,  you  find 
from  the  testimony  that  the  engineer  in  charge  of  said  engine  warned 
plaintiff'  of  the  approach  of  said  train,  by  the  blowing  of  the  whistle 
or  the  ringing  of  the  bell,  in  time  for  plaintiff,  by  the  use  of  ordinary 
care   to   have   left   the   track   and   avoided   ihe   accident   and  injury, 


21— Light  v.  Chi.  M.  &  St.  P.  Ry. 
Co.,    93    la.    726,   61   N.    W.    380    (381). 

22— L.  &  N.  R.  Co.  v.  Smith.  129 
Ala.   553,   30   So.    571    (573). 

"The  comphiint  charges  negli- 
gence in  the  control  and  superin- 
tendence exercised  over  the  car 
from  which  the  plaintiff  is  alleged 
to  have  been  thrown  or  caused  to 
fall,  and  in  his  evidence  plaintiff 
shows  that  this  control  or  super- 
intendence was  exercised  by 
means  of  signals  given  by  the 
foreman  in  charge  of  the  train 
crew  to  the  engineer  and  switch- 
man; and  that  it  was  the  fore- 
man's duty  to  give  such  signals, 
and  the  duty  of  other  members  of 
the  crew,  including  plaintiff,  to 
direct  the  movement  of  the  engine 
and  cars  in  obedience  to  such  sig- 
nals. The  evidence  further  shows 
without  conflict  that  At  was  the 
duty  of  the  switchman  to  keep  on 
the  lookout  for  all  signals  given 
by  the  foreman.  The  appellee  thus 
recognized  and  established,  by  his 
pleading  .ind  evidence,  fhe  office 
and  import  of  such  signals,  and 
bases  charges  of  negligence  upon 
the  manner  in  which  the  duty  of 
signaling  wns  performed.  It  needs 
no  argument  to  show  the  justice 
of  the  propo.sition  that,  if  it  be  the 
duty  of  one  employe  to  control 
the  action  of  engine  and  cars,  and 
the  actions  of  other  employes  in 
charge  thereof,  by  means  of  sig- 
nals, it  Is  also  the  duty  of  such 
other  employes  in  charge  thereof, 
not  only  to  obey  such  signals  as 
they  may  see  given,  but  also  to 
keep   on   a   lookout    for   all   signals 


that  may  be  given  by  such  em- 
ploye whose  duty  it  is  to  make 
them.  The  duty  to  give  signals 
implies  a  corresponding  duty  to 
see  and  obey  the  same,  and  the 
performance  of  said  latter  duty 
with  due  and  ordinary  care  nec- 
essarily implies  the  further  duty 
of  being  on  the  watch  for  all  such 
signals.  A  failure  in  such  latter 
duty  would  tend  to  show  contribu- 
tory negligence  upon  the  part  of 
the  plaintiff,  such  as  was  charged 
under  the  fourth  plea  in  answer 
to  the  complaint.  We  do  not  mean 
to  say  that  a  failure  to  see  any 
signal  that  might  be  given  would 
necessarily  imply  negligence, — 
such,  for  instance,  as  signals  made 
where  it  is  possible  for  one  to  see 
them,  or  made  at  such  a  time 
when,  in  the  proper  performance 
of  the  duties  of  his  position,  the 
attention  of  an  employe  is  neces- 
sarily directed  elsewhere;  but 
such  reasons'  as  these  do  net  con- 
flict with  the  general  duty  to 
keep  a  proper  lookout  for  all 
signals  that  may  be  given  by  one 
whose  duty  it  is  to  give  them 
on  the  part  of  another  whose  duty 
it  is  to  receive  them.  Under  the 
evidence  this  charge  was  proper, 
and  should  have  been  given,  le.iv- 
ing  it  to  the  jury  to  say  whether 
or  not  the  plaintiff  had  been  guilty 
of  contributory  negligence  in  fail- 
ing to  observe  or  be  governed  by 
the  signal  of  the  foreman,  K.,  for 
the  stopping  of  the  train,  which 
the  engineer  and  fireman  testify 
was  given  to  said  K." 


1052  FORMS  OF  INSTRUCTIONS.  [§  1598. 

.     .     .     then  plaintiff  cannot  recover  on  the  first  count  in  his  pe- 
tition.-^ 

3 1598.  Failure  to  Discover  Approaching  Train.  The  court  in- 
structs the  jury  that  if,  from  the  evidence,  you  believe  that  prior  to 
the  time  when  the  collision  complained  of  occurred  plaintiff  had  time, 
by  the  exercise  of  ordinary  care  and  diligence,  by  the  use  of  his 
senses  of  sight  and  hearing,  to  discover  the  approach  of  the  passen- 
ger ti'ain  towards  the  push  car,  but  failed  to  look  and  listen,  or  either, 
and  such  failure  on  his  part  was  negligence,  then  you  will  return  a 
verdict  for  defendant.-* 

§  1599.  Boarding  Rapidly  Moving  Engine,  If  you  believe  from 
the  evidence  that  an  ordinarily  prudent  person,  situated  as  the 
plaintiff  was  at  the  time  of  and  just  prior  to  the  accident  for  which 
he  sues  in  this  case,  would  not  have  attempted  to  board  said  engine, 
on  account  of  the  rate  of  speed  at  which  it  was  moving,  but  would, 
as  the  unconti'adicted  evidence  shows  he  had  the  right  to  do,  have 
signaled  the  same  to  slow  down  before  he  attempted  to  board  it,  and 
that  such  attempt,  if  any,  to  board  said  engine  while  moving  through 
the  yards,  on  account  of  the  rate  of  speed  at  which  it  was  moving, 
was  negligence  on  his  part,  and  that  but  for  such  negligence  on  his 
part  said  accident  Avould  not  have  occurred,  then  you  will  return 
your  verdict  for  defendant.-^ 

§  1600.  Contributory  Negligence  of  Yardmaster  in  Boarding  Mov- 
ing Engine,  (a)  If  the  jury  shall  find  that  the  plaintiff  was  acting 
in  the  course  of  his  duties  as  yardmaster  in  attempting  to  get  on 
said  engine,  and  that,  therefore,  it  was  the  duty  of  defendant  to 
exercise  care,  as  aforesaid,  to  see  that  engines  thus  admitted  to  its 
yards  were  in  a  reasonably  safe  condition  for  the  use  of  its  employes, 
the  jury  will  then  inquire:  First,  Was  there  a  bolt  projected  above 
the  surface  of  said  foot-board  on  said  engine  in  such  a  manner  as 
to  be  calculated  to  cause  persons  who  stepped  on  said  board  while 
the  engine  was  in  motion  to  fall,  and  did  the  projection  of  this  bolt 
render  such  foot-board  unsafe  for  persons  to  get  on  while  the  engine 
was  moving?  Second,  Did  the  defendant  company  fail  to  exercise 
such  care  as  a  prudent  person  should  exercise  under  the  surrounding 
circumstances  to  see  that  said  engine  foot-board  was  in  a  reasonably 
safe  condition  before  permitting  it  to  come  into  the  yards  of  de- 
fendant :  Third,  Was  the  condition  of  the  bolt  in  question  the 
proximate  cause  of  plaintiff's  fallf 

(b)  If  you  fail  to  find  an  affirmative  answer  to  any  one  of  the 
foregoing  questions,   you  will   return    a  verdict   for  the   defendant. 

23— Intl.    &   G.   N.    R.    Co.   v.   Vil-  dale,    36   Tex.    Civ.    App.    174,    81    S. 

laroal,  —  Tex.   — ,  82  S.  W.  1063.  W.  347  (343). 

"The   charge   is   not   open   to   the  "We     are     of    opinion     that     the 

objection     that     it     assumed     any  court    should   have   given   this   spe- 

fnct."  cial    instruction." 

24— Intl.    &   G.   N.   R.   Co.   v.   Tis-  25— Houston    &    T.    C.    R.    Co.    v. 


§  1601.]  NEGLIGENCE— MASTER  AND  SERVANT.  1053 

If  you  shall  find  in  the  affirmative  on  each  of  the  foregoing  questions, 
then  you  will  inquire  further  whether  the  plaintiff  was  guilty  of 
negligence  in  attempting  to  get  on  said  engine  in  the  manner  in  which 
he  did,  while  it  was  moving  at  rate  of  speed  shown  by  the  testi- 
mony, and,  if  he  was  negligent  in  this  particular,  whether  such  negli- 
gence contributed  proximately  to  his  injury;  and  if  you  shall  find 
tha4;  he  was  guilty  of  negligence  which  contributed  to  his  injui-y,  you 
will  return  a  veixliet  for  the  defendant,  notwithstanding  you  may 
have  also  found  that  the  defendant  Avas  guilty  of  negligence  which 
also  contributed  proximately  to  plaintiff's  injury.^^ 

§  1601.  Jumping  from  Moving  Train  at  Defendant's  Command. 
If  you  believe  from  the  evidence  that  the  plaintiff.  A.  B.,  was  in 
the  employ  of  the  defendant  on  the  date  alleged  in  his  petition,  and 
that  while  being  carried  to  his  work  by  the  defendant,  and  under  its 
direction,  if  he  was  under  its  direction,  he  was  injured  by  jumping 
from  the  car  on  which  he  was  riding,  while  said  car  was  in  motion, 
as  alleged  by  him,  and  striking  his  knee  against  a  cross-tie,  as  stated 
in  his  petition,  and  if  you  believe  that  defendant  ordered  and  com- 
manded plaintiff  to  jump,  and  if  you  believe  that  said  command,  if 
any  was  given,  was  imperative,  and  left  no  time  for  calculation  and 
deliberation,  and  if  you  believe  that  plaintiff  believed  that  he  could 
safely  obey  said  order  by  taking  proper  care,  and  if  you  believe 
said  plaintiff  jumped  pursuant  to  said  command,  if  any,  and  if  you 
believe  that  at  said  time  said  train  was  going  at  a  rate  of  speed  that 
made  it  dangerous  to  jump  therefrom,  and  if  you  believe  that  plaintiff 
was  inexperienced  in  jumping  off  of  moving  trains,  and  ignoi'ant  of 
the  danger,  if  any,  arising  therefrom,  and  if  you  believe  that  it  was 
no  part  of  his  ordinary  duty  to  do  so,  and  was  extrahazardous,  and 
that  defendant  knew  of  his  said  ignorance  and  inexperience,  if  he 
was,  and  it  did  know  it,  and  if  you  believe  that  defendant  knew,  or 
could  have  known,  by  the  exercise  of  ordinary  care,  of  the  danger, 
if  any,  from  so  jumping  and  that  defendant  nevertheless,  if  it  did, 
gave  said  order  under  said  circumstances,  and  that  in  consequence 
of  said  order,  if  any,  plaintiff,  in  the  exercise  of  ordinary  care, 
jumped  as  alleged  in  his  petition,  and  was  injured  as  therein  charged, 
and  if  you  further  believe  that  the  giving  of  said  order  was,  if  it  was 
given,  under  all  the  facts  and  circumstances,  negligence  on  the  part 
of  the  defendant,  and  that  such  negligence,  if  any,  was  the  direct 
cause  of  plaintiff's  injuries,  if  any,  and  that  plaintiff  did  not  by  his 
own  negligence  contribute  to  his  injuries,  or  assume  the  danger  or 
risk,  then  your  veixlict  should  be  for  the  plaintiff'.-" 

§  1602.  Conducting  Oneself  in  Dangerous  Way  on  Hand-Car. 
(a)  The  court  charges  the  jury  that  the  plaintiff's  intestate  owed 
a  greater  or  less  dutj'  to  exercise  care  and  caution,  according  as  he 

Milam,  —  Tex.  Civ.  App.  — ,  58  S.  —  Tex.  Civ.  App.  — ,  60  S.  "W.  591 
W.  735   (737).  (592). 

26— H.  &   T,  C.   R.   Co.  V.  Milam,        27— Gal.,   H.    &   S.   A.   Ry.   Co,   v. 


1054  FORMS  OF  INSTRUCTIONS.  [§  1603. 

was-  in  a  place  more  or  less  dangerous ;  and  if  the  jury  find  from 
the  evidence  that  the  said  J.  J.  was  in  such  a  situation  that  his 
peril  was  apparent  to  any  one  of  ordinary  intelligence,  and  that  he 
failed  to  exercise  the  degree  of  care  required,  and  that  such  failure 
contributed  to  the  injury  and  death,  then  they  must  find  for  the 
defendant. 

(b)  If  the  jury  believe  from  the  evidence  that  there  was  a  less 
dangerous  way  for  the  said  J.  J.  to  conduct  himself  while  on  said 
moving  hand-car,  and  that  he  failed  to  choose  the  safest  way  and 
that  such  failure  contributed  proximately  to  his  injury  and  death, 
then  he  was  guilty  of  contributory  negligence,  and  plaintiff  cannot 
recover.-* 

S 1603.  Negligently  Striking  Mauls  One  Against  Another  While 
Laying  Railroad  Track.  The  court  instructs  you  that  the  plaintiff 
was  only  justified  in  using  the  maul  furnished  him  for  the  purpose 
for  which  it  was  intended,  or  for  such  purpose  as  was  authorized  by 
defendant;  and  if  you  further  find  from  the  evidence  that  it  was  not 
designed  or  intended  that  such  mauls  should  be  used  by  striking  one 
against  another  and  that  such  use  of  the  mauls  was  liable  to  cause 
pieces  of  one  or  the  other  of  them  to  break  and  fly  into  the  air, 
thereby  endangering  the  persons  using  them,  and  that  a  person  of 
ordinary  care  and  prudence,  engaged  in  the  business  of  laying  rail- 
road track  would  not  have  so  used  one  of  such  mauls  unless  thereto 
directly  authorized  by  defendant,  then  if  you  further  find  from  the 
evidence  that  the  plaintiff  was  injured  by  a  piece  breaking  from  one 
of  said  mauls  and  striking  him  in  the  eye,  in  consequence  of  his 
striking  the  maul  which  he  was  using  against  another  maul  in  the 
hands  of  a  co-employe  working  with  him  at  the  time,  then  the  plaintiff 
was  guilty  of  si;ch  negligence  as  precludes  a  recovery,  and  your 
verdict  mu,st  be  for  the  defendant.-^ 

§  1604.  Employe  Voluntarily  Placing  Himself  in  Place  of  Danger 
Between  Engine  and  Car.  In  this  case  if  the  jury  believe  from  the 
evidence  that  the  plaintiff  was  working  as  a  switchman  in  the  yards 
of  the  T.,  St.  L.  &  K.  C.  R.  R.  Co.,  and  at  the  time  of  the  injury  to  him 
he  was  one  of  a  crew  working  in  the  yards  of  said  company  and  said 
company  and  said  crew  were  returning  fx'om  the  outer  yard  of  said 
road  to  the  yards  at  E.  St.  L.  near  the  river,  and  that  the  engine 
was  pushing  two  or  more  cars  ahead  of  it  on  the  track  of  said 
railroad,  and  that  it  was  a  snowy  or  disagreeable  moi-ning,  and  you 
further  believe  that  the  plaintiff  voluntarily  placed  himself  in  front  of 
the  engine,  between  it  and  the  car  next  to  it;  and  you  further  believe 
from  the  evidence  that  while  he  was  in  such  a  position  the  said 
cars  which  the  engine  was  pushing,  collided  with  certain  other  cars 

Ranfhc'z.    —    Tex.    Civ.    App.— ,    65  29— Franklin    v.    M.    K.    <&   T.    Ry. 

S.  W.  893  (896).  Co..   97   Mo.   App.   473,  71   S.   W.  540 

28— Jnnps   v.    Ala.    M.    R.   Co.,   107  (543). 
Ala.  400.  18  So.  .30  (33). 


§  1605.]  NEGLIGENCE— MASTER  AND  SERVANT.  1055 

left  in  the  yards  of  said  C.  L.  R.  R.  by  certain  employes  of  the  C.  & 
A.  R.  R. ;  and  you  further  believe  from  the  evidence  that  it  was  the 
custom  or  practice  on  the  part  of  the  employes  of  the  C.  &  A.  R.  R., 
in  leaving  cars  in  the  yard  of  the  C.  L.  R.  R.,  to  put  the  cars  on 
whatever  switch  they  found,  and  to  leave  the  switch  as  it  was  then 
used;  and  you  further  believe  from  the  evidence  that  it  Avas  the  duty 
of  the  employes  of  the  C.  L.  R.  R.,  in  traveling  as  they  were  traveling 
at  this  time,  to  be  on  a  constant  lookout  to  ascertain  whether  any 
cars  had  been  left  in  the  yards  after  their  departure,  and  to  ascertain 
the  condition  of  the  switches,  and  to  ascertain  whether  any  ears 
projected  on  the  track;  and  you  further  believe  from  the  evidence 
that  the  servants  in  charge  of  the  C.  L.  train  were  not  exercising 
care  to  ascertain  the  condition  of  the  switches,  or  whether  any  cars 
were  where  they  were  likely  to  strike  them;  and  you  further  believe 
from  the  evidence  that  the  plaintiff  in  this  ease  had  voluntarily  placed 
himself  between  the  engine  and  the  car  ahead  of  it,  and  that  such 
place  was  a  place  of  danger,  and  was  a  place  where  he  need  not  have 
been,  and  he  was  negligently  there;  and  if  you  further  believe  from 
the  evidence  that  the  injury  was  caused  in  whole  or  in  part  by  his 
placing  himself  where  he  was,  and  that  if  he  had  not  so  placed  himself 
there  he  would  not  have  been  injured,  you  will  find  the  defendant  not 
guilty.''*' 

§  1605.  Riding  on  Foot-Board  of  Engine — Engine  Colliding  With 
Other  Cars — Series,  (a)  If  the  jury  believes  from  the  evidence  in 
this  case  that  on  the day  of ,  the  plaintiff  was  in  the  serv- 
ice of  R.  B.  P.,  receiver  of  the  T.  St.  L.  and  K.  C.  R.  Co.  as  a  switch- 
man at  his  yard  in  E.  St.  L. 

(b)     And  if  the  jury  further  believe  from  the  evidence  that  on  the 

morning  of ,  the  plaintiff  was  riding  upon  the  footboard  of  an 

engine,  used  by  said  receiver,  in  his  yard  at  E.  St.  L.  pushing  two 
cars  in  his  said  yard,  between  the  engine  and  the  ear  next  to  it; 

(e)  And  if  the  jury  further  believe  from  the  evidence  in  this  case 
that  at  the  said  time  the  plaintiff  was  in  the  service  of  said  receiver, 
in  the  proper  discharge  of  his  duty  as  such  switchman ; 

(d)  And  if  the  jmy  further  believe  from  the  evidence  in  this  case 
that  the  plaintiff  was  exercising  ordinaiy  care  in  riding  upon  the 
footboard  of  said  engine  while  in  the  discharge  of  his  duty  as  such 
switchman,  and  that  said  footboard  was  a  proper  place  for  the  plain- 
tiff to  ride  at  said  time  in  the  discharge  of  his  duty  as  a  switch- 
man; 

(e)  And  if  the  juiy  further  believes  from  the  evidence  in  this  ease 
that  whilst  plaintiff  was  so  riding  upon  said  foot-board  of  said  engine 
the  cars  so  being  moved  by  said  engine  collided  with  certain  other 
cars,  and  that  the  plaintiff  was  injured  thereby; 

30— C.  &  A.  R.  R.  v.  Harring-ton.  90   111.    App.   638    (642),  affd,  192  111. 
9  (24>,   61  N.  E.    622. 


1056  FORMS  OF  INSTRUCTIONS.  [§  1606. 

(f)  And  if  the  jury  further  believe  from  the  evidence  that  de- 
fendant's servants  jalaced  said  cars,  so  collided  with,  in  said  yard,  so 
that  one  of  said  ears  overlapped  the  main  lead  in  said  yard,  and  left 
the  switch  open,  connecting  the  track  on  which  said  cars  were  placed 
with  said  main  lead  track; 

(g)  And  if  the  juiy  further  believe  from  the  evidence  that  de- 
fendant's said  servants  did  not  exercise  ordinary  care  in  placing  said 
ears  upon  said  track  so  that  one  of  the  overlapped  said  main  lead 
track,  and  in  leaving  said  switch  open; 

(h)  And  if  the  jury  further  believe  from  the  evidence  that  the 
cars  so  being  pushed  by  said  engine  were  caused  to  collide  with  said 
cars  so  placed  upon  said  track  by  defendant's  servants  directly  be- 
cause said  cars  overlapped  and  said  switch  was  left  open ;  Then 
the  juiy  should  find  the  defendant  guilty.^^ 

§  1606.  Employee  Sleeping  in  Caboose — Another  Train  Colliding 
with  Caboose — Knowledge  of  Custom  to  Sleep  in  Caboose  by  Com- 
pany.    If  the  jury  believe  from  the  evidence   that  on  and  prior  to 

,  it  was  the  custom  of  defendant's  freight-train  conductors 

to  sleep  in  the  caboose  while  waiting  in  T.  overnight;  and  if  you 
believe  that  such  was  the  custom  of  the  plaintiff;  and  if  you  believe 
such  custom,  if  any,  was  known  to,  and  acquiesced  in  by,  de- 
fendant; and  if  you  believe  from  the  evidence  that  on  the  night  of 

,   the   plaintiff  w^as   in   the   employment    of   defendant   as 

freight  conductor;  and  if  you  believe  on  said  night  the  plaintiff  was 
waiting  over  in  T.,  the  orders  of  defendant;  and  if  you  believe 
on  said  night  the  plaintiff  was  sleeping  in  his  caboose  on  the  siding  in 
the  yards  of  the  defendant;  and  if  you  believe,  while  so  sleeping,  if 
he  was,  his  caboose  was  violently  run  into  and  collided  by  some  train, 
engine  or  ears  under  the  control  of  defendant ;  and  if  you  believe  such 
collision,  if  there  was  such,  threw  the  plaintiff  against  said  caboose 
and  injured  him  as  alleged  by  the  plaintiff;  and  if  you  believe  that  the 
servants  of  the  defendant  were  guilty  of  negligence,  as  that  is  above 
defined,  in  striking  the  plaintiff's  caboose,  if  you  find  they  did;  and  if 
you  believe  such  negligence,  if  any,  was  the  direct  and  proximate 
cause  of  plaintiff's  injuries,  if  any;  and  if  you  believe  that  the  plain- 
tiff, in  sleeping  in  his  caboose,  if  he  was,  was  not  guilty  of  negli- 
gence— then  and  in  that  event  you  will  find  for  the  plaintiff.  But  if 
you  believe  from  the  evidence  that  it  was  not  the  custom  of  the 
plaintiff  and  other  such  employes  of  the  defendant  to  sleep  in  their 
cabooses;  or  if  you  believe  there  was  such  custom,  but  the  same  was 
not  known  to  and  acquiesced  in  by  the  defendant;  or  if  you 
believe  that  the  plaintiff's  injuries,  if  any,  were  caused  by 
the  usual  and  ordinaiy  operation  of  the  engines  and  trains 
in  defendant's  yards;  or  if  you  believe  that  tne  plaintiff  was  guilty 

31— C.  &  A.  R.  R.  Co.  V.  Harrington,  90  111.  App.  638  (641),  aff  d    192 
111.   9   (24),   61   N.    E.   622. 


§  1607.J  NEGLIGENCE— MASTER  AND  SERVANT.  1057 

of  negligence,  as  hereinbefore  described,  in  sleeping  in  his  caboose — 
then,  in  either  event,  you  will  find  for  the  defendant.^^ 

§  1607.  Employe  Riding  on  Work  Train.  (a)  The  court  in- 
structs the  jury  that  an  employe  who  rides  on  a  work  train  assumes 
the  dangers  ordinarily  incident  to  travel  on  such  trains,  but  does  not 
assume  any  dangers  on  account  of  the  negligent  operation  and  equip- 
ment of  such  train. 

(b)  If  you  believe  from  the  evidence  thait  at  the  time  of  the 
alleged  injury  the  plaintiff  was  riding  on  a  work  train,  and  if  you 
further  believe  that  the  train  was  properly  equipped  and  operated, 
and  that  the  injuries,  if  any,  were  the  ordinary  and  reasonable  result 
incident  to  the  operation  of  such  train,  then,  in  that  event,  the  plain- 
tiff assumed  such  risk,  and  cannot  recover  herein.  But  if  you  be- 
lieve said  train  was  being  operated  at  a  dangerous  rate  of  speed,  and 
was  suddenly  stopped,  or  was  not  equipped  with  reasonably  sufficient 
couplings,  and  you  further  believe  that  the  employes  of  defendant  in 
charge  of  said  train  were  guilty  of  negligence  in  the  operation  and 
equipment  of  said  train;  and  if  you  believe  that  plaintiff's  injuries, 
if  any,  were  the  result  of  such  negligence,  if  any,^ — then,  in  that 
event,  the  plaintiff  did  not  assume  the  dangers,  if  any,  incident  to 
such  negiigenee.^^ 

§  1608.  Remaining  in  Dangerous  Position  in  Reliance  on  Foreman. 
You  are  instructed  that  a  member  of  a  section  gang  rests  under  no 
duty  or  obligation,  with  knowledge  of  an  impending  danger,  to  con- 
tinue in  the  dangerous  situation  in  obedience  to  the  order,  direction 
or  command  of  the  foreman  of  the  section  gang.  If,  therefore,  you 
believe  from  the  evidence  that  the  plaintiff  knew  of  the  approach  of 
the  train  to  the  push  car  by  or  near  which  he  was  standing  at  said 
time,  and  the  pi'obability  of  a  collision,  and  the  danger  to  which 
the  same  exposed  him,  and  remained  in  his  said  position,  relying  upon 
the  foreman  to  notify  him  when  to  leave  the  same,  and  you  further 
believe  that  said  conduct  on  his  part  was  not  such  conduct  as  an  ordi- 
narily prudent  person  would  have  pursued  under  the  same  circum- 
stances, and  that,  but  for  such  conduct,  he  would  not  have  been  hm't, 
then  you  will  return  a  verdict  for  the  defendant.^* 

32— St.     L.     S.     W.     Ry.     Co.     of  when  considered  as  a  whole,  fairly 

Texas    v.    McDowell.    —    Tex.    Civ.  presented  the  issues  to  the  jury. 

App.  — ,   73   S.   W.    974    (975).  34— Intl.    &    G.    N.    R.    Co.    v.    Tis- 

33— Mo.,     K.     &     T.     Ry.     Co.     v.  dale,    36    Tex.    Civ.    App.    174,    81   S. 

Hawk.  30  Tex.   Civ.   App.  142.  69  S.  W.    347    (34S). 

W.  1037  (1039).  "It   would   have   been   proper  for 

The   court    in   a  preceding'   para-  the   court   to   have  g-iven   this.     H. 

graph   of   the    charge  had   properly  E.  &  W.  T.  R.  Co.   v.   De  Walt,  96 

defined     negligence.      The     charge,  Tex.  121,  70  S.  W.   531." 


67 


CHAPTER  LXV. 
NEGLIGENCE— MUNICIPAL  CORPORATIONS. 


See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


§  16?-9.  Municipal     corporations     not  |  §  1630. 
liable  for  mere  accidents. 

§  1610.  Accident  and   negligence. 

§  1611.  Streets  and  walks  to  be  kept 
reasonably  safe. 

§  1612.  Liable  for  unsafe  condition 
of  streets,  when. 

§  1613.  No  liability  without  negli- 
gence. 

§  1614.  Care  must  be  proportionate 
to  the  known  danger. 

§  1615.  Must  guard  against  actions 
of  the  elements  reasona- 
bly to  be  anticipated  under 
ordinary  circumstances. 

§  1616.  Not  obliged  to  open  streets. 

§1617.  But  once  having  opened 
streets,  must  keep  them 
in  safe  condition. 

S  1618.  Municipality  need  not  put 
entire  width  of  street  in 
condition  for  use,  nor  pro- 
vide safe  access  to  private 
property. 

§1619.  Do  not   insure  safety. 

§  1620.  Duty  to  keep  streets  in  safe 
condition  cannot  be  shift- 
ed to  person  employed  by 

city- 

§  1621.  Liability  for  negligence  of 
agents   and   servants. 

§1622.  Liability  of  municipal  corpo- 
ration when  crossing  con- 
structed by  private  per- 
son—Reasonable care  by 
town. 

§  1623.  Liability  for  defects  in  walk 
constructed  by  private 
person. 

§  1624.  Duty  to  keep  sidewalk  and 
crossings  of  suburbs  rea- 
sonably  safe. 

§1625.  Liability  for  negligence  of 
independent  contractor. 

§1626.  Liability  for  negligence  of 
person  knowingly  permit- 
ted to  obstruct  street. 

§  1627.  Duty  of  municipality  to  have 
notice  of  warning  given  of 
obstruction  in  streets. 

§  1628.  Not  liable  for  the  negligence 
of  others,  when. 

§  1629.  Must  have  notice,  actual  or 
constructive. 

1058 


§  1631. 


§  1632. 
§  1633. 


§  1634. 


§  1635. 
§  1636. 


§  1637. 


§  1638. 
§  1639. 


1640. 


1641, 
1642 


§  1643 


1644 


§1645 


§1646 


§1647 


Defective   sidewalk  —  Notice 

presumed,   when. 

Person      driving      on     street 

may    presume    it    is    in    a 

reasonably  safe  condition. 

Necessity    of    notice    to    city 

of  defect  in  street. 
Nature   of   liability   for   hole 
in    street    on   locality   and 
road. 
Fact     that     hole    was     filled 
with    water   may   be    con- 
sidered    one     question     of 
contributory  negligence. 
Duty  to  provide  guards  and 

notice. 
Admissibility   of   evidence   of 
other  similar  accidents  at 
same  place. 
Liability  of  municipality  for 
safety  of  streets  while  im- 
provements       are       being 
made. 
Street  includes  sidewalks. 
Essential  eleinents  necessary 
to    warrant    recovery    for 
defective  sidewalks. 
Person     traveling     on     side- 
walk or  street    may    pre- 
sume it  is  reasonably  safe 
for  ordinary  travel. 
Necessity    of    notice    to    city 

of  defect   in   sidewalk. 
"When    city    deemed    to    have 
had  constructive  notice  of 
defect  in  sidewalk. 
Effect   of  knowledge   of  mu- 
nicipal     authoiitios      that 
sidewalk    is    defective. 
In    populous    districts    whole 
width  of    sidewalk    should 
be  kept  in  repair. 
,  Circumstances    to    be    taken 
into    consideration    in    de- 
termining liability  for  de- 
fective walk. 
,  Effect  of  failure  to  construct 
sidewalk  according  to  pro- 
visions of  ordinances. 
.  Effect  of  sidewalk  becoming 
insecure      from      use      or 
breaks. 


§  1609.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS. 


1059 


§  164S.  Injury  through  stick  project- 
ing- over  sidewalk. 
§  1649.  Slippery    condition    of    side- 
walk resulting   from   ordi- 
nary  accumulation   of   ice 
in  winter. 
§  1650.  Injury    to   child  by  defective 
sidewalk    while    indulging 
in  pastime  or  play. 
§  1651.  Defective  plan  of  public  im- 
provement. 
§  1652.  Injury     to     adjoining     prop- 
erty— Changing  grade. 
§  1653.  Liable    for   want   of    reason- 
able  care   only. 
§  1654.  Changing  watercourses. 
§  1655.  Liability       for       overflowing 
~  contiguous   property   in  lay- 
-•  ing   out   of   streets. 
§  1656.  Liability  for  injuries  through 
1  body     of     water     both     on 

street  and  adjacent  private 
property. 
§  1657.  Liability  for  damage  to  con- 
tiguous property  by  leak  in 
water    main. 
§  1658.  Liability  for  flow  of  surface 
water   where    no   system   of 
drainage  exists. 
§  1659.  Liability  for  flow  of  surface 
water  due  to  street  railway 
lawfully   operated   on   high- 
way. 
§  1660.  Liability   for   loss   from   flow 
of  surface  water  occasioned 
by  Act  of  God. 
§  1661.  Duty    of    city    as    to    water 

plug   placed   in   streets. 
§  1662.  Sewer  out  of  repair. 
§  1663.  County      only      required      to 
provide    bridge    which    will 
properly  accommodate  pub- 
lic at  large. 


§  1664.  Duty  of  county  commis- 
sioners to  construct  bridges 
in  a  bridge  in  a  workman- 
like manner. 

§  1665.  Defective  condition  of  bridge 
must  be  proximate  cause  of 
injury  to   horse. 

§  1666.  Eff At  of  knowledge  of  trav- 
eler that  bridge  is  in  un- 
isafe  condition. 

§  1667.  Contributory  negligence — In 
general —  Negligence,  con- 
tributory negligence,  and 
ordinary  care  defined. 

§  1668.  Circumstances  to  be  con- 
sidered on  question  of  con- 
tributoi'y  negligence. 

§  1669.  Contributory  negligence  — 
Falling  into  a  hole  in  side- 
walk. 

§  1670.  Contributory  negligence  — 
Absentminded  driving. 

§  1671.  Effect  of  knowledge  on  part 
of  person  using  sidewalk 
that  it  is  defective. 

§  1672.  Passing  over  defective  walk 
not  necessarily  contributory 
negligence. 

§  1673.  Contributory  negligence  of 
person  falling  over  wire  in 
street. 

§  1674.  Placing  oneself  in  position 
of   danger. 

§  1675.  Burden  of  proof  as  to  con- 
tributory negligence  of 
plaintiff  —  States  holding 
that  it  rests  on  defendant. 

§  1676.  Same  subject — States  hold- 
ing that  burden  of  proof  is 
on  plaintiff. 

§  1677.  Negligence  of  driver. 


§  1609.    Municipal  Corporations  Not  Liable  for  Mere  Accidents. 

The  court  instructs  the  jury  that  if,  after  considering  all  of  the  evi- 
dence, you  should  conclude  that  the  injury  was  a  pure  accident, 
caused  neither  by  the  negligence  of  the  city  nor  that  of  the  plaintiff, 
then  there  could  be  no  recovery.  This  must  be  so,  because  it  is  only 
negligence  in  itself,  through  its  officers  and  agents,  that  makes  the 
city  liable;  and,  if  neither  party  be  negligent,  of  course  the  city  is 
not.i 


1 — ^Columbus  V.  Anglin,  120  Ga. 
785.  48  S.  E.  318  (323). 

"This  request  is  closely  asso- 
ciated with  those  just  dealt  with. 
If  there  was  no  favilt  on  the  part 
of  the  plaintiff,  and  the  defect 
causing  the  fall  of  the  shed  was 
one  which  was  not  brought  about 
by  the  city,  and  which  they  could 


not  have  discovered  by  the  exer- 
cise of  due  diligence,  then,  rela- 
tively to  the  parties  to  this  case, 
the  fall  must  have  been  accidental, 
and  the  defendant  could  not  be 
held  liable.  This  request  was  not 
covered  by  the  charge  given,  and 
we  think  its  refusal  was  error." 


1060  FORMS   OP  INSTRUCTIONS.  [§  1610. 

§  1610.  Accident  and  Negligence.  The  court  instructs  the  jury, 
that  if  they  believe,  from  the  evidence,  that  the  plaintiff  was  injured 
and  sustained  damage,  as  charged  in  the  declaration,  and  that  such 
injury  was  the  combined  result  of  an  accident,  and  of  a  defect  in 
the  walk,  and  that  the  ^mage  would  not  have  been  sustained  but  for 
the  defect,  although  tne  primary  cause  of  the  injury  was  a  pure 
accident,  still,  if  the  jury  further  believe,  from  the  evidence,  that  the 
plaintiff  was  guilty  of  no  fault  or  negligence,  and  the  accident  one 
which  common  and  ordinary  prudence  and  sagacity,  on  the  part  of 
the  plaintiff,  could  not  have  foreseen  and  provided  against,  then  the 
city  is  liable;  provided,  the  jury  believe,  from  the  evidence,  that  the 
city  authorities  were  guilty  of  negligence  in  not  remedying  such 
defect. - 

§  1611.  Streets  and  Walks  to  be  Kept  Reasonably  Safe,  (a)  The 
court  instructs  the  jury,  as  a  matter  of  law,  that  a  city  is  not  re- 
quired to  have  its  sidewalks  so  constructed  (or  kept  in  such  condi- 
tion) as  to  secure  immunity  in  using  them;  nor  is  it  bound  to  employ 
the  utmost  care  and  exertion  to  that  end.  Its  duty,  under  the  law, 
is  only  to  see  that  its  sidewalks  are  reasonably  safe  for  persons 
exercising  ordinary  care  and  caution. 

(b)  And  in  this  case,  if  the  juiy  believe,  from  the  evidence,  that 
the  sidewalk  was  so  constructed  as  to  be  sufficiently  level  and  smooth 
for  ordinary  travel,  and  so  built  that  it  would  not,  by  reason  of  any 
peculiarities  of  its  construction,  cause  snow  or  ice  to  accumulate 
thereon,  and  that  the  accident  was  attributable  solely  to  the  slippery 
condition  of  the  sidewalk,  occasioned  by  a  recent  fall  of  snow,  and 
that  the  sole  cause  of  the  accident  was  the  temporary  slipperiness 
of  that  part  of  the  sidewalk  caused  by  the  recent  fall  of  snow  thereon, 
such  a  condition  of  the  sidewalk  would  not  be  a  defect  for  which 
the  city  would  be  liable.^ 

(c)  If  the  jury  believe  from  the  evidence  that  the  plaintiff  was 
injured  by  reason  of  the  defendant's  negligence  in  failing  to  keep 
its  sidewalks  in  reasonably  good  repair,  or  negligently  allowing  the 
same  to  remain  in  an  unsafe  condition  as  explained  in  these  instruc- 
tions, and  without  fault  on  her  part  that  she  has  sustained  damage, 
then  the  jury  have  a  right  to  find  for  her.* 

(d)  The  jury  are  instructed,  that  the  defendant  is  bound  to  use 
reasonable  care  and  precaution  to  keep  and  maintain  its  streets  and 
sidewalks  in  good  and  sufficient  repair,  to  render  them  reasonably 
safe,  for  all  persons  passing  on  or  over  the  same;  and  if  the  jury 
believe,  from  the  evidence,  that  the  defendant  failed  to  use  all  rea- 
sonable care  and  precaution  to  keep  its  sidewalk  in  such  repair,  and 
that  the  injury  complained  of  resulted  from  that  cause,  as  charged 
in  the  declaration,  and  that  the  plaintiff  sustained  damage  thereby, 

2— Wilson  V.    Atlanta,   60  Gii.  473.        4— Oilson    v.    Cndallac,    134    Mich. 
3— Chicago  v.  McGiven,  78  111.  347.     189.  95  N.   W.  10S4. 


§1612.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1061 

without  neglig-enee  or  want  of  care  on  plaintiff's  part,  then  he  is 
entitled  to  recover  in  this  suit.^ 

(e)  The  law  imposes  upon  cities  the  duty  to  exercise  reasonable 
care  to  keep  its  streets  and  sidewalks  in  reasonably  safe  condition 
for  use  by  persons  traveling  thereon;  the  city  is  not  an  insurer 
against  injuries,  received  by  reason  of  defects  in  its  streets  or  side- 
walks :  if  it  maintains  them  in  reasonably  safe  condition,  it  is  not 
liable;  and,  in  this  case,  if  j^ou  believe  from  all  the  facts  and  circum- 
stances, shown  in  the  evidence,  that  the  place  where  the  plaintiff 
claims  to  have  been  injured  was  in  such  condition  for  travel  thereon 
or  thereover,  that  a  person,  while  in  the  exercise  of  ordinary  care  for 
his  own  safety,  would  have  passed  safely  over,  then  the  defendant 
is  not  liable  in  this  case.*^ 

§  1612.  Liable  for  Unsafe  Condition  of  Streets,  When.  The  court 
instructs  the  jury,  that  the  defendant  corporation  is  bound  by  law 
to  use  all  reasonable  care,  caution  and  supervision  to  keep  its  streets, 
sidewalks  and  bridges  in  a  safe  condition  for  travel,  in  the  ordinar}' 
modes  of  traveling,  by  night  as  well  as  by  daj'^,  and  if  it  fails  to 
do  so,  it  is  liable  for  injuries  sustained,  in  consequence  of  such 
f ailui'e ;  provided,  the  party  injured  is  himself  exercising  reasonable 
care  and  caution;  and  the  fact  that  the  plaintiff  may.  in  some  way, 
have  contributed  to  the  injury  sustained  by  him,  will  not  prevent 
his  recovery  if,  by  ordinary  care,  he  could  not  have  avoided  the  con- 
sequences to  himself  or  the  defendant's  negligence.'' 

§  1613.  No  Liability  Without  Negligence,  (a)  ^Municipal  cor- 
porations, such  as  the  defendant,  are  only  liable  for  such  defects 
in  their  sidewalks  as  are  in  themselves  dangerous  or  such  that  a 
person  exercising  reasonable  care  and  caution  cannot  avoid  danger 
in  passing:  over  it  and,  if  the  jury  believe,  from  the  evidence,  that  the 
defect  in  the  sidewalk  in  question  was  not  in  itself  dangerous  to  the 

5 — Chicago    v.    Dale,    115    111.    386,  words,    'keep    it   in    good    and   safe 

5    N.    E.    57S;    Dillon   on    Municipal  condition,'    did    not    authorize    the 

Corporations,  §  996  et  seq.  jury     to    find,    that    the     sidewalk 

6 — Gibson  v.  I^Iurray,  216  111.   589,  must   be  kept   in   a  perfectly  good 

75  N.  E.  319.  and  safe  condition   any  more  than 

"This  instruction  stated  the  law  that  it  should  be  kept  in  a  reason- 
correctly,  and  therein  stated  the  ably  good  and  safe  condition.  In 
requirement  of  the  city  to  be  that  other  words,  where  the  words 
of  maintaining  the  sidewalk  in  a  'good  and  safe  condition'  are  used, 
reasonably  good  and  safe  condi-  as  here,  without  qualifying  words, 
tion.  The  defect  in  the  first  in-  the  jury  are  as  much  authorized 
struction,  given  for  appellee,  was  to  construe  them  to  mean  'reason- 
cured  by  the  ninth  instruction,  ably  good  and  safe  condition,'  as 
given  for  appellant,  and  other  in-  to  regard  them  as  indicating  a 
structions  to  the  same  effect.  It  higher  and  more  perfect  condition, 
cannot  be  said,  as  is  claimed  by  Such  was  the  construction  given 
the  appellant,  that  the  ninth  in-  to  a  similar  instruction  in  Village 
struction,  given  for  appellant,  is  of  Mansfeld  v.  Moore,  124  111.  133, 
inconsistent  with  the  first  i^struc-  16  N  E.  246." 

tion    given    for    apnellee,    and    that,  7 — Mayor,    etc..    v.    Dodd,    58    Ga. 

therefore,    the    latter   is    not    cured  238:    Centerville   v.    "Woods.    57   Ind. 

by    the    former.      The    use    of    the  192;  Rowell  v.  T\''illiams.  29  la.  210; 

St.  Paul  v.  Kuby,  8  Minn.  154. 


1062  FORMS  OF  INSTRUCTIONS.  [§  1614. 

safety  of  a  person  passing  over  it  "vvith  reasonable  care  and  caution, 
and  that  the  alleged  injury  was  the  result  either  of  a  mere  accident 
without  negligence  on  the  part  of  defendant,  or  that  it  resulted  from 
a  want  of  reasonable  care  and  caution  on  the  part  of  the  plaintiff, 
then  the  jury  should  find  the  defendant  not  guilty. 

(b)  The  jury  are  instructed  that,  in  this  case,  there  can  be  no 
liability  on  the  part  of  the  defendant,  unless  there  Avas  neglect  of  duty 
in  respect  to  the  repair  of  the  sidewalk  on  the  part  of  the  officers  of 
the  city;  and  there  can  be  no  such  neglect  of  duty,  unless  the  jury 
find  from  the  evidence  that  the  officers  of  the  city  knew  of  the  defect 
in  the  sidewalk  complained  of,  or  Avith  reasonable  diligence  could 
have  known  of  it,  long  enough  before  the  accident  occurred,  to  have 
had  it  repaired.® 

§  1614.  Care  Must  Be  Proportionate  to  the  Known  Danger,  (a) 
If  the  jury  believe,  from  the  evidence,  that  the  place  where  the  acci- 
dent in  question  occurred,  was  necessarily  more  dangerous  than  the 
ordinary  streets  and  sidewalks,  and  that,  by  the  exercise  of  ordinary 
care  and  prudence,  this  condition  of  things  could  have  been  known 
to  the  plaintiff,  or  was  known  to  him,  then  the  plaintiff  was  required 
to  use  more  than  ordinary  care  and  caution  to  avoid  the  accident, 
and  if  he  failed  to  do  so,  and  thereby  contributed  to  the  injury,  he 
cannot  recover  in  this  suit. 

(b)  Although  the  jury  may  believe,  from  the  evidence,  that  the 
city  authorities  had  negligently  suffered  snow  and  ice  to  aecvimulate 
on  the  walk  in  question,  until  it  was  in  a  dangerous  condition  for 
walking,  still,  if  you  further  believe,  from  the  evidence,  that  this 
condition  of  the  walk  was  known  to  the  plaintiff  before  he  attempted 
to  walk  over  it,  and  that  he  might  easily  have  avoided  passing  over 
such  dangerous  place,  then  he  was  not  using  that  reasonable  care 
and  prudence  to  avoid  injury  which  the  law  i-equires  and  he  cannot 
recover  in  this  case.^ 

§  1615.  Must  Guard  Against  Actions  of  the  Elements  Reasonably 
to  be  Anticipated  Under  Ordinary  Circumstances.  The  court  in- 
structs the  jury  that  if  the  city  of  D.  left  the  street  at  6  o'clock  in 
the  evening  in  a  condition  that  was  proper  and  fit  to  be  traveled  over 
by  horses,  bicycles,  wagons,  and  such,  at  that  time,  it  does  not  neces- 
sarily follow  that  it  was  left  in  a  reasonably  safe  condition.  Some- 
thing more  is  required  of  the  city.  The  city  is  required  to  leave  that 
street  in  such  condition  that  it  will  remain  in  the  condition  in  Avhieh 
it  was  put;  that  is,  if  it  was  put  in  a  condition  at  6  o'clock  reason- 
ably safe  and  fit  for  public  travel  at  that  time,  then  the  further 
duty  falls  upon  the  city  to  consider  what  the  elements  are,  and  to 
consider  what  is  likely  to  occur  during  the  night;  and  they  are  re- 
quired by  law  to  put  it  in  such  a  condition  that  it  will  stand  or 

8— Sheel  et  al  v.  The  City  of  Ap-  9— Schaefler  v.  Sandusky,  33  Ohio 
pleton,  49  Y^ih.  125    5  N.  W.  27.  St.    246. 


§  1616.]      NEGLIGEJNCE— MUNICIPAL    CORPORATIONS.  1063 

withstand  the  elements  or  conditions  that  might  reasonably  and 
ordinarily  be  expected  at  that  season  of  the  year.  So,  gentlemen 
of  the  jury,  the  principal  fact  in  this  case  left  for  you  to  detennine 
is,  did  the  city  leave  that  street  in  a  condition  in  which  it  would 
be  expected  it  would  remain  in  a  condition  that  was  reasonably  safe  ? 
Did  they  do  all  that  prudence  and  foresight  would  demand  of  them? 
In  other  words,  if  the  rain  and  storms  that  might  be  expected,  if  you 
believe  that  they  may  be  expected  at  that  time  of  the  year,  would 
put  that  street  out  of  repair  and  render  it  dangerous,  then,  gentlemen 
of  the  jury,  negligence  would  be  chargeable  against  the  city;  but 
if  you  find  that  a  storm  of  unusual  severity,  or  a  storm  that  might  not 
be  expected  under  ordinary  circumstances  and  conditions  at  that 
time  of  'the  year,  came  up,  then  it  is  something  human  foresight 
cannot  see  or  prevent,  and  that  would  be  an  extraordinary  visitation 
of  the  elements,  and  the  city  of  D.  would  not  be,  in  such  a  case, 
chargeable  with  negligence.^" 

§  1616.  Not  Obliged  to  Open  Streets,  (a)  The  court  instructs 
the  jury,  that  cities  are  under  no  legal  obligation  to  open  up  streets 
for  the  use  of  the  public.  The  legal  obligation  of  a  city  to  repair 
streets,  sidewalks  and  bridges  within  its  coi'porate  limits,  only  relates 
to  such  as  are  opened  or  constructed  under  its  authority,  or  those 
which  its  officers  have  assumed  control  over.^^ 

(b)  There  is  no  legal  obligation  resting  upon  a  city  to  build 
sidewialks,  construct  gutters  or  pave  streets,  but  when  the  city  does 
make  these  improvements  for  the  benefit  of  the  public,  it  then  be- 
comes its  duty  to  use  all  reasonable  care  and  exertions  to  keep  them 
in  repair.^2 

§  1617.  But  Once  Having  Opened  Streets  Must  Keep  Them  in 
Safe  Condition,  (a)  If  you  find  from  all  the  evidence  in  the  case 
that  the  city,  prior  to  the  accident  which  resulted  in  the  loss  of  the 

life  of  said  ,  had  taken  charge  of,  and  had  performed  work 

and  labor  upon,  Twenty-fifth  street,  so  as  to  open  the  same  up  for 
use  and  travel  thereon  by  the  public  at  and  along  where  the  accident 
occurred,  then  it  was  the  duty  of  the  city,  under  the  law,  to  use  all 
reasonable  care  and  diligence  in  keeping  and  maintaining  said  street 
thereafter,  so  as  to  keep  said  street  in  a  safe  condition  for  the  use 
of  the  public;  and  any  negligence  on  the  part  of  said  city  so  to  keep 
said  street  in  a  safe  condition  at  all  times  thereafter  for  the  ixse  of 
the  public  Avould  render  the  city  liable  if,  because  of  such  failure,  an 
injury  results  to  anyone  who  has  occasion  to  use  said  street. 

(b)  You  are  further  instnicted  that  it  is  in  law  the  duty  of  the 
city  to  so  construct  its  streets  as  to  make  the  same  reasonably  safe 

10— Beattie   v.   Detroit,   137   Mich.     Wilson  v.  The  Mayor,  etc.,  1  Denio 
319.   100   N.   W.   574    (576).  595;  Joliet  v.  Verlev,  35  111.  58. 

11— Craig  V.   Sedalia,   63   Mo.   417;        12— Alton  v.  Hope,  68  111.  167. 


1064  FORMS  OP  INSTRUCTIONS.  [§  1618. 

for  the  traveling  public,  and  also  that  children  may  be  upon  the 
same  with  safety.^^ 

§  1618.  Municipality  Need  Not  Put  Entire  Width  of  Street  in 
Condition  for  Use,  nor  Provide  Safe  Access  to  Private  Property.  The 
court  instructs  the  jury  that  while  it  is  the  duty  of  a  cit3\  to  keep 
its  streets  in  a  reasonably  safe  condition  for  travel,  it  is  not  thereby 
implied  that  everj^  street,  and  the  whole  width  of  the  street 
must  be  placed  and  kept  in  good  condition.  The  city  may, 
without  incuri'ing  liability,  leave  certain  streets  entirely  un- 
opened, and  in  others  put  only  a  portion  of  the  width  in  condition 
for  use.  It  is  not  the  duty  of  a  city  to  provide  access  from  pi-ivate 
property  to  the  streets,  nor  is  it  liable  for  failure  to  guard  its  streets 
from  approach  at  points  where  such  approach  is  dangerous.  It  is  not 
the  duty  of  a  city  to  provide  safe  means  of  access  to  private  property, 
and  if  the  city  has  built  a  safe  and  suitable  sidewalk  to  accommodate 
the  public  travel  along  the  sidewalk  in  the  ordinary  modes,  it  is  not 
liable  to  one  who  knowingly  and  voluntarily  leaves  the  sidewalk  built 
by  the  city." 

§  1619.  Do  not  Insure  Safety,  (a)  The  jury  are  instructed  that 
the  obligations  resting  upon  the  defendant  city  to  keep  its  streets  in 
order  and  repair  are  not  carried  to  the  extent  of  making  it  an  insurer 
of  the  safety  of  the  streets,  and  that  it  does  not  insure  the  safety  of 
persons  traveling  over  and  along  the  streets.^^ 

(b)  The  city  is  not  an  insurer  or  a  warrantor  of  the  condition  of 
her  streets  and  sidewalks;  nor  is  every  defect  therein  actionable, 
though  it  may  cause  the  injury  sued  for.  It  is  sufficient  to  relieve 
the  city  from  liability  in  this  ease  if  you  find  from  the  evidence  that 
the  street  (or  walk)  was  in  a  reasonably  safe  condition  for  travel  at 
the  time  the  accident  is  alleged  to  have  occurred. 

(c)  If  you  believe,  from  the  evidence,  that  at  the  place  where 
the  plaintiff  met  with  the  injury  complained  of,  the  street  (or  side- 
walk) was  at  the  time  in  a  reasonably  safe  condition,  your  verdict 
should  be  for  the  defendant. ^^ 

(d)  The  Juiy  are  insti'ucted  that  a  municipal  corporation  is  re- 
quired to  exercise  vigilance  in  keeping  its  streets  and  sidewalks  in 
reasonably  safe  condition  for  public  travel  by  night  as  well  as  by 
day,  but  it  is  not  an  insurer  against  accidents;  nor  is  it  required  to 

13 — Omaha   v.    Richards,    49   Neb.  public.     It   was   negligence  on    the 

244,  68  N.   W.   528  (530).  part  of  the  city  to  leave  the  pond 

"The   negligence    imputed    to   the  of  water  unguarded,  knowing  that 

city  consisted  in  allowing  this  pond  children  would  be  attracted  to  such 

of  water  to  accumulate  in  a  pub-  a  place." 

lie   street   used   as   a   thoroughfare,  14 — Kansas  City  v.  Smith,  8  Kan. 

without   providing  any   barriers  or  App.   82,   54  Pac.   329. 

signals  of  danger;   and  it  was  en-  15 — Omaha   v.   Ayer,    32   Neb.   375, 

tirely   proper   for  the   court   to   in-  49    N.   W.    445    (447);     Centralia    v. 

form    the    jury   as    to    the    duty    of  Krnuse.  64  111.  19. 

the    city    in    keeping   its    streets   in  16 — Indianapolis  v.  Gaston,  28  Ind. 

safe   condition    for   the   use   of   the  224. 


§1620.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1065 

maintain  the  surface  of  its  sidewalks  free  from  all  irregularities, 
and  from  any  possible  obstruction  to  mere  convenient  travel.  I 
charge  you,  as  matter  of  law,  that  a  village,  city  or  township  is  not 
an  insurer  against  accidents  to  pedestrians  passing  along  their 
streets  or  highways,  and  that  all  that  is  required  of  a  village,  city 
or  township  is  to  have  their  streets,  highways  or  sidewalks  in  a 
reasonably  safe  condition  for  public  travel ;  and  such  reasonably  safe 
condition  exists  whenever  such  streets,  highways  or  sidewalks  can  be 
safely  passed  over  by  a  person  who  is  in  the  exercise  of  reasonable 
and  ordinary  care.^'^ 

(e)  A  city  is  bound  only  to  the  exercise  of  reasonable  pi'udence 
and  diligence  in  the  construction  of  its  sidewalks,  and  is  not  re- 
quired to  foresee  and  provide  against  every  possible  danger  or  acci- 
dent that  may  occur.  It  is  only  required  to  keep  its  streets  and 
sidewalks  in  a  reasonably  safe  condition,  and  it  is  not  an  insurer 
against  accidents. ^^ 

(f)  The  jury  are  instructed  that  the  city  of  S.  is  not  liable  for 
every  accident  that  may  occur  from  defects  in  its  sidewalk.  Its  offi- 
cers are  not  required  to  do  everything  that  human  energy  and 
ingenuity  can  possibly  do  to  prevent  the  happening  of  accidents,  or 
injury  to  the  citizen.  If  they  have  exercised  a  reasonable  care  in 
that  regard,  they  have  discharged  their  duty  to  the  plaintiff,  and  you 
should  find  the  defendant  not  guilty.^^ 

§  1620.  Duty  to  Keep  Streets  in  Safe  Condition  Cannot  Be  Shifted 
to  Person  Employed  by  City,  (a)  The  juiy  are  instructed,  that 
when  the  duty  is  imposed  by  law  upon  a  city  corporation  to  keep  its 
streets  in  reasonably  safe  condition,  for  use  by  the  public,  the  duty 
cannot  be  shifted  off  upon  a  person  employed  bj'  the  city  to  pei-form 
it;  and  if  an  injuiy  results  from  the  negligence  of  such  person  in 
the  performance  of  such  duty,  the  corporation  will  be  liable  for  the 
damage. 2^ 

(b)  If  the  village  of  B.  had  actual  notice  of  the  defective  con- 
dition of  said  walk,  it  could  not  order  it  to  be  repaired  by  some  one 
else,  and  pay  no  further  attention  to  it,  but,  after  having  such  actual 
notice,  it  should  see  that  it  was  repaired  in  a  reasonable  time,  and 
put  in  a  reasonably  safe  condition  for  travel  in  the  day-time  and  in 
the  night-time. 21 

§  1621.  Liability  for  Negligence  of  Agents  and  Servants,  (a) 
The  court  instructs  the  jury,  as  a  matter  of  law,  that  where  work 
is  done  upon  the  streets  of  a  city,  there  is  a  reasonable  presumption 
that  it  is  done  by  the  proper  authorities  of  the  city,  and  in  a  suit 
to  recover  damages  for  an  injuiy  occasioned  by  the  negligent  manner 

17— Hart      v.      Village      of     New  111.    App.     625     (626);     Centralia    v. 

Haven,  130  Mich.  ISl,  89  N.  W.  677  Krouse,  64  111.  19. 

(678).  20— Springfield  v.  Le  Claire,  49  111. 

18— Chicago  v.  Bixby,  84  111.  82.  476. 

19 — Streator    v.    Liebendorfer,    71  21 — Atherton   v.   Village   of   Ban- 


1066  FORMS  OF  INSTRUCTIONS.  [§  1622. 

of  doing  such  work,  it  is  not  necessary,  in  the  first  instance,  to  prove 
that  it  was  done  by  persons  employed  by  the  city,  as  this  will  be 
presumed,  unless  the  contrary  appears  from  the  evidence. 

(b)  And,  in  this  ease,  if  the  jury  believe,  from  the  evidence,  that 
the  injury  complained  of  was  caused  by  a  dangerous  (pile  of  dirt 
or  opening),  left  in  the  street  in  question  by  persons  employed  by 
the  city,  to  place  a  sewer  or  water  pipe  in  such  street,  then  the 
jury  are  instructed,  that  it  is  not  necessary  for  the  plaintiff,  in  order 
to  recover  in  this  suit,  to  prove  that  the  city  authorities  had  actual 
notice  that  such  *  *  *  -was  left  in  said  street;  provided,  the 
juiy  further  believe,  from  the  evidence,  that  such  work  was  done 
under  the  supervision  of  the  (street  commissioner,  etc.).^^ 

(c)  It  is  the  duty  of  the  village  to  use  all  reasonable  care  and 
vigilance  in  the  selection  of  its  agents  and  servants,  in  keeping  the 
sidewalks  in  good  repair  and  free  from  obstructions,  and  to  retain 
control  and  superintendence  over  them  in  the  performance  of  their 
duties,  and  to  enforce  such  measures  of  care  and  vigilance  as  will 
guard  the  public  against  exposure  to  injury,  so  far  as  this  can 
reasonably  be  done. 

(d)  The  court  instructs  the  jury  that  the  duty  to  construct,  re- 
pair, and  keep  in  a  reasonably  safe  condition  its  sidewalks,  rests 
primarily  upon  the  corporation,  and  its  obligation  to  discharge  it  can 
not  be  east  upon  others  by  any  act  of  its  own.-^ 

§  1622.  Liability  of  Municipal  Corporation,  When — Crossing  Con- 
structed by  Private  Person — Reasonable  Care  by  Town.  The  jury 
are  instructed  that  even  if  they  believe,  from  the  evidence,  that  the 
crossing  in  question  was  laid  or  constructed  by  a  private  person  in 

a  public  street  of  the  town  of  N and  was  used  by  the  public, 

yet  the  town  must  use  reasonable  care  to  keep  it  in  a  reasonably 
safe  condition,  and  the  law  does  not  absolve  the  town  from  such 
obligation  because  the  crossing  or  walk  may  not  have  been  laid  or 
constructed  by  the  town  itself.^* 

§  1623.  Liability  for  Defects  in  Walk  Constructed  by  Private  Per- 
son. Although  the  juiy  may  believe,  from  the  evidence,  that  the 
sidewalk  in  question  was  constructed  by  a  private  person,  and  not 
under  the  direction  or  supervision  of  the  city,  still  this  would  not 

croft,   114  Mich.   241,  72  N.  W.   208  mitted,  but  we  are  at  a  loss  to  per- 

(209).  ceive    its    application    to    this    in- 

22— Chicago  v.  Brophy,  79  Til.  277.  struction.     That  there  was  a  cross- 

23 — Village  of  Ava  v.  Greenawalt,  ing    of    some    kind    at    the    point 

73  111  App.  632;  Chicago  v.  Brophy,  where  appellee  was  injured,  is  un- 

supra.  disputed.    There  is  some  conflict  in 

24 — Town    of    Normal    v.    Bright,  the  evidence  as  to  the  condition  of 

223  111.  99  (102),  79  N.  E.  90.  the    crossing    and    the    manner    in 

"The  criticism  is  that  it  assumes  which    appellee    was    injured,    but 

there  was  a  crossing,  and  it  is  said  there  is  and   can  be  no  dispute  as 

it    is    a   well    established    principle  to  the  fact  that  there  was  a  board 

of  law  thnt  controverted   questions  or  boards  across   the   ditch   at  the 

of    fact    cannot    bp    assumed    but  point  where  she  was  injured." 
must  be  proven.     The  rule  is  ad- 


§  1624.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1067 

exempt  ihe  city  from  liability  from  defects  in  the  walk;  provided, 
the  jury  believe,  from  the  evidence,  that  the  walk  was  so  constructed 
as  to  be  dangerous  for  ordinaiy  travel,  and  that  this  defect  was 
known  to  the  officers  of  the  city,  or  that  by  the  exercise  of  ordinary 
care  they  might  have  known  of  such  defect  in  time  to  have  remedied 
it  before  the  accident.-^ 

§  1624.  Duty  to  Keep  Sidewalks  and  Crossings  of  Suburbs  Rea- 
sonably Safe.  The  jui-y  are  instructed  that  it  is  the  duty  of  a  town 
or  city  to  use  reasonable  care  to  keep  all  sidewalks  and  crossings  in 
its  public  streets  in  reasonably  safe  condition,  even  if  the  crossing 
or  sidewalk  is  in  the  suburbs  of  the  town  or  city,  where  less  used 
than  in  the  more  frequented  sti'eets.-" 

§  1625.  Liability  for  Negligence  of  Independent  Contractor,  (a) 
If  the  jurj^  believe,  from  the  evidence,  that  the  defendant  let  out 
the  job  of  filling  up  and  grading  (Main  street)  to  other  persons,  at  so 
much  per  yard,  the  grading  to  be  done  under  the  supervision  of  de- 
fendant's engineer,  and  that  such  engineer  went  upon  the  ground 
with  such  other  persons,  and  pointed  out  to  them  where  to  take  the 
soil  from  and  where  to  put  it,  and  such  other  persons  did  the  work 
as  directed  b}'  the  engineer,  then  the  law  is,  that  the  relation  of 
master  and  servant  existed  between  the  city,  the  engineer  and  such 
other  persons  doing  the  work,  and  the  city  is  liable  in  all  respects, 
the  same  as  if  it  had  done  the  work  by  men  employed  by  it  in  any 
other  way.^^ 

(b)  Although  the  jury  may  believe,  from  the  evidence,  that  the 
city  officers  had  contracted  with,  etc.,  for  the  laying  of  the  water 
pipes  in  the  street,  still  the  city,  notwithstanding  such  contract,  was 
charged  with  the  duty  of  taking  all  reasonable  precaution  to  keep 
the  street  in  a  safe  condition,  for  use  in  the  usual  manner,  so  far  as 
this  could  reasonably  be  done,  while  the  work  was  progressing,  and  if 
you  believe,  from  the  evidence,  that  the  city  officers  did  not  do  this 
but  were  guiltj^  of  negligence  in  permitting  a  dangerous,  etc.,  and 

25 — Barnes  v.  The  Town  of  New-  that  the  jury  must  take  into  ac- 
ton, 46  la.  567;  Wendell  v.  Troy,  count  all  the  surrounding-  circum- 
39  Barb.  329;  Centerville  v.  Woods,  stances,  including-  whether  or  not 
57  Ind.  192;  Phelps  v.  Mankato,  23  the  particular  crossing  is  away 
Minn.    276.  from   the   center  of  tlie  town,   how 

26 — Town    of    Normal    v.    Bright,  much  it  is  used,  etc.    It  was  neces- 

223  111.  99  (102),  79  N.  E.  90.  sary    that    the    instruction    should 

"It   is  insisted   that  this   instruc-  refer   to    the    evidence.      The    rules 

tion    is    erroneous    because    it   does  of   law   announced   in    it   were   ap- 

not   refer  to  the   evidence,   and  re-  plicable    to    the    case,    and    it    was 

quires   the   town    to    keep   all    side-  therefore  in  no  sense  the  statement 

walks  and   crossings  in   reasonably  of    mere    abstract    propositions    of 

safe    condition,    the   contention   be-  law.    The  other  objections  to  it  are 

ing,  that  the  issue  in  this  case  did  also    untenable.     City    of    Flora    v. 

not  involve  all  the  walks  or  cross-  Naney,  136  111.  45,  26  N.  E.  645;  City 

ings    in    the    city,    but    the    one    in  of  Decatur  v.  Besten,  160  id.  340.  48 

particular;    also,    that    it    is    erron-  N.   E.   186.     The  instruction  is  free 

eous  and  misleading  in  that  it  re-  from   substantial   error." 

fers  to   crossings   and   sidewalks   in  27— Nevins  v.  Peoria,  41  111.  502. 
the  suburbs,  when  the  law  requires 


1068  FORMS  OF  INSTRUCTIONS.  [§  1626. 

that  the  plaintiff  was  thereby  injured,  as  alleged  in  his  complaint, 
then  the  city  is  liable  for  such  injury,  provided  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  was  himself,  etc.-^ 

§  1626.  Liability  for  Negligence  of  Person  Knowingly  Permitted 
to  Obstruct  Street.  The  jury  are  instructed,  that  if  the  city  authori- 
ties knowingly  permit  a  person  to  occupy  or  obstruct  a  street,  it  is- 
the  duty  of  such  authorities  to  use  all  reasonable  care  and  precautions 
to  see  that  the  person  so  permitted  properly  guards  and  protects 
such  obstructions,  and  if  fhe  city  authorities  negligently  fail  to  per- 
form such  duty,  the  city  will  be  liable  to  one  who  is  injured  by  such 
obstructions,  if  he  is  himself,  at  the  time,  using  reasonable  care  to 
avoid  the  injury.  Whether,  in  this  case,  the  city  authorities  did 
know,  etc.  etc.,  are  questions  of  fact  for  the  jury,  to  be  determined 
by  the  evidence-^** 

§  1627.  Duty  of  Municipality  to  Have  Notice  or  Warning  Given 
of  Obstruction  in  Street,  (a)  The  court  instructs  the  jury  that  it 
is  the  duty  of  defendant,  'the  city  of  L.,  to  keep  its  streets  and 
highw^ays  in  a  reasonably  safe  condition  for  use  by  the  public,  and, 
if  it  is  necessary  that  a  part  of  the  street  be  used  as  a  place  of 
deposit  for  material  for  the  erection  of  a  building  adjacent  to  the 
said  street,  it  is  the  duty  of  the  person  using  the  street  as  a  place 
of  deposit  for  such  material  to  protect  persons  using  the  said  street 
at  night  from  injury  by  giving  notice  or  warning  of  the  obstruction 
to  the  street  by  placing  snffieient  lights  upon  or  near  the  said  ma- 
terial to  give  timely  warning  to  other  persons  using  the  said  street; 
and  it  is  the  duty  of  the  defendant,  the  city  of  L.,  to  exercise  ordi- 
nary care  in  causing  the  said  warning  to  be  given  by  persons  to  whom 
it  may  have  given  a  license  to  use  a  portion  of  a  public  street  as  a 
place  of  deposit  for  such  material.  And  if  the  jury  shall  believe 
from  the  evidence  that  the  defendant.  A.,  placed  the  material  in  J. 
street,  with  which  the  plaintiff  came  in  contact,  and  which  caused 
his  injury,  and  the  presence  of  said  material,  in  the  street  was  not 
indicated  by  sufficient  lights  to  give  reasonable  and  timely  warning  to 
persons  using  the  street  as  the  plaintiff  was  then  using  it,  and  by 
reason  thereof  he  w^as  caused  the  injuries  of  which  he  complains, 
and  he  did  not,  by  negligence  upon  his  part,  help  to  cause,  or  bring 
about  his  injury,  but  for  which  contributory  negligence,  if  any  there 
was,  he  would  not  have  been  injured,  then  the  law  is  for  the  plaintiff 
as  against  the  defendant,  A.,  and  they  should  so  find. 

(b)  If  the  jury  find  that  the  defendant,  A.,  or  his  employes  placed 
the  said  obstruction  in  the  street,  and  failed  to  give  warning  of  its 
presence,  as  mentioned  in  the  above  instruction,  and  they  find  for  the 
plaintiff,  and  they  shall  believe  from  the  evidence  that  the  defendant 
the  City  of  L.  'lid  not  exercise  ordinai^y  care  to  have  the  said  notice 

28 — LrOgansport   v.    Dicks,   70   Ind.        29— Indianapolis     v.     Doherty,     71 
65;  Butler  v.  Bangor,  67  Me.   385.        Ind.   5. 


§1628.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1069 

or  warning  given  of  the  obstruction  to  the  said  street,  then  the  law 
is  for  the  plaintiff  against  the  city  as  well  as  against  said  A.^" 

§  1628.  Not  Liable  for  the  Negligence  of  Others,  When.  The  juiy 
are  instructed,  that  when  a  party,  without  the  consent  of  the  authori- 
ties of  an  incorjaorated  town,  digs  or  leaves  open  a  dangerous  hole 
or  pit  in  the  street,  and  a  person  is  thereby  injured,  the  town  will 
not  be  liable  for  such  injury,  unless  the  authorities  have  actual 
notice  of  the  nuisance,  or  it  has  remained  a  sufficient  time,  so  that 
in  the  exercise  of  ordinary  care  and  diligence  they  ought  to  have 
had  notice  of  the  dangerous  condition  of  the  street.^^ 

§  1629.  Must  Have  Notice,  Actual  or  Constructive,  (a)  If  the 
jury  believe,  from  the  evidence,  that  the  sidewalk  in  which  the  defect 
is  alleged  to  have  been,  and  where  the  plaintiff  is  alleged  to  have 
been  injured,  was  properly  and  safely  constructed  and  laid  down, 
and  that  prior,  and  up  to,  or  about  the  time  of  the  injury,  it  appeared 
to  be  in  a  pi-oper  and  safe  condition,  then,  if  there  be  no  evidence 
that  the  defendant  had  actual  knowledge  of  such  defect,  or  that  the 
defect  existed  for  such  length  of  time  before  the  injury,  that  the 
defendant,  if  exercising  proper  care  and  diligence,  would  have  known 
of  it,  the  jury  should  find  the  defendant  not  guilty.^^ 

(b)  The  jury  are  instructed,  that  when  a  dangerous  place  is  made 
in  the  street  by  the  unlawful  act  of  third  parties,  unknown  or  with- 
out the  knowledge  or  consent  of  the  city  authorities,  the  city  cannot 
be  deemed  negligent  until  knowledge  or  notice  of  such  defect  is 
brought  home  to  the  officers  of  the  city,  unless  the  dangerous  place 
has  existed  for  such  a  length  of  time  before  the  injury,  that  the  city 
authorities,  in  the  exercise  of  reasonable  care  and  diligence,  might, 
and  ought  to  have  known  of  its  existence. 

30 — Louisville  v.  Keher,  25  Ky.  notice  to  it  of  the  dangerous  con- 
Daw  Rep.  2003,  79  S.  W.  270  (271  dition  of  the  excavation.  The  rule 
and  272).  on    which    these    opinions    rest    is 

"In  support  of  the  instructions  of  that  the  city,  having  exclusive  con- 
the  court  we  are  referred  to  the  trol  over  its  streets,  and  being 
cases  of  Dist.  of  Columbia  v.  charged  with  the  duty  of  main- 
Woodbury,  136  U.  S.  450,  10  Sup.  taining  them,  must  keep  its  streets 
Ct.  930,  34  L.  Ed.  472;  Boucher  v.  in  a  reasonably  safe  condition  for 
New  Haven,  40  Conn.  456;  Sutton  public  travel,  and  for  a  failure  to 
v.  Snohomish,  11  Wash,  28,  39  Pac.  do  this  is  primarily  liable,  although 
273,  48  Am.  St.  847;  Anderson  v.  the  defect  in  the  highway  may  be 
Wilmington,  8  Del.  516,  19  Atl.  509;  due  to  the  act  of  some  contractor 
Stephens  v.  Macon,  83  Mo.  345;  Mc-  or  third  person  done  by  authority 
Allister  v.  Albany,  18  Or.  426,  23  of  the  city.  Glasgow  v.  Gillen- 
Pac.  845;  all  of  which  are  much  waters,  23  Ky.  Law  2375,  67  S.  W. 
alike,  and  hold  that,  where  a  city  381;  2  Smith  on  Municipal  Corpora- 
authorizes  an  excavation  to  be  tion,  §  §  1289,  1290;  2  Dillon  on 
made  in  one  of  its  streets,  and  a  Municipal  Corporations,  (4th  Ed.) 
traveler  on  the  street  is  injured  by  §  1027." 

the  negligence  of  the  person  mak-  31 — Fahey  v.  The  President,  etc., 

ing    the    excavation    in    not    suffi-  62   111.    28. 

ciently  covering  the  hole,  or  not  32 — Schweickhardt  v.  St.  Louis,  2 
giving  svifficient  warning  of  the  Mo.  App.  571;  Hutchins  v.  Little- 
danger,  the  city  is  liable  to  the  ton,  124  Mass.  289;  Chicago  v. 
person  injured  by  reason  of  the  Stearns.  105  111.  554;  Hearn  v.  Chi- 
act     which     it      licensed     without  cago,   20  111.   App.   249. 


1070  FORMS  OF  INSTRUCTIONS.  [§  1630. 

(c)  The  court  instructs  the  jury,  that  when  an  act  is  done  which 
is  unlawful  in  itself,  such  as  placing  an  obstruction  in  a  public  street, 
which  detracts  from  the  safety  of  travelers,  the  author  will  be  held 
liable  for  an  injury  resulting  from  the  act,  although  other  causes 
subsequently  arising  may  contribute  to  the  injury.^^ 

§  1630.  Defective  Sidewalk — Notice  Presumed,  When.  The  court 
instructs  the  jury,  that  when  the  sidewalk  of  a  city  is  out  of  repair, 
and  remains  so  for  such  a  length  of  time  that  the  public  authorities 
of  the  city,  in  the  exercise  of  reasonable  care  and  prudence,  ought 
to  have  discovered  the  fact,  then  actual  notice  to  such  authorities  of 
the  condition  of  the  walk  will  not  be  necessaiy  to  hold  the  city 
liable  for  injury  sustained  by  a  person,  in  consequence  of  the  dan- 
gerous condition  of  the  street,  if  he  is  himself  using  reasonable  care 
to  avoid  such  injuiy.^* 

§  1631.  Person  Driving  on  Street  May  Presume  it  is  in  a  Reason- 
ably Safe  Condition.  The  court  instructs  the  jury  that  the  streets  of 
a  city  are  for  the  benefit  of  all  persons,  and  all  have  the  right,  in 
using  them,  to  assume  that  they  are  in  ordinarily  good  condition, 
and  to  regulate  their  conduct  on  that  assumption ;  and  they  may 
drive  carefully  in  the  darkness  of  the  night,  relying  upon  the  belief 
that  the  corporation  has  performed  its  duty,  and  that  the  street  is 
in  a  reasonably  safe  condition.^ ^ 

§  1632.  Necessity  of  Notice  to  City  of  Defect  in  Street.  The  court 
instructs  the  jury  that  if  you  shall  find  that  the  plaintiff  used  due 
and  ordinary  care  in  driving  along  the  street  at  the  time  and  place 
when  and  where  the  accident  occurred,  you  will  then  inquire  whether, 

33 — ^W'eick  v.  Lander,  75  III.  93.  reeled  the  attention  of  the  jury  to 

34 — Mayor    v.    Sheffield,    4    Wall,  this     peculiarity     in     the     circum- 

189;     Springfield    v.    Doyle,    76    111.  stances   of   the   injury;   but   it  will 

202;   Schweickhardt  v.   St.   Louis,   2  be  seen   by  an   examination  of  the 

Mo.    App.    571;    Hume   v.    N.    Y.,   74  instructions    that,    in    number   7    of 

N.  Y.  264;  Albrittian  v.  Huntsville,  the  same  series,   the  court  had   al- 

60    Ala.    486;    Chicago    v.    Dale,    115  ready    called   the    attention    of    the 

111.    386.  jury    to    the    fact    'that    he    (plain- 

35— Omaha  v.   Ayer,   32   Neb.   375,  tiff)    had    passed    along    the    street 

49   N.    W.    445    (447).  frequently,  both  night  and  day,  and 

"Counsel  make  the  point  that  the  mentioned  the  probability  of  his 
above  paragraph  of  the  charge  being  able  to  see  the  obstruction 
given  by  the  court  on  its  own  if  it  were  possible  for  a  person 
motion  is  erroneous,  for  the  reason  using  ordinary  care  and  prudence 
that  it  ignores  the  fact  that  the  then  and  there  to  see  it';  and 
plaintiff  admits  in  his  own  testi-  also,  in  and  by  the  instructions 
moiiy  that  he  had  seen  this  ob-  given  at  the  request  of  the  de- 
struction, and  knew  where  it  was,  fendant,  the  court  had  at  least 
and  had  driven  three  times  past  once  called  the  attention  of  the 
It  on  the  very  day  of  the  acci-  jury  to  the  knowledge  of  the  plain- 
dent.  While  I  think  that  in  this  tiff  of  the  existence  of  this  ob- 
connection  counsel  stated  the  tes-  struction  in  the  street,  and  to  the 
timony  of  plaintiff  too  strongly  consideration  of  the  question 
against  him,  yet,  if  this  paragraph  whether  he  was  or  was  not  negli- 
stood  alone,  I  should  agree  with  gent  in  driving  upon  the  same,  pos- 
counsol  that,  while  laying  down  the  sessed  of  such  knowledge  and  his 
law  as  the  court  did  in  this  part  ability  to  keep  clear  of  the  ob- 
o:!   the   charge,    it   should   have   di-  struction." 


§  1633.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1071 

under  the  testimony,  the  city  authorities  either  had  notice  of  the 
existence  of  the  obstruction  in  the  street,  or  that  the  obstruction  had 
existed  in  the  street  for  such  a  length  of  time  before  the  accident 
that  knowledge  of  the  existence  of  such  obstruction  by  the  city  au- 
thorities must  be  presumed.^^ 

§  1633.  Nature  of  Liability  for  Hole  in  Street  Depends  on  Locality 
and  Road.  The  court  instructs  the  jury  that  the  city  is  bound  to 
keep  the  highways  in  a  reasonably  good  condition  for  ordinary  travel. 
If  it  be  a  paved  street  in  the  heart  of  the  city,  that  is  a  matter  for 
the  jury  to  consider  and  understand  in  arriving  at  the  duty  of  the 
city.  If  it  be  in  the  outskirts  of  the  city — an  unpaved  street — the 
jury  may  veiy  well  consider  that  the  duty  of  the  city  in  regard  to 
that  street  Avas  entirely  different  from  its  duty  in  regard  to  a  street 
at  B.  and  M.,  or  any  such  jDlace ;  so  that  the  jury,  in  arriving  at  the 
responsibility  of  the  city,  must  carefully  consider  the  locality  and 
road,  and  especially  the  injury^  complained  of.^''' 

§  1634.  Fact  that  Hole  was  Filled  with  Water  May  be  Considered 
on  Question  of  Contributory  Negligence.  The  court  instructs  the 
jury  that  if  the  hole  in  the  street  at  the  time  of  the  accident  was 
full  of  Avater,  this  fact  may  be  considered  by  the  jury  in  determining 
the  question  whether  plaintiff  was  using  due  care.  Whether  a  pool 
of  water  at  the  time  and  place  would  have  induced  a  prudent  man 
to  assume  that  it  marked  a  deep  and  dangerous  hole,  and  to  run 
around  it,  is  a  question  which  the  jury  under  the  evidence  may  con- 
sider, with  all  the  other  facts,  in  arriving  at  a  conclusion  of  the 
question  of  the  plaintiff's  case.^^ 

§  1635.  Duty  to  Provide  Guards  and  Notice,  (a)  The  court  in- 
structs the  jury,  that  Avhile  a  city  has  the  right  to  construct  sewers, 
or  other  improvements  in  its  streets,  yet,  when  it  causes  such  work 
to  be  done,  it  is  bound  to  take  notice  of  the  character  of  the  w'ork 
and  the  condition  in  which  the  streets  are  left,  whether  safe  or 
dangerous. 

(b)  If,  in  making  improvements,  it  becomes  necessary  to  leave 
dangerous  holes  or  openings  in  the  street,  or  to  leave  piles  of  dirt, 
or  other  obstructions,  in  the  street,  in  such  .a  way  as  to  render  it 
dangerous  for  wag-ons  or  carriages  to  pass,  then  it  is  the  duty  of  the 
city  to  put  up  guards  or  notices  of  some  kind,  to  warn  travelers  of 
the  dangerous  condition  of  the  street;  and  if  they  do  not  do  so,  and 
persons  are  thereby  injured,  while  in  the  exercise  of  reasonable  care 
and  prudence  themselves,  the  city  will  be  liable  for  the  injuries  thxis 
sustained. 

36 — Omaha  v.    Ayer,    32   Neb.   375,  able  on  the  ground  that  it  assumes 

49   N.    W.   445   (445-7).  that   the  defect  complained  of  was 

37 — McLausrhlin     v.     Philadelphia  a  dangerous   hole.     In  determining 

T.  Co.,  175  Pa.  565,  34  Atl.  863  (864).  the  question  of  appellee's  care,  the 

38 — Indianapolis     v.     Mullally,    —  jury    might    consider    the    fact,    if 

Ind.  App.  — ,  77  N.  E.  1132  (1135).  a   fact,    that  the  hole  in   the   street 

"This  instruction  is  not  objection-  was  filled  with  water,  and  whether 


1072  FORMS   OF   INSTRUCTIONS.  [§  1636. 

(c)  The  court  instructs  the  jury,  that  all  incorporated  towns, 
villages  and  cities,  whether  incorporated  by  special  charter  or  under 
general  laws,  have  the  power,  and  it  is  their  duty,  to  keep  in  repair 
the  roads  and  bridges  within  their  corporate  limits,  and  if  injury 
results  to  any  individual  by  reason  of  a  neglect  of  such  duty,  while 
he  himself  is  exercising  reasonable  care  and  prudence  to  avoid  such 
injury,  the  corporation  will  be  liable  in  damages. ^^ 

§  1636.  Admissibility  of  Evidence  of  Other  Similar  Accidents  at 
Same  Place.     The  court  instructs  the  jury  that  there  is  undisputed 

testimony  here  that  on  the  evening  of , ,  between  the  hours 

of  7:30  and  10:00  p.  m.,  before  the  plaintiff  was  injui-ed,  two  other 
automobiles  were  run  into  the  same  excavation  and  broken,  one  so 
badly  broken  that  it  had  to  be  wheeled  into  a  neighboring  yard; 
that  this  testimony  is  admitted  for  the  purpose  of  showing  the  char- 
acter and  existence  of  the  excavation  on  the  boulevard  into  which 
the  plaintiff  ran,  and  not  for  the  purpose  of  showing  any  reasonable 
care  by  the  plaintiff,  and  should  not  be  considered  as  bearing  upon 
the  question  of  reajsonable  care  vipon  his  part.'*" 

§  1637.  Liability  of  Municipality  for  Safety  of  Streets  While  Im- 
provements are  Being  Made.  The  duty  ordinarily  resting  upon  the 
city  to  keep  its  streets  in  reasonably  safe  condition  for  public  travel 
does  not  exist  during  the  time  occupied  in  making  public  improve- 
ments or  repairs  in  or  upon  such  streets,  and  such  city  is  relieved 
from  liability  from  such  conditions  as  are  reasonably  necessary  for 
the  purpose  of  perfonning  the  work,  and  for  the  time  reasonably 
required  for  its  performance,  and,  while  such  improvements  are  in 
progress  in  or  upon  the  streets  of  a  city,  the  city  must  exercise 
reasonable  care  to  protect  those  properly  and  lawfully  upon  such 
streets  from  the  consequences  of  any  unsafe  condition  that  may 
exist.*! 

such   a  hole   of  water  would   have  508,  42  N.  W.  1101,  5  L.  R.  A.  143,  13 

induced  a  prudent  man  to  assume  Am.     St.     457;     Lombar     v.     East 

that   it    indicated    danger,    and    in-  Tawas,   86   Mich.   20,   48  N.   W.   947; 

duced  him  to  run  around  it,  was  a  Thompson  v.   Quincy,   S3  Mich.  175, 

question  which,   with   all  the   other  47  N.  W.  114,  10  L.  R.  A.  734;  Retan 

facts,    the    jury    might    consider    in  v.  Railway,  94  Mich.  154,  53  N.  W. 

arriving    at    a    conclusion    on    the  1094;     Moore     v.     Kalamazoo,     109 

question  of  appellee's  care.    The  in-  Mich.  178,  66  N.  W.  1089;  Alberts  v. 

structions   may   be    somewhat   am-  Vernon,  96  Mich.  549,  55  N.  W.  1022. 

blguous,  but  we  cannot  say  that  it  But  see,   also,  Corcoran  v.   Detroit, 

would  be  construed  by  the  jury  in  95  Mich.  86,  54  N.  W.  G92,  and  Greg- 

a     way     to     prejudice     appellant's  ory  v.  D.   U.   R.,  138  Mich.   368,  101 

rights."  N-    W.    546.       As    there    are    other 

39_!The   President,   etc.,   v.   Mere-  points  upon  which  the  cause  must 

dith,    54   111.    84.  be  reversed,   we  do  not  pass  upon 

40— Karrer    v.'    Detroit,    142    Mich,  the    question    of    its    admissibility 

331,  106  N.   W.   66.  here;  the  cases  cited  indicating  the 

"The    testimony    given    seems    to  rule    to    be    applied    upon    another 

have     the     sanction     of     authority  trial." 

within  certain  limits.    See  Smith  v.  41— South  Omaha  v.  Burke,  3  Neb. 

Township,    62    Mich.    165,    28   N.    W.  (unof.)  314,  94  ,N.  W.  528. 
806;    Dundas    v.    Lansing,    75    Mich. 


§  1638.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1073 

§  1638.  Street  Includes  Sidewalks,  The  jury  are  instructed,  that 
the  streets  of  a  city  extend  to  and  include  that  portion  thereof  occu- 
pied and  used  for  sidewalks.  In  the  grant  by  the  legislature  of  con- 
trol over  the  streets  of  the  city,  to  the  city  authorities,  control  over 
the  sidewalks  passes  to  them  as  a  part  of  the  street,  and  this  imposes 
upon  the  city  authonties  the  duty  of  keeping  the  sidcAvalks  in  repair, 
as  a  part  of  the  street. ^^ 

§  1639.  Essential  Elements  Necessary  to  Warrant  Recovery  for 
Defective  Sidevalk.  You  are  instructed  that  before  you  can  find 
for  the  plaintiff,  you  must  find  that  the  plaintiff  has  suffered  injury, 
that  the  injury  was  caused  by  a  defect  in  the  sidewalk,  that  said 
defect  left  the  sidewalk  in  an  unreasonably  dangerous  condition,  that 
the  plaintiff  did  not  contribute  to  the  said  injury  by  any  negligence 
on  his  part,  that  the  city  authorities  had  actual  knowledge  of  said 
defect  in  time  to  have  repaired  same  before  the  accident  happened,  or 
that  the  defect  had  been  notorious  and  continued  for  a  length  of 
time  within  which  the  city  authorities,  in  the  exercise  of  reasonable 
care  and  diligence,  could  have  known  of  the  same.^^ 

§  1640.  Person  Traveling  on  Sidewalk  or  Street  May  Presume  it 
is  Reasonably  Safe  for  Ordinary  Travel,  (a)  The  court  charges  you 
that  it  is  the  duty  of  the  city  authorities  to  keep  the  streets  in  repair 
and  to  prohibit  obstnictions  or  defects  therein,  so  far  as  this  can  be 
done  in  the  exercise  of  reasonable  care  and  pn;dence ;  and  that  any 
person  traveling  upon  the  sidewalk,  when  using  the  same  with  due 
diligence  and  care,  has  a  right  to  presume  and  act  upon  the  pre- 
sumption that  it  is  reasonably  safe  for  ordinary  travel,  throughout 
its  entire  width,  and  free  from  all  dangerous  holes,  obstructions  and 
other  defects.  And  if  you  believe  from  the  evidence  that  the  plaintiff, 
while  passing  along  one  of  the  sidewalks  in  said  city  of  H.,  was 
injured  as  alleged  in  her  complaint,  and  that  the  injury  would  not 
have  happened  to  her  if  the  said  sidewalk  had  been  in  a  reasonably 
good  repair  and  safe  condition,  then  the  defendant  is  liable  for 
such  injury;  provided  the  jury  believe  from  the  evidence  that  the 
plaintiff  was  exercising  reasonable  care  and  caution  to  avoid  injury 
while  passing  over  said  sidewalk,  and  that  said  city  did  not  use  rea- 
sonable care  to  keep  said  sidewalk  in  safe  condition.** 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  went 
upon  the  sidewalk  in  question  for  the  purpose  of  traveling  over  the 

42— City  of  B.  v.  Bay,  42  111.  503.  must  find  to  entitle  the  plaintiff  td 

43 — Lexing-ton      v.      Fleharty,     —  recover.     The  jury  were,   however, 

Neb.   — ,   104  N.  W.   1056   (105S).  properly    instructed    by    other    in- 

"The    complaint    about    this    in-  structions     as     to     the    burden    of 

struction  is  that  it  does  not  require  proof,  and  the  instruction  in  ques- 

the    jury    to    find    the    facts    stated  tion    is    hardly    susceptible    of    the 

from   the  evidence.     It  is  conceded  construction     placed     upon     it     by 

in  the  brief  of  counsel  for  defend-  counsel." 

ant    that    this    instruction   sets    out  44 — Huntingrton  v.   Burke,   21   Ind. 

the   essential    facts    that    the    jury  App.  655,  52  N.  E.  415  (418). 
68 


1074  FORMS  OF  INSTRUCTIONS.  [§  1640. 

same,  and  while  doing  so  was  in  the  exercise  of  ordinary  care  for  her 
own  safety,  then  as  a  matter  of  law  the  court  instructs  the  jui-y 
that  the  plaintiff,  S.,  had  a  right  to  presume  or  suppose  that  the 
sidewalk  was  reasonably  safe  for  the  purpose  of  traveling,  providing 
there  is  nothing  in  the  evidence  to  show  any  knowledge  on  her  part 
that  the  sidewalk  was  defective."*^ 

(c)  The  juiy  are  instructed,  as  a  matter  of  law,  that  any  person 
traveling  upon  a  sidewalk  of  a  city,  which  is  in  constant  use  by  the 
public,  has  a  right,  when  using  the  same  with  due  diligence  and  care, 
to  presume,  and  to  act  upon  the  presumption,  that  it  is  reasonably 
safe  for  ordinary  travel  throughout  its  entire  width,  and  free  from 
all  dangerous  holes,  obstructions  or  other  defects.**^ 

(d)  The  court  instructs  the  jury  that  it  is  the  duty  of  the  de- 
fendant, the  city  of  B.,  to  keep  its  public  streets,  sidewalks  and 
street  crossings  in  a  reasonably  safe  condition  and  repair,  for  the 
safety  of  persons  who  have  occasion  to  pass  over  the  same. 

(e)  The  court  instructs  the  jury  that  a  person  passing  over  a 
sidewalk  or  street  is  not  bound  to  exercise  more  than  reasonable 
care  and  caution  in  respect  to  his  own  safety.  Until  he  is  charged 
with  notice  to  the  contrary  he  has  a  right  to  presume  the  same  to  be 
in  a  reasonably  safe  condition. 

(f)  The  court  instructs  the  jury  that  if  you  believe,  from  the 
evidence  in  this  case,  that  the  defendant  is  a  municipal  corporation, 

and  as  such,  on  the ,  and  prior  thereto,  was  possessed  and 

had  control  of  the  street  and  walk  mentioned  in  plaintiff's  declara- 
tion herein,  then  it  was  the  duty  of  the  defendant  to  keep  said 
street  and  walk  in  reasonably  good  and  safe  repair  for  the  safety  of 
passengers  passing  along  and  over  the  same;  and  if  you  believe, 
from  the  evidence  in  this  case,  that  the  defendant  constructed  and 
maintained  in,  upon  and  across  a  part  of  said  street  a  ditch  or  conduit 
substantially  as  charged  in  the  plaintiff's  declaration,  or  some  count 
thereof,  and  that  the  same  was  not  constructed  and  maintained  so 
as   to  he  reasonably  safe  for  foot-passenger  who  had   occasion   to 

45 — Strehmann  v.  Chicago,  93  111.  which   has    caused    the   injury   has 

App.   206   (208).  existed  for  so  short  a  time  that  the 

"We  think  the  instruction  correct  city  officers  by  tlie  exercise  of  rea- 

and  that  it  should  have  been  given,  sonable  care  and  supervision  could 

and     that    its    refusal    was    ei-ror.  not  have  known  of  it'    In  Board  of 

City  of  East  Dubuque  v.  Burhyte,  Commissioners    v.    Leg-g,    110    Ind. 

173   111.   553   (558),   50  N.   E.  1077.     In  479-481,  11  N.  E.  612,  the  court  say: 

Turner  v.  Newburgh,  109  N.  Y.  301-  'And  it  is  well  settled  thnt  a  trav- 

305,    60    N.    E.    344,    the    court    say:  eler  upon  a  street  or  a  county  pub- 

'When  a  street  is  thrown  open  for  lie  highway  without   knowledge  of 

the    public   use,    those    who    travel  defects    in    bridges    forming    parts 

upon   it  have  the  right   to   assume  thereof,  and  using  proper  diligence 

that  it  is  in  a  reasonably  safe  con-  himself    has    a    right    to    presume 

dition,  and  if  without  fault  of  their  that   they   are   in   a   safe   condition 

own  or  without  knowledge  of  some  and    to    act    upon    that    presump- 

existing    obstruction    they    are    in-  tion.'  " 

jured    while    using    the   street,    the  46 — Indianapolis     v.      Gaston,     68 

city    is     liable    unless    the    defect  Ind.  224. 


§  1641.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1075 

pass  on  and  over  the  same,  and  that  the  plaintiff,  while  in  the  exer- 
cise of  due  care  and  caution  on  her  part  for  her  own  safety,  un- 
avoidably fell  into  said  ditch  or  conduit,  and  w'as  thereby  injured, 
and  has  sustained  damages  in  consequence  of  such  injury,  then  you 
should  find  the  issues  for  the  plaintiff,  and  assess  her  damages  at 
whatever  sum  you  may  find,  from  the  evidence  in  the  case,  she  is 
entitled  to.*'^ 

(g)  The  jury  are  instructed,  as  a  matter  of  law,  that  any  person 
traveling  upon  a  sidewalk  of  a  city  or  village,  which  is  in  constant 
use  by  the  public,  has  a  right,  when  using  the  same  with  due  dili- 
gence and  care,  to  presume  and  to  act  upon  the  presumption  that  it 
is  reasonably  safe  for  travel  throughout  its  entire  width,  and  free 
from  all  dangerous  holes,  obstructions  and  other  defects. 

(h)  The  court  instructs  the  juiy  that  a  person  is  not  bound  to 
abandon  a  sidewalk  and  pass  around  along  the  street  merely  because 
he  knows  the  sidewalk  is  defective.*^ 

(i)  The  court  instructs  the  jury  that  a  person  passing  over  a 
sidewalk  or  street  is  not  bound  to  exercise  more  than  reasonable  care 
and  caution  with  respect  to  his  own  safety.  Until  he  is  charged  with 
notice  to  the  contrary,  he  has  a  right  to  presume  the  same  to  be  in 
a  reasonably  safe  condition.*^ 

§  1641.  Necessity  of  Notice  to  City  of  Defect  in  Sidewalk,  (a) 
The  court  instructs  the  jury  that  the  defendant  city  is  liable  only 
for  such  unsafe  condition  of  its  streets  as  it  had  actual  notice  of, 
or  ought  to  have  known  of,  by  exercising  what  would  be,  under  all 
the  circumstances,  ordinary  and  reasonable  caution  and  diligence.  If, 
therefore,  the  preponderance  of  the  evidence  fails  to  show  that  the 

47 — Beardstown  v.   Smith,   150   111.  fit,  in  the  exercise  of  its  discretion, 

169  (173-4),  37  N.  E.  211.  to    construct    an    artificial    crossing 

"The  chief  objection  urged  to  the  over  the  street.    And  much  less  are 

first    and    last    instructions,    if    we  we    disposed    to    hold    that    after   a 

understand  it,  is,  that  they  attempt  street     crossing     has     been     estata- 

to   lay   down    the    rule    of   diligence  lished,  de  facto,  by  public  use,  the 

incumbent   upon    the   city   in    keep-  city    is    at    liberty,    merely    because 

ing    its     'streets'     as    distinguished  no  artificial  crossing  has  been  con- 

from     its      'sidewalks     and     street  structed,    to    intersect    the    crossing 

crossings,'   in  repair  for  the  use  of  which   the   public    have   established 

foot    passengers.      It    is    contended,  for     themselves,     with     dangerous 

upon  the   authority   of   the  City  of  ditches    and    pit-falls.      We    are    of 

Aurora  v.    Hillman,   90   111.    61,   and  the    opinion    that,    under   the    facts 

other   like   decisions,    that   a   pedes-  which     the     evidence    in     the    case 

trian   has   not  an   equal   right   with  tended    to    establish,    the    duty    of 

one     who     drives     a     carriage,     to  the    city    to    keep    the    crossing    in 

travel   in   and   along   the   driveway  question  in  a  reasonably  safe  con- 

of  a  public  street,  and  that  a  city  dition    and    repair    for    the    use    of 

is     not     under     any     obligation     to  pedestrians    had    arisen,    and    that 

keep    such    driveway,    longitudinal-  there  was  no  material  error  in  the 

ly,    in  a  fit   and  safe   condition  for  instructions    by    which    thstt    duty 

pedestrians.  was  sought  to  be  declared  and  en- 

"We    are    not    prepared    to    hold  forced." 

that  the  duty  of  a  city  to  keep  its  48 — Village  of  Ava  v.  Greenawalt, 

street    crossings    in    a    reasonably  73   111.   App.   632   (634). 

safe  condition   for  the   use   of  foot  49— Chicago  v.  Gillett,  91  111.  App. 

passengers  arises  only  when  it  sees  287  (291). 


1076  FORMS   OF  INSTRUCTIONS.  [§  1641. 

defendant  knew  or  ought  to  have  known  of  the  unsafe  condition  of 
said  box,  if  you  find  it  was  unsafe,  then  your  verdict  should  be  for 
the  defendant.^** 

(b)  If  you  believe  from  a  preponderance  of  the  evidence  that  the 
meter  box  referred  to  in  the  testimony  was  rotten  and  out  of  repair, 
and  that  it  was  by  reason  of  such  unsafe  condition,  an  unsafe  and 
dangerous  place  in  said  street,  and  rendered  it  dangerous  to  use  said 
street,  and  walk  immediately  adjacent  thereto,  and  if  you  further 
find  that  plaintiff,  without  fault  on  her  part,  fell  into  said  meter  box, 
then  you  will  return  a  verdict  for  her,  provided  you  further  find 
that  the  defendant  city  knew,  or  by  the  exercise  of  ordinary  care 
ought  to  have  known,  of  said  condition  of  said  box  long  enough 
before  said  accident  to  have  put  it  in  good  repair.^^ 

(c)  The  court  instructs  the  jui'y  that  it  is  wholly  immaterial  how 
long  the  board  in  question  in  this  case  may  have  been  cracked,  broken, 
or  defective,  provided  such  crack,  break  or  defect  M^as  of  such  nature 
that  it  could  not  be  detected  or  discovered  by  the  village  authorities 
by  the  use  of  ordinary  care,  caution  and  diligence. ^^ 

(d)  The  jury  are  instructed  that  if  you  believe  from  the  evidence 

that  a  defect  existed  in  the  sidewalk  in  question  on  the day  of 

,  that  as  to  what  length  of  time  would  be  required  to  justify 

the  inference  of  the  knowledge  of  such  defect  by  the  city  of  St.  L. 
there  is  no  fixed  or  definite  rule,  and  each  case  must  depend  upon  the 
facts  and  circumstances  attending  it.  Thus,  if  the  jury  believe  from 
the  evidence  that  R  street,  at  the  point  in  question,  was  a  street  much 
traveled  and  in  use,  the  duty  of  the  city  in  looking  after  its  condition 
required  greater  diligence  in  seeing  that  it  was  reasonably  safe  for 
travel  than  if  it  had  been  but  little  used.  And  in  a  much-traveled 
street,  if  a  defect  existed  which  the  jury  believe  from  the  evidence 
was  easily  to  be  seen,  the  existence  of  such  a  defect  for  only  a  few 
hours  might  justify  the  jury  in  the  inference  of  knowledge  on  the 
part  of  the  city  of  such  defect,  or  that  by  reasonable  diligence  it 
could  have  acquired  such  knowledge,  in  time  to  have  repaired  it 
before  the  accident.  Much  depends  upon  the  surroundings,  and  what 
might  be  negligence  in  not  knowing  of  a  dangerous  condition  of  a 
sidewalk  at  one  locality  in  the  city  would  not  be  at  another,  and  the 
juiy  are  to  determine  the  fact  of  whether  or  not  the  negligence  on 

50 — South    Omaha    v.     Meyers,    3  there  is  a  distinction  between  latent 

Neb.  (unof.)  699,  92  N.  W.  743  (744).  and   patent   defects    as    far   as   the 

51 — Ibid.  presumption  of  notice  is  concerned 

52 — Powell    v.    Village    of    Bowen,  is   recognized   in   the   following   au- 

92  III.  App.   453  (454).  thorities:      Shear.    &    Red.    on    the 

"It  is  difficult  for  us  to  see  how  Law   of  Negligence,   vol.   2,   p.    641; 

a  city  could   be  held  liable  for  an  Dewey    v.     Detroit,    15    Mich.    312; 

injury    caused    by   latent   defect    if  Wakeham  v.   St.  Clair,  91  Mich.  15, 

it    had   no   actual   notice   of  its   ex-  51  N.   W.   696;  Hubbell  v.  Yonkers, 

isterice,    and   where   the   authorities  104  N.  T.  434,  10  N.  E.  858,  58  Am. 

had   used  all   ordinary  and  reason-  Rep.   522." 
able   means    to   discover    it.     That 


§1641.]     NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1077 

the  part  of  the  city  existed  in  this  ease,  from  the  facts  and  circum- 
stances they  believe  the  evidence  herein  shows.^^ 

(e)  The  court  further  instructs  the  jurj'  that  to  render  a  city 
liable  for  a  defect  in  a  sidewalk,  the  defect  must  be  of  such  a  char- 
acter that  the  city  authorities,  by  using  ordinary  care  and  diligence, 
could  discover  it.  If  you  should  find  from  the  evidence  in  the  case 
that  the  defect  was  of  such  a  nature  that  the  officials  of  the  city 
could  not  have  discovered  it  by  using  ordinary  care  and  diligence, 
the  defendant  is  not  liable  in  damages,  and  your  verdict  should  be 
for  the  defendant  city.^* 

(f)  The  jur}^  are  further  instructed  that,  before  the  plaintiff  can 
recover,  he  must  prove  to  your  satisfaction  that  the  city  of  0. 
had  actual  notice  of  the  existence  of  the  obstruction  complained  of 
a  sufficient  length  of  time  before  the  happening  of  the  accident  to 
have  removed  the  same,  or  that  the  obstruction  complained  of  had 
existed  a  sufficient  length  of  time  to  become  so  iwtorious  that  you 
would  be  justified  in  believing  that  the  city  did  know  of  the  existence 
of  this  obstruction  for  a  sufficient  length  of  time  to  have  removed  the 
same  before  the  happening  of  the  accident. ^^ 

(g)  The  court  instructs  the  jury  that,  if  they  find  fi'om  the  evi- 
dence that  on  the day  of ,  C.  street  was  a  public  street 

of  K.  C. ;  that  on  the  said  day  there  was  a  hole  in  the  sidewalk  on 
the  east  side  of  said  street,  between  E.  and  N.  streets,  at  a  point 
about  twenty-five  feet  north  of  N.  street,  which  made  said  sidewalk 
not  in  a  reasonably  safe  condition  for  persons  traveling  over  it; 
that  said  hole  was  known  to  the  officers  of  K.  C.  having  supervision 
of  its  sidewalks,  or  could  have  been  known  to  them  if 
they  had  used  ordinary  care  and  diligence  in  the  discharge  of 
their  duties,  in  time  to  have  rejDaired  the  same  before  said  day; 
that  on  said  day  plaintiff,  while  in  the  exercise  of  ordinary  care,  as 
defined  in  other  instructions,  was  traveling  over  said  sidewalk,  and 
stepped  into  said  hole,  and  was  thereby  thrown  dow'n  and  injured, 
then  your  verdict  should  be  for  the  plaintiff.^® 

(h)  The  statute  under  which  this  action  was  brought  contemplates 
that  the  defendant  must  have  notice  of  the  defect  complained  of,  or 
have  knowledge  of  such  defect,  and  a  reasonable  time  and  oppor- 
tunity to  put  said  sidewalk  in  proper  condition  for  use,  and  has  not 
used   reasonable    diligence    therein    after   such  knowledge   or  notice. 

Therefore,  if  the  jury  find  that  on  or  about  the day  of , 

the  sidewalk  in  question  was  placed  in  a  condition  reasonably  safe 

53 — Beauvais     v.     St.     Louis,     169  would   have  known  if  it  had  been 

Sup.  Mo.  500,  69  S.  W.  1043  (1044).  doing-   its   duty." 

"We   think    that    instruction    pre-  54 — Moore   v.    Platteville,    78   Wis. 

Rents   the   law   correctly.     A   defect  644.  47  N.   W.  1055   (1056). 

mig-ht   occur   when   and   where   the  55 — Elliott    v.     Kansas    City,    174 

city    would    be    required    to    be    on  Mo.    554,   74    S.    W.    617. 

the    watch,    and,    if    so,    would    be  56 — Omaha    v.    Ayer,    32   Neb.    375, 

chargeable  with   notice   of  what  it  49    N.    W.    445    (447). 


1078  FORMS  OF  INSTRUCTIONS.  [§  1642. 

and  fit  for  public  travel,  and,  subsequently,  and  prior  to  said  accident, 
became  defective  for  any  cause,  and  unsafe  and  unfit  for  travel,  and 
that  there  was  no  notice  of  nor  knowledge  by  said  city  that  said  side- 
walk had  become  unsafe  and  insecure,  then  I  charge  you,  as  a  matter 
of  laAv,  that  the  plaintiff  has  failed  to  establish  a  case,  and  your 
verdict  must  be  for  the  defendant.^'' 

(i)  If  the  preponderance  of  the  credible  evidence  in  the  ease 
satisfies  you  that  the  plaintiff  was  free  from  any  want  of  due  care 
or  attention  that  contributed  to  cause  the  injury,  and  further  satis- 
fies you  that  the  city  was  guilty  of  negligence  that  was  the  proximate 
or  near  cause  of  the  injury,  and  liable,  through  having  notice  through 
its  proper  officer  or  officers,  and  not  repairing  or  removing  the  dan- 
gerous character  of  the  walk  after  a  reasonable  time  elapsed  after 
such  notice,  then  you  will  allow  her  such  damages  as  will  fully  com- 
pensate her  foi*  her  injuiy,  including  her  suffering,  mental  and  bodily 
pain,  doctors'  bills,  nursing  and  loss  of  time,  as  shown  by  the  evi- 
dence in  the  ease.'^^ 

§  1642,  When  City  Deemed  to  Have  Had  Constructive  Notice  of 
Defect  in  Sidewalk,  (a)  The  court  instructs  the  jury  that  the  plain- 
tiff is  not  bound  to  prove  that  any  officer  or  agent  of  the  defendant, 

,  had  actual  notice  of  the  condition  of  the  sidewalk  in  question; 

but  if  you  find,  from  the  evidence,  that  said  sidewalk  was  unsafe 
and  defective,  and  that  plaintiff  was  injured  by  reason  of  such  unsafe 
and  defective  condition  of  said  sidewalk,  and  that  a  sufficient  length 
of  time  had  elapsed  between  the  time  when  said  sidewalk  became 
defective  and  the  date  of  the  injury  to  i3laintiff,  for  the  city,  by  the 
exercise  of  reasonable  diligence,  to  have  discovered  and  repaired 
the  defect  in  said  sidewalk,  then  the  city  was  negligent  in  not  dis- 
covering and  repairing  said  sidewalk.^^ 

(b)  If  the  walk  where  it  is  alleged  plaintiff  fell  was  not  in  a 
reasonably  safe  condition  by  reason  of  defective  stringers  and 
boards,  and  that  such  a  condition  had  existed  for  such  a  length  of 
time  before  the  accident  to  plaintiff'  that  the  defendant  by  the  exer- 
cise of  reasonable  diligence  should  have  discovered  the  same,  then 
defendant  would  have  what  is  called  ''constructive  notice"  of  such 
condition. ^° 

§  1643.  Effect  of  Knowledge  of  Municipal  Authorities  that  Side- 
walk Is  Defective.  The  court  instructs  the  jury  that  it  is  the  duty 
of  the  defendant,  the  city  of  S.,  to  exercise  reasonable  care  and 
diligence  to  keep  and  maintain  its  sidewalks  in  a  reasonably  safe 
condition  and  repair  for  the  use  of  the  public  in  walking  thereon; 
and  if  the  jury  believe,  fr-om  the  evidence,  that  the  sidewalk  at  the 
time  and  place  in  question  was  out  of  repair  and  in  a  dangei'ous  con- 

57— Moon    V.    Ionia,    81    Mich.   635,  59— Perrette   v.    Kansas    City,   162 

46    N.    W.    25    (26).  Mo.  238,  62  S.  W.  Rep.  448. 

58 — Munger  v.   Waterloo,  83  Iowa  60 — Belken     v.     Iowa     Palls,     162 

559.   49  N.   W.   1028  (1029).  Iowa  430,  98  N.  W.  296  (297). 


§  1644.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1079 

dition,  and  'that  the  city  authorities  knew  of  such  condition  in  time 
to  have  remedied  it  before  the  injury  complained  of,  and  did  not  do 
so;  and  if  you  further  believe,  from  the  evidence,  that  the  plaintiff 
was  injured  by  reason  of  such  condition  of  the  sidewalk,  as  charged 
in  her  declaration,  and  that  she  was  herself  on  the  occasion  and  at 
the  time  of  such  injury  in  the  exercise  of  oixlinarj'  care  and  caution 
for  her  own  safety,  then  the  city  would  be  liable,  and  in  such  case 
you  will  find  the  defendant  guilty.*'^ 

§  1644.  In  Populous  Districts  Whole  Width  of  Sidewalk  Should 
be  Kept  in  Repair,  (a)  The  court  further  instructs  the  jury  that  if 
you  find,  from  the  evidence,  that  the  point  where  the  plaintiff  re- 
ceived his  injury  was  a  pojDulous  portion  of  the  city,  and  where  there 
was  a  large  amount  of  public  travel,  it  was  the  duty  of  the  city  to 
keep  and  maintain  the  sidewalk  at  that  point,  and  the  whole  thereof, 
in  a  reasonabl}'^  safe  condition  for  public  travel ;  and  the  public  at  such 
point  had  the  right  to  the  use  of  the  whole  of  said  sidewalk,  and  had 
the  right  to  assume  that  the  whole  thereof  was  reasonably  safe  for 
public  travel. 

(b)  The  court  further  charges  the  jurj'  that  if  you  find  from  the 
evidence  that  the  place  where  the  plaintiff  received  his  injury  was  a 
thicklj'  settled  portion  of  the  city,  then  it  was  the  duty  of  defend- 
ant city  to  keep  and  maintain  the  whole  of  its  sidewalk,  from  the 
building  front  to  the  curbstone,  in  a  reasonably  safe  condition  for 
public  travel;  and  it  is  no  defense  that  there  was  ample  room  for 
pedestrians  to  travel  along  that  portion  of  the  walk  covered  with 
flagging.^2 

§  1645.  Circumstances  to  be  Taken  Into  Consideration  in  Deter- 
mining Liability  for  Defective  Walk,  (a)  The  court  instructs  the 
jury  that  in  determining  whether  the  defendant  was  negligent  in  the 
maintenance  and  repair  of  the  walk  at  the  place  where  plaintiff  was 
injured,  and  whether  it  had  notice,  the  jury  should  consider  the 
length  of  time  the  alleged  sidewalk  had  been  built,  the  material 
with  which  it  had  been  constructed,  the  manner  of  its  construction, 

61 — Springfield  v.  McCarthy,  79  throughout  their  entirety.  Indian- 
Ill.  App.  388  (390).  apolis  v.    Gaston,   58   Ind.   224;   City 

62— Denver  v.   Stein,   25   Colo.  125,  Council   v.    Wright,   72   Ala.    411,    47 

53  Pac.  283  (284).  Am.    Rep.   422;   Bacon  v.    Boston,   3 

"While  there  is  conflict  between  Cush.  174;  Stafford  v.  Oskaloosa,  64 
the  adjudicated  cases  upon  the  Iowa  251,  20  N.  W.  174;  Chicago  v. 
question  as  to  whether  a  city  is  Robbins,  2  Black.  418;  Goins  v.  Mo- 
bound  to  keep  in  repair  its  subur-  berly,  127  Mo.  116,  29  S.  W.  985; 
ban  streets  and  sidewalks  to  their  Monongahela  v.  Fischer,  111  Pa.  St. 
entire  width,  yet,  upon  principle  it  9,  2  Atl.  87.  We  think,  therefore, 
is  clear,  and  by  the  weight  of  au-  these  instructions  correctly  define 
thority  it  seems  to  be  settled,  that  the  duty  of  defendant  with  refer- 
with  reference  to  sidewalks  in  ence  to  the  sidewalk  in  question,  it 
populous  portions  of  the  city,  and  being  undisputed  that  it  is  located 
such  as  are  constantly  used  by  the  in  a  populous  portion  of  the  city 
public,  its  duty  is  to  use  reason-  and  was  constantly  used  by  the 
able  care  in  keeping  them  in  re-  public  by  day  and  in  the  night- 
pair,      and      free      from      defects,  time." 


1080  FORMS  OF  INSTRUCTIONS.  [§  1646. 

the  nature  of  the  alleged  defect,  whether  or  not  it  was  apparent 
and  readily  observable,  or  whether  it  was  such  that  it  would  not 
be  noticeable  unless  a  person  stepped  on  the  extreme  edge  of  the 
walk,  whether  the  alleged  loose  plank  was  replaced  by  persons  other 
than  the  city  officers,  who  noticed  it  out  of  place,  so  it  could  not  be 
seen  by  defendant's  officers,  and  all  other  facts  and  circumstances 
as  shown  by  the  evidence.''^ 

(b)  The  court  further  instructs  the  jury  that  if  the  city  made 
sudh  an  inspection  of  the  walk  as  ordinary  care  and  prudence  would 
require,  and  found  it  to  be  in  good  condition,  or  if  not  in  good  condi- 
tion it  then  made  it  so,  then  the  city  would  not  be  liable,  but  if  at 
that  time  it  failed  to  exercise  the  care  it  ought  to  have  exercised  to 
discover  the  defect,  'then  the  city  would  be  liable.  Again:  If  appel- 
lant exercised  that  care  and  prudence  it  ought  to  have  exercised,  if 
it  made  examination  of  the  sidewalk  from  time  to  time  as  it  ought 
to  have  examined  it,  bearing  in  mind  the  condition,  age  and  char- 
acter of  the  walk,  and  found  no  defects,  or  if  it  found  defects  and 
repaired  the  same,  then  the  city  would  not  be  liable. "^^ 

§  1646.  Effect  of  Failure  to  Construct  Sidewalk  According  to  Pro- 
visions of  Ordinance.  The  court  instructs  the  jury  that  the  ordi- 
nances of  the  city  of  M.,  introduced  in  evidence  by  the  plaintiff, 
providing  for  the  kind  and  manner  of  construction  of  sidewalks  in 
the  district  where  the  plaintiff  was  injured  are  introduced  only  for 
the  purpose  of  tending  to  show  admissions  on  the  part  of  the  city 
of  the  kind  of  sidewalks  which  ought  to  be  constructed  in  said  dis- 
trict at  the  place  of  the  accident,  but  the  city  was  not  bound  to  con- 
struct sidewalks  according  to  said  ordinances;  and  the  jury  are 
instructed  that  no  negligence  can  be  imputed  to  or  charged  against 
said  city  merely  from  the  fact  that  it  may  appear  from  the  evidence 
that  said  sidewalk  at  the  place  of  the  accident  was  not  of  the  kind 
or  was  not  constnieted  according  to  such  ordinances;  but  the  fact,  if 
it  be  the  fact  that  said  sidcAvalk  was  not  constructed  according  to 
said  ordinances  may  be  considered  in  connection  with  all  the  other 
evidences  in  the  case  in  detennining  whether  in  fact  the  defendant 
was  negligent."^ 

§  1647.    Effect  of  Sidewalk  Becoming  Insecure  from  Use  or  Breaks. 

The  court  instructs  the  jury  that  a  sidewalk  may  have  become 
insecure  from  use  or  breaks,  or  planks  may  have  become  loose  or 
displaced  by  the  action  of  the  elements  or  by  accident,  so  that  per- 
sons are  liable  to  stumble  and  fall;  but  this  does  not  necessarily 
involve  the  city  in  liability,  so  long  as  the  effect  can  be  readily  dis- 
covered and  easily  avoided  by  persons  exercising  due  care,  provided 

63— Spicer    v.    "Webster    City,  118         65— Reed  v.  Mexieo,  120  Mo.  App. 

Iowa  561,  92  N.  W.  884  (885).  155,   76   S.  W.   53   (54). 

64— Kennedy     v.      St.      Cloud,  90 
Minn.  523,  97  N.  W.  417  (418). 


§1648.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1081 

the  defect  be  of  such  a  nature  as  not  of  itself  to  be  dangerous  to 
persons  so  using  the  walk."*^ 

§  1648.  Injury  through  Stick  Projecting  over  Sidewalk.  The 
court  instructs  the  jury  that  it  is  the  duty  of  the  defendant  to  use 
ordinary  care  in  keeping  its  sidewalks  in  a  reasonably  safe  condition 
for  persons  walking  upon  the  same,  and  it  is  the  duty  of  those  walk- 
ing upon  the  sidewalk  to  use  ordinaiy  care  for  their  own  safety ;  and 
if  the  jury  believe  from  the  evidence  that  the  defendant,  its  agents, 
servants  or  employes,  were  guilty  of  negligence  in  leaving  the  stick 
over  which  the  plaintiff  stumbled,  if  she  did  stumble  over  same,  pro- 
jecting into  the  sidewalk,  and  that  by  reason  of  such  negligence,  if 
any,  the  plaintiff  was  injured,  they  should  find  for  the  plaintiff, 
unless  they  believe  from  the  evidence  that  the  plaintiff  was  guilty  of 
negligence  which  so  far  contributed  to  her  injuries  that,  but  for  the 
same,  she  would  not  have  been  injured,  in  which  latter  event  they 
should  find  for  the  defendant.^''' 

§  1649.  Slippery  Condition  of  Sidewalk  Resulting  from  Ordinary 
Accumulation  of  Ice  in  Winter.  The  court  instructs  the  jury  that 
the  slippery  condition  of  a  sidewalk,  resulting  from  ordinary  accu- 
mulation of  ice  in  winter,  is  not  an  actionable  defect  if  such  accumu- 
lations are  smooth;  and,  if  you  find  in  this  case  that  the  alleged 
injury  of  the  plaintiff  was  due  to  such  cause,  you  will  answer  the 
first  issue  *'No,"  and  not  consider  the  other  issues.*^^ 

§  1650.  Injury  to  Child  by  Defective  Sidewalk  While  Indulging  in 
Pastime  or  Play.  The  court  instructs  the  juiy  that  if  a  child,  while 
using  the  sidewalk  in  going  from  one  place  to  another,  incidentally 
indulges  in  some  pastime  or  plaj^,  but  is  not  thereby  diverted  from 
going  straight  to  her  destination,  she  is  a  traveler  in  the  eye  of  the 
law,  and  that  if  respondent  was  using  the  walk  in  going  directly 
from  her  home  to  a  neighbor's,  as  she  claims,  and  at  the  same  time 
she  was  accompanied  by  children  who  were  playing,  but  she  did  not 

66 — Hunting-ton  v.  Burke,  21  Ind.  The    Supreme     court     said:       "We 

App.  655,  52   N.  E.  415   (418).  think     the    modification    was    cer- 

67— Louisville  v.  Bailey,  81  Ky.  6,  tainly  misleading-  to  the  jury,   and 

74  S.  "W.  688.  was    therefore   erroneous.     The   in- 

"It    is    insisted    that    by    the    in-  structions,  as  ordinarily  prayed  for, 

struction  the  case  was  erroneously  simply   meant   that   the   law  would 

made  to  turn  upon  what   the  jury  not  hold  liable  in  damages  a  town 

believed  was  negligence  in  the  city  or     city     for      an      injury      caused 

leaving    the    stick    projecting    upon  through    the    slipping    of    a    person 

the    sidewalk.      This    is    true,    and  on   its  sidewalk,   on  account  of  ice 

properly  so,  as  the  right  of  appel-  formed    there    at    a    season    of    the 

lee    to   recover   depended   upon    the  year   when    such    formation    of    ice 

question  whether  it  was  negligence  might    be    reasonably    anticipated, 

to    leave    the    stick    at    the    place  and  not  through  an  unusual  accu- 

where  found."  mutation    and    after   being   allowed 

68 — Cresler  v.  Asheville,  134  N.  C.  to   I'emain    thei'e    for   an   unreason- 

311.  46  S.  E.  738  (739).  able   length   of  time.     Putting  that 

The    trial    court    gave    the   above  interpretation  upon   the   prayer  for 

instruction,    but    modified    it    after  instruction,    we    think    it    ought    to 

the  word   "winter,"   by  adding   the  have  been  substantially  given." 
words   "not  from  neglect  of  city." 


1082  FORMS   OP  INSTRUCTIONS.  [§  1G51. 

stop  to  play  with  them,  or  if  she  was  engaged  in  any  pastime  inci- 
dentally, but  was  not  thereby  diverted  from  going  straight  to  her 
destination,  she  was  a  traveler.*^'' 

§  1651.  Defective  Plan  of  Public  Improvement,  The  jury  are  in- 
structed, that  a  city  cannot  be  made  liable  for  injuries  to  persons 
or  propert}^  which  arise  from  a  defective  plan  of  a  public  improve- 
ment, although  the  city  may  be  liable  for  want  of  reasonable  care 
or  skill  in  the  execution  of  the  work  itself;  and  although  the  jury 
may  believe,  from  the  evidence,  that  the  plan  adopted  by  the  city  for 
draining  the  streets,  was  defective  and  unskillful,  and  likely  to  result 
in  injury  to,  etc.,  still  the  city  would  not  be  liable  for  any  injuries 
resulting  from  such  defect  or  want  of  skill  in  the  plan  adopted,  pro- 
vided the  city  was  not  guilty  of  negligence  or  want  of  reasonable 
care  and  skill  in  doing  the  work  necessary  to  carry  out  the  plan.'''' 

§  1652.  Injury  to  Adjoining  Property — Changing  Grade,  (a)  The 
jury  are  instructed  that  a  municipal  corporation,  while  acting  within 
the  seoiDB  of  its  authority,  in  making  excavations  in  a  street,  for 
the  purpose  of  opening  it  or  improving  it,  if  using  reasonable  care 
and  skill  in  performing  the  work,  is  not  liable  to  a  lot  owner  for  an 
injury  resulting  therefrom  to  his  lot  or  the  buildings  thereon."^ 

(b)  The  jurj'  are  instructed,  that  while  the  corporate  authorities 
of  cities  are  vested  with  power  to  grade  their  streets,  yet  the  mode 
in  which  the  power  is  to  be  exercised,  in  reference  to  the  rights  of 
others  in  the  enjoyment  of  their  property,  is  limited  in  the  same  way 
and  to  the  same  extent  as  the  power  of  a  private  person  in  the  use 
of  his  property,  and  if  the  authorities  of  a  city  in  altering  or  chang- 
ing the  gTade  of  the  streets,  do  not  do  the  work  in  good  faith  and 
with  reasonable  care  and  skill,  to  avoid  damaging  the  adjoining 
property  owners,  the  city  Avill  be  liable  to  such  owners  for  all  damage 
directly  resulting  therefrom.''- 

§  1653.  Liable  for  Want  of  Reasonable  Care  Only,  (a)  The  jury 
are  instructed,  that  a  city  has  full  control  over  the  grades  of  its 
streets,  and  may  lower  or  elevate  them  at  will,  and  the  owner  of  lots 
adjacent  to  the  street  cannot  call  it  to  account  for  error  in  judgment, 
in  fixing  the  grade,  nor  recover  damages  for  inconvenience  or 
expense  incui*red  in  adjusting  their  premises  to  the  grade  of  the 
street,  provided,  the  city  authorities  exercise  reasonable  care  and 
skill  in  the  performance  of  this  work. 

(b)     That  the  authorities  of  a  city  have  a  right  to  alter  the  grades 

69— Collins  v.  Janesville,  111  Wis.  72— Callender    v.    Marsh,    1    Pick. 

348,   87  N.   W.   241  (243).  418;  Radcliff's  Executors  v.  Mayor, 

70— Lansing    v.    Toolan,    37    Mich,  etc.,      4      Comst.      195;      Delphi      v. 

152;    Detroit  v.    Reckman,    34   Mich.  Evans,  36  Iiid.  90;  Reading  v.  Kep- 

125;  Darling  v.  Bangor,  68  Me.  108;  pieman,    61   Penn.    St.    233;   Hender- 

Dever  v.  Capelli,  4  Col.  25.  shott    v.     Ottumwa,    46    Iowa    658; 

71_Quincy   v.    Jones.    76    111.    231;  Mayor,    etc.,    v.    Hill,    58    Ga.    595; 

Pontiac  v.  Carter,  32  Mich.  164;  Bloomington  v.  Brokaw,  77  111.  195. 
Wegmann  v.  Jefferson,  61  Mo.  55. 


§  1653.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1083 

of  the  streets  at  their  discretion,  aud  if  this  is  done  with  reason- 
able care  and  skill,  no  liability  arises  from  their  acts.  Neither  courts 
nor  juries  can  inquire  whether  the  grade  adopted  is  the  best  one  or 
not,  and,  in  this  case,  the  only  question  for  the  jury  is  whether,  in 
doing  the  work  in  question,  the  city  officers  acted  in  good  faith,  and 
with  reasonable  care  and  skill  to  avoid  damage  to  the  plaintiff's 
property.'^ 

(c)  Contra:  The  jury  are  instructed,  that  the  owner  of  a  lot 
abutting  on  an  unimpi'oved  street,  or  where  no  grade  has  been  estab- 
lished by  the  city  authorities,  erecting  a  building  thereon,  assumes 
the  risk  of  all  damage  which  may  result  from  the  city  subsequently 
establishing  a  grade,  and  improving  the  street  to  conform  to  such 
grade.  The  liabilitj'  of  the  city  for  injuries  to  a  building  abutting 
on  a  street  by  the  grading  of  the  street,  only  exists  when  the  build- 
ing was  erected. 

(d)  If  the  juiy  believe,  from  the  evidence,  that  the  city,  in  im- 
proving (Main  street)  in  said  city,  fixed  the  grade  and  caused  to  be 
constructed  sewers  and  drains  in  said  street,  to  carry  off  the  surplus 
water  which  necessarily,  in  case  of  rains,  would  run  down  said  street, 
by  reason  of  said  grading,  and  that,  on  or  about,  etc.,  there  came  a 
rain  and  said  sewers  or  drains  were  stopped  up,  or  were  otherwise 
defective,  so  that  they  would  not  carry  off  the  surplus  water,  and 
thereby  the  water  from  said  rain  was  forced  into  the -basement  of 
the  plaintiff's  building,  and  the  plaintiff  thereby  damaged,  then  the 
jury  should  find  for  the  plaintiff  to  the  amount  which  the  proof 
shows  such  damage  to  be. 

(e)  The  jury  are  instructed,  that  the  city  of has  control  of 

all  streets  and  sidewalks  in  said  city;  and  if  the  juiy  believe,  from 
the  evidence,  that  the  sidewalk  or  street,  in  front  of  plaintiff's  prem- 
ises, pitched  toward  his  lot,  and  was  permitted  Sio  to  be  constructed 
by  said  cit}'^,  or  was  permitted  by  said  city  so  to  remain  after  being 
so  built  by  others,  after  a  reasonable  time  in  which  to  have  changed 
it,  then  the  city  cannot  shield  itself  from  liability  for  flooding  plain- 
tiff's premises,  if  the  evidence  shows  they  were  so  flooded,  on  account 
of  the  pitch  of  said  street  or  sidewalk.'^* 

(f)  If  the  jury  believe,  from  the  evidence,  that  the  city  authori- 
ties before  the  erection  of  the  building  in  question,  had  so  improved 
and  appi'opriated  the  street  to  public  use  as  to  fairly  and  reasonably 
indicate  to  the  public  that  the  grade  of  the  street  had  been  per- 
manently fixed  and  that  no  change  therein  would  be  made,  and  that 
the  plaintiff  or  his  grantor,  relying  on  such  corporate  acts  as  a  final 
decision  as  to  the  wants  of  the  public  regarding  the  grade  of  such 
streets,  erected  the  building  in  conformity  to  such  grade,  then,  if  the 

73— Lee  v.  Minneapolis,  22  Minn.  258;  Tate  v.  Mo.,  etc.,  Rd.  Co.,  64 
13;    Detroit   v.    Beckman.    34    Mich.     Mo.  149. 

125,   Clieever   v.    Ladd,    13    Blatchf.         74_These    instructions    approved 

in  Aurora  v.  Gillet,  56  111.  132. 


1084  FORMS  OF  INSTRUCTIONS.  [§  1654. 

jury  further  believe,  from  the  evidence,  that  by  the  recent  improve- 
ment and  change  of  grade  of  said  street  the  plaintiff's  building  and 
other  improvements  connected  therewith  have  been  injured  and  the 
plaintiff  thei-eby  damaged,  then  the  defendant  is  liable  therefor.'^^ 

§  1654.  Changing  Watercourses,  (a)  The  court  instructs  the 
jury,  that  if  a  city,  in  exercising  its  power  of  changing  the  grade 
of  its  streets,  fails  to  exercise  reasonable  prudence  and  skill,  it  will 
be  liable  for  all  damages  that  result  from  such  failure. 

(b)  And  if  a  city,  in  fixing  the  grade  of  a  street,  or  in  afterwards 
changing  it,  flows  water  upon  a  lot  that  it  did  not  naturally  carry  off, 
the  city  will  be  liable  for  damages,  if  any  are  caused  thereby.'^® 

(c)  The  court  further  instructs  the  jury,  that  a  city  has  no  more 
power  over  its  streets  than  a  private  person  has  over  his  own  land. 
A  city  has  no  right  to  turn  surface  water  onto  private  property,  and 
if  a  city,  in  fixing  the  grade  of  a  street,  turns  a  stream  of  water  and 
mud  onto  the  gTound  or  into  the  cellar  of  a  citizen,  or  creates  in  his 
neighborhood  a  stagnant  pool,  likely  to  generate  disease,  the  city 
will  be  liable  in  damages,  the  same  as  an  individual  would  for  doing 
the  same  thing. '^''' 

§  1655.  Liability  for  Overflowing  Contiguous  Property  in  Laying 
Out  of  Streets,  (a)  The  court  instructs  the  jury  that  an  incorpo- 
rated city  has  full  authority  and  control  over  the  laying  out  and 
constructing  of  its  streets,  and  is  not  responsible  for  damages  for 
contiguous  property  being  overfloAved,  unless  said  city  was  guilty  of 
negligence  in  constructing  or  in  the  maintaining  of  said  street;  and 
if  you  should  find,  from  the  evidence,  that  none  of  the  injuries  com- 
plained of  by  plaintiff  was  caused  by  any  negligence  of  said  city  of 

McK ,  then,  in  that  event,  you  should  find  for  said  defendant, 

the  city  of  McK . 

(b)  If  you  should  find  and  believe,  from  a  preponderance  of  the 
evidence,  that  the  defendant  railroad  had  put  in  and  near  said  inter- 
section of  said  street  a  culvert,  and  that  said  cvilvert  was 

negligently  constructed,  so  that  same  was  wholly  insufficient  to  carry 
off  the  water,  filth  and  refuse  matter  that  would  naturally  flow  to 
said  culvert,  and  that  said  company  negligently  permitted  said  cul- 
vert to  become  choked  and  filled  up,  and  thereby  directly  causing 
said  water,  filth  and  slime  to  back  up  and  stand  on  plaintiff's  prem- 
ises, and  thereby  directly  causing  the  injury  complained  of  by  plain- 
tiff, and  that  said  injury  was  not  in  any  way  directly  contributed  to 
by    any   negligence    on    the    part    of   its    codefendant,    the    city    of 

McK ,  then  you  sihould  find  in  favor  of  the  plaintiff  against 

said   defendant  railroad   company  alone. '^^ 

75 — Cincinnati  v.   Penny,   21   Ohio  76 — Ashley     v.     Fort     Huron.     35 

St.    499;    Mayer,   etc.,    v.    Nichol,   59  Mifh.  29C;  Blooming-ton  v.  Brokaw, 

Tenn.    :'.?A;    Elgin    v.    Eaton,    83    111.  77  111.   194;   Kobs  v.  Minneapolis,  22 

535;   French   v.   Milwaukee,  49  Wis.  Minn.  159. 

5S4;    Dore    v.    Milwaukee,    42    "Wis.  77— Aurora  v.   Reed.  57  111.   29. 

108.  78— Taylor    v.    Houston    &    T.    C. 


§1656.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1085 

§  1656.  Liability  for  Injuries  through  Body  of  Water  Both  on 
Street  and  Adjacent  Private  Property.  If  you  tind,  from  the  evi- 
dence in  the  case,  and  by  a  preponderance  thereof,  that  because  of 
the  negligence  of  the  city  in  not  providing  suitable  escapes  for  the 
water  ordinarily  flowing  down  the  ravine  and  creek,  or  either,  said 
water  was  allowed  and  permitt'Cd  to  accumulate  at  the  point  where 

said   accident   occurred,   and   also   upon  street,   making   said 

street  unsafe  for  children  to  be  upon  said  street,  then  the  fact, 

if  it  be  a  fact,  that  said  accumulation  of  water  extended  also  upon 
property  not  in  said  street,  would  not  be  material;  and  it  would  not 

be  material  whether  said  was  in  fact  drowned  in  the  water 

in  the  street,  or  on  property  adjacent  to  said  street,  providing  the 
water  in  the  street  and  on  the  adjacent  property  where  such  drown- 
ing may  have  occun'ed  constituted  one  body  of  water,  and  providing 
such  drowning  was  caused  by  the  negligence  of  the  city,  as  herein- 
before explained. "^^ 

§  1657.  Liability  for  Damage  to  Contiguous  Property  by  Leak  in 
Water  Main,  (a)  The  court  instructs  the  juiy  that  if  they  find 
from  the  evidence,  that  the  flooding  of  plaintiffs'  premises  and  the 
damage  to  their  building  and  personal  property  was  caused  by  a  leak 
in  a  public  water  main  laid  by  the  city  of  St.  L.  in  one  of  its  public 
streets,  and  that  such  leak  was  directly  caused  by  the  negligent  and 
unskillful  laying  of  said  pipe  by  the  persons  in  charge  of  said  work, 
or  the  failure  on  the  part  of  the  officers  of  defendant  to  exercise 
ordinary  care  or  prudence  in  keeping  the  same  in  a  safe  condition, 
then  their  findings  must  be  for  the  plaintiffs. 

(b)  If  the  juiy  find  for  the  plaintiffs,  then  they  will  assess  to 
them  the  difference  in  value  of  the  building  as  it  stood  before  the 
injui-y  and  its  value  as  the  jury  shall  find  the  same  to  have  been  after 
said  injur\',  less  the  actual  value  of  any  improvements  or  repairs 
made  thereon  by  the  defendant  city.  And  the  court  further  instructs 
the  jury  that,  if  they  find  for  the  plaintiffs  under  other  instructions 

R.  R.  Co.  et  al.,  —  Tex.  Civ.  App.  therein  that  'it  would  not  be  mate- 

— ,  80  S.  W.  260  (261).  rial  whether  said  was  in  fact 

"As  stated  by  Mr.   Dillon  (2  Dill,  drowned  in  the  water  on  the  street, 

Mun.  Corp.  4th  Ed.  p.  1335):  'There  or  on  the  property  adjacent  to  said 

is  a   municipal  liability  where   the  street.'      This    lang-uage    oorrectly 

property     of     private     persons     is  stated   the   rule  of  liability  as  ap- 

flooded  either  directly  by  water  or  plicable   to   the   case   made   by   the 

sewage  being-  set  back,  when  it  is  proofs,    according    to    the    author- 

the  result  of  a  negligent  execution  ities.     It  would  have  been  different 

of  a  plan  adopted  for  the  construe-  if  the  pond  had  been  entirely  upon 

tion  of  gutters,  drains,  culverts  or  private  property,    and  not   in   close 

sewers,   or  the  negligent  failure  to  proximity  to  a  street.    In  such  case 

keep   the   same   in   repair   and   free  there    would    be    no    liability    upon 

from  obstructions.'    The  cases  sup-  the  city,  since  it  would  have  been 

port  this  proposition  with  great  guilty  of  no  breach  of  duty.  It  is 
unanimity.     Consequently  there  was  .  undisputed  that  this  pond  of  water 

no  error  in  the  charge  as  alleged."  extended   into   the   street,   and   the 

79— Omaha   v.    Richards,   49   Neb.  city  cannot  escape  liability  merely 

244.  68  N.  "W.   528  (530).  because     the     drowning     occurred 

"The  part  of  the  above  instruc-  upon   the   adjacent   premises." 
tion     criticised     is     the     statement 


1086  FORMS  OF  INSTRUCTIONS.  [§  1658. 

given,  they  should  include  in  their  finding  such  damage,  if  any,  as 
they  find  to  have  been  directly  caused  by  reason  of  the  bursting  of 
the  water  pipe  in  question  to  any  articles  of  personal  property  belong- 
ing to  both  plaintiffs  together,  as  well  as  the  reasonable  expense  of 
removing  the  same  to  a  placo  of  safety;  and  such  expense,  by  way 
of  rental,  as  you  may  find  the  plaintiffs  were  compelled  to  pay  for 
quarters  elsewhere  until  the  delivery  of  possession  of  the  plaintiffs' 
building  by  the  defendant  city.^" 

§  1658.  Liability  for  Flow  of  Surface  Water  Where  No  System  of 
Drainage  Exists.  The  court  instructs  the  jury  that  if  the  damage  to 
the  plaintiff's  land  was  caused  by  the  flow  of  surface  water,  and  the 
jury  find  there  is  no  system  of  drainage  in  the  town  of  C,  then  the 
plaintiff  cannot  recover.  That  the  construction  of  a  wide  gutter 
along  W.  street  and  S.  street  to  carry  off  the  surface  water  that  may 
come  into  said  streets  from  adjoining  land  and  streets  does  not  con- 
stitute a  system  of  sewers  or  drainage. ^^ 

§  1659.  Liability  for  Flow  of  Surface  Water  Due  to  Street  Rail- 
way Lawfully  Operated  on  Highway,  (a)  The  court  instructs  the 
jury  that  if  the  street  railway  was  duly  established  by  law,  with  a 
rightful  location,  and  a  right  to  operate  as  a  street  railway  in  the 
highways  of  said  town,  the  fact  that  the  railway  so  constructed 
caused  surface  water  to  flow  back  upon  and  into  the  plaintiff's  land 
would  not  make  the  defendant  liable  for  such  injury. 

(b)  If  the  location  of  the  railway  was  by  law  authorized,  and  it 
was  operated  and  maintained  in  a  proper  condition,  then  it  was  law- 
fully in  the  highway,  and  the  town  would  have  no  right  to  remove  it, 
and  cannot  be  held  liable  for  damage  to  the  plaintiff's  land  by  turn- 
ing upon  it  the  surface  water  from  the  street.^^ 

§  1660.  Liability  for  Loss  from  Flow  of  Surface  Water  Occa- 
sioned by  Act  of  God.  (a)  The  jury  are  instructed  that  by  the  term 
''Act  of  God"  is  meant  those  events  and  accidents  which  proceed 
from  natural  causes  and  cannot  be  anticipated  and  guarded  against 
or  resisted,  such  as  unprecedented  storms  or  freshets,  lightning,  earth- 
quake and  so  forth.  For  loss  occasioned  by  an  *'Act  of  God"  a  city 
is  not  liable,  provided  its  own  negligence  has  not  contributed  to  the 
damages  sustained.  On  this  defense,  hovi^ever,  the  city  assumes  the 
burden  of  proof  to  the  extent  that  it  must  prove  by  a  preponderance 
of  evidence  that  the  storm  was  of  such  a  violent  and  unprecedented 
nature  that  no  ordinaiy  and  reasonable  amount  of  care  would  have 
prevented  the  damage.  Therefore  if  the  plaintiff  has  established  by 
a  preponderance  of  the  evidence  that  the  defendant  was  guilty  of 
negligence  then  the  burden  of  the  proof  is  upon  the  defendant  city 
to  prove  by  a  preponderance  of  the  evidenco  that  the  storm  was  of 
sufficient  violence  to  have  caused  the  damage  sustained  by  plaintiff 
without  the  concuiTence  of  such  negligence;  for  if  the  negligence  of 

80— Dammann  v.  St.  Louis,  152  ton,  182  Mass.  220,  65  N.  B.  42  (43). 
Mo.  186.  53  S.  W.  932.  82— Hewett  v.  Inhabitants  of  Can- 

81 — ^Hewitt  V.  Inhabitants  of  Can-     ton,  supra. 


S  1661.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS. 


1087 


the  city  contributed  to  plaintiff's  damage  the  city  is  liable.  The  ques- 
tion for  3"ou  to  determine  in  this  case  is  simply:  Did  the  allowing  of 
the  drain,  ditches,  culverts,  and  embankments  to  become  and  remain 
in  the  condition  in  which  they  were  at  the  time  of  the  storm  cause  or 
contribute  to  the  plaintiff's  damages?  If  it  did  not,  and  the  rain 
stoiTU  was  of  such  violence  that  the  plaintiff  would  have  been  dam- 
aged to  the  same  extent  even  with  such  drainage  in  the  condition  it 
was  in  when  established  and  constructed,  then  your  verdict  must  be 
for  the  defendant.®^ 

§  1661.  Duty  of  City  as  to  Water  Plugs  Placed  in  Streets.  When 
the  system  of  waterworks  is  used  in  the  city,  the  officers  of  the  city 
have  a  right,  and  it  is  their  duty,  to  construct  and  place  the  water 
plugs  in  such  positions  in  the  street  as,  in  their  judgment,  may  be 
necessary  for  the  protection  of  the  property  in  case  of  fire ;  but,  in 
constructing  and  placing  such  hydrants  or  plugs,  it  is  the  duty  of  the 
city  to  place  and  locate  them  in  such  a  manner,  and  to  exercise  such 
care  and  prudence  in  the  placing  thereof,  as  not  'to  endanger  persons 
who  might  be  passing  along  the  street  in  the  ordinary  modes  of  travel. 


83— McCook  V.  McAdams,  —  Neb. 
— ,  106  N.   W.  988  (989-990). 

"The  defendant  complains  of 
these  instructions  and  construes 
them  to  mean  that  although  the 
plaintiff's  negligence  proximately 
contributed  to  the  injury  the  de- 
fendant would  still  be  liable.  We 
do  not  think  they  admit  of  that 
construction  in  view  of  the  evi- 
dence and  the  theory  upon  which 
the  case  was  submitted  by  the 
court.  The  contributory  negli- 
gence charged  is  that  the  plain- 
tiff's store  building  was  situated 
in  a  place  where  large  quantities 
of  surface  water  would  naturally 
accumulate,  that  it  was  construct- 
ed without  proper  barriers  to  guard 
against  surface  water  and  that  the 
loss  complained  of  was  due  to  such 
omission,  and  plaintiff's  own  neg- 
ligence. The  only  evidence  we  find 
that  tends  even  remotely  to  sustain 
this  charge  is  that  the  water  at  the 
time  of  the  storm  broke  down  the 
area  wall  in  front  of  the  store  build- 
ing, flooded  the  basement  and  dam- 
aged plaintiff's  goods  and  the  testi- 
mony of  one  witness  who  appears 
to  have  known  nothing  of  the  char- 
acter of  the  wall  or  its  condition, 
who  as  an  expert  testified  as  to 
the  character  of  a  wall  required 
under  circumstances  not  shown  to 
be  similar  to  those  in  which  the 
wall  in  question  was  constructed 
and  maintained.  Assuming  that 
contributory  negligence  is  charged, 
the  evidence  is  wholly  InsufTicient 


to  warrant  the  submission  of  that 
issue  to  the  jury.  The  trial  court 
evidently  held  that  view,  because 
the  question  of  contributory  neg- 
ligence was  not  submitted,  nor  do 
we  find,  among  numerous  instruc- 
tions tendered  by  the  defendant, 
any  request  for  the  submission  of 
that   question. 

"The  instructions  in  question, 
then,  are  to  be  construed  in  the 
light  of  the  fact  that  the  element 
of  contributory  negligence  is  elim- 
inated from  the  case,  and  with 
that  fact  in  mind,  it  is  plain  that 
in  these  the  court  was  dealing  only 
with  the  defendant's  theory  that 
the  loss  was  occasioned  by  the  Act 
of  God.  Taken  together,  and  in 
connection  with  other  instructions 
defining  negligence  and  the  de- 
fendant's duty  in  the  premises,  the 
effect  of  these  two  instructions  was 
to  convey  to  the  jury  that  if  the 
plaintiff's  loss  was  occasioned  by 
the  act  of  God.  the  defendant  was 
not  liable,  unless  its  negligence, 
co-operating  with  the  act  of  God, 
contributed  to  the  injury  and  in- 
creased the  damages.  Thus  con- 
strued, the  instructions  state  the 
law  as  favorably  to  the  defendant 
as  the  authorities  would  warrant. 
Collier  v.  Valentine,  11  Mo.  299,  49 
Am.  Dec.  81;  New  B.  Steamboat, 
etc.,  Co.  v.  Tiers.  24  N.  J.  Law  697, 
64  Am.  Dec.  404;  Baltimore,  etc.,  R. 
Co.  V.  Sulphur  Springs  Ind.  School 
Dist.,  96  Pa.  65,  24  Am.  Rep.  529." 


1088  FORMS  OP  INSTRUCTIONS.  [§  1662. 

either  by  the  day  or  night  time,  and  to  adopt  such  precautions  as  to 
point  out  the  dangers,  so  as  to  enable  persons  who  are  passing  or 
using  the  streets,  by  the  exercise  of  ordinary  care  and  prudence,  to 
avoid  the  danger.  If  the  city  neglected  to  do  so  in  this  case,  and 
injury  resulted  to  the  plaintiff  therefrom,  then  the  city  would  be 
liable  to  him  in  whatever  damages  he  might  have  sustained  by  reason 
thereof.  If  the  jury  believed  from  the  evidence  that  the  fire  hydrant 
or  plug  had  been  located  or  placed  on  the  streets  by  direction  of  the 
city  authorities,  as  alleged  by  plaintiff,  then  it  was  the  duty  of  the 
city  to  see  that  the  hydrant  or  plug  was  so  placed  as  not  to  endanger 
persons  passing  along  the  streets  in  the  ordinary  mode  of  travel, 
either  in  day  or  night  time.  If  a  person  traveling  along  the  street  or 
highway  intentionally  or  carelessly  and  unnecessarily  leave  the 
traveled  route,  and  is  injured  by  an  obstruction  in  the  street  or  high- 
way, entirely  outside  of  the  traveled  route,  then  the  city  would  not  be 
liable  for  the  injuiy;  but  if  the  obstruction  is  so  near  the  traveled 
route  that  the  traveler,  in  the  exercise  of  ordinary  care,  should  acci- 
dentally and  unintentionally  deviate  slightly  from  the  traveled  route, 
and  be  injured  thereby,  and  by  such  obstruction,  without  fault  on  his 
part,  then  the  city  will  still  be  liable  for  such  injury,  although  the  ob- 
struction was  necessary  for  fire  purposes,  as  in  this  ease.^* 

§  1662.  Sewer  out  of  Repair.  The  jury  are  instructed,  as  a  mat- 
ter of  law,  that  the  city  is  under  no  legal  obligation  to  constnict 
drains  or  sewers  in  any  particular  portion  of  the  city,  but,  if  it  does 
build  drains  or  sewers  for  corporate  pui^poses,  it  is  bound  to  exercise 
reasonable  care  and  oversight  over  them  to  keep  them  unobstructed 
and  in  repair,  so  that  adjoining  property  owners  shall  not  be  un- 
necessarily injured  thereby.  And  in  this  case,  if  the  juiy  believe, 
from  the  evidence,  that  the  city  either  built  the  sewer  in  question  or 
has  adopted  and  controlled  it  as  a  part  of  the  general  sewerage  of  the 
city,  then  the  city  was  bound  to  use  all  reasonable  and  ordinary  care 
and  supervision  over  it  to  keep  it  in  such  a  state  of  repair  as  that  it 
should  do  no  unnecessary  injury  to  plaintiff's  property;  and  if  you 
further  believe,  from  the  evidence,  that  the  city  authorities  did  not 
exercise  reasonable  and  ordinary  care  and  supervision  over  the  said 
drain  or  sewer  to  keep  it  in  repair,  but  carelessly  and  negligently 
permitted  it  to  become  choked  up  and  out  of  repair,  and  that  plain- 
tiff's property  has  been  damaged  thereby,  as  charged  in  his  com- 
plaint, then  the  city  is  liable  for  such  damages,  and  the  jury  should 
find  for  the  plaintiff,  provided  you  further  find,  from  the  evidence, 
that  he  was  guilty  of  no  fault  or  negligence  which  contributed  to  such 
injury.^° 

§  1663.  County  Only  Required  to  Provide  Bridge  Which  Will 
Properly  Accommodate  Public  at  Large.  The  court  instructs  the 
jury  that  in   maintaining  a  bridge  for  public  use  the  county  is  not 

84— Columbus  v.  Sims,  94  Ga.  483,        85— South  Bend  v.  Paxon,  67  Ind. 

20  S.  E.  332  (;i33).  228. 


§  1664.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1089 

limited  in  its  duty  by  the  ordinaiy  business  use  of  the  structure,  nor 
is  it  bound  to  provide  for  the  support  of  extraordinary  or  unreason- 
ably heavy  loads,  but  it  is  only  required  to  provide  what  may  be 
fairly  anticiiDated  for  the  proper  accommodation  of  the  public  at  large 
in  the  various  occupations  which  from  time  to  time  may  be  pursued 
in  the  locality  where  the  bridge  is  situated.  Whether  or  not  the  load 
which  the  deceased  J.  E.  N.  drove  on  the  bridge  in  question  was  an 
extraordinary  or  unreasonably  heavy  load  is  a  question  for  you  to  de- 
termine from  the  evidence  before  you.^*' 

§  1664.  Duty  of  County  Commissioners  to  Construct  Bridges  in  a 
Workmanlike  Manner,  (a)  It  is  the  duty  of  defendant,  in  con- 
structing bridges  across  streams,  to  build  them  in  a  workmanlike  and 
proper  manner,  having  due  regard  for  the  safety  of  persons  travel- 
ing over  them,  and  to  maintain  them  in  a  safe  condition. 

(b)  If  you  believe  from  the  evidence  that  the  defendant  did  con- 
struct this  bridge  since  ,  18 — ,  and  did  so  build  it  in  a 

workmanlike  manner,  and  that  it  was  in  a  reasonably  safe  condi- 
tion for  travelers  to  pass  over  it  without  danger,  then  you  would  be 
authorized  to  find  for  the  defendant. 

(c)  The  law  puts  upon  the  county  commissioners  the  duty  of  con- 
structing bridges  on  the  public  highways  across  streams  in  a  reason- 
ably safe  and  workmanlike  manner. 

(d)  It  was  the  duty  of  the  defendant,  in  constructing  the  bridge, 
to  do  so  in  a  workmanlike  manner  and  so  maintain  it  that  persons 
might  drive  over  it  in  safety;  and  if  necessary  to  make  it  ordinarily 
safe,  to  put  up  guard  rails,  then  it  was  the  duty  of  defendant  to  put 
up  such  guard  rails.^'^ 

86— Seyfer    v.     Otoe     County,     66  for   an    injury    to    plaintiffs    team 

Neb.  566,  92  N.  W.  756  (75S).  and  threshing-  outfit,  caused  by  the 

"The  contention  is  that  it  was  breaking  of  a  bridge  while  at- 
error  for  the  court  to  leave  the  tempting  to  drive  across  it,  it  is 
question  as  to  whether  or  not  the  for  the  jury  to  determine  whether 
load  was  unreasonable  or  an  ex-  the  use  which  plaintiff  was  making 
traordinary  one  to  the  jury  because  of  the  bridge  was  unusual  and  ex- 
it is  claimed  the  bridge  should  have  traordinary,  and  such  as  the  county 
been  built  in  anticipation  of  just  was  not  bound  to  anticipate,  and 
such  a  load.  The  instruction  in  it  is  error  for  the  court  to  decide 
question  seems  to  have  been  taken  this  question  and  to  direct  a  ver- 
from  the  case  of  Anderson  v.  St.  diet  in  the  county's  favor.'  This 
Cloud,  79  Minn.  88,  81  N.  W.  746.  being  the  rule,  it  follows  that  an 
The  rule  laid  down  in  that  case  is  instruction  taking  that  question 
as  follows:  'In  maintaining  a  from  the  jury,  by  stating  as  a 
bridge  for  public  use,  a  municipal-  matter  of  law  that  the  load  was 
ity  is  not  limited  in  its  duty  by  the  not  an  unusual  or  extraordinary 
ordinary  business  use  of  the  struc-  one  would  have  been  erroneous, 
ture,  but  is  required  to  provide  for  This  was  one  of  the  questions 
what  may  be  fairly  anticipated  for  which  the  court  was  bound  to  sub- 
the  proper  accommodation  of  the  mit  to  the  jury,  and  the  instruc- 
public  at  large  in  the  various  oc-  tion  in  question  under  which  it  was 
cupations  which  from  time  to  time  submitted  states  the  law  as  laid 
may  be  pursued  in  the  locality  down  by  a  majority  of  the  cases, 
where  it  is  situated.'  In  the  case  and  is  supported  by  the  greatest 
of  Tordy  v.  Marshall  Co.,  80  Iowa  number  and  the  best  considered 
405,   45    N.   "W.    1042,    a   case   similar  decisions." 

to   the   one  at   bar.   the   court   held         87— Bibb  County  v.  Ham,  110  Ga. 

that  'In  an  action  against  a  county  340,  35  S.  E.  656  (657). 
69 


1090  FORMS  OF  INSTRUCTIONS.  [§  1665. 

§  1665.  Defective  Condition  of  Bridge  Must  Be  Proximate  Cause 
of  Injury  to  Horse.  The  court  instructs  the  jury  that  if  you  find  that 
the  backing  of  the  horse  was  not  occasioned  by  the  defective  condi- 
tion of  the  bridge  or  apron,  then  it  would  make  no  difference  whether 
the  railing  was  sufficiently  strong  or  not,  because  in  that  case  the  de- 
fendant's  negligence  would  not  be  the  proximate  cause  of  the  in- 
jury.88 

§  1666.  Effect  of  Knowledge  of  Traveler  that  Bridge  Is  in  Un- 
safe Condition.  If  you  find  from  the  evidence  that  the  bridge  in 
question  was  in  an  unsafe  condition,  and  if  you  further  find  that 
the  deceased  J.  E.  N.  knew  of  such  unsafe  condition  or  had  reason 
to  know  that  the  stringers  on  said  bridge  were  cracked  or  broken  by  a 
previous  strain,  then  you  are  instructed  that  the  deceased  would  be 
negligent  in  not  examining  said  bridge  before  he  drove  upon  it.^^ 

§  1667.  Contributory  Negligence  in  General — Negligence,  Contribu- 
tory Negligence  and  Ordinary  Care  Defined,  (a)  If  the  jury  be- 
lieve from  the  evidence  that  there  was  a  slight  want  of  ordinary 
care,  which  contributed  to  the  injuries  complained  of,  the  plaintiff 
cannot  recover,  unless  the  jury  further  find  the  negligence  on  the  part 
of  defendant  was  so  gross  as  to  justify  the  jury  in  finding  that  the 
alleged  injury  was  caused  by  defendant  or  its  servants.  Although 
there  may  have  been  slight  negligence  and  slight  want  of  ordinary 
care  on  the  part  of  plaintiff,  he  is  entitled  to  recover  in  this  ease  if 
injured,  as  alleged,  by  the  negligence  and  want  of  ordinary  care  of 
defendant,  and  could  not,  by  the  exercise  of  ordinary  care  and  pru- 
dence, have  avoided  the  consequence  of  defendant's  negligence  and 
want  of  ordinary  care.^'^ 

(b)  The  court  instructs  you,  that  if,  after  considering  all  the 
evidence,  you  should  believe  the  defendant's  servants  in  charge  of  the 
street  in  controversy  failed  to  exercise  ordinaiy  care  in  keeping  its 
sidewalks  on  that  street  in  safe  condition,  yet  if  you  also  believe,  from 
the  evidence,  that  plaintiff  at  the  time  of  the  injury  failed  to  exer- 
cise ordinary  care  for  her  own  safety  to  jorevent  or  to  avoid  the  in- 

"The  objections  were  directed  have  meant  more  tlian  a  manner 
principally  at  tlie  use  of  the  word  suitable  for  the  uses  intended, 
'workmanlike.'  We  think  that  a  they  were  so  qualified  and  ex- 
positive and  unqualified  charge  plained  by  the  other  expressions 
that  the  county  was  bound  to  con-  used  that  we  think  the  jury  could 
struct  and  maintain  the  bridge  in  not  have  misunderstood  the  court's 
a     workmanlike     manner,      would  meaning." 

probably   have   been   error,    but   in  88 — St.  Clair  Min.   Spr.   Co.  v.   St. 

the  present  case  the  error,  if  any,  Clair,  96  Mich.  463,  56  N.  W.  18  (19). 

was  cured  by  the  context  and  the  "The  law  was  correctly  stated  in 

remainder    of    the    charge    on    this  the    above    portion    of    the    court's 

subject.      The   word    'workmanlike'  instructions.     Beall  v.  Township  of 

was    used    in    such    connection    as  Athens,  81  Mich.  536,  45  N.  W.  Rep. 

clearly    to    show    that    the    judge  1014." 

meant   by    it    to    impose   upon    the  89 — Seyfer    v.     Otoe     County,     66 

county  no  higher  degree  of  care  or  Neb.  566,  92  N.  W.  756  (758). 

diligence  than  does  the  law.     Even  90 — Village    of   Orleans   v.    Perry, 

if    the    words    'workmanlike    man-  24  Neb.  831,  40  N.  W.  417  (419). 
ner'    would,    without    modification. 


§  1668.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1091 

jury  complained  of,  then  there  can  be  no  recovery  by  the  plaintiff  in 
this  case,  and  the  jury  should  find  the  defendant  not  guilty.'-'^ 

(e)  By  ''negligence"  is  meant  in  these  instructions  the  failure 
to  observe  ordinary  care.  By  "ordinary  care"  is  meant  a  failure  to 
observe  such  care  and  prudence  as  persons  of  ordinary  care  usually 
exercise  under  the  same  or  similar  circumstances.  By  "contributory 
negligence"  is  meant  the  failure  on  the  part  of  the  plaintiff  to  use 
ordinary  care  for  his  own  safety,  and  by  reason  of  which  he  helped 
to  cause  or  bring  about  the  injuries  complained  of,  and,  but  for  such 
contributory  negligence,  at  the  time  and  place  complained  of  un- 
less, by  the  exercise  of  ordinary  care  on  his  part,  he  could  have  seen 
the  obstructions  or  materials  in  connection  with  Avhich  he  was  in- 
jured, before  striking  the  same,  in  time  to  have  avoided  the  injuries 
complained  of.  Unless  the  plaintiff  knew  the  obstructions  w^ere  in 
the  street,  or  unless  they  were  marked  by  some  light  as  hereinbefore 
defined,  the  plaintiff,  in  traveling  the  street,  was  compelled  to  use 
only  such  care  as  persons  of  ordinary  care  would  use,  presuming  the 
street  to  be  safe  under  the  same  or  similar  circumstances.^- 

(d)  The  court  instructs  the  jury  that  it  is  incumbent  upon  the 
people  who  are  crossing  the  streets  and  sidewalks  of  South  Omaha 
to  use  ordinary  care  to  protect  themselves  from  injury  and  accident 
liable  to  occur  because  of  streets  or  sidewalks  being  unsafe  for  pub- 
lic use,  and  if  they  fail  to  do  so  they  will  be  guilty  of  contributory 
negligence  which  will  prevent  a  recovery  of  damages.  If  you  find 
from  a  preponderance  of  the  evidence  that  plaintiff  did  not  exercise 
ordinary  and  reasonable  care  in  stepping  on  said  meter  box  or  the 
ground  next  to  it,  as  you  may  find  the  fact  to  be,  then  your  verdict 
must  be  for  the  defendant,  even  though  you  find  that  the  defendant 
was  negligent.^^ 

You  are  instructed  that  the  only  care  and  caution  required  by  the 
plaintiff  in  using  the  crossing  in  controversy,  was  such  conduct  and 
care  and  caution  for  her  own  personal  safety  as  a  reasonably  prudent 
and  cautious  person  would  have  exercised  under  the  same  condition 
and   circumstances.^* 

§  1668.  Circumstances  to  Be  Considered  on  Question  of  Contribu- 
tory Negligence,     (a)     The  jury  are  instructed  that  the  plaintiff  was 

91 — Chicago    v.    McLean,    133    111.  might   by  ordinary  care  have  dis- 

148  (154),  24  N.  E.  527,  8  L.  R.  A.  765.  covered  it  in  time  to  have  avoided 

"What  particular  facts  amounted  the  injury,  he  might  recover;  and 
to  an  exercise  of  ordinary  care,  or  he  had  a  right,  in  the  absence  of 
what  particular  facts  amounted  to  anything  indicating  the  contrary, 
a  want  of  ordinary  care,  it  was  to  assume  that  the  street  was  safe, 
for  the  jury,  not  for  the  court  to  or  reasonably  so.  Glasgow  v.  Gil- 
determine.  Wabash  R.  R.  Co.  v.  leuwaters,  23  Ky.  Law  2375,  67  S. 
Elliott,    98    111.    481."  W.    381;   Pettengill   v.    Yonkers,   116 

92— Louisville    v.    Keher,    25    Ky.  N.  Y.  564,  22  N.  E.  1095,  15  Am.  St. 

Law  2003,   79   S.   W.   270   (273).  442." 

"This     instruction     properly     de-  93 — So.  Omaha  v.  Meyers,  3  Neb. 

fined    contributoi-y    negligence,    for,  (unof.)  699,  92  N.  W.  743  (745). 

as  the  plaintiff  did  not  know  of  the  94 — Town    of    Normal    v.    Bright, 

obstruction  of  the  street,  unless  he  223  111.   99   (103),  79  N.   E.  90. 


1092  FORMS  OF  INSTRUCTIONS.  [§  1669. 

bound  only  to  use  such  care  and  caution  as  a  person  of  ordinary 
prudence  would  use  under  like  circumstances. 

(b)  In  considering  the  question  of  contributory  negligence,  the 
jury  are  to  take  into  consideration  the  time  of  the  day  when  the  in- 
jury occurred,  the  darkness  of  the  night,  the  fact  that  snow  had  re- 
cently fallen,  and  the  ease  or  difficulty  of  seeing  the  obstruction  with 
the  lights  as  then  located;  also  the  fact  that  no  guards  or  signals  of 
any  kind  were  placed  near  the  obstruction. 

(e)  In  considering  the  question  of  negligence  on  the  part  of  the 
plaintiff,  the  jury  might  consider  plaintiff's  condition  on  that  night, 
his  horsemanship  or  ability  to  drive  his  horse,  the  fact  that  he  had 
passed  along  the  street  frequently,  both  night  and  day,  and  the  prob- 
ability of  his  being  able  to  see  the  obstruction,  if  it  were  possible  for 
a  person  using  ordinary  care  and  prudence  then  and  there  to  see  it. 

(d)  The  court  instructs  the  jury  that  plaintiff  had  the  right  to 
assume  that  she  could  use  the  sidewalk  on  which  she  alleges  she  was 
walking  when  she  fell,  with  safety,  using  such  care  as  an  ordinarily 
prudent  person  would  exercise  under  like  circumstances,  and,  though 
she  may  have  known  the  sidewalk  was  defective,  yet  this  fact  would 
not  prevent  her  from  recovering  in  this  action,  but  should  be  taken 
into  consideration  by  the  jury  with  other  facts  and  circumstances  in 
evidence  as  to  whether  she  was  exercising  ordinary  care  as  above  de- 
fined.^^ 

§  1669.  Contributory  Negligence — Falling  into  Hole  in  Sidewalk. 
(a)  If  you  are  of  the  opinion  that  the  city  is  responsible  by  reason 
of  having  allowed  that  hole  to  remain  there  for  so  great  a  length  of 
time  without  causing  it  to  be  filled  up  and  the  defect  removed,  the 
next  inquiry  is  whether  the  plaintiff  herself  was  guilty  of  negligence 
or  carelessness,  because  where  thei-e  is  carelessness  on  both  sides  we 
do  not  measure  the  degree  of  carelessness,  but  we  set  off  one  against 
the  other,  and  say  that  neither  party  can  recover. 

(b)  If  you  are  of  the  opinion  that  the  plaintiff  was  walking  along 
carelessly  and  heedlessly  not  giving  due  attention  to  her  safety,  and 
carelessly  and  heedlessly  walked  into  this  hole,  and  the  fall  was  her 
own  fault,  then,  no  matter  how  bad  her  injuries  may  be,  she  would 
have  no  claim  against  the  city.  In  that  case  her  injuries  would  be  as 
much  chargeable  to  her  own  fault  as  to  the  fault  of  the  city.  Dam- 
ages are  not  given  in  cases  of  this  kind  simply  because  a  person  is 
injured.  Damages  are  not  given  because  we  sympathize  with  the  per- 
son injured.  They  are  given  because  the  injury  is  caused  by  the  negli- 
gence of  the  party  sued,  without  any  negligence  on  tlie  part  of  the 
party  suing. 

(e)  If  you  are  of  the  opinion  that  this  lady  was  also  careless,  and 
that  she  heedlessly  and  carelessly  walked  into  this  hole,  she  is  not 

95 — Above   instructions  approved,     Omaha  v.  Ayei%  32  Neb.  375,  43  N. 

W.  445  (447). 


^  1670.]      NEGLIGENCE— ilUNICIPAL    CORPORATIONS.  1093 

entitled  to  recover,  and  in  that  case  she  ought  not  to  have  a  verdict. 
If,  however,  j'ou  are  of  the  opinion  that  she  was  not  careless, — that 
she  was  walking  along  the  city's  sidewalk, — in  that  case  you  may  give 
her  damages  which  will  comiDensate  her  for  the  injury  which  she  has 
sustained,  any  expenses  to  which  she  has  been  put,  any  loss  of  earn- 
ing power  you  tliink  she  has  sustained,  and  for  any  pain  and  suffer- 
ing she  has  undergone,  or  is  likely  to  undergo  in  the  future.  She 
says  that  at  the  time  she  was  walking  on  the  street  a  number  of  joeo- 
ple  were  passing.  You  will  consider  that,  in  determining  whether  or 
not  she  was  looking  ahead,  and  whether  she  was  exercising  due  care. 

(d)  If,  in  your  opinion,  she  was  exercising  due  care,  and  her  injury 
was  caused  by  the  negligence  of  the  city  in  permitting  the  hole  to 
remain  in  the  sidewalk  for  an  undue  length  of  time,  then  you  will 
give  her  damages  which  will  compensate  her  for  the  pain  and  suf- 
fering she  has  undergone,  the  expenses  to  which  she  has  been  put, 
and  any  loss  of  earning  power  which  she  may  have  sustained  by 
reason  of  this  accident.  If,  however,  jon  believe  that  she  w^as  not  as 
careful  as  she  should  have  been  under  the  circumstances,  had  she  been 
exercising  reasonable  and  due  care  that  is  expected  of  people  walking 
along  the  streets  of  the  city,  and  that  the  fall  was  her  fault,  as  well 
as  that  of  the  city,  in  that  case  your  verdict  should  be  for  the  de- 
fendant.''® 

§  1670.  Contributory  Negligence — Absent-Minded  Driving,  (a)  If 
the  juiy  find  from  the  evidence  that  the  plaintiff,  knowing  of  the  ob- 
struction, was  driving  along  the  street  in  a  careless,  inattentive  or 
absent-minded  manner,  and  by  reason  thereof  drove  against  or  upon 
the  obstruction,  then  the  plaintiff  was  guiltj'  of  contributory  negli- 
gence, and  the  plaintiff  cannot  recover  damages  in  this  suit. 

(b)  The  Court  instructs  you  that  before  the  plaintiff  can  recover, 
you  must  be  satisfied  from  the  evidence  that  he  was  free  from  any 
negligence  on  his  part  which  contributed  directly  to  the  alleged  in- 
jury, and  if,  from  all  the  evidence,  you  believe  that  the  plaintiff's 
negligence  contributed  to  the  happening  of  the  accident  and  the  caus- 
ing of  the  alleged  injury,  then  he  cannot  recover. 

(c)  In  deciding  upon  the  question  of  the  plaintiff's  negligence, 
the  jury  are  to  consider  the  length  of  time  that  the  plaintiff  had 
personally  known  that  the  obstruction  existed  in  the  street,  and  you 
are  also  to  take  into  consideration  the  number  of  times  plaintiff  had 
driven  along  the  street  by  and  around  this  obstruction,  and  how  fa- 
miliar he  was  with  the  street,  and  that  locality,  and  the  other  circum- 
stances surrounding  the  case;  and  if,  from  all  the  circumstances,  you 
are  of  the  opinion  that,  by  the  use  of  ordinary  care,  he  could  and 
would  have  avoided  this  obstruction,  then  you  would  be  justified  in 
finding  that  he  was  guilty  of  negligence  contributing  to  the  injury, 
and  in  such  case  the  plaintiff  cannot  recover. 

96 — These    instructions    approved     in  Glading  v.  Philadelphia,  202  Pa. 
324,  51  Atl.  886. 


1094  FORMS  OF  INSTRUCTIONS.  [§  1671. 

(d)  The  jury  are  instructed  that  if  the  plaintiff  had  actual  knowl- 
edge of  the  existence  of  the  obstruction  complained  of,  and  had 
driven  by  the  sanae  many  times,  and  if,  from  all  the  evidence,  you  be- 
lieve that,  through  inattention  on  his  part  to  the  condition  of  the 
street,  or  through  carelessness  in  not  watching  where  he  was  driving 
he  drove  against  or  upon  the  obstruction,  then  he  was  guilty  of  con- 
tributory negligence,  and  cannot  recover. 

(e)  The  juiy  are  instructed  that  if,  from  all  the  evidence,  you  be- 
lieve that  the  plaintiff  knew  of  this  obstruction,  and  had  driven  by  it 
many  times,  and  if  you  find  from  the  evidence  that  there  was  abund- 
ant room  in  the  street  which  was  free  from  obstruction  so  that,  by  the 
use  of  ordinary  care  and  diligence,  he  could  have  driven  around  the 
obstruction  with  safety,  then  you  are  instructed  that  it  was  the  duty 
of  the  plaintiff  to  have  avoided  the  obstruction,  and,  if  he  failed  to 
avoid  it  by  mere  lack  of  attention  or  want  of  care  on  his  part,  then 
he  was  guilty  of  contributoiy  negligence,  and  cannot  recover."' 

§  1671.  Effect  of  Knowledge  on  Part  of  Person  Using  Sidewalk 
That  It  Is  Defective,  (a)  The  court  instructs  the  jury  that  it  is  the 
general  duty  of  the  city  to  keep  its  sidewalks  in  a  reasonably  safe 
condition  for  use.  If  you  find  that  the  plaintiff  knew  that  the  walk 
in  front  of  the  M.  jDroperty  (the  walk  in  question)  on  W.  street  had 
planks  out  in  places,  had  rotten  stringers,  and  was  shaky,  or  was  in 
any  other  way  defective,  the  plaintiff  might  yet  use  the  walk,  provided 
she  did  so  with  care  and  caution,  rendered  reasonably  necessary  by 
her  knowledge  of  such  defects.  If,  while  so  using  such  walk,  one  side 
of  a  board  was  suddenly  raised  by  her  companion  stepping  on  the 
other  end,  so  that  she  fell  and  was  injured,  and  was  then  exercising 
due  care  in  view  of  her  knowledge  of  all  defects,  and  that  the  de- 
fendant knew  of  the  defective  condition  of  the  walk,  your  finding 
should  be  for  the  plaintiff.^^ 

(b)  You  are  instructed  that  ordinary  and  reasonable  care  re- 
quired of  plaintiff  is  that  degree  of  care  which  might  reasonably  be 
expected  from  an  ordinarily  prudent  person  under  the  circumstances 
surrounding  him  at  the  time.  If  you  should  find  from  the  evidence 
that  at  the  time  and  prior  thereto  plaintiff  knew  of  the  defective  and 
dangerous  sidewalk  and  where  it  was  located,  he  was  required  to  use 
more  care  than  if  he  had  not  such  knowledge,  and  if  he  neglected  to 
do  so  and  such  neglect  contributed  to  the  injury  he  cannot  recover; 
but  if  he  did  use  more  than  he  would  be  required  to  do  in  case  he  had 

97 — Above    approved,    Omaha    v.  such   defects,'    is   equivalent   to   in- 

Ayer,  32  Neb.  375,  49  N.  W.  445  (447).  forming-  the  jury  that  appellee  was 

98 — Huntingburg  v.  First,  26  Ind.  required  in  passing  over  the  walk 

App.  66,  53  N.  E.  246  (248).  known    by   her   to    be   defective   to 

"We  think  it  cannot  be  said  that  exercise  a  care  proportioned  to  the 

this    in.struction     leaves    plaintiff's  known  danger  to  avoid  injury.    Nor 

conduct  to  conjecture.    The  expres-  do    we    think    the    instruction    er- 

sion    'plaintiff    might    yet    use    the  roneous    because    it    did    not    state 

walk,  provided  she  did  so  with  care  what    facts    might    constitute    con- 

and    caution,    rendered    reasonably  tributory  negligence." 
necessary    by    her    knowledge    of 


§1671.J      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1095 

no  such  knowledge  and  was  injured  by  reason  of  defendant's  neg- 
lect, and  no  fault  of  plaintiff  contributed  to  the  injury,  you  should 
find  for  the  plaintiff.^^ 

(c)  The  jury  are  instructed  that  a  person  has  no  right  to  know- 
ingly expose  himself  to  danger,  and  then  recover  damages  for  inju- 
ries he  might  have  avoided  by  the  use  of  reasonable  precaution ;  and  if 
the  jury  believe,  from  the  evidence,  that  the  plaintiff,  before  and  at  the 
time  of  the  alleged  injury,  knew  of  the  defect  in  the  sidewalk,  and  in 
going  to  his  house  on  the  night  of  the  alleged  injury  could  have  taken 
another  and  safe  route,  of  equal,  or  nearly  equal,  distance,  then  the 
jury  have  a  right  to  consider  his  failure  to  take  such  other  route,  if 
such  there  was,  into  consideration  in  determining  whether  the  plain- 
tiff was,  at  the  time  of  the  injury,  exercising  due  care  and  caution 
for  his  own  safety.^^" 

(d)  Upon  this  branch  of  the  case,  you  are  further  instructed 
that,  if  you  find,  from  the  evidence,  that  the  defendant  was  negligent 
in  permitting  the  sidewalk  to  remain  in  the  condition  in  which  you 
find  it  was  at  the  time  the  plaintiff  fell,  and  that  said  walk  was  at 
said  time  in  a  dangerous  and  unsafe  condition  for  travel,  and  you 
further  find,  from  the  evidence,  that  the  plaintiff,  at  the  time  he  at- 
tempted to  pass  over  the  walk,  well  knew  this  fact,  and  that  it  was 
imprudent  for  him  to  attempt  to  pass  over  it  at  the  time  he  did  at- 
tempt to  pass  over  it  for  any  reason,  and  with  this  knowledge  he  still 
persisted  in  passing  over  it,  although  there  was  another  walk  which 
he  might  have  taken  going  in  the  direction  which  he  desired  to  go, 
then  his  own  negligence  contributed  to  his  injury,  and  he  cannot  re- 
cover. That  is,  if  you  find,  from  the  evidence,  that  the  plaintiff 
knew  at  the  time  he  attempted  to  pass  over  the  walk  of  the  negligence 
of  the  defendant,  and  that  the  walk  was  in  a  dangerous  and  unsafe 
condition,  and  that  it  was  imprudent  for  him  to  attempt  to  pass  over 
it  in  company  with  B.  as  the  evidence  shows  he  did  attempt  to  pass 
over  it,  and  yet,  notwithstanding  this  fact,  and  the  knowledge  he  had 
concerning  the  danger,  he  did  attempt  to  pass  over  it,  and  was  in- 
jured in  so  doing,  and  you  find  that  there  was  another  walk  which  he 
might  have  taken  going  in  the  direction  he  desired  to  go,  which  was 
perfectly  safe  for  travel,  then  he  was  negligent  in  so  attempting  to 
pass  over  such  walk  and  cannot  recover.^ 

99 — Lexington     v.      Fleharty,     —  1 — Barnes  v.  Town  of  Marcus,  96 

Neb.  — ,  104  N.  W.  1056  (1058).  Iowa  675,   65  N.  W.  984  (985). 

"It  is  contended  that  this  instruc-  "The  instruction  seems  to  be 
tion  is  erroneous  because,  under  the  modeled  upon,  if  not  copied  from, 
evidence  in  the  case,  the  jury  one  approved  by  this  court  in  the 
should  have  been  instructed  that  case  of  Kendall  v.  Albia.  73  Iowa 
the  burden  of  proof  was  on  the  241,  34  N.  W.  833.  It  also  finds  sup- 
plaintiff  to  establish  the  fact  that  port  in  the  following-:  Parkhill  v. 
he  by  his  own  act  did  not  contrib-  Town  of  Brighton,  61  Iowa  103,  15 
ute  to  the  injury.  Such  is  not  the  N.  W.  853;  Walker  v.  Decatur  Co., 
law."  67  Iowa  307,   25  N.  W.   256;  Rice  v. 

100— Town    of    Elkhart   v.    Hitter.  Des  Moines,   40  Iowa  642;   McGinty 

66  Ind.  136.  V.   Keokuk,   66  Iowa  725,  24  N.  W. 


1096  FORMS  OP  INSTRUCTIONS.  [§  1671. 

(e)  The  jurj''  are  instructed  in  regard  to  the  question  respecting 
whether  respondent  exercised  due  care  on  the  occasion  in  question, 
that  since  'She  knew  of  the  defect  in  the  walk  it  was  her  duty  to  use 
greater  care  than  she  would  have  been  required  to  use  to  come  up  to 
the  standard  of  ordinary  care  in  the  absence  of  such  knowledge.^ 

(f)  The  court  instructs  the  jury  that,  if  you  find  as  a  fact  that 
the  plaintiff  knew  that  the  sidewalk  at  the  point  where  he  alleges  he 
fell  and  was  injured  was  out  of  repair  and  in  bad  condition,  you  may 
take  that  fact  into  consideration  in  determining  whether  or  not  plain- 
tiff was  negligent;  but  such  knowledge  will  not  be  a  defense  in  this 
action  unless  you  find  that  the  defect  of  which  the  plaintiff  knew,  if 
any,  was  such  a  defect  as  to  render  the  walk  necessarily  dangerous  to 
a  person  ordinarily  careful.^ 

(g)  The  jury  are  instructed  that  the  testimony  of  the  plaintiff  dis- 
closes that  at  the  time  of  the  alleged  injury  he  was  familiar  with  the 
sidewalk  at  the  place  where  he  alleges  that  injury  occurred,  and  was 
familiar  with  the  existence,  nature  and  character,  and  extent  of  the 
alleged  defect  therein,  and  that  he  frequently  passed  over  and  about 
said  defect  shortly  before  the  date  on  which  the  injury  is  alleged  to 
have  been  sustained.  You  are  further  instructed  that,  in  the  light  of 
this  testimony  on  the  part  of  the  plaintiff  herein,  the  plaintiff  cannot 
recover  in  this  case  unless  he  has  proven  to  you  by  a  prei^onderance 
of  the  evidence  that  at  the  time  of  or  immediately  before  receiving 
the  injury,  if  he  did  receive  an  injury,  his  attention  was  momentarily 
attracted  elsewhere  and  in  this  moment  of  forgetfulness,  he  received 
the  injury,  or  that  the  defect,  if  any,  was  so  obscured,  hidden,  or  cov- 
ered, by  darkness  or  otherwise  that  he  was  deceived,  mistaken,  or 
misled,  and  while  so  mistaken,  deceived  or  misled,  and  while  in  the 
exercise  of  ordinary  care,  he  received  the  injury  of  which  he  com- 
plains.* 

(h)  The  jury  are  instructed  that  the  plaintiff,  in  the  absence  of 
any  knowledge  or  inforaiation  as  to  the  defective  condition  of  the 
walk,  if  it  was  defective,  had  the  right  to  assume  that  defendant  had 

506;     Hartman     v.     Muscatine,     70  The  other  objections  urged  against 

Iowa  511,  30  N.  W.  859.     But,  aside  the    instruction    are    fully    met    by 

from   these  authorities,  we   do  not  the    authorities    cited.      It    is    well 

think  the  use  of  the  adverb  'well,'  settled  that  all  the  matters  referred 

taken  in  connection  with  what  fol-  to     in     the     instruction     must     be 

lows,    made   the    instruction   objec-  shown  and  concur  before  it  can  be 

tionable.     It  means  no  more  than  said    as   a    matter    of   law    that   a 

'fully'   as  here   used;   and   the   dis-  plaintiff   is    guilty    of   contributory 

tinction  between  'known'  and  'well  negligence.     Ross  v.   Davenport,  66 

or   fully   known'    is   rather   too   re-  Iowa  548,  24  N.  W.  47;  Baldwin  v. 

fined    for   a   court   to    consider   the  Railroad  Co.,  63  Iowa  210,  18  N.  W. 

use   of   one   or   the   other   a   defect  884;  Parkhill  v.   Brighton,   supra." 

which    will    vitiate    an    instruction.  2— Lyon     v.     Grand     Rapids,    121 

The  case   of   Gnlpin   v.   Wilson,   40  Wis.  609,  99  N.  W.  311  (317). 

Iowa  91,  is  quite  in  point.     In  that  3— Perrette    v.    Kansas    City,    162 

case  it  is  held  that  there  is  no  ma-  Mo.  238,  62  S.  W.  448  (449). 

terial  difference  between  the  words  4— So.    Omaha  v.   Taylor,    4   Neb. 

'piloven'     and     'fully,    conclusively  (unof.)  757,  96  N.  W.  209  (210). 
or    satisfactorily    proven.' 


§1672.]      NEGLIGENCE— MUNICIPAL    CORPORATIONS.  1097 

exercised  ordinary  care  to  keep  the  same  in  a  reasonably  safe  condi- 
tion. If,  however,  you  find  he  did  know  or  had  notice  of  the  defective 
condition  of  the  walk,  then  it  will  be  for  you  to  say,  under  all  the 
facts  and  circumstances,  whether  he  was  negligent  in  going  upon  it.^ 

(i)  The  plaintiff  admits  that  she  knew  that  the  sidewalk  in  question 
was  in  a  defective  condition,  and  had  known  it  for  some  time  previous. 
A  person  passing  over  a  sidewalk  known  to  be  in  a  defective  and 
dangerous  condition  must  use  greater  care  and  caution  than  if  she 
were  ignorant  thereof.^ 

§  1672.  Passing  Over  Defective  Walk  Not  Necessarily  Contribu- 
tory Negligence,  (a)  The  court  instructs  you  that  you  are  to  con- 
sider all  the  facts,  including  the  condition  of  the  sidewalk,  the  facts 
which  "were  within  the  knowledge  of  the  plaintiff  in  relation  thereto, 
the  character  and  nature  of  the  defect  in  the  walk  which  was  the 
direct  cause  of  the  injury,  the  fact  that  the  plaintiff  was  passing 
over  the  walk  on  a  bicycle,  and  the  manner  in  which  he  sought  to 
pass,  and  then  determine  whether,  under  all  the  circumstances,  he  was 
in  the  exercise  of  such  care  and  prudence  as  would  have  been  used 
and  exercised  by  a  man  of  ordinary  care  and  prudence  under  the  same 
circumstances  and  conditions. 

(b)  I  charge  you,  gentlemen  of  the  jury,  that  prior  knowledge  of 
a  defect  in  a  sidewalk  by  one  who  is  injured  is  not  necessarily  proof 
of  contributoiy  negligence;  and  if  you  believe  from  the  evidence  in 
this  case  that  the  plaintiff  had  knowledge  that  the  sidewalk  was  out 
of  repair,  and  even  dangerous,  yet  because  of  that  fact  alone  he  would 
not,  therefore,  be  bound  to  forego  travel  on  such  sidewalk. 

(c)  The  real  fact  for  you  to  ascertain  as  bearing  upon  the  ques- 
tion of  contributory  negligence,  if  any  you  so  find,  is  this:  Did  the 
plaintiff,  by  his  own  fault  or  negligence,  contribute  directly  to  pro- 
duce the  injury?  Could  he,  by  ordinary  prudence,  have  prevented  the 
injuiy?  And  if  you  find  that  he  was  guilty  of  contributory  negli- 
gence, then  he  cannot  recover,  and  your  verdict  must  be  for  the  de- 
fendant.'^ 

§  1673.  Contributory  Negligence  of  Person  Falling  Over  Wire  in 
Street.  If  under  all  the  circumstances  surrounding  him  (plaintiff), 
he  could  readily  have  seen,  and  as  an  ordinarily  prudent  and  careful 
man  ought  to  have  seen,  the  wire  over  which  he  claims  to  have  fal- 
len, then  he  was  guilty  of  contributory  negligence,  and  he  can  re- 
cover nothing  in  this  case.^ 

5 — Hill  V.  Glenwood,  124  Iowa  479  "It   is  scarcely  necessary  to  cite 

(483),  100  N.  W.  522  (524).  any  authorities   in  support   of  this 

6 — Collins  v.   Janesville,   HI  Wis.  instruction.      But    see,     Cressy    v. 

348,  83  N.  W.  695  (696).  Postville,  59  Iowa  62.  12  N.  W.  757; 

7— Above  approved  in  Gagnier  v.  Tuffee  v.  State  Center.  57  Iowa  538, 

Fargo,   12   No.   Dak.   219,   96  N.   W.  11    N.    W.    1;    Muns-pr    v.    Citv.    56 

841  (842).  Iowa   216,    9   N.   "W.    192:   Langham- 

8— Buchholtz    V.    Town    of    Rad-  mer  v.   City,  99  Iowa  295,  68  N.  "W. 

cliffe,    129    Iowa    27,    105    N.    W.    336  688." 
(337). 


1098  FORMS  OF  INSTRUCTIONS.  [§  1674 

§  1674.  Placing  Oneself  in  Position  of  Danger.  If  the  plaintiff 
placed  himself  in  a  position  of  danger,  when  he  might  have  avoided 
it,  and  while  there  received  the  injnry  of  which  he  complains,  he  was 
guilty  of  negligence,  although  the  danger  may  have  been  caused  by 
the  negligence  of  the  town  authorities.^ 

§  1675.  Burden  of  Proof  as  to  Contributory  Negligence  of  Plain- 
tiff— States  Holding  that  It  Rests  on  Defendant,  (a)  By  contribu- 
tory negligence  is  meant  negligence  of  the  plaintiff  contributing  to  the 
injury  complained  of.  Contributory  negligence  is  a  defense,  and  if  it 
is  shown  by  the  evidence  to  exist,  the  plaintiff  cannot  recover.  The 
burden  of  proving  contributory  negligence  is  on  the  defendant,  but 
it  may  arise  in  the  whole  evidence.^" 

(b)  If  you  find  that  the  city  negligently  suffered  the  hole  to  be, 
and  remain,  in  the  street  at  the  time  of  the  accident,  and  that  plain- 
tiff had  no  actual  knowledge  of  the  existence  before  the  happening  of 
the  accident,  then  he  will  be  entitled  to  a  verdict  unless  it  has  been 
proven  by  a  fair  preponderance  of  the  evidence  that  he  was  negli- 
gent himself  in  not  seeing  the  hole  in  time  to  avoid  it.  And  the  bur- 
den of  proof  is  upon  the  city  on  this  point  to  satisfy  the  jury  that  he 
was  not  exercising  due  care  for  his  own  safety,  and  that  such  conduct 
on  his  part  contributed  towards  the  happening  of  the  accident. 

(c)  The  defendant  insists  that  the  plaintiff  himself  was  guilty  of 
negligence  in  not  avoiding  the  hole.  The  burden  of  proof  is  on  the 
defendant  to  establish  by  a  fair  preponderance  of  all  the  evidence  in 
the  case  that  plaintiff  was  guilty  of  negligence  contributing  to  his 
injury." 

§1676.  Same  Subject — States  Holding  that  Burden  of  Proof  Is  on 
Plaintiff.  The  burden  of  proof  is  upon  the  plaintiff  to  satisfy  yoii,  by 
a  preponderance  of  the  testimony,  of  all  the  material  allegations  of  his 
petition  not  admitted  by  the  answer,  including  the  allegation  that  he 
used  due  care  and  diligence,  and  was  not  negligent  in  any  such  man- 
ner as  to  contribute  substantially  or  directly  to  his  injury.^^ 

§  1677.  Negligence  of  Driver.  The  law  is,  that  the  driver  of  a 
private  conveyance  is  the  agent  or  servant  of  the  person  riding  in 
such  conveyance,  provided  such  driver  is  employed  by  him  or  subject 
to  his  control,  and  if  such  person,  while  riding  along  a  public  high- 
way or  street,  is  injured,  in  consequence  of  obstruction  or  defects 
negligently  permitted  to  remain  in  the  street  or  highway,  and  the 
driver  is  guilty  of  a  want  of  ordinary  care  and  caution,  and  his  negli- 
gence materially  contributes  to  such  injury,  then  the  person  injured 
cannot  recover,  as  against  the  city,  for  the  injury  thus  received. ^^ 

9— Lynch   v.   "Waldwick,   123   Wis.  R.   Co.   v.   Peyton,  157   Ind.   692,   61 

351,  101   N.  W.  925   (926).  N.  E.  722." 

10 — Town  of  Sellerstaurg  v.   Ford,  11— Indianapolis    v.     Mullally,    — 

—  Ind.  App.  — ,  79  N.  E.  220  (222).  Ind.  App.  — ,  77  N.  E.  1132  (1134). 

"This  instruction  is  correct.    The  12— Omaha  v.   Ayer,   32   Neb.   375, 

act  of  1899   (Acts  1899,   p.   58,   c.   41)  49  N.  W.  445  (446). 

puts    the    burden    of    contributory  13 — Prideaux  v.  Mineral  Point,  43 

negligence   on   the   defendant.      So.  Wis.     513;     Lockhart     v.     Lichtea- 

thaler,  46  Penn.  St.  151. 


CHAPTER  LXVI. 

NEGLIGENCE— PUBLIC  HIGHWAYS. 
See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


§  1678.  Highway  —  Obstruction  by 
construction  of  fence  across 
it. 

§  1679.  Obstruction  of  public  way  by 
ashes  or  cinders. 

§  1680.  Obstruction  of  public  way  by 
pile  of  cross-ties. 

§  1681.  Collision  on  the  highway. 

§  1682.  Automobile  running  at  great- 
er speed  than  statutory 
rate. 

§  1683.  Snow  and  ice — Constructing 
building  near  highway  so 
that  snow  and  ice  endanger 
travelers  on  highway. 

§  1684.  Sidewalk  space— Liability  of 
person  making  excavation. 


§  1685.  Sidewalk  —  Injury  through 
falling  into  manhole — Ordi- 
nary care  —  Contributory 
negligence. 

§  1686.  Sidewalks  —  Liability  for 
opening  used  for  raising 
and  lowering  baggage  and 
protected  by  bar  of  gas- 
pipe. 

§  1687.  Injury  to  child  through  bar 
of  iron  on  recklessly  driven 
wagon. 

§  1688.  Highway — Barbed  wire  caus- 
ing injury  to  horse — Con- 
tributory negligence  of 
plaintiff. 

§  16S9.  Horses — Allowing  same  to 
stand  unhitched  —  Injury 
from  runaway  horses. 


§  1.678.  Highway— Obstruction  of  by  Construction  of  Fence  Across 
It.  A  failure  to  exercise  such  care  and  prudence  in  performing  an 
act  as  an  ordinarilj-  careful  and  prudent  man  would  exercise  under 
the  same  or  like  circumstances  and  conditions  is  ordinarily  negli- 
gence; and  in  this  case,  if  you  find  from  the  evidence  that  the  de- 
fendant, the  A.  company,  in  constructing  said  fence  on  said  land  and 
across  said  road  or  passway,  if  it  did  so,  failed,  under  the  facts  and 
circumstances  in  evidence  before  you,  to  exercise  such  care  and  pru- 
dence as  an  ordinarily  careful  and  prudent  man  would  have  exercised 
under  the  same  or  like  circumstances,  then  such  failure  on  defendant's 
part  would  constitute  negligence.^ 

§  1679.  Obstruction  of  Public  Way  by  Ashes  or  Cinders.  The 
court  instructs  the  jury  in  this  case  that  if  you  believe,  from  the 
evidence,  that  the  defendant  placed  ashes  or  cinders  on  the  street 
where  the  injuiy  complained  of  occurred,  as  charged  in  the  declara- 
tion, and  that  such  act  was  negligence  on  the  part  of  the  defendant, 
as  charged  in  the  declaration,  and  that  by  reason  thereof  the  de- 
ceased was  injured  and  killed,  as  charged  in  the  declaration,  and  that 
it  might  have  been  reasonably  foreseen  that  some  such  injury  as 
that  received  b}''  said  deceased  would  be  likely  to  occur  as  the  result 
of  such  negligence,  and  that  the  deceased  was  at  the  time  exercising 


1 — Abilene  C.  O.  Co.  v.  Briscoe,  27  Tex.    Civ.  App.    157,  G6    S.  W.    315  (316). 

1099 


1100  FORMS  OF  INSTRUCTIONS.  [§  1680. 

for  his  own  safety  reasonable  care  and  diligence  for  one  of  his  years 
and  capacity,  then  you  will  find  for  the  jDlaintiff.- 

§  1680.  Obstruction  of  Public  Way  by  Pile  of  Cross-ties.  The 
court  further  instructs  the  jury,  that,  although  they  might  find  that 
the  pile  of  cross-ties  was  an  obstruction  there  in  the  street,  the  plain- 
tiff's cause  of  action  was  not  founded  uj^on  that  primarily,  and  that 
befo3;e  they  could  say  that  the  intestate's  injury  and  death  were 
caused  by  the  negligence  of  the  defendant,  they  should  inquire  wheth- 
er or  not  the  defendant  knew  that  the  pile  of  cross-ties  in  the  street 
was  a  common  resort  of  little  boys  of  tender  years  in  that  neighbor- 
hood to  play,  and  the  burden  was  on  the  plaintiff  to  show  that  the 
railroad  company  knew  that  fact,  and  that  if  the  defendant  did  not 
know  it,  then  they  should  answer  the  issue  as  to  the  defendant's 
negligence  ''No. "^ 

§  1681.  Collision  on  the  Highway,  (a)  The  jury  are  instructed 
as  a  matter  of  law,  that  the  rights  of  footmen  and  horsemen,  on  a 
public  highway,  are  equal,  and  the  law  requires  both  parties  to  use 
all  reasonably  prudent  precautions  to  avoid  accident  and  damage  to 
themselves  or  others. 

(b)  If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  injury  the  plaintiff  was  walking  along  one  of  the  public 
streets  of  the  city  of  C,  with  his  back  towards  the  said  S.  W.  and  at 
the  same  time  the  said  S.  W.  was  riding  a  horse  on  the  same  street, 
in  the  direction  of  the  plaintiff,  and  that  the  said  S.  W,  saw,  or  by 
the  exercise  of  "reasonable  care  and  caution  could  have  seen,  the 
plaintiff  in  season  to  have  stopped  his  horse,  altered  its  course,  or  in 
some  way  avoided  the  accident;  and  if  the  jury  further  believe,  from 
the  evidence,  that  the  said  S.  W.  did  not  do  so,  but  carelessly  and 
negligently  permitted  the  horse  which  he  was  riding  to  run  against 
the  plaintiff  and  knock  him  down,  and  thereby  injured  him,  as  charged 
in  the  declaration,  this  would  be  negligence  on  the  part  of  S.  W. ; 
and  if  the  jury  further  believe,  from  the  evidence,  that  the  said  S. 
W.  was,  at  the  time,  in  the  employ  of  the  said  defendants,  and  pur- 
suing their  business,  then  the  defendants  are  liable  for  such  negli- 
gence ;  provided,  the  jury  further  believe,  from  the  evidence,  that  the 
plaintiff  was  himself  without  fault  or  negligence  which  contributed 
to  the  injury.  And  was  at  the  time  exercising  ordinary  care  to  avoid 
personal  injury. 

(c)  Even  though  the  juiy  should  believe,  from  the  evidence,  that 
the  plaintiff  was  at  first  guilty  of  some  degree  of  negligence,  still,  if 
the  jury  further  believe  from  the  evidence  that  the  driver  of  the 
wagon  actually  saw  the  plaintiff  and  had  a  full  view  of  the  situation 
before  the  accident  and  by  the  exercise  of  reasonable  and  ordinary 
care  could  have  avoided  or  prevented  the  injury,  and  he  then  failed  to 

2— Chi.  &  A.  R.  R.  Co.  v.  Nelson,  3— Kramer  v.  So.  Ry.  Co.,  127  N. 
153  111.  89  (92),  38  N.  E.  560.  C  328,  37  S.  E.  468  (469),  52  L.  R.  A. 

359. 


§  1682.]  NEGLIGENCE— PUBLIC    HIGHWAYS.  1101 

exercise  such  care  and,  in  consequence  of  the  want  of  such  reasonable 
and  ordinary  care  on  his  part,  the  plaintiff  received  the  injury  com- 
plained of,  then  the  defendant  is  guilty. 

(d)  A  person  about  to  cross  a  street  in  a  city,  in  which  there  is 
an  ordinance  against  fast  driving,  has  a  right  to  presume,  if  he  has 
no  kno\\  ledge  or  notice  to  the  contrary,  that  others  will  obsei-ve  and 
conform  to  the  ordinance  in  driving  on  said  street,  and  it  would  not 
be  negligence  on  his  part  in  such  a  case  to  act  on  the  presumption 
that,  in  attempting  to  cross,  he  will  not  be  exposed  to  a  danger  which 
could  only  arise  through  a  disregard  of  the  ordinance  by  others."* 

§  1682.  Automobile — Running  at  Greater  Speed  than  Statutory 
Rate.  The  court  instructs  you  that  in  an  action  brought  to  recover 
damages,  either  to  the  person  or  property,  caused  by  running  an  auto- 
mobile propelled  by  mechanical  power  in  the  public  highway  at  a 
greater  rate  of  speed  than  fifteen  miles  per  hour,  the  plaintiff  is 
deemed  to  have  made  out  a  prima  facie  case  by  showing  the  fact 
that  he  or  she  has  been  injured,  and  that  the  person  running  such 
automobile,  either  by  himself  or  his  agent,  was  at  the  time  of  the  in- 
jury running  the  same  at  a  speed  in  excess  of  fifteen  miles  per  hour.^ 

§  1683.  Snow  and  Ice — Constructing  Building  Near  Highway  so 
that  Snow  and  Ice  Endanger  Travelers  on  Highway.  The  defendant 
has  no  right  to  erect  or  maintain  a  building,  if  it  be  of  no  unusual 
construction,  so  near  the  street  that  snow  or  ice  will  fall  from  it,  in 

4 — Baker  v.  Pendergast,  32  Ohio  lays  down  a  rule  in  the  words  of 

St.  494.  the  law  itself.     Kellyville  Coal  Co. 

5— Ward    v.   Meredith,   220   111.   66,  v.   Strine,  217  111.  516,  75  N.  E.   375; 

77  N.  E.  118.  Donk  Bros.   C.   &   C.   Co.   v.   Peton! 

"It  is  claimed  that  this  instruc-  192  111.  41,  61  N.  E.  330;  Mount  Olive 
tion  is  vicious  and  misleading  for  C.  Co.  v.  Rademacher,  190  id.  538, 
the  reason  that  it  ignores  the  ques-  60  N.  E.  888;  Duncan  v.  People,  134 
tion  as  to  whether  or  not  the  in-  id.  110,  24  N.  E.  765.  But  it  is  in- 
juries sustained  were  occasioned  by  sisted  that  this  instruction  is  not 
the  running  of  the  automobile  in  in  the  exact  words  of  the  statute 
excess  of  fifteen  miles  per  hour,  because  it  contains  the  words 
Section  4  of  chapter  121  (Kurd's  'either  by  himself  or  his  agent.' 
Stat.  1903,  p.  1630).  provides  that  in  The  addition  of  these  words  in  no 
any  action  brought  to  recover  dam-  way  changes  the  legal  sense  or 
ages,  either  to  person  or  property,  meaning  of  the  instruction.  The 
caused  by  running  an  automobile  contention  that  the  instruction  ig- 
at  a  greater  rate  of  speed  than  fif-  nores  the  question  whether  the  in- 
teen  miles  per  hour,  the  plaintiff  juries  sustained  were  occasioned 
shall  be  deemed  to  have  made  out  by  the  running  of  the  automobile 
a  prima  facie  case  by  showing  the  at  excessive  speed  cannot  be  sus- 
fact  of  such  injury  and  that  such  tained.  The  first  part  is:  'The  court 
person  driving  such  automobile  instructs  you  that  in  any  action 
was  at  the  time  of  the  injury  run-  brought  to  recover  damages,  either 
ning  the  same  at  a  speed  in  excess  to  the  person  or  property,  caused 
of  fifteen  miles  per  hour.  This  sec-  by  running  an  automobile  pro- 
tion  of  the  stntute  and  the  fore-  pelled  by  Tnechanical  power  in  a 
going  instruction  are  in  substan-  public  highway  at  a  greater  rate 
tially  the  same  language.  We  have  of  speed  than  fifteen  miles  per 
held  in  many  cases  that  no  error  is  hour,'  etc.  This  language  is  ex- 
committed  by  giving  an  instruc-  plicit,  and  tells  the  jury  that  the 
tion  in  the  substantial  language  of  injury  sustained  must  be  caused 
a  statute;  that  the  instruction  must  by  running  the  automobile  at  the 
be  regarded   as   sufficient   when  it  prohibited  rate  of  speed." 


1102  FORMS  OF  INSTRUCTIONS.  [§  1684. 

the  ordinary  course  of  things,  so  as  to  endanger  travelers  in  passing; 
and  if  the  building  in  question  was  so  constructed  and  maintained, 
the  defendant  would  be  liable  without  further  proof  of  negligence." 

§  1684.  Sidewalk  Space — Liability  of  Person  Making  Excavation. 
The  want  of  authority  to  make  an  excavation,  and  operate  an  elevator 
in  the  sidewalk  space  where  the  accident  happened,  would  not  render 
the  defendant  liable  therefor  without  negligence  in  the  method  of  con- 
struction or  condition  in  which  the  bar  or  railing  was  suffered  to  re- 
main.'^ 

§  1685.  Sidewalk — ^Injury  through  Falling  into  Manhole — Ordinary 
Care — Contributory  Negligence,  (a)  The  plaintiff  in  this  case  must 
prove  two  things  by  a  preponderance  of  the  evidence.  He  must  prove, 
first,  that  the  defendant  was  guilty  of  negligence.  That  is  the  first 
thing.  He  must  prove,  secondly,  that  he  himself  was  not  guilty  of  neg- 
ligence,— that  the  plaintiff  was  not  guilty  of  any  negligence  on  his  part 
which  contributed  to  the  injury.  That  we  call,  in  law,  contributory 
negligence ;  and  when  I  speak  of  contributory  negligence,  you  will  know 
I  mean  that  the  plaintiff  was  guilty  of  contributoiy  negligence.  The 
burden  of  proof  is  on  the  plaintiff  to  show  boish  of  these  propositions, 
and  unless  he  has  shown,  and  does  in  every  ^f^tion  of  damages  show, 
that,  your  verdict  must  be  for  the  defendant. 

(b)  The  care  and  prudence  which  the  defendant  was  bound  to  ex- 
ercise must  be  in  proportion  to  the  danger  to  the  passersby  from  the 
work,  and  the  injury  which  was  liable  to  happen  to  passersby  from 
disregard  of  such  care  and  prudence.  It  follows  that  the  care  and 
prudence  which  an  ordinarily  prudent  man  would  exercise  is  a  rela^ 
tive  term.  It  depends  on  the  danger  which  would  happen  to  a  passer- 
by from  a  disregard  of  care  and  prudence. 

(c)  So  the  danger  to  passersby  is  an  important  element  for  you 
to  consider  in  estimating  what  is  reasonable  care.  It  is  the  care 
which  an  ordinarily  prudent  and  careful  man  would  have  exercised 
under  the  circumstances  having  regard  to  the  work  which  was  neces- 
sary to  be  done,  and  the  danger  from  not  observing  that  care. 

6 — Shepard  v.  Creamer,  160  Mass.  ing  from  the  roof  upon  those  law- 

496,  36  N.  E.  475.  fully    on  _  the    adjoining    highway, 

"The    exception    to    the    instruc-  then  the  instruction  was  too  favor- 

tion    to    the    jury    cannot    be    sus-  able   to    him.     If   the   maintenance 

tained.    If  the  ground  of  liability  is  of  the  building  as  constructed  was, 

negligence,    as  the    defendant   con-  as   matter   of   law,   negligence,   the 

tends  it  is,  then  it  was  negligence  fact  that  the  roof  was  constructed 

to  maintain  a  building  so  near  the  in  the  usual  manner,  and  like  that 

street  and   so  constructed   that,   in  which    has    been    used    for    many 

the  ordinary  course  of  things,  snow  years    on    a    large    portion    of    the 

■or  ice  was   liable  to  fall   from   the  buildings     on     streets      in     Salem, 

roof  upon  travelers  on  the  adjoin-  would  not  help  the  defendant.    Hill 

ing  highway.    Smethurst  v.   Barton  v.   Winsor,   118   Mass.    259;    Maguire 

Sq.  Church,  148  Mass.  261,  19  N.  E.  v.     Railroad     Co.,     115     Mass.     239; 

387;  2  L.  R.  A.  695,  12  Am.  St.  Rep.  Hinckley  v.   Barnstable,   109   Mass. 

.'550;  Shipley  v.  Fifty  Associates,  106  126." 

Mass.   194,  8  Am.   Rep.   318.     If  the  7— Hotel  Ass'n  v.  Walters,  23  Neb. 

defendant  was  bound,  at  his  peril,  380,  36  N.  W.  561  (564). 
to  prevent  snow  and  ice  from  fall- 


§1685.]  NEGLIGENCE— PUBLIC    HIGHWAYS.  1103 

(d)  If  you  find  the  defendant  did,  at  the  time  of  the  injuiy,  exer- 
cise the  care  and  precaution  to  prevent  injury  to  passersby  which  an 
ordinarily  prudent  and  careful  man  would  have  used,  in  view  of  all 
the  circumstances,  and  in  view  of  probable  injuiy,  then  your  verdict 
should  be  for  the  defendant.  But  if  you  find  that  it  was  not  exercis- 
ing reasonable  care, — care  and  prudence  which  a  reasonable  man 
would  have  exercised, — ha\dng  in  view  the  danger  to  passersby,  then 
you  will  come  to  consider  the  other  question. 

(e)  You  remember  the  other  question  is:  Was  the  plaintiff,  or 
did  the  plaintiff  himself  exercise  the  care  and  prudence  which  an 
ordinarily  prudent  man  would  in  passing  along  that  street?  What  was 
the  duty  of  the  plaintiff?  A  person  traveling  on  the  sidewalk  in  this 
city  has  a  right  to  expect  that  the  walk  will  be  in  a  condition  reason- 
ably safe  and  fit  for  travel.  I  do  not  say  absolutely  safe,  so  as  to 
prevent  all  possibility  of  accident.  There  are  many  miles  of  sidewalk 
in  this  city,  and  many  thousand  owners  of  lots,  who  are  constantly 
repairing  sidewalks,  and  pulling  them  up  for  one  cause  or  another. 
So  that  to  my  mind,  it  is  absurd  to  say  that  the  law  requires  them  to 
be  in  a  condition  of  absolute  safety.  But  a  traveler  on  a  sidewalk  has 
a  right  to  expect  that  the  walk  will  be  in  a  condition  reasonably  safe 
for  travel.  Now,  it  is  the  plaintiff's  duty  on  his  part  to  exercise  that 
care  and  pmdence  in  passing  along  the  sidewalk  which  an  ordinarily 
prudent  man  would  have  used  under  those  circumstances.  Generally 
speaking,  it  was  his  duty  to  use  his  eyes  and  look  ahead  of  him;  but 
I  do  not  say,  gentlemen  of  the  jury,  that  it  is  his  duty  to  keep  his 
eyes  on  the  walk  in  front  of  him  all  the  time.  As  I  said,  a  passenger 
has  a  right  to  expect  that  the  walk  is  in  a  condition  reasonably  safe 
and  fit  for  travel,  and  if  his  attention  is  attracted  for  a  moment  or 
two  to  something  going  on  in  the  street,  he  has  a  right  to  expect  that 
he  can  continue  to  go  forward  a  short  distance  with  safety;  but  he 
must  exercise  the  care  and  prudence  which  an  ordinarilj'-  cai'eful  and 
prudent  man  would  in  passing  along  the  street.  And  I  repeat,  I  do  not 
say  that  a  man  must  keep  his  eyes  on  the  walk  all  the  time;  and,  as 
I  said  before,  he  has  a  right  to  presume  that  the  walk  is  reasonably 
safe  for  travel,  and  if  he  turns  his  eyes  to  one  side  or  the  other,  or  his 
attention  is  attracted  by  one  thing  or  the  other,  he  has  a  right  to 
presume, — he  has  a  right  to  be  attracted  to  one  thing  or  the  other 
for  a  short  time,  and  presume  he  can  walk  forward  in  safety. 

(f)  Unless  the  jury  find  both  of  the  following  facts,  viz.:  (1)  That 
the  defendant  was  guilty  of  negligence,  and  (2)  that  plaintiff  was 
not  guilty  of  negligence, — ^your  verdict  will  be  for  the  defendant.  The 
burden  of  proof  in  this  case  is  upon  the  plaintiff,  and  he  must  prove, 
by  a  preponderance  of  evidence,  both  the  negligence  of  the  defendant 
and  the  lack  of  negligence  or  the  exercise  of  due  care  on  his  part.  Al- 
though a  foot  passenger  on  the  sidewalk  is  not  required  to  keep  his 
eyes  constantly  on  the  walk  before  him,  yet  he  must  observe  his  gen- 
eral course  on  the  street;  and  if  he  meets  with  an  accident  which 
could  have  been  avoided  by  the  exercise  of  ordinary  care  and  prudence 


1104  FORMS  OF  INSTRUCTIONS.  [§  1686. 

in  observing  his  general  course,  he  is  guilty  of  contributory  negli- 
genee.® 

§  1686.  Sidewalks — Liability  for  Opening  Used  for  Raising  and 
Lowering  Baggage  and  Protected  by  Bar  of  Gas-pipe,  (a)  It  was 
the  duty  of  the  defendant  to  use  and  observe  reasonable  care  and 
caution  in  placing  and  securing  the  bar  in  question,  and  for  pre- 
venting injuries  or  accidents  to  persons  who  might  be  at  or  near  the 
same. 

(b)  It  was  likewise  the  duty  of  plaintiff  to  use  reasonable  eare 
and  caution  to  avoid  an  injui-y  or  accident  to  himself  while  at  and 
near  the  bar  and  place  in  question. 

(c)  If  the  accident  occurred  solely  in  consequence  of  negligence  or 
want  of  reasonable  eare  or  precaution  on  the  part  of  defendant,  it  is 
liable  for  such  injuries  to  plaintiff  as  resulted  therefrom.^ 

§  1687.  Injury  to  Child  through  Bar  of  Iron  on  Recklessly  Driven 
Wagon.  The  court  does  not  instruct  you  as  a  matter  of  law  that 
the  employe  of  the  defendant  was  or  was  not  negligent  in  the  manner 
of  his  placing  or  loading  said  iron  in  the  wagon,  and  in  carrying  said 
iron  therein,  but  will  leave  the  question  to  you  as  reasonable,  fair- 
minded  men  to  determine  the  question  whether  at  the  time  and  place 
where  the  plaintiff  was  injured,  if  you  find  she  was  injured,  the  em- 
ploye of  the  defendant,  taking  into  consideration  all  the  facts  and 
circumstances  of  the  case,  was  or  was  not  guilty  of  negligence  in  the 
manner  of  loading  and  caiTying  the  iron  in  controversy.^*^ 

§  1688.  Highway — Barbed  Wire  Causing  Injury  to  Horse — Con- 
tributory Negligence  of  Plaintiff,  (a)  In  order  to  entitle  the  plain- 
tiff to  recover,  the  plaintiff  must  establish  that  the  defendant  was 
negligent  in  the  acts  complained  of,  and  that  the  accident  complained 
of,  and  the  damages  sustained  by  reason  thereof,  were  not  contributed 
to,  in  any  way  or  manner,  by  any  negligent  or  careless  act  of  the 
plaintiff.  It  would  be  negligent  for  the  defendant  to  place  in  the 
highway,  in  close  proximity  to  the  traveled  and  beaten  track,  a 
barbed-wire  fence,  which  might  occasion  damage  to  travelers  by 
reason  of  the  ordinary  casualties  that  travelers  are  liable  to  encounter 
while  traveling  said  highway;  and  it  would  devolve  upon  the  plaintiff, 

8— Le  Beau  v.  Tel.  &  Tel.  Const.  Moore   v.   Richmond,   85  Va.   542,   8 

Co      109    Mich.    302,    67    N.    W.    339  S.   E.   387;   Walker  v.   Reidsville,  96 

(341).  N.    C.    382,    2    S.    E.    74,    and    cases 

"We    think    the    charge    of    the  there    cited;    City    of    Plymouth    v. 

trial  judge  was  a  fair  statement  of  Milner,   117   Ind.    324.   20   N.   E.   235; 

the  law   of  negligence  as  applicable  Kelly   v.    Doody,   116   N.   Y.   581,   22 

to  the  facts  in  this  case.    See  But-  N.  E.  1084;  McLaury  v.  McGregor, 

terfifld    V.    Forrester,   11    East.    60;  54    Iowa   171,    7    N.    W.    91;    2    Dill. 

Abernethy    v.    Van    Buron    Tp.,    52  Mun.    Corp.    para.    1020,    and    note; 

Mich    383.  18  N.  W.  116;  McCool  v.  Beach,   Pub.    Corp.   para.   1537." 

Gr    Rapids,   58  Mich.   41.   24  N.  W.  9— Hotel     Ass'n     v.     Walters,     23 

631     55   Am.    Rep.    655;   Hutchins  v.  Neb.  380,  36  N.  W.  561  (564). 

PriVstly.    etc.,   Co.,   61   Mich.   252.   28  10— Van     Camp    H.    &    I.    Co.    v. 

N     W     85-    Wakeham    v.    St.    Clnir  O'Rrien.  28  Ind.  App.  152,  62  N.  E. 

Tp.,    91    Mich.    15,    51    N.    W.    696;  464  (466). 


§  1689.]  NEGLIGENCE— PUBLIC   HIGHWAYS.  1105 

while  traveling  upon  said  highway,  to  use  ordinary  care  in  driving 
and  managing  his  horse,  and  avoid  accidents  that  might  happen,  and 
if  the  horse  driven  by  the  plaintiff  would  be  found,  from  the  evidence, 
to  be  spirited  and  liable  to  fright,  then  it  would  devolve  upon  the 
plaintiff,  and  he  would  be  held  to  use  a  gi'eater  degree  of  care  than 
otheiTvise. 

(b)  If  you  find  from  the  evidence  that  the  plaintiff's  horse,  while 
being  driven  along  the  highway  in  a  careful  and  prudent  manner,  be- 
came frightened  at  objects  near  the  road,  and  shied  from  his  course, 
and  if  you  further  find  from  the  evidence  that  the  horse,  in  so  shying, 
acted  as  a  horse  of  reasonable  docility  and  training  might  act  under 
the  same  circumstances,  then  the  fact  of  the  horse  so  shying  would  not 
defeat  the  plaintiff's  right  of  recovery.  The  occuiTence  must  be  at- 
tinbuted  to  one  of  the  casualties  of  the  road.  It  would  be  otherwise, 
however,  if  you  would  conclude  from  the  evidence  that  the  circum- 
stances were  not  such  as  to  frighten  a  horse  of  reasonable  docility 
and  training,  and  that  the  shj-ing  of  plaintiff's  horse  was  caused  by  a 
previously  acquired  vicious  habit. 

(c)  If  a  horse  driven  with  due  care  upon  a  highway  becomes,  by 
reason  of  fright,  actually  uncontrollable,  so  that  his  driver  cannot 
stop  him  or  direct  his  course,  or  exercise  or  regain  control  over  his 
movements,  and  in  this  condition  comes  upon  a  fence  in  the  highway, 
by  which  an  injuiy  is  occasioned,  the  owner  of  the  fence  is  not  liable, 
unless  it  appears  that  the  accident  would  have  occurred  if  the  horse 
had  not  been  so  uncontrollable ;  but  a  horse  is  not  to  be  considered  un- 
controllable in  this  sense,  if  he  merely  shies  or  starts,  or  is  momenta- 
rily not  controlled  by  his  driver.^^ 

§  1689.  Horses — Allowing  Same  to  Stand  Unhitched — Injury  fram 
Runaway  Horses,  (a)  The  court  instructs  the  jury  that  the  plaintiff 
claims  that  her  injuries  were  occasioned  by  the  following  negligence 
on  the  part  of  the  defendant;  that  is  to  say,  that  the  defendant  negli- 
gently left  a  team  of  horses  owned  by  him  unhitched  and  unguarded, 
and  negligently  permitted  them  to  run  away  and  over  plaintiff  by 
reason  of  which  she  was  greatly  injured.  These  allegations  the  de- 
fendant has  denied  in  his  answer.  Defendant  has  also  alleged  by 
way  of  an  affirmative  defense  that  whatever  injuries  plaintiff  sus- 
tained by  his  horses  were  caused  in  whole  or  in  part  by  her  own  con- 
tributory negligence.  The  mere  fact  that  the  horses  ran  away,  and 
the  plaintiff  was  run  over  and  severely  injured,  do  not  of  themselves 
make  defendant  liable  in  this  case.  The  gist  of  the  action  is  the 
charge  that  the  defendant  failed  to  exercise  ordinary  care,  diligence 
and  watchfulness  thereby  causing  these  injuries.  The  burden  of  es- 
tablishing this  charge  is  upon  the  plaintiff,  and  if  the  evidence  bear- 
ing on  this  proposition  does  not  preponderate  in  favor  of  the  plain- 
tiff, then  the  jury  will  find  for  the  defendant.    By  "a  preponderance 

11 — These    instructions    approved  in  Young  v.  Sago,  42  Neb.  37,  60 
N.    W.   313   (315). 
70 


1106  FORMS  OF  INSTRUCTIONS.  [§  1689. 

of  evidence"  is  meant  that  the  evidence  in  support  of  the  proposition 
in  your  judgment,  outweighs  that  to  the  contrary.  The  burden  of 
proving  any  negligence  of  the  plaintiff  or  of  proving  the  facts  which 
under  these  instructions  are  defined  as  constituting  such  negligence 
is  ujoon  the  defendant  to  establish  the  truth  of  them  to  your  satis- 
faction by  a  preponderance  of  evidence  in  regard  to  them. 

(b)  The  court  instructs  the  jury  that  if  you  find  and  believe  from 

the  evidence  that  on  the  day  of  January,  19—,  D.,  0.  and  T. 

streets  were  open  and  public  streets  in  the  city  of  S.,  and  if  you 
further  find   and  believe  from  the  evidence  that   defendant  was   on 

said  date,  Januaiy ,  19 — ,  the  owner  and  in  charge  of  a  span  of 

horses  attached  to  a  sleigh,  and  that  he  negligently  left  said  horses 
standing  on  said  D.  street,  and  walked  away  from  said  horses,  and 
that  said  horses  were  unhitched,  unguarded  and  unattended,  and  that 
said  horses  ran  away  and  then  upon  and  over  plaintiff  at  the  inter- 
section of  said  T.  and  0.  streets,  and  that  plaintiff  received  the  in- 
juries comi^lained  of  directly  thereby,  and  if  you  further  find  and  be- 
lieve from  the  evidence  that  the  plaintiff  was  at  said  time  exercising 
ordinary  care  for  her  own  protection,  then  the  defendant  is  liable  in 
this  ease,  and  your  verdict  should  be  for  the  plaintiff. 

(c)  If  you  find  and  believe  from  the  evidence  that  the  plaintiff 
was  struck  by  the  runaway  horses  while  she  was  crossing  the  street, 
and  that  she  stepped  onto  the  street  or  crossing,  and  in  front  of 
said  horses  without  exercising  ordinary  care  in  looking  or  listening 
for  the  approach  of  horses  or  vehicles,  and  if  you  believe  that  if  she 
had  exercised  such  ordinary  care,  she  could  have  seen  or  heard  the 
team  in  time  to  have  prevented  the  collision  and  gotten  away,  then 
your  verdict  should  be  for  the  defendant,  althoug'h  you  may  believe 
he  was  guilty  of  negligence  in  allowing  the  team  to  run  away.  It  is 
the  duty  of  a  person  crossing  a  public  street  in  the  city  to  exercise 
ordinary  care  and  prudence  in  avoiding  the  danger  of  collision  with 
horses  on  such  street,  and  you  are  to  determine  from  all  the  evidence 
in  the  case  whether  or  not  she  exercised  such  ordinary  care. 

(d)  The  court  instructs  the  jury  that  with  respect  to  the  allega- 
tions  of  contributory  negligence  set  up  in  the  defendant's  answer, 
the  burden  of  proof  rests  upon  the  defendant;  that  is,  the  defendant 
must  prove  to  your  satisfaction,  by  a  preponderance  of  evidence  that 
the  plaintiff  did  not  exercise  ordinary  care  for  her  own  protection.  By 
"preponderance  of  evidence"  as  used  in  these  instructions,  is  not 
necessarily  meant  the  greater  number  of  witnesses,  but  the  greater 
weight  of  the  evidence;  that  is,  that  the  evidence  in  support  of  the 
proposition  to  be  proved,  is,  in  your  judgment,  of  more  weight  than 
the  evidence  against  it.  By  ''ordinary  care"  as  used  in  these  instvuc- 
tions,  is  meant  that  degree  of  care  which  would  be  used  by  a  person 
of  ordinary  prudence  under  like  or  similar  circumstances.  By  "neg- 
ligence" as  used  in  these  instructions  is  meant  the  absence  of  ordi- 
nary care  under  the  circumstances  shown  in  evidence. 


§1689.]  NEJGLIGENCE— PUBLIC    HIGHWAYS.  1107 

(e)  The  court  instructs  the  jury  that  the  defendant  was  not 
bound,  under  all  circumstances,  to  prevent  his  horses  from  running- 
away;  and  unless  you  loelieve  that  he  failed  to  exercise  that  degree 
of  care  and  jDrudence  which  an  ordinarily  careful  and  prudent  person 
would  have  exercised  under  like  cii'cumstances,  then  your  verdict  will 
be  for  the  defendant. 

(f)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence that  the  injuries  of  plaintiff  were  the  result  of  mere  accident 
or  casualty,  and  not  of  negligence  on  the  part  of  the  defendant,  then 
your  verdict  will  be  for  the  defendant. 

(g)  Although  the  juiy  may  believe  from  the  evidence  that  de- 
fendant was  guilty  of  negligence  in  failing  to  gnaard  his  said  horses  so 
as  to  prevent  them  from  running  away,  j^et  if  you  also  believe  from 
the  evidence  that  the  plaintiff  was  also  negligent  in  failing  to  dis- 
cover the  approach  of  said  horses  in  time  to  have  kept  out  of  their 
way,  or  to  have  gotten  out  of  their  way  if  in  it,  then  your  verdict 
will  be  for  the  defendant. ^^ 

12— The   above   series   of  instruc-     anagh,   97   Mo.  App.    362,  71  S.   W. 
lions  approved  in   Groom   v.   Kav-     362. 


CHAPTER  LXVII. 

NEGLIGENCE— COMMON   CARRIERS. 

See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


WHO  IS  A  COMMON  CARRIER. 

§  1690.  Who  is  a  common  carrier  of 
goods. 

§  1691.  Express  companies  and  rail- 
way companies  are  com- 
mon  carriers. 

DELIVERY  TO  THE  CARRIER. 

§1692.  When  the  liability  of  the 
carrier    commences. 

§  1693.  Delivery  to  cari'ier  may  be 
from  owner  or  from  an- 
other carrier. 

§  1694.  Written  receipt  not  re- 
quired. 

§  1695.  What  constitutes  a  through 
contract   of  carriage. 


1696. 


1697. 


BILL  OF  LADING. 

Bill  of  lading  implies  what 
contract. 

Receipt  in  bill  of  lading 
prima  facie  evidence  of 
goods   in   good   order. 

1698.  Same      subject— Burden      of 

proof      on      defendants      to 
show  fraud. 

1699.  Bill  of  lading  not  conclusive 

of   condition    of   the   goods. 


CONNECTING  CARRIERS. 


1700. 


Delivery  of  goods  to  carrier 
without  directions  for  car- 
riage beyond  carrier's  own 
line.  * 

§  1701.  Carrier  ordinarily  liable 
only  for  losses  and  in- 
juries occurring  on  his 
own   line. 

5  1702.  Same  subject — Rule  In  Illi- 
nois. 

§  1703.  Burden  of  proof  on  carrier 
to  prove  no  negligence 
where  injury  shown  to 
have   occurred    on   its   line. 

5  1704.  Pnrtnership  between  com- 
mon   carriers. 

8  non.  First  carrier  cannot  relieve 
him.self  of  liability  as  com- 
mon cairlor  by  warehous- 
ing goods  without  deliv- 
ery to  next  carrier. 

1108 


COMMON    carrier's    LIABILITY  AND 
EXCEPTIONS   THERETO. 

§  1706.  Liability  of  common  carriers 

of   goods. 
§  1707.  Liable  for  all  loss,  except  by 

act    of   God,    etc. 
§  1708.  What    is    meant    by    the   act 

of   God. 
§  1709.  Carrier  must  use  reasonable 

care    to    avoid    injury    by 

act    of    God. 

LIMITATION  OF  CARRIER'S  LIABILIfl'Y 
BY  CONTRACT. 

§  1710.  Legal  duty  of  carriers  im- 
posed  by   law. 

§  1711.  Liability  not  limited  by  no- 
tice. 

§  1712.  Carriers  can  only  restrict 
their  common  law  liabili- 
ties. 

§  1713.  Shipper  will  be  presumed  to 
agree  to  exemption  clause, 
when. 

§  1714.  Same  subject — Rule  in  Illi- 
nois —  Shipper's  assent 
must   be   shown. 

§  1715.  Same  subject — Rule  in  Illi- 
nois— Acceptance  of  re- 
ceipt with  full  under- 
standing  of   conditions. 

§1716.  Shipper  not  bound  by  notice 
printed  on  receipt. 

§  1717.  Requiring  claim  for  dam- 
ages to  be  presented  with- 
in  specified   time. 

§  1718.  Burden  on  the  carrier  to 
show  loss  within  exemp- 
tion. 

§  1719.  Must  exercise  reasonable 
care  not  to  prevent  loss 
within  exemption. 

§  1720.  Can  not  restrict  liability 
arising  from  its  own  negli- 
gence. 

§  1721.  Burden  of  proof. 


DUTY  AS  TO 


TRANSPORTATION 
GOODS. 


OF 


§  1722.  Must  carry  within  a  reason- 
able time. 


§  1690.] 


NEGLIGENCE— COMMON    CARRIERS. 


1109 


§  1723.  Common  carrier  not  an  in- 
surer as  to  time  of  trans- 
portation. 

§  1724.  Not  liable  for  delay  caused 
by  inevitable  accident  or 
act  of  God. 

§  1725.  Not  liable  for  special  dam- 
ages unless  notified  of  im- 
portance of  shipment. 

§  1726.  Shipping  perishable  prop- 
erty. 

§  1727.  Same  subject  —  Owner's 
rights  when  perishable 
goods  are  damaged  by  car- 
rier's  negligent   delay. 

§  1728.  Same  subject — Duty  of  car- 
rier toward  perishable 
goods  when  damaged  by 
inevitable  accident  or  act 
of    God. 

§  1729.  Duties  and  liabilities  of  car- 
rier in  transportation  of 
live  stock. 

§  1730.  What  will  excuse  injuries 
to,  or  lack  of  readiness  to 
deliver,   live  stock. 

§  1731.  What  care  required  of  car- 
riers of  live  stock. 

§  1732.  Essential  elements  for  re- 
covery against  carrier  for 
injury  or  damage  to  live 
stock. 

§  1733.  Dutj^  of  carriers  to  furnish 
stock  pens  at  point  of  ship- 
ment. 

§  1734.  Care  required  of  carriers  in 
loading  live   stock. 

§  1735.  Carrier  not  liable  for  In- 
juries due  to  natural  pro- 
pensities or  vice  of  ani- 
mals. 


§  1736.  Care  required  of  carriers  of 
hogs. 

§  1737.  Failure  of  shipper  to  prop- 
erly care  for  live  stock 
when  he  has  contracted  to 
do  so. 

§  1738.  Degree  of  care  required  to 
avoid  delay. 

DELIVERY  BY  CARRIERS. 

§  1739.  Railroad  companies  are  not 
bound  to  deliver  to  con- 
signee personally. 

§  1740.  Rule  as  to  delivery  by  rail- 
roads in  Georgia,  Illinois, 
Indiana,  Iowa,  Massachu- 
setts, North  Carolina, 
Pennsylvania,  and  South 
Carolina. 

§  1741.  Rule  as  to  delivery  by  rail- 
roads in  Alabama,  Arkan- 
sas, Kansas,  Kentucky, 
Louisiana,  New  Hamp- 
shire, Vermont,  West  Vir- 
ginia  and    Wisconsin. 

§  1742.  If  goods  are  not  delivered  to 
consignee,  they  must  be 
stored. 

§  1743.  Duty  and  liability  of  express 
companies. 

§  1744.  Care  required  by  warehouse- 
men. 

§  1745.  'What  is  ordinary  diligence 
and   care. 

RIGHTS   OF  THE   CARRIER. 

§  1746.  Suit  by  carrier  for  freight 
and  charges. 


WHO  IS  A  COMMON  CARRIER. 

§  1690.  Who  is  a  Common  Carrier  of  Goods.  The  jmy  are  in- 
structed, that  one  who,  for  hire,  carries  passengers  and  their  baggage, 
or  baggage  alone,  for  all  persons  choosing  to  employ  him,  f rora,  to  and 
between  railroad  depots  and  hotels,  and  other  places  in  a  city,  is  a 
common  carrier  of  goods.^ 

§  1691.  Express  Companies  and  Railway  Companies  Are  Common 
Carriers.  You  are  instructed,  that  express  companies  and  railway 
companies  are  common  carriers,  and  are  liable  as  such;  they  are  in- 
surers for  the  safe  delivery  of  the  property  intrusted  to  them  for 
transportation;  and  they  will  not  be  excused  for  its  non-delivery, 
except  they  are  prevented  from  delivering  it  by  an  act  of  God,  or  the 
public  enemy.2 

l_Parmelee  v  Lowitz,  74  111.  116;  2— Morrison  v.  Davis,  20  Penn. 
2  Am  and  Eng.  Enc.  781;  Hutchin-  St.  171;  Railroad  Co.  v.  Reeves,  10 
son  on  Car.   (3rd  Ed.)   §47,   et  seq.     Wall.    176;    Sherman   v.    Welles,   28 


1110  FORMS  OF  INSTRUCTIONS.  [§  1692. 


DELIVERY  TO  THE  CARRIER. 

§  1692.    When  the  Liability  of  the  Carrier  Commences.     The  law 

is,  that  as  soon  as  property  is  received  into  the  exclusive  possession  of 
the  common  carrier,  with  its  knowledge  and  consent,  for  the  purpose 
of  being-  shipped,  then  the  liability  of  a  common  carrier  commences, 
no  matter  whether  it  is  received  into  a  car,  depot  or  warehouse.^ 

§  1693.  Delivery  to  Carrier  May  Be  from  Owner  or  from  Another 
Carrier.  You  are  instructed,  that  the  liability  of  a  common  carrier, 
for  the  safe  delivery  of  property  which  has  come  into  its  possession, 
is  the  same,  whether  it  was  received  directly  from  the  owner  or  from 
another  carrier,  to  whom  it  had  been  originally  delivered.* 

§  1694.  Written  Receipt  Not  Required.  The  jury  are  instructed, 
that  to  charge  a  common  carrier  with  the  receipt  of  goods,  it  is  not 
necessary  that  any  written  receipt  should  be  given;  provided,  the 
jury  believe  from  the  evidence,  that  the  property  in  question  had 
actually  come  into  the  possession  of  the  carrier,  to  be  transpoi'ted  by 
it,  and  that  it  was  afterwards  lost  or  destroyed,  as  alleged  in  the 
declaration.^ 

§  1695.  What  Constitutes  a  Through  Contract  of  Carriage.  The 
jury  are  instructed,  that  when  goods  are  delivered  to  a  common  car- 
rier in  this  state,  and  marked  to  a  particular  place  of  destination, 
the  carrier  impliedly  agrees  to  carry  and  deliver  the  goods  at  that 
place,  although  it  may  be  beyond  its  own  lines  of  carrying,  unless 
there  is  some  special  contract  relieving  the  carrier  from  such  imolied 
obligation.^ 

BILL  OF  LADING. 

§  1696.  Bill  of  Lading  Implies  What — Contract.  The  jury  are  in- 
structed that  the  bill  of  lading,  offered  in  evidence,  recites  that  the 
goods  were  in  good  order  and  condition  when  received  by  the  defend- 
ant, and  by  said  bill  of  lading  the  defendant  contracted  to  deliver 
said  goods  in  like  good  order  and  condition  at  P.;  and  if  the  jury 
believe,  from  the  evidence,  that  the  goods  were  not  delivered  in  as 
good  order  and  condition  as  when  received  by  defendant — ordinary- 
wear  and   tear  and   ordinary   deterioration   excepted — and   that   the 

Barb.  403;  Langworthy  v.  N.  "S.  &  (3rd.  ed.),  §105,  et  seq. 

71.    Ry.    Co.;    2    E.    D.    Smith    19.5;  4— Gulliver  v.  Adams  Ex.  Co.,  38 

Hulchinsoh  on  Car.   (3rd  ed.),  §80,  111.    503;    Hutchinson    on    Car.    (3rd 

et   seq.  ed.),  §  129,  et  seq. 

3 — Coyle  v.   Western,   etc.,   Corp.,  5 — Hutchinson   on   Car.    (3rd   ed.), 

47    Barb.    152;    Barren    v.    Eldridge,  §127,  152;  I.   C.   Rd.  Co.   v.   Smysor, 

100   Mass.    455;    Michigan,    etc.,    Rd.  38    111.    354;    Hickox    v.    Nangatuck 

Co.    V.    Schurtz,    7    Mich.    515;    Mo.  Rd.   31   Conn.   281. 

Pac.   Rv.   Co.   V.   McFadden,  154  U.  6 — Hutchinson   on   Car.    (3rd   ed.), 

S.    155,    14    Sup.    Ct.    990,    38   L..    Ed.  §238;     Milwaukee,       etc.,       Rd.       v. 

944;     Rt.     Louis,     etc.,     Ry.     Co.    v.  Smith,     74     111.     197;     Bnhannnn     v. 

Insurtincc    Co.,    139    U.     S.    223,    11  Hammond,    42    Cal.    227;    McMillan 

Sup.    Ct.    554;    Hutfhins^.m    mi    Car.  v.   Mich.,  etc.,  Rd.  Co.,  16  Mich.  78. 


§  1697.]  NEGLIGENCE— COMMON   CARRIERS.  1111 

plaintiff  was  injured  and  has  sustained  damage  thereby,  then  the 
plaintiff  is  entitled  to  recover,  unless  the  jury  believe,  from  the  evi- 
dence, that  the  damage  or  injury  to  such  goods  resulted  from  some 
fault  or  negligence  of  the  plaintiff,  or  from,  etc.^ 

§  1697.  Receipt  or  Bill  of  Lading  Prima  Facie  Evidence  of  Goods 
in  Good  Order.  That  the  receiiDt  introduced  in  evidence  is  prima  facie 
proof  that  the  goods  therein  mentioned  were  in  good  order  at  the 
time  they  were  received  by  the  defendant,  and  so  far  as  regards  that 
question,  the  burden  of  proof  is  on  the  defendant  to  show,  by  a  pre- 
ponderance of  evidence,  that  the  goods  were  in  a  damaged  condition 
at  the  time  they  were  received  by  the  defendant,  or  else  that  the 
injuiy  occurred  from  a  cause  for  which  the  defendant  is  not  liable, 
as  explained  in  these  instructions;  provided,  the  jury  believe,  from  the 
evidence,  that  the  goods  were  damaged  when  delivered  to  the  plaintiff, 
as  charged  in  the  declaration.^ 

§  1698.  Same  Subject — Burden  of  Proof  on  Defendants  to  Show 
Fraud.  The  bill  of  lading,  introduced  in  evidence  in  this  case,  is 
j)rima  facie  evidence  that  the  box  of  goods  was  received  by  the 
defendants,  and  was  at  that  time  in  good  order;  and  if  the  defend- 
ants claim  that  it  was  not  so  in  good  order,  it  is  incumbent  on  them 
to  show  this,  and  that  they  were  deceived  or  defrauded  when  the  bill 
of  lading  was  signed ;  and  unless  you  believe,  from  the  evidence,  that 
the  defendants  were  so  deceived  or  defrauded,  you  will  find  a  verdict 
for  the  plaintiff  for  the  amount  of  his  loss,  as  shown  by  the  evidence; 
provided  that  you  find,  from  the  evidence,  that  the  plaintiff  demanded 
said  goods  before  the  commencement  of  this  suit,  and  that  the  goods 
were  not  delivered  on  demand,  as  charged  in  the  plaintiff's  declara- 
tion; and  further,  that  said  loss  did  not  occur  from  (causes  excepted 
in  the  receipt).^ 

§  1699.  Bill  of  Lading  Not  Conclusive  of  Condition  of  the  Goods. 
The  court  instructs  the  jury,  that  a  bill  of  lading,  while  prima  facie 
true,  may  be  explained  by  other  evidence;  and  if  the  jury  believe, 
from  the  evidence  in  this  case,  that  the  goods  in  question  were  wet 
or  otherwise  injured,  or  in  bad  condition,  before  they  came  into  de- 
fendant's hands,  and  that  they  were,  externally,  in  good  condition 
when  defendant  received  them,  and  that  the  person  receiving  the 
goods  coidd  not,  without  opening  them,  have  ascertained  their  actual 
condition,  then,  the  fact  of  receipting  for  them  as  in  good  order  and 
condition  will  not  preclude  the  defendant  from  showing  their  true 
condition  in  this  suit.^** 

7— Hutchinson   on   Car.    (3rd   ed.),  9— G.  W.  R.  R.  Co.  v.  McDonald, 

157,  163;  Bissell  v.  Price,  16  111.  408;  18  111.  172. 

Wallace    K.    v.    Long,    8,    111.    App.  10 — Hutchinson  on  Car.   (3rd  ed.), 

504;   I.  C.  R.  R.  Co.  v.  Cobb.  72  111.  §158,    163.    164;    Bissell    v.    Price.    16 

148;  Warden  v.  Green.  6  W^atts  424;  111.  408;  Carson  v.  Harris,  4  G.   Gr. 

Pollard  V.  Vinton,  105  U.  S.  7.  516;  Porter  v.  C.   &  N.   W.  Rd.  Co. 

8— Hutchinson    on   Car.    (3rd    ed.),  20  la.  73;  Ellis  v.  Williard,  5  Selden 

§158;  Montgomery,  etc.,  Rd.  Co.  v.  529;  Meyer  v.  Peck,  28  N.  T.  590. 
Moore,  51  Ala.  394. 


1112  FORMS  OF  INSTRUCTIONS.  [§  1700. 


CONNECTING  CARRIERS. 

§  1700.  Delivery  of  Goods  to  Carrier  Without  Directions  for  Car- 
riage Beyond  Carrier's  Own  Line.  The  law  is,  that  where  goods  are 
delivered  to  a  carrier  marked  to  a  particular  place  beyond  or  not 
upon  the  line  of  such  cai-rier  and  the  goods  are  unaccompanied  by  any 
other  direction  for  their  transportation  and  delivery,  then  the  car- 
rier is  only  bound  to  transfer  and  deliver  them  according  to  the 
established  usage  of  the  business  in  which  the  carrier  is  engaged, 
whether  that  usage  were  known  to  that  other  party  or  not.^^ 

§  1701.  Carrier  Ordinarily  Liable  Only  for  Losses  and  Injuries 
Occurring  on  His  Own  Line.  That  when  parts  of  a  continuous  line 
or  route  of  transportation  are  owned  by  different  carriers,  then, 
unless  there  is  some  contract  expressed  or  implied  to  the  contrary, 
each  carrier  is  only  liable  for  losses  and  injuries  occurring  on  his 
own  particular  portion  of  the  route.^^ 

§  1702.  Same  Subject — Rule  in  Illinois,  (a)  The  court  instructs 
the  jury,  that  the  rule  in  this  state  is,  that  when  goods  are  delivered 
to  a  common  carrier,  in  this  state,  marked  to  a  place  not  upon  or 
beyond  its  line  of  road,  with  no  other  direction,  and  without  any 
express  contract  as  to  the  place  of  delivery,  the  law  will  imply  an 
undertaking,  on  the  part  of  the  carrier,  to  transport  the  goods  to  and 
deliver  them  at  the  place  to  which  they  are  marked.^^ 

(b)  You  are  further  instructed,  that  when  there  is  no  special  con- 
tract to  the  contrary,  and  goods  are  lost  by  any  one  caiTier  in  a  line 
composed  of  several  carriers,  the  first  to  whom  the  goods  were  de- 
livered will  be  liable  to  the  owner  for  the  goods  lost  and  the  owner  is 
not  required  to  sue  the  carrier  who  actually  lost  the  goods,  provided 
you  believe  from  the  evidence  that  the  first  carrier  either  expressly 
or  impliedly  agx'eed  to  carry  the  goods  to  their  destination  as  ex- 
plained in  the  instructions  upon  that  point. ^'^ 

§  1703.  Burden  of  Proof  on  Carrier  to  Prove  no  Negligence  Where 
Injury  Shown  to  Have  Occurred  on  Its  Line.  If  you  believe,  from' 
the  evidence,  that  the  injury,  if  any,  to  the  cotton  occun'ed  whilst  the 
same  was  in  possession  of  any  one  of  the  carriers  defendant  in  this 
cause,  then  as  to  the  plaintiff  the  burden  of  showing  that  such  in- 
jury was  without  negligence  of  such  carrier  is  on  it;  and  if  you  find 
that  the  evidence  does  not  show  that  such  injury  was  without  negli- 

11— Vansantvoord    v.    St.    John,   6  Rd.  Co.  v.  Moore,  51  Ala.  394;  Ortt 

Hill   157;   F.    &   M.   Bank  v.   Cham-  v.  M.  &  St.  L.  R.  Co.,  36  Minn.  396, 

plain    TraiLs.    Co.,   18   Vt.   140;    Con-  31   N.    W.    519. 

verse    v.    Norwich    Trans.    Co.,    33        13— Milwaukee,    etc.,    Rd.    Co.    v. 

Conn.    166;     Montgomery,    etc.,    Rd.  Smith,    74   111.   197;    Elgin,    etc.,    Ry. 

Co.    V.    Moore,    51    Ala.    394;    Craw-  Co.  v.  Bates  Mach.  Co.,  200  111.  636, 

ford   V.   Southern  Rd.  Co.,  51  Miss,  aff'g  98  111.   App.   311,   66  N.   E.   326, 

222,  93    Am.    St.    218. 

12— Hutchinson  on   Car.   (3rd  ed.),         14— C.    &    N.    W.    Rd.    Co.    v     N 

8  226,     et    soq.;     Montgomery,     etc.,  Line  P.  Co.,  70  111.  217. 


§  1704.]  NEGLIGENCE— COMMON   CARRIERS.  1113 

gence  on  the  part  of  a  particular  carrier,  if  any,  in  whose  possession 
you  find  it  was  at  the  time  of  such  injury,  if  any,  then  as  to  that 
carrier  you  will  find  for  the  plaintitf.^^ 

§  1704.  Partnership  Between  Common  Carriers.  You  are  in- 
structed, as  a  matter  of  law,  that  where  several  carriers  by  agreement 
unite  to  complete  a  line  of  transportation,  the  freight  to  be  divided 
between  them  in  definite  proportions,  and  one  of  them  receives  goods 
for  one  freight  to  be  paid  for  the  whole  line  and  gives  a  through  bill 
of  lading,  then  each  carrier  is  the  agent  of  all  the  others,  and  each  is 
liable  for  any  damage  done  to  the  goods  on  whatever  part  of  the  line 
the  damage  is  received;  and,  in  this  case,  you  are  further  instructed 
that  the  bill  of  lading  introduced  in  evidence  recites  that  the  goods 
therein  mentioned  were  received  by  the  defendant  eoi-poration  at  C. 
to  be  carried  to  N.  Y.  (freight  to  be  paid,  etc.),  and  if  you  believe, 
from  the  evidence,  that  the  defendant  corporation  at  the  time  the 
goods  were  received  had  an  arrangement  or  agreement  (with  the  other 
common  carriers)  by  which  they  were  all  to  unite  and  form  a  com- 
pleted line  of  transportation  between  C.  and  N.  Y.,  each  of  the  con- 
necting companies  to  have  an  agreed  or  definite  part  of  the  freight 
as  between  themselves,  then  the  defendant  would  be  liable  for  any  dam- 
age or  loss  happening  to  the  goods  on  any  part  of  the  entire  route. ^^ 

§  1705.  First  Carrier  Cannot  Relieve  Himself  of  Liability  as  Com- 
mon Carrier  by  Warehousing  Goods  Without  Delivery  to  Next  Car- 
rier. The  jury  are  instructed,  that  under  the  bill  of  lading  introduced 
in  evidence  in  this  case,  the  defendant  was  bound  to  transport  the 
goods  safely  to  the  end  of  its  route,  loss  from  the  act  of  God  or  the 
public  enemies  excepted,  and  then  deliver  them  to  (next  carrier,  etc.) 
and  in  such  case  the  company  would  not  be  relieved  fi'om  its  liability 
as  a  common  carrier  bj"^  simply  unloading  the  goods  and  storing 
them  in  a  warehouse  without  delivery  to  the  next  carrier.  Whether 
the  defendant  did  unload  and  store  the  goods  or  did,  etc.,  are  ques- 
tions oi  fact  to  be  determined  by  the  jury,  from  the  evidence.' ' 

COMMON  CARRIER'S  LIABILITY  AND  EXCEPTIONS  THERETO. 

§  1706.  Liability  of  Common  Carriers  of  Goods.  The  jury  are 
instructed,  that  a  common  carrier  of  goods,  who  receives  and  uuder- 

15— Houston    &    T.    C.    R.    Co.    v.  Civ.    App.    295,    68    S.    TV.    56;    and 

Bath,   —   Tex.    Civ.    App.    — ,    90    S.  Ft.    Worth    &    D.     C.    Ry.    Co.    v. 

W.    55    (57).  Shanley,    10    Tex.    Ct.    Rep.    759,    81 

"This    is    objected    to    generally,  S.    W.   1014." 

and  is  adopted  by  appellant  as  its  16 — Hutchinson  on  Car.   (3rd  ed.), 

proposition   and   statement,   but  we  §219,  et.   seq. ;  Harp  v.  The  Grand 

fail    to    discover    any   error    in    the  Era,    1   Woods    184. 

charge.    We  think  it  is  in  keeping-  17 — Irish   v.    Milwaukee    Rd.    Co., 

with    the    rule    upon    the    question  19    Minn.    376;     Aetna    Ins.    Co.    v. 

of    burden    of    proof   as    announced  Wheeler,   49   N.    Y.    616;    Dunson   v. 

in    the   cases    of   Gulf,    Colorado   &  N.    Y.,    etc.,    R.    Co.,    3    La.vs    203; 

S.    Fe   R.    Co.    v.    Cushney,   95  Tex.  Hutchinson  on  Car.  (3rd  ed.),  §1^1, 

309,  67  S.  W.  77;  Missouri,  K.  &  T.  et    seq. 
Ry.    Company    v.    Mazzie,    29    Tex. 


1114  FORMS  OF  INSTRUCTIONS.  [§  1707. 

takes  to  carry  a  trunk,  for  one  not  a  passenger  with  such  carrier, 
is  responsible  for  the  delivery  of  the  trunk  and  its  contents,  as  against 
everything  but  the  act  of  God  or  the  public  enemies,  notwithstanding 
they  consist  of  articles  not  usually  carried  as  baggage,  unless  the 
owner  has  been  guilty  of  some  fraud  or  deception  in  relation  to  the 
contents  of  said  trunk.^^ 

§  1707.  Liable  for  All  Loss,  Except  by  Act  of  God,  etc.  The  court 
instructs  the  jury,  that  a  common  carrier  is  liable  for  all  losses  of 
goods  which  do  not  arise  from  the  act  of  God,  or  the  public  enemies; 
while  a  warehouseman  is  only  liable  for  such  losses  as  might  have 
been  guarded  against  by  the  exercise,  on  his  part,  of  ordinary  care 
and  diligence. ^^ 

§  1708.  What  is  Meant  by  Act  of  God.  (a)  By  the  term,  act  of 
God,  is  meant  superhuman — something  beyond  the  power  of  man  to 
foresee  or  guard  against.  It  means  inevitable  accident — something 
that  happens  without  the  intervention  of  man.  A  loss  by  fire  is  not  a 
loss  by  act  of  God.-*^ 

(b)  By  the  tenn,  act  of  God,  is  meant  those  events  and  accidents 
which  proceed  from  natural  causes,  and  cannot  be  anticipated  and 
guarded  against,  or  resisted;  such  as  unexampled  freshets,  violent 
storms,  lightning  and  frosts.  For  losses  occurring  by  any  of  these 
means,  a  common  carrier  is  not  liable;  provided,  he  has  not  beeto 
guilty  of  any  want  of  ordinary  and  reasonable  care  to  guard  against 
such  loss.2^ 

§  1709.  Carrier  Must  Use  Reasonable  Care  to  Avoid  Injury  by  Act 
of  God.  (a)  The  jury  are  instructed,  that  a  common  carrier  is 
bound  to  use  reasonable  care  and  diligence  to  prevent  loss  or  injury 
to  goods  intrusted  to  it,  by  what  are  termed  acts  of  God;  that  is, 
such  care  and  diligence  as  ordinarily  prudent  men  usually  exercise 
towards  their  own  property,  under  like  circumstances;  and  if  the 
carrier  do  not  use  such  care  and  diligence,  and  loss  or  damage  results 
therefrom,  he  Avill  be  liable  therefor. 

(b)  Whether,  in  this  case,  such  care  and  diligence  were  or  were  not 
used  by  the  defendant,  and  whether  any  loss  resulted  therefrom, 
are  questions  to  be  determined  by  the  jury,  in  view  of  all  the  facts 
and  circumstances  proved  on  the  trial.^- 

LIMITATION  OF  CARRIERS'  LIABnjTY  BY  CONTRACT. 

§  1710.  Legal  Duty  of  Carriers  Imposed  by  Law.  That  the  right 
conferred    upon    railroad    corporations,    in    their    charters,    to    carry 

18— Parmelee    v.    Lowitz,    74    111.  21— Michaels   v.    N.   T.    Cent.    Rd. 

116;   Hutchinson   on   Car.   (3rd   ed.),  Co.,   30  N.   Y.   564;   Parl<er  v.   Flag, 

§265,    et    soq.  26   Me.   181;   Moore  v.    Mich.    Rd.,   3 

19— St.   L,.,   A.   &  T.  H.  R.  R.   Co.  Mich.  23;   Cox  v.  Petterson,  30  Ala. 

V.  Montgomery,  39  111.  335.  608;   Chevallier  v.   Straham,   2  Tex. 

20— IIulchinHon   on   Car.   (3rd  ed.)  115. 

5  269.    et    seq.;    Mer.    Disp.    Co.    v.  22—111.   Cent.   Rd.   Co.   v.   McClel- 

Smlth,   76  in.   542.  Ian,  54  111.  58. 


§  1711.]  NEGLIGENCE— COMMON    CARRIERS.  1115 

passengers  and  property  for  compensation,  is  coupled  with  the  duty 
that  they  shall  receive  and  carry  passengers  and  freight  on  their 
roads  as  they  may  be  offered,  under  the  liabilities  and  responsibilities 
which  the  law  imposes  upon  common  carriers,  as  explained  in  their 
instructions;  and  these  liabilities  cannot  be  avoided  except  by  a 
special  agreement  to  that  effect.-^ 

§  1711.  Liability  not  Limited  by  Notice.  The  jury  are  instructed, 
that  a  common  carrier  cannot  discharge  itself  from  the  duty  to  safely 
carry  and  deliver  goods  intrusted  to  it  for  transportation,  by  notice, 
public  or  private,  of  the  terms  on  which  it  receives  or  carries  goods 
or  propert}';  to  make  such  notice  effectual,  the  shipper  must  assent  to 
its  tei'ms.^* 

§  1712.  Carriers  Can  Only  Restrict  Their  Common  Law  Liabilities 
by  Special  Contract.  The  law  is,  that  a  common  carrier  is  bound  to 
receive  and  carry  goods  offered  to  him  for  transportation,  if  in  proper 
condition  for  shiiDping,  subject  to  all  the  incidents  of  his  business  as 
a  common  carrier,  and  there  can  be  no  presumi>iion  that  the  shipper 
intended  to  abandon  any  of  his  legal  rights ;  and  the  burden  of  prov- 
ing a  contract,  by  which  his  common  law  liability,  as  explained  in 
these  instructions,  has  been  restricted,  is  upon  the  carrier.-^ 

§  1713.  Shipper  Will  Be  Presumed  to  Agree  to  Exemption  Clause, 
Wh'en.  The  court  instructs  the  jury,  that  when  a  shipper  delivers 
goods  to  a  common  carrier  to  be  transported  by  the  carrier,  and  takes 
a  receipt  for  the  goods  in  the  nature  of  a  bill  of  lading,  specifying 
in  the  body  of  it,  so  as  to  form  a  part  of  the  receipt,  the  terms  upon 
which  they  are  to  be  carried  and  delivered,  the  shipper  will  be  bound 
by  the  terms  of  the  receipt,  unless  it  appears,  by  the  evidence,  that 
some  fraud  or  imposition  was  practiced  upon  the  shipper  to  induce 
him  to  take  such  a  receipt. ^^ 

§  1714.  Same  Subject — Rule  in  Illinois — Shipper's  Assent  Must 
Be  Shown.  That  where  goods  are  received  by  a  common  carrier,  and 
a  receipt  or  a  bill  of  lading  is  given,  containing  a  clause  exempting 
the  earner  from  certain  liabilities  therein  mentioned,  such  receipt  is 
not  binding  upon  the  shipper,  unless  it  ajipears,  by  a  preponderance 
of  the  evidence,  that  he  knew  of  and  assented  to  the  exemption; 
and  whether  he  did  so  assent  is  a  question  of  fact  for  the  jury.^^ 

23— P.    &    R.    I.    Ry.    Co.    v.    Coal  M.   R.   Co.,  44  la.  424;  N.   Y.   C.   R. 

Valley,   etc.,   Co.,    68   111.   489;    Wal-  R.    Co.   v.    Lockwood,    17   Wall.    (U. 

lace    V.     Matthews,      39      Ga.      617;  S.)   357. 

Thayer  v.  St.  Louis,  etc.,  Rd.  Co.,  26— Long  v.  N.  T.  Cent.  Rd.  Co., 

22  Ind.  26.  50   N.    Y.    76;    Grace   v.    Adams,   100 

24 — Hutchinson  on  Car.   (3rd  ed.),  Mass.  505;  Hutchinson  on  Car.  (3rd 

§406;    N.     J.     Steam    Man.     Co.     v.  ed.),  §408. 

Merchants    Bank,    6    How.    (U.    S.)  Editor's     Note. — The     above     in- 

344;    McMillan    v.     Michi.?an,    etc.,  struction    would    not    be    good    in 

Rd.    Co.,    16    Mich.    79;    Blossom    v.  Illinois.     See    Hutchinson    on     Car. 

Dodd,    43     N.     Y.     264;    Verner     v.  (3rd   ed.),    §410,   and   following  sec- 

Sweitzer,  32  Penn.  St.  208.  tion. 

25— Western    T.    Co.    v.    Newhall,  27— Field   v.    C.   &   R.   I.   Rd.    Co., 

24  111.  466;  McCoy  v.  The  K.  &  D.  71  111.  458. 


1116  FORMS  OF  INSTRUCTIONS.  [§  1715. 

§  1715.  Same  Subject — Rule  in  Illinois — Acceptance  of  Receipt 
with  Full  Understanding  of  Conditions,  (a)  The  court  instructs 
the  jury,  that  if  a  shipper  take  a  receipt  for  his  goods  from  a  common 
earriei',  which  contains  conditions  limiting  the  liability  of  the  carrier, 
with  a  full  understanding  of  such  conditions,  and  intending  to  assent 
to  them,  it  becomes  his  contract  as  full  as  if  he  had  signed  it,  and  he 
will  be  bound  by  the  conditions;  but  if  a  shipper  acceiot  such  a  re- 
ceipt, because  he  has  no  alternative  but  to  receive  it,  and  not  intend- 
ing to  assent  to  the  conditions  limiting  the  liability  of  the  carrier, 
then  he  will  not  be  bound  by  such  conditions."^ 

(b)  The  court  instructs  the  jury,  that  when  a  common  carrier,  re- 
ceiving goods  for  transportation,  gives  a  receipt  for  the  goods,  con- 
taining ijrovisions  limiting  the  common  law  liability  of  the  carrier, 
other  than  those  arising  from  its  own  fault  or  negligence,  and  the 
shipper  accepts  the  receipt  with  a  full  knowledge  of  its  terms,,  and 
intends  to  assent  to  such  restrictions,  it  becomes  his  contract  as  fully 
as  if  he  had  signed  it.  But  the  simple  acceptance  of  such  a  receipt 
does  not  conclusively  bind  the  shipper;  in  order  to  bind  him,  it  must 
appear,  from  the  evidence,  that  he  had  knowledge  or  notice  of  the 
terms  of  the  receipt  and  assented  to  them.^^ 

§  1716.  Shipper  Not  Bound  by  Notice  Printed  on  Receipt.  The 
court  instructs  the  jury,  that  the  printed  notice  upon  the  (back  of 
the)  receipt,  of  the  terms  and  conditions  uj^on  which  the  defendant 
received  and  carried  the  goods  in  question,  is  not  binding  upon  the 
plaintiff,  unless  the  jury  find,  from  the  evidence,  that  his  attention 
was  particularly  called  to  that  notice  when  he  took  the  receipt,  and 
that  he  exj)ressly  assented  to  the  terms  and  conditions  therein  con- 
tained. The  fact  alone  that  the  plaintiff  accepted  the  receipt  is  no 
evidence  that  he  assented  to  the  terms  of  said  notice. ^° 

§  1717.  Requiring  Claim  for  Damages  to  Be  Presented  Within 
Specified  Time.  If  the  jury  find,  from  the  evidence,  that  when  the 
plaintiff  shipped  his  cattle  he  entered  into  a  contract  with  the  de- 
fendant for  the  shipment  of  such  cattle  to  A,  and  in  such  contract 
agreed  that  no  claim  for  damages  growing  out  of  such  shipment 
should  be  sued  for  unless  a  claim  for  such  damages  were  first  made 
in  Avriting  verified  by  affidavit  and  delivered  to  the  general  freight 
agent  of  the  defendant  at  C  within  five  days  from  the  time  the  cattle 
were  removed  from  the  car,  and  if  you  further  find  that  the  plaintiff 
did  not  make  such  demand  in  writing  verified  by  affidavit  and  deliver 
it  to  the  said  freight  agent  before  commencing  this  suit,  then  the 
plaintiff  cannot  maintain  this  suit  and  your  verdict  should  be  for 
the  defendant.^^ 

28— The  Anchor  Line  v.  Dater,  68        31 — It    was   held   reversible   error 

111.  369.  not    to    have   given    the    above    in- 

29— Adams    Ex.    v.    Haynes    Co..  struction.   B.   &   O.   S.   W.   Ry.   Co. 

42   111.    89.  v.     Ross,     105     111.     App.      54      (59); 

30— K.   &  W.  Tr.  Co.  v.  Dater,  91  Hutchinson  on  Car.   (3rd  ed.),  §442 

111.  195.  et  seq. 


§  1718.]  NEGLIGENCE— COMMON   CARRIERS.  1117 

§  1718.  Burden  on  the  Carrier  to  Show  Loss  Within  Exemption. 
"Where  goods  are  received  by  a  common  carrier,  to  be  carried  under 
the  usual  bill  of  lading,  containing  a  clause  exempting  the  carrier 
from  certain  liabilities,  other  than  those  arising  from  his  own  fault  or 
negligence,  which  are  assented  to  by  the  shipper,  and  the  goods  are 
lost  or  injured,  it  is  incumbent  upon  the  carrier  to  show  that  the  loss 
resulted  fi'om  one  of  the  causes  exceiDted  in  the  receipt,  as  explained 
in  these  instructions,  or  from  an  act  of  God,  or  the  public  enemies.^^ 

§  1719.  Must  Exercise  Reasonable  Care  to  Prevent  Loss  Within 
Exemption.  Although  the  jury  may  believe,  from  the  evidence,  that 
the  goods  in  question  were  destroyed  (by  fire),  still,  if  the  jury 
further  believe,  fi'om  the  evidence,  that  by  the  exercise  of  ordinary 
prudence  on  the  part  of  the  defendant,  or  its  servants,  such  destruc- 
tion might  have  been  prevented,  then  the  defendant  is  liable  in  this 
suit.^^ 

§  1720.  Can  Not  Restrict  Liability  Arising  from  its  Own  Negli- 
gence, (a)  The  law,  on  grounds  of  public  policy,  will  not  permit  a 
common  carrier  of  passengers  or  freight,  to  contract  against  liability 
for  its  own  actual  negligence,  or  that  of  its  servants  and  employes.^* 

(b)  The  court  instructs  the  jury,  that  although  they  may  believe, 
from  the  evidence,  that  there  was  a  special  contract  between  the 
plaintiff  and  the  defendant,  that  defendant  should  not  be  liable  for 
any  loss  or  injuiy  to  said  goods,  which  might  occur  by  reason  of 
*  *  *  still,  such  a  contract  would  not  relieve  the  defendant  from 
loss  resulting  from  negligence,  or  the  want  of  ordinary  care  and 
prudence  on  the  part  of  the  defendant,  or  its  servants. 

(c)  And  in  this  case,  if  you  believe,  from  the  evidence,  that  the 
defendant  was  guilty  of  negligence,  or  any  want  of  ordinary  care 
and  caution,  and  that  the  loss  complained  of  resulted  therefrom, 
without  any  fault  upon  the  part  of  the  plaintiff,  then  he  has  a  right 
to  recover  in  this  case.^^ 

(d)  You  are  instructed,  that  by  the  terms  of  the  receipt  intro- 
duced in  evidence  in  this  case  the  defendant  is  not  liable  for  any  loss 
or  damage  to  the  goods  in  question,  arising  from  or  caused  (by  fire) 
while  in  the  possession  of  defendants  as  common  carriers,  unless  such 
(fire),  or  loss  or  damage  was  occasioned  by  some  want  of  ordinary 
prudence  or  reasonable  care  on  the  part  of  the  defendant ;  and  although 
you  may  believe,  from  the  evidence,  that  said  goods  Avere  destroj-ed 

32— Hutchinson  on  Car.  (3rd  ed.),  Rd.  Co.,  1  Disney  (Ohio)  480;  Erie, 

§449;    Western    T.    Co.    v.    Newhall,  etc.,   Rd.  Co.  v.  Wilcox,   84  111.  239; 

24    111.    466;    Mitchell    v.    U.    S.    Ex.  Ind.,  etc.,  Rd.  Co.  v.  Allen,  31  Ind. 

Co.,    46    la.    214;    U.    S.    Ex.    Co.    v.  394;    Penn.    Rd.    Co.    v.    McCloskey, 

Graham,   26  Ohio   St.   595;   Shaw  v.  23   Penn.    St.   526;   School  Dis.,   etc., 

Gardner,  12  Gray  488.  v.  Boston,  etc.,  Rd.   Co.,  102  Mass. 

33— Hutchinson  on  Car.   (3rd  ed.),  552. 
§477;    Penn.    Rd.    Co.    v.    Fries,    87        35—111.   C.   Rd.   Co.   v.    Smyser  et 

Penn.  St.  234.  al.,   38  111.  354;   L.   &  C.   Rd.    Co.  v. 

34— Hutchinson  on  Car.   (3rd  ed.),  Brownlee,   14  Bush   (Ky.)  590. 
§450;    U.    M.    S.    Co.    v.    Ind.,    etc., 


1118  FORMS  OF  INSTRUCTIONS.  [§  1721. 

(by  fire)  while  in  the  possession  of  the  defendants,  still  the  de- 
fendant is  not  liable  therefor,  unless  you  further  believe,  from  the 
evidence,  that  the  said  defendant,  or  its  servants,  by  the  exercise  of 
ordinary  diligence  or  reasonable  care,  might  have  avoided  such  loss, 
(e)  You  are  instructed  that  a  common  carrier  is  liable  for  the 
full  value  of  goods,  if  they  are  lost  through  his  negligence,  notwith- 
standing the  bill  of  lading  provides  that  the  carrier  shall  not  be  liable 
beyond  an  amount  therein  named,  provided  it  is  understood  by  the 
parties  when  the  bill  of  lading  is  given,  that  the  sum  so  agreed  upon 
is  less  than  the  value  of  the  goods.  Whether,  in  this  case,  the  goods 
in  question  were  lost  through  the  negligence  of  the  defendant,  and 
whether  the  goods  were  worth  more  than  the  price  mentioned  in  the 
bill  of  lading,  and  whether  this  fact  was  known  to  the  defendant 
when  the  bill  of  lading  was  given,  are  all  questions  of  fact  to  be  de-" 
termined  by  you  from  the  evidence  in  the  case.^^ 

§  1721.  Burden  of  Proof.  If  goods  are  lost  or  damaged  while  in 
the  custody  of  a  common  carrier,  the  presumjotion  of  law  is  that  such 
loss  or  damage  was  occasioned  by  its  default  or  negligence,  and  the 
burden  of  proof  is  on  the  carrier  to  show  that  it  arose  from  causes 
for  which  the  carrier  was  not  responsible.^'^ 

DUTY  AS  TO  TRANSPORTATION  OF  GOODS. 

§  1722.  Must  Carry  Within  a  Reasonable  Time.  The  jury  are 
instructed,  that  when  a  railroad  company  contracts  to  forward  and 
deliver  goods  at  any  particular  point  it  is  bound  to  forward  and  de- 
liver the  goods  at  that  point  within  a  reasonable  time,  and  it  will  not 
be  released  from  its  liability  by  delivery  to  another  connecting  road; 
but  it  will  still  be  liable  for  any  unreasonable  delay,  although  the 
same  occurs  on  account  of  the  crowded  condition  of  the  connecting 
road,  or  for  any  other  cause  attributable  to  such  road.^^ 

§  1723,  Common  Carrier  Not  an  Insurer  as  to  Time  of  Trans- 
portation. A  common  carrier  of  goods  is  not  an  insurer  as  to  the 
time  at  which  the  goods  shall  arrive  at  their  destination  but  he  is 
bound  to  carry  them  to  their  destination  in  a  reasonable  time,  after 
they  are  received.^" 

§  1724.  Not  Liable  for  Delay  Caused  by  Inevitable  Accident  or 
Act  of  God.  If  delay  is  occasioned  by  an  inevitable  accident  or  an 
act  of  God,  and  loss  or  damage  results  from  such  delay  without  any 

36— U.  S.  Ex.  Co.  v.  Backman,  28  Rd.   Co.,   60  Barb.   169;   Toledo,   W. 

Ohio   St.   144.  &  W.  R.  R.  Co.  v.  Lockhart,  71  111. 

37— Hutchinson  on  Car.   (3rd  ed.),  627;   Hutchinson   on   Car.    (3rd   ed.), 

51353;      Nelson      v.      Woodruff,      1  §651. 

Black.  156;  Lindsey  v.   Chicago,  M.  39— McLaren   v.   Detroit   &   C.    R. 

&    St.    P.    R.    Co.,   36   Minn.   539,   33  Co.,  23  Wis.  138;  Parsons  v.  Hardy, 

N.  W.  7.  14  Wend.  215;   Hutchinson  on  Car. 

38— Penn.    Rd.     Co.    v.    Benz,    68  (3rd  ed.),  §  653. 
Penn.  St.  272;  King  v.  Macon,  etc., 


§  1725.]  NEGLIGENCE— COMMON   CARRIERS.  1119 

fault  on  the  part  of  the  carrier,  such  loss  or  damage  is  not  charge- 
able to  the  carrier. ■*" 

§  1725.  Not  Liable  for  Special  Damages  Unless  Notified  of  Im- 
portance of  Shipment.  The  court  instructs  the  jury  that  plaintiff 
cannot  recover  for  the  reasonable  value  of  his  gin,  or  any  other  dam- 
ages, unless  they  believe,  from  a  preponderance  of  the  evidence,  that 
the  defendant  had  notice  of  the  importance  of  the  shipment  and  of 
its  prompt  delivery  at  some  time  before  the  shipment  had  been  lost, 
or  had  been  misplaced  or  miscarried.*^ 

§  1726.  Shipping  Perishable  Property,  (a)  If  the  jury  believe, 
from  the  evidence,  that  the  fruit  in  question  was  injured  and  dam- 
aged by  being  frozen  after  it  was  received  by  the  defendant  and  while 
in  transit  to  C,  and  that  carriers  in  the  same  line  of  business  were 
at  that  time  accustomed  to  use  refrigerator  cars  for  the  purpose  of 
protecting  fruit  from  the  effects  of  the  weather,  and  that  such  injury 
or  damage  could  have  been  prevented  by  the  use  of  reasonable  and 
ordinary  care  on  the  part  of  the  defendant,  either  by  shii^ping  the 
same  in  refrigei'ator  cars  or  by  another  means  generally  known  and 
recognized  among  railroad  men  as  suitable  and  proper  for  the  purpose 
of  protecting  fruit  from  the  effects  of  the  weather,  then  the  damage 
was  not  produced  by  an  act  of  God,  within  the  meaning  of  the  law, 
and  the  defendant  would  be  liable  therefor. 

(b)  You  are  instructed,  as  a  matter  of  law,  that  where  a  common 
carrier  accepts  fruits  liable  to  be  affected  by  the  weather  for  trans- 
portation over  long  distances,  in  the  winter  season,  the  character  of 
his  employment,  independently  of  any  special  contract  to  that  effect, 
clearly  implies  that  he  will  ship  them  in  such  vehicles  or  ears  as  are 
reasonably  suitable  for  the  purpose,  and  exercise  such  care  and  dili- 
gence as  may  be  reasonably  necessaiy  for  their  safe  passage  to  their 
destination.  Whether,  in  this  case,  such  care  and  diligence  were  or 
were  not  used  by  the  defendant,  and  whether  any  loss  resulted  there- 
from, are  questions  to  be  determined  by  you  in  view  of  all  the  evi- 
dence in  the  ease.'*^ 

§  1727.  Same  Subject — Owner's  Rights  When  Perishable  Goods 
Are  Damaged  by  Carrier's  Negligent  Delay,  (a)  If  you  believe, 
from  the  evidence,  that  the  defendant,  by  the  exercise  of  reasonable 

40 — Nashville  R.    Co.   v.   David,   6  could   not   be   made   liable   for  spe- 

Heisk.    (Tenn.)    261;    R.    R.    Co.    v.  cial  or  extraordinai*y  damages  un- 

Reeves,  10  Wall.  (U.  S.)  176;  Head-  less    notice    of    the    importance    of 

ley    v.    N.    T.    Co.,    115    Mass.    304;  the  shipment  and  prompt  delivery 

Hutchinson  on  Car.  (3rd  ed.).  §  654.  had   been   made   at   some   time   be- 

41 — Am.  Exp.  Co.  v.  Jennings,  86  fore  the  shipment  had  been  lost  or 

Miss.   329,   38   So.   374.  had    been    misplaced    or     miscar- 

"This  instruction  asked  for  by  ried." 
defendant  should  have  been  given.  42 — Merchants'  D.  T.  Co.  v.  Corn- 
Defendant  was  entitled  to  even  a  forth,  3  Col.  280;  St.  L.  I.  M.  &  S. 
more  favorable  statement  of  the  R.  Co.  v.  Coolidge,  73  Ark.  112,  83 
law  than  was  contained  in  this  re-  S.  W.  333,  67  L.  R.  A.  555;  Hutch- 
fused      instruction.      Certainly      it  inson  on  Car.  (3rd  ed.),  §  649. 


1120  FORMS  OF  INSTRUCTIONS.  [§  1728. 

diligence  in  the  loading  and  shipment  of  the  (oranges)  mentioned  in 
the  bill  of  lading,  could  have  transmitted  the  same  to  theii  destina- 
tion in  a  sound  and  undamaged  condition,  and  the  jury  further  be- 
lieve, from  the  evidence,  that  said  (oranges),  or  any  part  thereof, 
an'ived  at  their  destination  in  a  damaged  and  unsound  condition  by 
reason  of  the  want  of  reasonable  care  and  diligence  on  the  part  of 
the  defendant  and  without  any  fault  or  neglect  on  the  part  of  the 
plaintiff  then  you  should  find  the  issues  in  favor  of  the  plaintiff. 

(b)  The  court  instructs  you  as  a  matter  of  law  that  where  goods 
are  damaged  'while  in  the  hands  of  a  common  carrier  through  the 
negligence  of  the  carrier,  if  they  are  only  damaged  and  are  not  ren- 
dered wholly  worthless  the  owner  is  bound  to  receive  them  and  he 
cannot  abandon  them  and  proceed  against  the  carrier  as  for  total  loss, 
but  in  such  case  the  owner  has  a  right  of  action  against  the  carrier 
for  the  depreciation  in  the  value  of  the  goods  occasioned  by  such  dam- 
age and  negligence  provided  no  fault  or  negligence  on  the  part  of  the 
plaintiff  has  contributed  to  such  loss  or  damage.^^ 

§  1728.  Same  Subject — Duty  of  Carrier  Toward  Perishable  Goods 
When  Damaged  by  Inevitable  Accident  or  Act  of  God.  If  a  carrier 
is  transporting  property  of  a  perishable  nature  and  a  delay  is  occa- 
sioned by  an  inevitable  accident  or  an  act  of  God,  he  must  use  all 
reasonable  efforts  to  avoid  all  unnecessary  damage  to  the  property 
either  by  forwarding  it  to  its  destination  by  other  means  of  convey- 
ance, or  in  some  other  way.  If  he  is  unable  to  forward  it  to  its  desti- 
nation by  the  exercise  of  reasonable  efforts  in  that  behalf  in  time  to 
avoid  a  total  loss,  he  is  justified  in  selling  the  property  for  the  best 
price  it  will  bring,  exercising  reasonable  discretion  in  that  regard; 
but,  whether,  in  this  ease,  there  was  any  unusual  delay  in  transporting 
the  goods  in  question,  and  whether  such  delay,  if  any,  was  caused  by 
inevitable  accident  and  whether  the  defendant  did  everything  that 
could  reasonably  be  done  to  avoid  damage  to  the  goods,  are  all  ques- 
tions of  fact  to  be  determined  by  the  jury,  from  the  evidence  in  the 
case.** 

§  1729.  Duties  and  Liabilities  of  Carrier  in  Transportation  of  Live 
Stock.  It  is  the  duty  of  a  railroad  company  which  undertakes  to 
carry  live  stock  for  hire,  to  exercise  all  reasonable  care,  skill  and 
judgment  to  provide  cars  of  sufficient  strength  to  prevent  the  animals 
from  breaking  through  the  same;  and  it  will  be  responsible  for  a  loss 
if  it  occurs  through  its  failure  to  exercise  such  care,  skill  and  judg- 
ment, althov;gh  the  animals  be  unruly  and  vicious.*^ 

§  1730.  What  Will  Excuse  for  Injuries  to,  or  Lack  of  Readiness  to 
Deliver,  Live  Stock.     If  a  common  carrier  receives  live  stock  to  be 

43— Shaw    V.    S.    C.    Ry.    Co.,    5  Co.  v.  Hawkins,  18  Mich.  427;   Mc- 

Rirh    462.  Daniel   v.   C.    &   N.   W.   Rd.    Co.,   24 

44— Am.  Express  Co.  v.  Smith.  33  la.  412;  Peters  v.  N.  O.  &  C.  R.  R., 

Ohio  St.  511.  16  La  Ann.  222;   O.,  etc.,  R.   R.   Co. 

45— Smith    v.    New    Haven,    etc.,  v.  Pratt,  89  U.   S.   123;   Hutchinson 

Rd.  Co.,  12  Allen  531;  Great  W.  Rd.  on  Car.  (3rd  ed.),  §634,  et  seq. 


§  1731.]  NEGLIGEXCE— COMMON   CARRIERS.  1121 

transported  from  one  point  to  another,  then  he  is  bound  to  carry  it 
safely  to  the  point  of  destination,  and  there  have  it  ready  to  deliver 
to  the  consignee  and  nothing  will  excuse  a  lack  of  readiness  to  deliver 
except  what  are  known  as  acts  of  God  or  the  public  enemy,  or  such 
accidents  as  arise  from  the  conduct,  vicious  temper  and  propensities 
of  the  animals  themselves.*^ 

§  1731.  What  Care  Required  of  Carriers  of  Live  Stock,  (a)  The 
juiy  ai'e  instructed,  that  the  carrier  of  live  stock  must  exercise  all 
reasonable  care,  skill  and  judgment  to  provide  safe  and  properly 
constructed  cars,  in  which  to  carry  the  stock — to  provide  stations  or 
stopping  places  along  the  road,  where  cattle  may  be  fed;  and  if  it 
fails  to  exercise  such  care,  skill  and  judgment,  and  loss  or  damage 
results  therefrom,  the  carrier  will  be  liable  to  the  owner  for  the  dam- 
age thus  sustained,  if  he  is  himself  free  from  fault  or  negligence  con- 
tributing to  such  injury. 

(b)  A  common  carrier  for  hire  is  bound  to  exercise  all  the  care 
and  diligence  which  prudent  and  cautious  men,  in  the  same  business, 
usually  employ,  for  the  safety  and  presei'\'ation  of  the  property  con- 
fided to  its  care;  and,  in  this  case,  if  you  believe,  from  the  evidence, 
that  the  defendant  did  not  use  all  such  reasonable  care  and  prudence 
to  provide  a  safe  and  suitable  car  for  plaintiff's  stock,  or  in  the  run- 
ning and  management  of  the  train  in  question,  and  that,  by  reason 
of  such  want  of  care  and  diligence,  plaintiff's  stock  was  injured,  as 
charged  in  the  declaration,  then  the  defendant  is  liable  for  the  result- 
ing damage  to  the  amount  proved  by  the  evidence.*'^ 

(c)  You  are  instructed  that  if  you  find  from  the  testimony  that 

said  defendant,  ,  received  the  cattle  of  plaintiff,  as  alleged,  to 

be  transported  to  T. ;  and  you  further  find  that  while  being  so  ti'ans- 
ported  some  of  said  cattle  died,  and  others  were  injured  and  damaged ; 
and  you  further  find  that  said  defendant  failed  to  transport  said 
cattle  over  its  line  of  road  within  a  reasonable  time  or  failed  to  use 
ordinary  care  in  the  handling  and  transportation  of  said  cattle;  and 
you  further  find  that  such  failure,  if  any,  was  negligence,  and  that 
such  negligence  of  said  defendant,  if  any,  was  the  proximate  cause 
of  the  injury  and  damage,  if  any,  to  plaintiff's  cattle,  then  you  are 
instructed  to  find  for  plaintiff  unless  you  find  for  defendant,  under  in- 
structions hereinafter  given  you. 

(d)  Reasonable  or  ordinaiy  care,  as  used  in  this  charge,  is  such 
care  as  would  be  exercised  by  an  ordinarily  prudent  person  under 
the  same  or  similar  circumstances.  Negligence  consists  in  a  want 
of  that  care  that  would  be  exercised  by  an  ordinarily  prudent  person 
under  like  circumstances.*^ 

46 — Maynard  v.  S.,  etc.,   Rd.  Co.,  47 — Rhodes     v.     Louisville,     etc., 

71  N.   T.  180;  Banberg  v.  J.  C.   Rd.  Rd.   Co.,    9  Bush   688. 

Co.,  9  S.   C.   61;  McCoy  v.  R.   &  D.  48— Mo.,  K.  &  T.  Ry.  Co.  v.  Chlt- 

M.    Rd.    Co.,    44   la.    424;    S.    &   Ala.  tim,  24  Tex.  Civ.  App.  599,  60  S.  W. 

Rd.  Co.  v.  Henlien,  52  Ala.  106.  284   (285). 

71 


1122  FORMS  OF  INSTRUCTIONS.  [§  1732. 

§  1732.  Essential  Elements  for  Recovery  Against  Carrier  for  Injury 
or  Damage  to  Live  Stock.  The  jury  is  instructed  that,  before  the 
plaintiif  can  recover  damages  in  any  amount  against  the  defendant, 
the  A.  B.  Company,  it  is  necessary  for  each  and  every  one  of  the 
following  facts  to  be  established  by  a  preponderance  of  the  evidence: 
(1)  That  the  iDlaintiff's  horses  were  damaged  when  they  arrived  at  G., 
over  and  above  the  injury  or  damage  that  would  necessarily  be  caused 
to  a  shipment  of  the  kind  and  character  of  horses  that  these  were, 
and  in  their  condition,  in  making  the  trip  by  rail  that  these  horses 
made.  (2)  That  if  there  was  any  damage,  that  the  same  was  caused  by 
the  negligence  of  the  said  defendants.  (3)  That  the  plaintiff  or  his 
agent  were  not  in  fault  in  looking  after  the  stock  while  in  transit, 
contributing  to  the  damage,  if  any.-*^ 

§  1733.  Duty  of  Carriers  to  Furnish  Stock  Pens  at  Point  of  Ship- 
ment. The  court  instructs  the  jury  that  it  was  the  duty  of  the  rail- 
way company  to  furnish  sufQcient  stock  pens  at  A.  to  load  such  lots 
of  cattle  as  were  ordinarily  tendered  at  that  point  for  shipment.^*^ 

§  1734.  Care  Required  of  Carriers  in  Loading  Live  Stock.  It  is 
the  duty  of  a  railway  company  to  use  ordinary  care  in  loading  of 
live  stock  to  avoid  injuring  them.  If  you  believe  from  the  evidence 
that  defendants,  or  either  of  them,  failed  to  use  ordinary  care  in  the 
loading  of  said  horses,  and  said  stock  were  injured  thereby,  and  plain- 
tiff was  thereby  damaged,  you  will  find  for  the  plaintiff  against  such 
defendant  or  defendants  failing  to  use  ordinary  care  in  loading  said 
stock.^^ 

§  1735.  Carrier  Not  Liable  for  Injuries  Due  to  Natural  Propen- 
sities or  Vice  of  Animals,  (a)  If  the  jury  believe,  from  the  evidence, 
that  the  defendant  furnished  a  suitable  ear  in  which  to  ship  the  stock 
in  question,  and  used  all  due  care  in  managing  and  transporting  the 
same,  and  that  the  injury  complained  of  was  caused  by  the  peculiar 
character  of  the  animals  themselves,  such  as  bad  temper,  unusual 
restiveness  or  viciousness,  then  the  defendant  is  not  liable  in  this 
case.^^ 

(b)  You  are  instructed  that  the  plaintiff  can  recover  nothing  for 
so  much,  if  any,  of  the  damage,  if  any,  to  his  stock  as  may  have 
been  caused  by  the  inherent  vice  of  said  stock,  or  by  their  natural 
character  and  condition,  or  by  treatment  to  which  they  had  been  sub- 
jected before  being  loaded,  or  on  account  of  being  overloaded,  if  they 
were  overloaded,  or  by  the  usual  and  ordinary  course  of  their  trans- 
portation by  rail  without  negligence  on  the  part  of  the  railroad  com- 
pany or  companies;  and  in  making  up  your  verdict  you  will  allow 

49— St.  Louis,  I.  M.  &  S.  Ry.  Co.     Dolan,    Tex.    Civ.    App.    , 

V.   Berry,  Tex.   Civ.  App.  ,  85  S.  W.  302  (303). 

93    S.    W.    1107   (1109).  52— Hutchinson   on  Car.   (3rd  ed.), 

50— Texii.s  &  P.   Ry.   Co.   v.  Fam-  §336,   et  scq.;  Smitli  v.   N.   H.,  etc., 

brough,    Tex.    Civ.    App.    ,  Rd.    Co.,    12    Allen    531;    Evans    v. 

55  S.   W.   188,  189.  Pltchburg,  etc.,  Rd.   Co.,  Ill  Mass. 

51— San   An.    &  A.   P.   Ry.   Co.   v.  142. 


§  1736.]  NEGLIGENCE— COMMON   CARRIERS.  1123 

plaintiff  nothing  for  any  damage  which  you  may  believe,  from  the 
evidence,  was  caused  by  the  inherent  vice  of  said  stock,  or  by  their 
natural  character  and  condition,  or  by  the  treatment  to  which  they 
had  been  subjected  before  being  loaded,  or  on  account  of  being  over- 
loaded, if  you  find  they  were  overloaded,  or  by  the  usual  and  ordi- 
nary course  of  their  transportation  by  rail,  without  negligence  on  the 
part  of  the  railroad  comjDany  or  companies. ^^ 

(e)  If  the  stock,  before  they  were  loaded,  were  in  bad  condition, 
by  being  fed  on  cotton-seed  meal  and  hulls,  or  from  any  other  cause, 
and  if  this  affected  them  so  they  could  not  stand  up,  and  this  was  the 
cause  of  their  injury  and  death,  then  the  plaintiff  could  not  recover.-^* 

(d)  If  you  find  that  the  train  was  at  any  time  left  standing  while 
en  route,  and  the  cattle  injured  themselves  by  fighting  and  moving 
about,  then  in  order  for  j^laintiffs  to  recover  for  injuries  sustained 
by  the  cattle  by  fighting  and  moving  about  while  the  train  was  stand- 
ing, it  devolves  upon  the  plaintiffs  to  show  that  the  train  was  stand- 
ing an  unusual  length  of  time,  and  that  the  train  was  standing  by 
reason  of  the  negligence  of  the  defendant  or  its  agents,  and  that  the 
cattle  would  not  have  been  so  injured  but  for  such  negligence,  and 
that  the  acts  of  the  cattle  were  such  as  are  the  ordinary  acts  of 
cattle  under  the  same  circumstances,  and  that  the  defendant  or  its 
agents  knew  of  such  actions  of  cattle,  or  could  have  known  bj'  ordi- 
nary care  and  diligence;  and  if  you  fail  to  so  find  in  this  case,  the 
plaintiffs  cannot  recover  for  injuries  received  by  the  cattle  in  fighting 
and  moving  about. ^^ 

§  1736.  Care  Required  of  Carriers  of  Hogs,  (a)  That  when  hogs 
are  shipped  in  railroad  ears  at  a  season  of  the  year  Avhen,  for  their 
proper  care  and  treatment,  it  is  necessary  to  apply  water  to  prevent 
them  fz'om  being  suffocated  or  overheated,  then  it  is  the  duty  of  the 
railroad  company  to  have  proper  stations  and  appliances  for  furnish- 
ing such  water,  and  to  so  run  and  manage  its  trains  as  to  afford  rea- 
sonable opportunities  to  the  persons  in  charge  of  the  stock  to  apply 
such  water,  and  if  it  does  not  exercise  such  care,  skill  and  judgment, 
and  loss  or  damage  to  the  stock  results  therefrom,  the  earner  will  be 
liable  to  the  owner  for  the  damage  thus  sustained;  provided,  he  is 
himself  free  from  fault  or  negligence  contributing  to  such  injury.^® 

(b)  In  the  transporting  of  the  hogs  in  question  the  defendant  was 
a  common  carrier,  and,  as  such,  was  bound  to  use  all  care  and  pre- 
caution for  their  safety,  while  in  transit,  so  far  as  human  vigilance 
and  foresight  and  care  would  go.  It  was  an  insurer  of  the  property, 
except  in  resiDeet  to  such  injuries  as  may  or  might  unavoidably  result 
from  the  essential  nature  of  the  property  itself,  the  nature  and  pro- 

53— Houston    &    T.    C.    R.    Co.    v.  55— Texas  &  P.  Ry.   Co.  v.   Fam- 

Gray,  Tex.    Civ.   App.   ,   85     broug-h,    Tex.    Civ.    App.    , 

S.    W.    838    (841).  55   S.   W.   188  (189). 

54— Felton  v.  Clarkson,  103  Tenn.  56— Toledo,      etc.,      Rd.      Co.      v. 

457,  53   S.  W.  733  (734).  Thompson,  71  111.  434. 


1124  FORilS  OF  INSTRUCTIONS.  [§  1737. 

pensity  of  the  hogs,  and  their  capacity   to  inflict  injury  upon  each 
other. 

(c)  In  this  case,  unless  you  find  that  these  hogs  died  from  some 
inherent  want  of  vitality,  or  by  reason  of  their  inflicting  injuries 
upon  each  other,  or  by  inevitable  accident,  the  defendant  company  is 
liable;  and,  if  it  would  escape  liability  the  burden  of  proof  is  upon 
it  to  show  that  the  hogs  died  from  some  other  cause  than  its  negli- 
gence. In  the  absence  of  such  proof,  the  law  presumes  negligence, 
and  that  such  negligence  caused  the  death  of  these  hogs.  In  other 
words,  the  defendant,  in  order  to  escape  liability  in  this  action,  must 
prove  to  your  satisfaction,  by  a  preponderance  of  the  evidence,  that 
the  death  of  the  hogs  was  the  result  of  some  other  cause  than  its 
negligence,  or  the  negligence  of  its  employes  or  train  men.^" 

§  1737.  Failure  of  Shipper  to  Properly  Care  for  Live  Stock  When 
He  Has  Contracted  to  Do  So.  The  testimonj^,  without  conflict,  affir- 
matively shows  that  the  cattle  in  question  were  transported  from  L  to 
W,  under  special  contracts  in  writing,  one  made  and  entered  into  be- 
tween plaintiff  and  the  defendant,  H.  Co.,  providing  for  the  trans- 
portation of  said  cattle  from  L  to  E,  and  there  to  be  delivered  to  its 
next  connecting  carrier,  the  M.  Ry.  Co. ;  and  the  other  made  and  en- 
tered into  between  the  M.  Ry.  Co.  and  the  plaintiff  at  E,  providing  for 
the  further  transportation  and  shipment  of  said  cattle  from  said  E 
station,  over  the  line  of  said  road  of  the  said  M.  Ry.  Co.  and  of  the 
M.  K.  &  T.  Ry.  Co.  to  W,  providing  in  terms  that  the  plaintiff  in  per- 
son, or  by  his  agent  or  agents,  should  accompany  the  stock,  load, 
unload,  and  reload  the  same  and  feed  and  water  the  same  en  route; 
and  if,  from  the  evidence,  you  believe  the  cattle  were  in  a  drawn  and 
enfeebled  condition  when  they  reached  their  destination,  and  that  such 
condition,  in  whole  or  in  part,  was  attributable  to  the  failure,  if  any, 
of  the  plaintiff  to  properly  care  for,  feed  and  water,  and  to  load,  un- 
load and  reload  the  said  cattle,  then  you  are  instructed  that  the  plain- 
tiff cannot  recover  for  any  damage  or  injury  which  may  have  resulted 
from  said  failure,  if  any.^^ 

§  1738.  Degree  of  Care  Required  to  Avoid  Delay,  (a)  The  jury 
are  instructed,  that  the  carrier  of  live  stock  for  pay  must  exercise 
reasonable  diligence  in  the  business,  and  complete  the  journey  within 
a  reasonable  time,  and  if  he  does  not  do  so,  and  the  stock  is  injured 
by  the  delay,  the  carrier  will  be  liable  to  be  owner  for  all  damage 
caused  by  such  delay.^^ 

(b)  The  court  instructs  the  jury  that  what  would  be  an  unreason- 
able delay  in  forwarding  and  transporting  said  cattle,  or  what  would 
be  a  reasonable  time  within  which  said  cattle  should  have  been  trans- 

57— I>indsley  v.  Chicago,  M.  &  St.     Gray,    Tex.     Civ.     App.    , 

P.  R.  Co..  36  Minn.  5?.9,  33  N.  W.  6     85  S.  W.  838  (842). 

(8).   1    Am.   St.   Rep.   692.  59— Tucker  v.   Pacific   Rd.   Co.,   50 

68— Houston    &    T.    C.    R.    Co.   v.     Mo.    385;    Sisson    v.    Cleveland,    14 

Mich.   489. 


§1739.]  NEGLIGENCE— COMMON   CARRIERS.  1125 

ported,   are  purely  questions  of  fact   for  your   exclusive   determina- 
tion from  all  the  facts  and  circumstances  in  evidence  before  you.®*^ 

DELIVERY  BY  CARRIERS. 

§  1739.  Railroad  Companies  are  not  Bound  to  Deliver  to  Consignee 
Personally.  The  court  instructs  the  jury,  that  I'ailroad  companies 
are  not  bound  to  deliver  goods  carried  by  them  to  the  consignee  jDer- 
sonally.  When  the  goods  have  reached  their  destination,  and  the  con- 
signee is  not  present  to  receive  them,  then  the  carrier  may  store  them 
in  a  suitable  warehouse,  and  when  the  goods  are  thus  stored,  the  duty 
and  liability  of  the  company  as  a  common  carrier  is  terminated,  and 
that  of  the  warehouseman  begins.''^ 

§  1740.  Rule  as  to  Delivery  by  Railroads  in  Georgia,  Illinois,  In- 
diana, Iowa,  Massachusetts,  North  Carolina,  Pennsylvania  and  South 
Carolina.  The  court  instructs  the  jury,  that  railroad  companies  must 
deliver  the  goods  shipped  by  them  to  the  owner  or  consignee  at  the 
point  of  destination,  or  store  the  goods,  subject  to  the  order  of  the 
consignee ;  and  they  cannot  relieve  themselves  from  their  liabilities  as 
common  carriers  until  the  goods  are  delivered  to  the  owner  or  con- 
signee, or  till  they  are  placed  in  a  warehouse  for  safe  keeping;  and 
there  must  be  some  open,  distinct  act  of  delivery  to  a  wai^ehouse  in 
order  to  change  the  liability  from  that  of  a  common  carrier  to  that 
of  a  warehouseman,  and  the  proof  of  this  change  rests  on  the  carrier. 
The  liability  of  a  common  carrier  will  continue  until  a  different  lia- 
bility attaches  on  the  part  of  some  one.**- 

§  1741.  Rule  as  to  Delivery  by  Railroads  in  Alabama,  Arkansas, 
Kansas,  Kentucky,  Louisiana,  New  Hampshire,  Vermont,  West  Vir- 
ginia and  Wisconsin.  Although  you  may  believe  from  the  evidence 
that  the  goods  in  question  were  safely  carried  by  the  defendant  to  S. 
and  there  unloaded  and  safely  deposited  in  a  reasonably  safe  ware- 
house and  Avere  afterwards  burned  (or  stolen)  without  any  negligence 
on  the  part  of  defendant  still  the  defendant  would  be  liable  as  a  com- 
mon carrier  for  the  loss  of  the  goods  as  explained  in  the  instructions 
upon  that  point,  provided  you  further  believe  from  the  evidence  that 
the  goods  were  burned  (or  stolen)  before  the  plaintiff  had  had  notice 
of  their  arrival  and  before  he  could,  by  the  use  of  ordinary  and  rea- 
sonable diligence,  have  learned  of  the  arrival  of  the  goods  and  have 
had  a  reasonable  time  in  which  to  remove  them.''^ 

§  1742.  If  Goods  are  not  Delivered  to  Consignee,  They  Must  be 
Stored,    (a)    If  the  jury  believe,  from  the  evidence,  that  the  goods  of 

60— Texas  &  P.   Ry.  Co.  v.   Smis-  62— C.  &  R.  I.  Rd.  Co.  v.  Warren, 

sen,    31    Tex.    Civ.    App.    549,    73    S.  16  111.  502;  Francis  v.  D.  &  S.  City 

W.  42.  Rd.    Co.,   25    la.    60;   Hutchinson    on 

61— Chicago     &    A.     Rd.     Co.      v.  Car.    (3rd    ed.),    §  702. 

Scott.    42   111.    121;    Jarrett   v.    Rail-  63— Wood     v.     Crocker,     18     Wis. 

way    Co.,    74    Minn.    477,    77    N.    W.  345;  Ala.  &  Tenn.  Rd.  Co.  v.  Kidd, 

304.  35  Ala.  209;  Moses  v.  Boston  &  Me. 


1126,  FORMS   OF  INSTRUCTIONS.  [§  1743. 

the  plaintiff  were  carried  by  the  defendant  to  their  destination,  and 
not  then  and  there  delivered  to  the  plaintiff,  or  to  some  one  for  him, 
by  reason  of  there  being-  no  one  there  to  receive  them,  or  for  any 
other  cause  not  the  fault  of  the  plaintiff,  then  it  was  the  duty  of  the 
defendant  to  store  the  goods  in  an  ordinarily  safe  warehouse. 

(b)  You  are  instructed,  that  it  is  the  duty  of  a  carrier  of  goods, 
when  the  goods  have  arrived  at  the  place  of  destination,  to  unload 
and  place  them  in  a  convenient  place  for  delivery,  and  if  the  con- 
signee is  there  ready  to  receive  them,  to  deliver  them  to  him;  but  if 
he  is  not  there,  the  carrier  must  store  them  in  a  reasonably  safe  ware- 
house, or  i^laee  them  under  the  charge  of  competent  and  careful  serv- 
ants, ready  to  be  delivered  when  called  for  by  those  entitled  to  receive 
them;  and  if  the  carrier  fails  to  do  this,  and  the  goods  are  thereby 
lost  or  injured,  the  carrier  will  be  liable  to  the  owner  for  such  loss 
or  injury.*'* 

§  1743.     Duty  and  Liability  of  Express  Companies,    (a)    That  an 

express  comj)any,  as  a  common  carrier,  is  not  only  required  to  trans- 
port the  goods  to  the  place  of  destination,  but  the  further  duty  is  en- 
joined upon  it  to  deliver  the  goods  to  the  consignee,  at  his  residence 
or  place  of  business,  if,  with  the  exercise  of  reasonable  care  and 
effox'ts  in  that  behalf,  such  residence  or  place  of  business  can  be 
found. 

(b)  The  court  further  instructs  you  that  where  goods  transported 
by  an  express  company  are  by  it  tendered  to  the  consignee,  and  he 
fails  to  receive  and  pay  for  them,  it  is  the  duty  of  the  express  com- 
pany to  so  notify  the  consignor,  and  when  this  is  done,  the  company 
is  relieved  of  its  responsibility  as  a  common  carrier,  and  holds  the 
goods  as  a  warehouseman,  subject  to  the  order  of  the  consignor,  and, 
not  before. 

(c)  The  court  further  instructs  you,  as  a  matter  of  law,  that  an 
express  company  can  discharge  itself  of  responsibility,  as  a  common 
carrier,  in  no  other  way  than  by  an  actual  delivery  of  the  goods  to  the 
proper  person,  at  his  residence  or  place  of  business,  when,  with  rea- 
sonable efforts,  these  can  be  found,  except  by  proving  that  the  com- 
pany has  been  excused  from  so  doing,  or  prevented  by  an  act  of  God, 
or  the  public  enemy.^^ 

(d)  It  is  the  duty  of  an  express  company,  upon  receiving  a  pack- 
age of  money  to  be  forwarded,  to  safely  caiTy  and  deliver  it  to  the 
consignee,  and  the  only  way  it  can  relieve  itself  from  this  responsibil- 
ity is  by  showing  performance,  or  its  prevention  by  the  act  of  God,  or 
a  public  enemy.  And  in  this  case,  if  you  believe,  from  the  evidence, 
that  the  defendant,  at  the  time  in  question,  was  a  common  carrier, 

Rd.   Co.,  32  N.  H.   523;  Hutchinson  55;    Hutchinson   on    Car.    (3rd   ed.), 

on   Car.   (3rd  ed.),  §  704.  §  714. 

64 — Cahii    v.    Mich.    Cent.    R.    R.  65— Am.  Merchants  U.  Ex.  Co.  v. 

Co..   71   111.   96;   Mechanic's  Bank  v.  Wolf,     79     111.     430;     Stadhecker    v. 

Trans.  Co..  23  Vt.  211;  New  Albany  Combs,   9  Rich   (S.   C.)  193;   Hutch- 

&  S.   Rd.   Co.  v.   Campbell,  12  Ind.  inson  on  Car.  (3rd  ed.),  §  716  et  seq. 


§  1744.]  NEGLIGENCE— COMMON   CARRIERS.  1127 

and  as  such  received  the  money  in  question,  to  be  carried  and  de- 
livered to  the  plaintiff  at  K.,  and  that  the  defendant  delivered  said 
money  to  one  E.,  on  a  writing  purporting  to  be  an  order  of  the  plain- 
tiff, and  that  said  order  was  a  forgery,  then  such  delivery  will  not 
excuse  the  defendant,  and  the  plaintiff  is  entitled  to  recover  the 
amount  of  said  money.^® 

§  1744.  Care  Rectuired  of  Warehousemen,  (a)  The  jury  are  fur- 
ther instructed,  that  when  the  carxier  assumes  the  duty  of  ware- 
houseman, he  is  bound  to  use  ordinary  care  and  diligence  in  the  pres- 
ervation of  the  property.  The  building  in  which  the  goods  are  stored 
must  be  a  reasonably  safe  one,  and  under  the  charge  of  careful  and 
competent  sei'i'ants. 

(b)  And  if  you  further  believe,  from  the  evidence,  that  after  the 
goods  arrived  at  their  destination,  and  after  a  reasonable  time  for  the 
consignee  to  call  for  and  receive  the  same,  the  defendant  retained 
possession  of  them,  such  possession  would  be  in  the  capacity  of  a 
warehouse  keeper  of  goods  for  hire,  and  as  such  warehouseman,  the 
defendant  was  bound  to  use  all  ordinary  diligence  and  caution  in  the 
care  of  the  same.*^^ 

(c)  That  the  ordinary  diligence  or  care  which  a  warehouseman 
is  bound  to  use,  is  that  degree  of  care  and  attention  which,  under  the 
same  circumstances,  a  man  of  ordinaiy  pmdence  and  discretion  would 
ordinarily  use  in  reference  to  the  particular  goods,  if  they  were  his 
own  property..^* 

§  1745.  What  is  Ordinary  Diligence  and  Care.  That  ordinaiy  dili- 
gence is  such  diligence  as  men  of  common  prudence  usually  exercise 
about  their  own  affairs;  and  ordinaiy  care  is  such  care  as  an  ordi- 
narily prudent  person  usually  takes  of  his  own  goods.*'^ 

RIGHTS  OF  THE  CARRIER. 

§  1746.  Suit  by  Carrier  for  Freight  and  Charges.  If  the  jury  be- 
lieve, from  the  evidence,  that  at  the  time  in  question  the  plaintiff 
was  a  common  carrier,  and  in  the  ordinary  course  of  business  received 
the  goods  in  question,  in  the  proper  line  of  transit,  and  paid  freight 
and  charges  thereon  to  preceding  carriers  or  warehousemen,  then 
the  plaintiff  is  entitled  to  reasonable  charges  for  the  transportation 
of  said  goods,  besides  the  amount  so  paid  to  others,  although  the  jury 
may  believe,  from  the  evidence,  that  said  goods  were  damaged  before 
they  reached  the  plaintiff,  while  in  the  hands  of  some  prior  carrier; 
provided  the  juiy  further  believe,  from  the  evidence,  that  said  goods 
were  not  injured  after  coming  to  the  hands  of  plaintiff. ''" 

66— Am.  M.  U.  Ex.  Co.  v.  Milk,  69— C.  &  A.  Rd.  Co.  v.  Scott,  42 
73  111.   224.  111.    132. 

67— Chi.,  R.  I.  &  P.  Rd.  Co.  v.  70— Bissell  v.  Price,  16  111.  408;  C. 
Faircloug-h,  52  111.  106.  &   N.   W.   Rd.    Co.   v.    N.   W.   U.    P. 

68— Mote  v.  C.   &  N.  W.  Rd.  Co.,     Co.,  38  la.   377. 

27    la.    22;    Francis    v.    D.  &    S.    C. 
Rd.  Co.,  25  la.  60. 


CHAPTER  LXVIII. 


NEGLIGENCE— RAILROADS— PASSENGER   CARRIERS. 

See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


IN  GENERAL, 

§  1747.  Degree  of  care  required  of 
carriers  of  passengers — 
Varying  statements  of  dif- 
ferent courts. 

§  1748.  Carrier  not  an  insurer 
against   accidents. 

§  1749.  The  passenger  talies  all  the 
risks  (necessarily  incident 
to  the  mode  of  convey- 
ance. 

§  1750.  Riding  on  freight  or  mixed 
trains — Risks  assumed  by 
passenger. 

§  1751.  Liability  of  connecting  lines 
for  accidents  on  one  an- 
other's lines. 

TEESPASSERS    AND    PERSONS    NOW  PAS- 
SENGERS. 

§  1752.  Degree  of  care  due  tres- 
passer. 

5  1753.  Care  due  persons  coming  to 
train  to  aid  or  assist  pas- 
sengers. 

THE  PASSENGER  RELATION. 

S  1754.  Payment  of  fare — As  condi- 
tion precedent  to  estab- 
lishing passeugership  rela- 
tion. 

5 1755.  Passenger   relation   need   not 

'be  specifically  mentioned 
in  instruction — When  in- 
jury "alleged  in  declara- 
tion"   is   sufficient. 

5 1756.  When     relation     of     carrier 

and  passenger  ends. 

STATIONAL  FACILITIES. 

5 1757.  Degree   of   care   required   as 

to    statlonal   facilities. 

51758.  Passenger  using   dilapidated 

or   unsafe   platform. 


ROADBED    AND    TRACK. 


Of 


81759.  Liability     for     condition 
roadbed    and    track. 

!  1760.  Derailment  through  em- 
bankment giving  way — 
Measure  of  care  as  to 
bridges  and  culverts. 

9  1761.  Injury  to  passenprer  through 
obstruction  near  or  on 
track. 

11 


CARS    AND    APPLIANCES. 

§  1762.  Liability  as  to  cars  and  ap- 
pliances. 

§  1763.  Failure  to  properly  heat  car. 

§  1764.  Furnishing  filthy  or  unfit 
car — Rule  in  Texas  as  to 
measure   of   damages. 

§  1765.  Riding  on  loaded  freight 
cars  belonging  to  another 
carrier — Duty  of  carrier 
furnishing  motive  power 
as  to  inspection  of  ve- 
hicles used. 

§  1766.  Liability  for  defective  coup- 
ling. 

§  1767.  Use  of  spark  arresters  on 
engines. 

SERVANTS. 

§  1768.  Responsibility  of  carrier  for 
negligence  or  wrongful 
conduct   of  servants. 

§  1769.  Negligence  in  writing  date 
on  pass  no  excuse  for  as- 
sault by  conductor. 

MANAGEMENT  AND  OPERATION  OF 
CARS  AND  VEHICLES. 

§  1770.  Duty  to  run  trains  accord- 
ing to  schedules — Damages 
— Burden  of  proof. 

§  1771.  Wlhen  delay  is  presumptive- 
ly  negligent. 

§  1772.  Freight  trains  not  required 
to  stop  at  platforms  to 
receive  or  discharge  pas- 
sengers. 

§  1773.  Negligently  starting  train 
while  passenger  is  getting 
on. 

§  1774.  No  obligation  to  stop  train 
after  starting  to  permit 
passenger  to  board  it. 

§  1775.  Boarding  train  at  place 
where  stop  is  required  by 
statute — Effect   of    usage. 

§  1776.  Duty  to  give  notice  of  ar- 
rival  at  stations. 

§  1777.  Duty  to  announce  stations — 
Passenger  negligently  fail- 
ing to  hear  announcement. 


NEGLIGENCE— PASSENGER  CARRIERS. 


1129 


§  1778.  Effect  of  conductor's  prom- 
ise to  come  for  passengers 
at  destination — Carrying 
passengers  past  destina- 
tion. 

§  1779.  Duty  to  stop  a  reasonable 
time  for  passengers  to 
alight. 

5 1780.  Degree  of  care  required  of 
carrier  wiiile  passenger  is 
alighting. 

§  1781.  Starting  train  while  passen- 
ger  is   in   act   of  alighting. 

§1782.  Fall  while  alighting  must 
be  due  to  negligence  of 
carrier,  or  his  servants,  to 
render    carrier    liable. 

i  1783.  Getting  off  train  while  in 
motion — Obeying  directions 
of  sleeping  car  porter. 

!  1784.  Obeying  directions  of  con- 
ductor in  alighting  from 
train. 

§  1785.  Conductor  pulling  passen- 
ger from  train  while  in 
motion. 

§1786.  Effect  of  agreement  with 
conductor  to  check  speed 
of  train  in  order  that  pas- 
sengers   might    alight. 

§1787.  Failure  to  warn  passenger 
of  danger  in  alighting. 

!  1788.  Stopping  at  suitable  place 
for  passenger  to  alight. 

§  1789.  Furnishing  passenger  safe 
means    for    alighting. 

§  1790.  Helping   passengers  to  alight. 

§  1791.  Injury  to  passenger  by  hav- 
ing dress  stepped  on  while 
alighting. 

5  1792.  Stopping  train  a  reasonable 
time  for  refreshments. 

5 1793.  Duty  as  to  operation  of 
stock  trains  carrying  pas- 
sengers. 

§  1794.  Injury  to  stockman  by  jerk- 
ing or  jolting  car  M-hile 
properly  tending  his  stock. 

5  1795.  Injury  to  passenger  through 
collision. 

§  1796.  Collision  prima  facie  negli- 
gence. 

§  1797.  Derailment  of  car  prima 
facie   negligence. 

§1798.  Care  due  passenger  while 
train  is   being   switched. 

PEOTECTION     OF     PASSENGER      BY 
CARRIER. 

§  1799.  Duty  of  conductor  to  pro- 
tect female  passenger  from 
vulgarity  and   obscenity. 

COXTRinrXORY    XEGLIGEXCE. 

§  1800.  Contributory    negligence     of 

passenger. 
§  1801.  Ordinary  care  and  prudence 

required    of   passenger. 


§  1802.  Riding  upon  engine  right- 
fully at  invitation  of  con- 
ductor. 

§  1803.  Alighting  from  train  en- 
cumbered by  grips  and  va- 
lises. 

§  1804.  Passenger  stumbling  or 
falling  while  alighting. 

§  1805.  Boarding  moving  train. 

§  1806.  Getting   off  moving  train. 

§  1807.  Jumping  off  moving  train 
after  sufficient  time  to 
alight    has   been   given. 

§  1808.  Effect  of  direction  of  car- 
rier's servant  to  passenger 
to  get   off   moving  train. 

§  1809.  Effect  of  direction  of  car- 
rier's servant  to  passenger 
not  to  get  off  moving  train. 

§  1810.  Effect  of  carrier's  discovery 
of  passenger's  peril  in  time 
to  avoid  consequences  of 
passengers  contributory 
negligence. 

§  1811.  Jumping  from  the  cars 
negligence,   when. 

§  1812.  Jumping  from  moving  train 
when  suddenly  placed  in 
a  perilous  position  by 
carrier. 

§  1813.  Contributory  negligence  of 
shipper  of  live  stock  in 
riding  on  engine. 

§  1814.  Jumping  from  train  on  see- 
ing another  train  approach- 
ing. 

§  1815.  Live  stock  shipper  remain- 
ing in  car  with  stock  when 
he  knows  his  position  is 
perilous. 

§  1816.  Standing  on  platform  of  car. 

§  1817.  Passing  from  car  to  car 
while  train  is  in  motion. 

§  1818.  Duty  of  passenger  to  miti- 
gate injuries  as  far  as 
possible. 

RULES   AXD   REGULATIOXS   OF 
CARRIERS. 

§  1819.  Right   to   prescribe   rules. 

§  1820.  Carrier  may  set  apart  separ- 
ate cars  for  ladies. 

§  1821.  When  carriers  may  refuse  to 
receive  intoxicated  per- 
sons as  passengers. 

TICKETS. 

§  1822.  When  representations  of 
ticket  agent  are  binding 
on  carrier. 

§  1823.  Requiring  higher  fare  when 
paid  on  train. 

§  1824.  Validation  of  reduced  rate 
round  trip  tickets  at  des- 
tination by  identification 
and    stamping. 

§  1825.  Effect  of  purchaser  signing 
a  round-trip  ticket. 


1130 


FORMS  OF  INSTRUCTIONS. 


[§  1747. 


LIMITATION   OF   LIABILITY. 

§  1826.  Limitation        of        liability- 
Existence     of     contract     a 
question    of    fact    for    the 
jury. 
EJECTION    OF    PASSENGERS. 

§  1827.  CaiTier  may  eject  person 
refusing-  to  produce  a 
ticket  or  pay  his  fare. 

§  1828.  Carrier  may  eject  passenger 
using  abusive  or  obscene 
language. 

§  1829.  Right  of  conductor  to  eject 
passenger  using  obscene  or 
abusive  language — Rule  in 
Alabama, 

§  1830.  Injuries  to  passengers 
brought  on  by  refusal  to 
leave  train  when  ordered 
by   conductor. 

§  1831.  Ejection  of  passenger  from 
train  while  in  motion. 

BAGGAGE. 

§  1832.  Liability  for  baggage. 

§  1833.  What  term  "baggage"  does 
noit  extend  to. 

§  1834.  If  a  trunk  contains  articles 
of  special  value,  carrier 
should   be  notified. 


§  1835.  Carrier  not  bound  to  inquire 
as  to  contents  of  trunk. 

§  1836.  Baggage — Liability  of  car- 
rier for  terminates,  when. 

SLEEPING     CAK    COMPANIES. 
§  1837.  Care    due    property    of    pas- 
senger     by      sleeping      car 
company. 

§  1838.  Liability  of  sleeping  car 
company  for  theft  of  pas- 
senger's  diamond. 

BURDEN  OF  PROOF. 

§  1839.  Rule  in  Georgia  as  to  burden 
of  proof  when  fact  that 
plaintiff  was  a  passenger 
is  shown. 

§  1840.  Burden  of  proof  where  negli- 
gence is  shown  in  con- 
struction, operation  or 
maintenance  of  rolling 
stock    or    roadbed. 

§  1841.  Burden  of  proof  as  to  condi- 
tion in  passenger's  tickets. 

ELEVATORS. 

§  1842.  Injury  to  passenger  through 
fall  of  elevator. 


This  chapter  does  not  include  instructions  relative  to  street  rail- 
roads as  carriers  of  passengers.  For  such  instructions  see  chapter  on 
NEGLIGENCE!— STREET     RAILROADS. 

IN  GENERAL. 

§  1747.    Degree  of  Care  Required  of  Carriers  of  Passengers,    (a) 

The  jury  are  instructed,  as  a  matter  of  law,  that  it  is  the  duty  of  a 
railroad  company  to  use  the  highest  degree  of  care  and  caution,  con- 
sistent with  the  praotical  operation  of  the  road,  to  provide  for  the 
safety  and  security  of  the  passenger  while  being  transported.^ 

(b)  The  jury  are  instructed  that  common  carriers  of  persons  are 
required  to  do  all  that  human  care,  vigilance  and  foresight  can  reason- 
ably do,  in  view  of  the  character  and  mode  of  conveyance  adopted,  to 
prevent  accidents  to  passengers.^ 


1— Chicago   C.    Ry.   Co.  v.  Pural, 

224   Til.    324.   79   N.    E.    686   (688). 

"The  point  is  made  that  the  word 
'reasonably'  should  have  been  in- 
serted before  the  word  'consistent.' 
We  do  not  think  such  qualification 
necessary  to  a  proper  presentation 
to  the  jury  of  the  law  as  to  the 
duty  of  the  carrier  to  its  passenger. 
To  be  consistent  with  the  practical 
operation  of  the  road  means  in 
harmony  with  sudh  operation,  and 
we  fail  to  see  that  there  could  be 
degrees  of  harmony  or  consistency 
in  the  practical  operation  of  a 
railroad.  Anything  required  not 
consistent  with  the  practical  opera- 


tion of  its  road  would  be  unreason- 
able. The  word  'practical'  in  the 
instruction  is  a  full  and  sufficient 
qualification,  and  the  word  'rea- 
sonably' would  have  added  no 
other  element  for  the  consideration 
of  the  jury.  An  instruction  nearly 
identical  with  the  one  here  set 
out,  and  clearly  open  to  the  objec- 
tion ihere  taken,  was  approved  by 
this  court  in  West  Chi.  St.  R.  R. 
Co.  v.  Kronshinsky,  185  111.  92,  56 
N.  E.  110." 

2— Larkin  v.  Chicago  &  G.  W. 
Ry.  Co.,  118  Iowa  652,  92  N.  W.  891; 
H.  &  St.  J.  R.  R.  Co.  V.  Martin, 
111    111.    219. 


§  1747.]  NEGLIGENCE— PASSENGER  CARRIERS. 


113] 


(c)  The  utmost  degree  of  care  wliieb  tlie  human  mind  is  capable 
of  inventing  is  not  required,  but  the  highest  degree  of  care  and  dili- 
gence which  is  reasonabW  jDraeticable,  under  the  circumstances  of  the 
case,  is  required.^ 

(d)  You  are  instructed,  that  the  law  imposes  upon  common  car- 
riers of  iDassengers  the  duty  of  providing  for  their  safe  conveyance, 
as  far  as  human  care  and  foresight  can  reasonably  secure  that  result; 
and  the  passenger  takes  no  risks,  except  such  as  are  necessarily  inci- 
dent to  the  particular  mode  of  conveyance  or  travel,  while  the  carrier 
is  using  the  utmost  care  and  diligence  that  is  reasonably  practicable.* 

(e)  The  plaintiff  had  a  right,  therefore,  as  a  passenger  of  the  de- 
fendant, to  be  safely  carried  and  safely  delivered  at  her  destination 
by  the  defendant  company;  and  it  was  the  duty  of  the  defendant 
company  to  use  the  highest  degree  of  care  and  skill  in  carrying  the 
plaintiff  from  D  to  M,  and  to  use  the  highest  degree  of  care  and  skill 
in  seeing  that  she  was  safely  delivered  at  her  destination  in  M. 
These  are  the  general  principles  of  law'  which  apply  to  all  eases  where 
the  relation  of  passenger  and  carrier  exists.^ 

(f)  Railway  companies  are  not  insurers  of  the  safety  of  their 
passengers,  but  they  are  required  to  exercise  the  highest  degree  of 
ca,re  that  very  cautious,  competent  and  prudent  persons  would  exer- 
cise under  similar  circumstances,  and  a  failure  to  exercise  such  care 
is  negligence.® 


3— Tuller  v.  Talbot,  23  111.  357; 
Edwards  v.  Lord,  49  Me.  279; 
Sales  V.  W.  Stage  Co.,  4  la.  547; 
Fairchild  v.  Cal.  Stage  Co.,  13  Cal. 
599;   Taylor  v.   Day,  16  Vt.   566. 

4— Holley  v.  B.  G.  Co.,  8  Gray 
131. 

5— Olson  v.  C.  M.  &  St.  P.  Ry. 
Co.,  94  Minn.   241,  102  N.  W.  449. 

6— St.  L.  S.  W.  Ry.  Co.  v.  Byers, 
—  Tex.  Civ.  App.  — ,  70  S.  W.  558 
(559). 

"The  charge  imposed  upon  ap- 
pellant the  duty  to  use  the  care 
which  would  have  been  exercised 
under  like  conditions  by  a  certain 
class  of  persons,  and  not  the  care 
which  would  have  been  exercised 
by  the  mo.st  skillful  and  careful 
individuals  to  be  found  in  the  class 
of  persons  named.  It  thus  fur- 
nishes a  safe  and  sound  standard 
for  measuring  the  care  required, 
the  criterion  being  what  the  aver- 
age man  of  the  given  class  would 
have  done  under  the  same  circum- 
stances. That  carriers  of  persons 
are  bound  to  use  the  care  which 
would  be  exercised  by  very  cauti- 
ous, competent  and  prudent  per- 
sons is  so  w^ell  settled  that  it  is 
not  questioned.  But  it  is  con- 
tended thnt  railway  companies  are 
required   to    use    only   tha't    degree 


of  care  which  would  ordinarily  be 
exercised  by  the  said  class  of 
persons,  and  are  not  required  to 
use  the  highest  degree  of  care 
wihich  would  be  exercised  by  such 
persons.  We  are  not  sure  of  the 
existence  of  the  distinction  which 
the  appellant  attempts  to  draw.  It 
seems  to  us  that  ordinarily  very 
skillful  and  careful  persons  would, 
where  the  personal  safety  of  their 
fellow  men  was  involved,  exercise 
the  highest  care  which  the  nature 
of  the  case  permitted.  At  all 
events,  a  less  degree  of  care  than 
the  highest  care  practicable  is 
nowhere  recognized  as  the  measure 
of  the  duty  of  a  carrier  of  passen- 
gers. The  charge  under  considera- 
tion does  not  require  of  the  carrier 
the  highest  possible  care,  but  only 
the  highest  care  which  would  be 
exercised  by  very  cautious,  compe- 
tent and  prudent  persons  under 
similar  circumstances,  and  doea 
not,  therefore,  transgress  the  rule 
laid  down  in  adjudicated  cases  in 
this  state.  Charges  have  been  con- 
demned which  required  'all  possi- 
ble care,'  'the  greatest  possible 
care  and  diligence,'  and  'the  high- 
est degi-ee  of  care  and  diligence 
that  human  judgment  and  fore- 
sight   are   capable    of."     Int.    &    G. 


1132  FORMS  OP  INSTRUCTIONS.  [§  1747. 

(g)  The  court  instructs  you,  as  a  matter  of  law,  that  if  there  is 
the  least  failure  by  a  common  carrier  of  passengers  to  exercise  all 
the  care  and  diligence  that  is  reasonably  practicable,  in  keeping  its 
vehicles  and  appliances  in  safe  condition,  then  the  duty  of  the  cai-rier 
is  not  fulfilled,  and  it  is  answerable  for  any  injury  or  damage  of 
which  such  neglect  is  the  proximate  cause;  provided,  the  person  in- 
jured is  himself  using  reasonable  care  and  caution  to  avoid  such 
injuiy.'^ 

(h)  The  court  instructs  the  jury,  that  if  they  believe,  from  all 
the  evidence  in  this  case,  that  on  or  about  the  16th  day  of  February, 

,  the  defendant  was  controlling  and  operating  a  train  of  cars 

on  a  railroad  in  this  county,  and  that  the  defendant  received  the 
plaintiff  on  its  cars  as  a  passenger,  for  hire,  then  the  court  instructs 
the  jury  that  the  defendant  was  bound  to  make  up  its  train,  couple 
its  cars,  and  manage  and  control  its  ears  and  engines  in  such  a  care- 
ful, skillful  and  jDrudent  manner  as  to  carry  the  plaintiff  with  reason- 
able safety  as  such  passenger.^ 

(i)  The  court  instructs  you,  as  a  matter  of  law,  that  it  is  the  duty 
of  a  railroad  company  engaged  in  the  transportation  of  passengers 
to  use  the  highest  degree  of  care,  vigilance  and  foresight  for  the 
safety  of  its  i^assengers  that  is  consistent  with  the  proper  and  prac- 
tical operation  of  its  road,  and  it  is  liable  for  any  injuries  that  may 
result  to  passengers  from  the  neglect  of  this  duty.^ 

(j)  Common  carriers  of  persons  are  required  to  do  all  that  human 
care,  vigilance  and  foresight  can  reasonably  do,  consistent  with  the 
character  and  mode  of  conveyance  adopted,  and  the  practical  prosecu- 
tion of  the  business,  to  prevent  accidents  to  the  passengers  riding 
upon  their  trains,  getting  upon  them  or  alighting  therefrom. ^^ 

(k)  It  is  the  duty  of  common  cai-riers  to  do  all  that  human  care, 
vigilance  and  foresight  can  reasonably  do  under  the  circumstances 
and  in  view  of  the  character  of  the  mode  of  conveyance  adopted 
reasonably  to  guard  against  accident  and  consequential  injuries,  and 

N.   Ry.   Co.  V.   Welch,   86  Tex.   204,  case    affirmatively    instructed     the 

24     S,     W.     390,     40     Am.     St.     829;  jury  that  appellant  was  not  an  in- 

Fordyce    v.    Withers,    1    Civ.    App.  surer  of  the  safety  of  appellee,  and 

544,     20     S.     W.     766;     Fordyce     v.  we    do    not    think    that    the    jury 

Chancey,  2  Civ.  App.    27.  21  S.  W.  could  have   been  misled  to  the  in- 

181;    Gulf,   C.    &    S.    F.    Ry.    Co.   v.  jury  of  appellant." 

Shields,    9    Tex.    Civ.    App.    655,    28  7— Briggs  v.  Taylor,  28  Vt.  180. 

S.  W.  709,  29  S.  W.  652.  8— H.  &  St.  J.  R.  R.  Co.  v.  Mar- 

"On  the  other  hand,  charges  have  tin,  111  111.  219. 

been  approved  which  required  the  9 — 111.    S.    Ry.    Co.    v.    Hubbard, 

use   of   'the   utmost   care'   and   'the  106  111.    App.  462   (465). 

highest  degree  of  care.'     Gallagher  10 — Chicago  C.  Ry.  Co.  v.  Bundy, 

v.    Bowie,    66    Tex.    625,    17    S.    W.  210  111.   39   (47),  71  N.  E.  28;   Chi.   & 

407;    Houston    &   T.    C.    Ry.   Co.    v.  A.  R.  R.  Co.  V.  Byrum,  153  111.  131 

George,    —    Tex.    Civ.    App.    — ,    60  (134),  38  N.  E.   578. 

R.   W.   .313;   Ry.   Co.   v.  Craig,  69  S.  See  also  C.  P.   &  St.  L.   Ry.   Co. 

W.  239,  5  Tex.   Ct.  Rep.  25.  v.     Lewis,    48    111.     App.     274    (280), 

"See  also  Dallas  Cons.  F.  St.  Ry.  aff'd  145  111.  67,  33  N.  E.  960;  West 

Co.    v.    Broadhurst,    28    Tex.    Civ.  Chi.    R.    R.    Co.    v.    Kromshinsky, 

App.    630.    68   S.    W.    315,    and    cases  185    111.    92,    56    N.    E.    1110,    aff'g    86 

there    cited.      The    charge    in    this  111.    App.   17. 


§  1748.]  NEGLIGENCE— PASSENGER  CARRIERS.  1133 

if  they  neglect  so  to  do,  they  are  held  to  be  strictly  responsible  for  all 
consequences  which  flow  from  such  neglect;  that  while  the  carrier  is 
not  an  insurer  for  the  absolute  safety  of  the  passenger,  it  does,  how- 
ever, in  legal  contemplation  undertake  to  exercise  the  highest  degree 
of  care  to  secure  safety  of  the  passenger,  and  is  responsible  for  the 
slightest  neglect  resulting  in  injury  to  the  passenger  if  the  passenger 
is  at  the  time  of  the  injury  exercising  ordinary  care  for  his  or  her 
safety,  and  this  care  applies  alike  to  the  safe  and  proper  construction 
and  equipment  of  the  road,  the  employment  of  skillful  and  prudent 
operatives,  and  the  faithful  performance  by  them  of  their  respective 
duties.^^ 

(1)  Negligence,  when  applied  to  carriers  of  passengers,  means  a 
failure  in  the  performance  of  duty  imposed  by  law,  for  the  protec- 
tion of  others,  to  exercise  that  high  degree  of  care  in  acting  and  re- 
fraining from  acting  which  very  competent  and  prudent  persons  would 
usi;ally  exercise  under  the  same  or  similar  circumstances.^^ 

§  1748.  Carrier  not  an  Insurer  against  Accidents,  (a)  That  while 
the  defendant  was  bound  to  do  all  that  human  care,  vigilance  and 
foresight  could  reasonably  do,  consistent  with  the  practical  operation 
of  the  road,  in  order  to  prevent  injuries  to  its  passengers,  still  the 
company  does  not  insure  the  absolute  safety  of  its  passengers ;  and,  in 
this  ease,  if  the  jury  believe,  from  the  evidence,  that  the  injuiy  com- 
plained of  was  occasioned  by  an  internal  or  hidden  defect  in  the 
*  *  *  which  a  thorough  and  careful  examination  would  not  dis- 
close, and  which  could  not  be  guarded  against  by  the  exercise  of  a 
sound  judgment  and  the  most  vigilant  oversight  and  care,  then  the 
defendant  is  not  liable  for  the  injury  so  oecasioned,^^ 

(b)  The  defendant  was  not  an  insurer  of  the  personal  safety  of  the 
plaintiff's  wife,  Mrs.  F.,  while  she  was  a  passenger  on  the  appellant's 
train,  but  owed  to  her  the  duty  to  exercise  that  high  degree  of  care 
for  her  reasonable  personal  safety  which  a  veiy  pi'udent  person  would 
use  under  the  same  circumstances  about  the  same  matter;  and  a  fail- 
ure of  the  defendant,  if  any,  to  exercise  such  degree  of  care,  would 
be  negligence.^* 

(e)  If  you  believe,  from  the  evidence,  that  the  injury  to  the  plain- 
tiff in  this  suit  happened  to  him  by  mere  accident,  without  any  fault 
on  the  part  of  the  defendant,  or  its  employes,  then  the  plaintiff  cannot 
recover  in  this  action. 

(d)  If  you  believe,  from  the  evidence,  that  the  defendant  exer- 
cised all  reasonably  practicable  care,  diligence  and  skill,  in  the  eon- 

11— Chi.   &  A.    R.   R.   Co.   v.   By-  G.    T.    R.    D.    Co.,    48    N.    H.    304; 

rum,  153  III.  131   (134),  38  N.  E.  578.  McPadden    v.    N.    C.    Rd.    Co.,    44 

12— St.  L.  S.  W.  Ry.  Co.  v.  Harri-  N.    Y.    278;    Sherlock   v.    Ailing,    44 

son,    32   Tex.    Civ.    App.    368,    73    S.  Ind.   1S4;  Grand   R.   &  Ind.  Rd.  Co. 

W.  38.  V.   Bovd,    65   Ind.   526. 

13— P.,    C.    &    H.    L.    R.     R.    Co.  14— St.     L.     S.     W.     Ry.     Co.     v. 

V.  Thompson,  56  111.  138;  Ingalls  v.  Ferguson,    26    Tex.    Civ.    App.    460, 

Biels,    9    Met.    1;   Ladd   v.   New    B.  64  S.  W.  797. 
Rd.   Co.,  119  Mass.   412;  Taylor  v. 


1134  FORMS  OF  INSTRUCTIONS.  [§  1749. 

struetion,  preservation  and  repairs  of  its  track,  and  in  managing  and 
operating  its  road,  at  the  time  of  the  accident,  and  that  the  accident 
could  not  have  been  prevented  by  the  use  of  the  utmost  practicable 
care,  diligence  and  skill,  then  the  plaintiff  cannot  recover  in  this 
action. 

(e)  The  court  instructs  you,  that  while  common  carriers  of  pas- 
sengers are  held  to  the  very  highest  degree  of  care  and  prudence 
which  is  consistent  with  the  practical  operation  of  their  vehicles  and 
the  transaction  of  their  business,  still  they  are  not  absolute  insurers 
of  the  personal  safety  of  their  passengers. 

(f)  And,  in  this  case,  though  you  may  believe,  from  the  evidence, 
that  the  plaintiff  was  injured  while  a  passenger  on  defendant's  ears, 
still,  if  you  further  believe,  from  the  evidence,  that  the  defendant  and 
its  servants  were  not  guilty  of  any  negligence  which  contributed  to 
such  injury,  then  the  defendant  is  not  liable  in  this  action. ^^ 

(g)  The  duty  of  a  can'ier  is  to  safely  carry  passengers.  It  is  true 
that  a  carrier  is  not  an  insurer  of  the  safety  of  those  whom  it  under- 
takes to  carry,  against  all  the  risks  of  travel ;  but  nevertheless  there 
rests  upon  such  carrier  this  general  duty  of  safely  carrying.^^ 

§  1749.  The  Passenger  Takes  all  the  Risks  Necessarily  Incident  to 
the  Mode  of  Conveyance,  (a)  The  jury  are  instructed,  that  plaintiff, 
as  a  passenger  on  the  defendant's  car,  as  a  matter  of  law,  is  presumed 
to  have  taken  upon  himself  all  the  risks  necessarily  incident  to  that 
mode  of  traveling;  and  if  the  juiy  believe,  from  the  evidence,  that 
without  the  fault  of  the  defendant,  but  by  inevitable  accident,  plain- 
tiff was  injured,  the  jury  should  find  for  the  defendant. 

(b)  The  court  instructs  you,  as  a  matter  of  law,  that  a  passenger 
upon  a  railroad  train  takes  all  the  risks  attending  that  mode  of  travel, 
except  such  as  are  caused  or  increased  by  the  negligence  of  the  rail- 
road company,  or  its  servants.^'^ 

§  1750.  Riding  on  Freight  or  Mixed  Trains — Risks  Assumed  by 
Passenger — Series,  (a)  The  court  instructs  the  jury  that  the  defend- 
ant did  not  assume  the  absolute  safety  of  plaintiff  while  a  passenger 
on  its  train,  but  it  was  the  duty  of  the  defendant's  agents  in  charge 
of  its  train  upon  which  plaintiff  was  a  passenger  to  exercise  the  high- 
est degree  of  care  and  diligence  consistent  with  the  mode  of  trans- 
portation adopted  to  save  him  from  injury. 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  agents  of  de- 
fendant in  charge  of  the  train  upon  which  plaintiff  was  a  passenger, 
so  negligently  operated  said  train,  that  plaintiff  was,  by  a  sudden 
and  violent  jerk  not  necessary  or  usual  in  the  operation  of  said  train, 
thrown  upon  the  floor,  and  J.  S.  Avas  thrown  upon  plaintiff,  striking 
him  with  his  elbow  or  knee  in  the  side  or  bowels,  thereby  causing 
plaintiff  to  have  rupture  or  hernia,  they  will  find  for  plaintiff  such 
reasonable  sum  in  damages  as  they  may  believe,  from  the  evidence, 

15— G.    &   C.   Union    R.   R.    Co.   v.     Wood.  113  Ind.  544,  14  N.  E.  572. 
Tnrwoof],    15   111.    468.  17— Grand     R.     &     Ind.     Rd.     Co. 

16— LouLsville,     etc.,     R.     Co.     v.     v.  Boyd,  65  Ind.  526. 


§  1751.]  NEGLIGENCE— PASSENGER  CARRIERS.  1135 

will  compensate  him  for  the  physical  and  mental  pain,  if  any,  suffered 
by  him  by  reason  of  said  injury,  and  for  any  permanent  diminution 
of  power,  if  any,  to  earn  money  by  reason  of  such  injury,  not  exceed- 
ing   dollars. 

(c)  The  court  instructs  the  jury  that  it  was  the  duty  of  the  plain- 
tiff to  exercise  reasonable  care  to  protect  himself  while  a  passenger  on 
defendant's  train,  and  although  the  jury  may  believe  from  the  evi- 
dence that  the  defendant  was  negligent,  as  in  instruction  No.  1,  yet, 
if  they  shall  further  believe,  from  the  evidence,  that  the  plaintiff  was 
himself  negligent,  and  that  the  injury,  if  any,  to  him,  would  not  have 
occurred,  but  for  such  negligence  on  his  part,  the  law  is  for  the  de- 
fendant, and  the  jury  will  so  find. 

(d)  The  riding  upon  mixed  trains  composed  of  freight  and  passen- 
ger cars  is  unavoidably  accompanied  with  more  discomfort  and  danger 
than  upon  the  trains  devoted  exclusively  to  passengers,  and  the  pas- 
senger who  accepts  carriage  upon  such  a  train  must  be  deemed  thereby 
to  have  assumed  the  risk  of  such  additional  discomfort  and  danger 
due  to  the  nature  of  the  train.  Now,  if  you  believe,  from  the  evi- 
dence, that  the  train  upon  which  the  plaintiff,  J.,  was  riding  was 
such  a  train,  and  while  he  was  a  passenger  thereon  the  car  in  which 
he  was  riding  was  forced  against  the  one  in  front  so  as  to  cause  the 
injury  complained  of,  j^et  if  the  train  and  cars  were  properly  equipped 
and  were  carefully  handled,  and  there  was  no  more  jarring  or  jolting 
than  is  usually  unavoidable  in  the  handling  of  such  trains,  then  the 
jurj'  will  find  for  the  defendant. 

(e)  The  court  instructs  the  jury  that  if  they  believe,  from  the 
evidence,  that  the  plaintiff  or  S.  insisted  upon  taking  the  invalid  and 
chair  into  the  baggage  car,  and  attended  upon  the  patient  there,  and 
at  the  time  there  were  other  seats  and  accommodations  upon  the  train 
for  safely  carrying  the  patient  and  her  attendants,  and  that  plaintiff 
would  not  have  been  injured  except  for  his  so  riding  in  the  baggage 
car,  they  will  find  for  the  defendant. ^^ 

§  1751.  Liability  of  Connecting  Lines  for  Accidents  on  One  An- 
other's Lines,  (a)  The  court  charges  the  jury  that  where  two  rail- 
road companies  unite  to  run  an  excursion  train  over  both  of  their 
lines,  upon  terms  which  make  each  of  them  responsible  only  for  acci- 
dents occurring  on  its  own  line,  and  tickets  are  sold  by  one  of  them 
as  the  agent  for  both,  expressing  such  limitation  of  liability,  it  mat- 
ters not  where,  for  the  convenience  of  the  parties,  the  point  is  estab- 
lished for  the  change  of  crews  running  the  train,  as  to  the  passenger 
holding  one  of  such  tickets  the  liability  is  fixed  by  the  point  of  actual 
junction  of  the  lines.  Before  charging  you  that,  I  have  to  explain  to 
you  that  that  would  be  the  law  unless  part  of  the  line  or  track  of  one 
railway  is  used  in  common  by  both  railway  companies,  in  which  case 
the  liability  is  fixed,  not  by  the  point  of  actual  junction  of  the  lines, 

18— Chesapeake     &     O.     Ry.     Co.     v.  Jordan,   25  Ky.   L.   R.   574,  76  S. 
W.   145  (146). 


1136  FORMS  OF  INSTRUCTIONS.  [§  1752. 

but  by  the  time  when  the  control  of  the  train  is  surrendered  by  one 
company  and  accepted  by  the  other  company.    That  fixes  the  liability. 

(b)  That  where  a  railroad  company,  chartered  under  the  laws  of 
this  state,  has,  under  the  franchises  conferred  upon  it,  built  its  line 
and  established  a  depot,  and  allows  another  railroad  company  to  run 
its  trains  over  a  part  of  such  line  and  into  such  depot,  the  company 
owning  such  line  is  responsible  to  the  public  and  passengers  for  all 
accidents  happening  on  such  trains  by  negligence.  I  cannot  charge 
you  that,  unless  the  evidence  shows  that  the  railway  company  owning 
such  line  had  taken  control  of  the  train.  One  railroad  company  is  not 
to  be  held  responsible  for  the  negligence  of  another  railroad  company. 
Each  much  bear  its  own  burden.  If,  therefore,  the  company  which  is 
allowed  to  use  a  line  is  still  in  control  of  a  train,  and  injures  a  pas- 
senger by  negligence,  the  railroad  company  owning  the  line  cannot  be 
held  liable  for  that  negligence,  but  the  railroad  company  controlling 
the  train  would  be  held  liable  for  the  negligence. 

(e)  That  where  two  railroad  companies  unite  to  run  an  excursion 
train  over  both  of  their  lines,  upon  terms  which  make  each  of  them 
responsible  only  for  accidents  occurring  at  its  own  line,  and  tickets 
are  sold  by  one  of  them  as  the  agent  of  both,  expressing  such  limita- 
tion of  liability,  it  matters  not  whether  the  train  is  carried  through  to 
its  destination  by  the  conductor  and  train  crew  employed  by  the  initial 
company  or  not.  The  company  upon  whose  track  the  train  is  at  the 
time  of  the  accident,  and  under  whose  orders  the  conductor  is  running 
the  train,  is  liable  for  the  accident,  and  the  conductor  is  to  the  passen- 
gers on  such  train  as  the  conductor  of  the  company  owning  the  line 
and  issuing  the  orders  for  the  operating  of  the  train.  As  to  that, 
gentlemen,  I  charge  you  that  with  this  explanation:  that  the  test  is 
not  what  railroad  company  owns  the  line  where  the  accident  may  have 
occurred,  but  what  railroad  company  controls  the  train,  because  the 
railroad  line  may  lease  the  line  or  it  may  be  allowed,  as  a  matter  of 
favor,  to  run  its  train  on  the  line  of  another  railway,  but  the  railway 
company  controlling  the  train  on  the  line  of  another  railroad  is  re- 
sponsible for  the  injuries  caused  by  its  negligence.^^ 

TRESPASSERS  AND  PERSONS  NOT  PASSENGERS. 

§  1752.  Degree  of  Care  Due  Trespasser.  If  you  find,  from  the 
evidence,  that  the  plaintiff  was  traveling  upon  the  train  in  question, 

19— Oliver     v.     Columbia,     N.     &  initial     company,     thoug-h     moving, 

L.    R.   Co.,   65  S.   C.   1,   43   S.   E.   307  his  train  for  said  two  miles   unden 

(322).  orders  of  the  owner  of  that  track, 

"Whore   two   connecting   railroad  the    initial    company    is    liable    for 

companies  unite  in  running  an  ex-  negligence  resulting  in  injury   to  a 

cursion   train,  and  the  initial  com-  passenger,    until    the    passenger    is 

pany  uses  two  miles  of  the  track  safely  turned  over  to  the  terminal 

of    the    terminal    company    before  company    at    the    point    where    the 

surrendering    the    control     of    the  train    is    surrendered    by    the    one 

train  to  the  terminal  company,  the  and   accepted   by  the   other." 
conductor  being  an  employe  of  the 


§  1753.]  NEGLIGENCE— PASSENGER  CARRIERS.  1137 

and  that  for  the  purpose  of  avoiding  the  payment  of  fare  he  was 
riding  upon  the  platform  of  one  of  said  cars,  or  other  place  outside 
the  passenger  coach,  then  the  employes  of  the  defendant  would  have 
the  right  to  use  all  force  and  power  necessary  to  overcome  any  resist- 
ance that  might  be  offered;  but  they  would  not  have  the  right  to 
remove  him,  or  push  him  off,  or  require  him  to  jump  off  at  a  place 
where  it  was  unsafe  to  get  off,  or  at  a  time  when  the  train  was  run- 
ning at  such  rate  of  speed  that  it  would  be  unsafe  for  a  person  to  get 
off;  and  if  you  find  that  the  plaintiff  has  established,  by  a  preponder- 
ance of  the  evidence,  that  the  brakeman  on  said  train,  or  other  em- 
ploye thereon,  did  push  the  plaintiff  off  of  said  train  at  a  place  where 
it  was  unsafe  to  jump  off,  or  at  a  time  when  the  train  was  running  at 
a  speed  when  it  made  such  act  dangerous,  and  that  the  plaintiff  was 
injured  thereby,  then  your  verdict  must  be  for  the  plaintiff.-^ 

§  1753.  Care  Due  Persons  Coining  to  Train  to  Aid  or  Assist  Pas- 
sengers. If  you  believe,  from  the  evidence,  that  the  plaintiff  on  the 
day  in  question  did  not  intend  to  become  a  passenger  on  defendant's 
railroad,  yet,  if  you  believe  the  plaintiff  was  in  good  faith  there  wait- 
ing to  see  a  person  out  of  mere  friendshiiD,  whom  he  expected  to  be  a 
passenger  on  defendant's  railroad,  the  plaintiff  had  a  right  to  be 
upon  said  platfonn,  although  the  person  whom  he  expected  did  not 
in  fact  arrive.  And  if  you  further  believe,  from  the  evidence,  that  the 
plaintiff  while  so  waiting  and  using  due  care  and  caution  for  his  own 
safety,  was  injured  by  the  defendant's  sem^ants'  gross  negligence  or 
recklessness  (if  shown  by  the  evidence)  in  manner  and  form  as 
charged  in  plaintiff's  declaration,  then  you  should  find  for  the  plain- 
tiff.2i 

THE  PASSENGER'S  RELATION  TO  CARRIER. 

§  1754.  Payment  of  Fare — As  Condition  Precedent  to  Establishing 
Passenger  Relation,    (a)   You  are  instructed  by  the  court,  if  you  find, 

from  the  evidence,  that  G.  C.  P.,  on  the of ,  was  on  the 

platform  of  one  of  the  passenger  ears  of  a  train  operated  by  the 
defendant  company,  with  the  intention  of  riding  upon  said  train 
without  paying  any  fare,  then  and  in  that  case  he  was  not  a  passenger 
upon  defendant's  train,  and  the  defendant  railroad  company  as  a 
common  carrier  owed  him  no  duty. 

(b)  It  is  the  duty  of  a  person,  when  traveling  upon  a  railroad 
from  one  station  to  another,  to  enter  the  passenger  coaches  provided 
for  the  cariying  of  passengers,  and  to  remain  therein  while  such  train 
is  in  motion,  and  to  procure  prior  to  the  entering  therein  a  ticket  from 
the  agents  of  said  company,  or,  if  such  ticket  be  not  purchased,  then 
to  pay  the  conductor  on  said  train  the  proper  and  legal  fare.  A  pei'- 
son  doing  this,  and  not  guilty  of  misconduct  on  said  train,  would  be  a 
passenger,  and  the  railroad  company  would  be  bound  under  the  law 

20— Pledger  v.  C,  B.  &  Q.  R.  21—111.  C.  R.  R.  Co.  v.  Wall, 
Co.,  69  Neb.  456,  95  N.  W.  1057.  53   111.  App.  588   (590). 

72 


1138  FORMS  OF  INSTRUCTIONS.  [§  1755. 

to  properly  care  for  and  attend  to  the  necessary  and  reasonable  con- 
veniences and  wants  of  such  passenger,  and  would  be  prima  facie 
liable  for  any  injury  that  such  passenger  received  while  so  traveling. 
But  a  person  riding  on  the  outside  of  such  passenger  train,  whether 
on  the  platform  or  some  other  place  without,  or  on  parts  of  the  bag- 
gage car,  for  the  purpose  of  obtaining  a  ride  on  such  train  without 
the  payment  of  any  fare  therefor,  would  not  be  a  passenger  upon  such 
train,  but  would  be  a  trespasser  thereon,  and  such  railroad  would  owe 
no  duty  to  such  person,  and  the  employes  of  such  company  would  have 
the  right  to  put  such  person  off  the  train,  and  the  railroad  company 
would  not  be  liable  therefor,  unless  such  removal  was  done  in  a  reck- 
less, careless,  or  negligent  manner,  and  the  injury,  if  any,  was  the 
result  of  such  negligence. -^ 

§  1755.  Passenger  Relation  Need  Not  Be  Specifically  Mentioned  in 
Instruction — When  Injury  "Alleged  in  Declaration"  Sufficient.     If 

the  juiy  believe,  from  a  preponderance  of  the  evidence,  that  the  de- 
fendant is  guilty  of  the  negligence  charged  in  the  declaration,  or  either 
count  thereof,  and  that  the  injury  to  plaintiff  complained  of  and  al- 
leged in  the  declaration  resulted  directly  therefrom,  and  that  the 
plaintiff  was  in  the  exercise  of  ordinary  care  for  his  own  safety  before 
and  at  the  time  of  the  injury,  the  defendant  is  liable  and  the  plaintiff 
is  entitled  to  a  verdict.-^ 

§  1756.    When  Relation  of  Carrier  and  Passenger  Ends,    (a)    The 

court  instructs  the  jury  that  the  relation  of  carrier  and  passenger 
continues,  where  one  is  a  passenger  upon  the  train  of  a  railroad  cor- 
poration, until  the  passenger  has  reached  his  destination,  and  has  a 
reasonable  opportunity  to  alight  safely  from  the  cars. 2* 

(b)  If  the  jury  find,  from  the  evidence,  that  the  plaintiff  had  taken 
passage  on  the  defendant's  car,  and  had  been  safely  carried  to  his 
place  of  destination,  and  there  alighted  in  safety  from  the  defendant 's 
car,  and  had  left  the  defendant's  railway  track  before  receiving  the 

22 — Pledger     v.      C,      B.      &     Q.  it  did  not  require  the  jury  to  find, 

R.  Co.,  69  Neb.  456,  95  N.  W.  1057.  from  the  evidence,  before  returning 

23 — So.     Ry.     Co.    v.     Cullen,     221  a     verdict     against    the    appellant, 

111.   392   (397).  that  the  appellee  wg.s  a  passenger 

"In  cases  of  this  character,  where  and  rightfully  upon  the  engine 
the  declaration  states  a  good  cause  while  riding  there.  It  appears 
of  action,  it  would  seem  to  be  from  the  declaration  that  the  re- 
axiomatic  that  if  the  evidence  lation  of  passenger  and  carrier 
showed  the  defendant  was  guilty  existed  between  the  parties  hereto 
of  the  negligence  charged  in  the  at  the  time  of  the  accident,  and 
declaration,  that  the  injury  re-  the  negligence  charged  against  the 
suited  directly  therefrom,  and  that  appellant  is  a  failure  to  exercise 
the  plaintiff  was  in  the  exercise  the  care  required  by  the  law  for 
of  ordinary  care  before  and  at  the  the  safety  of  its  passenger, 
time  of  the  injury,  and  had  not  Unless  the  appellee  was  a  passen- 
assumed  the  risk,  there  should,  as  ger  and  rightfully  upon  the  engine 
a  matter  of  course,  be  a  verdict  appellant  was  not  guilty  of  the 
against  the  defendant.  Appellant,  negligence  charged  in  the  declara- 
however,  argues  that  this   instruc-  tion." 

tion    furnished    a    test    of   liability,         24— Sanders    v.    So.    Ry.    Co.,,   107 

and  that  it  was  erroneous  because  Ga.  132,  32  S.  E.  840. 


§  1757.]  NEGLIGENCE— PASSENGER  CARRIERS.  1139 

injuries  complained  of,  the  defendant,  under  such  circumstances, 
under  the  pleadings  in  this  case,  would  not  be  liable. ^^ 

(e)  If  you  believe,  from  the  evidence,  that  the  employes  of  defend- 
ant stopped  the  train  at  C.  a  reasonably  sufficient  time  for  a  passenger 
situated  as  was  plaintiff  to  depart  therefrom,  and  if  you  should  fur- 
ther believe  that  the  plaintiff  delayed  getting  off  said  train  from  any 
cause,  and  that  this  delay,  if  an}',  was  unknown  to  defendant,  then 
you  are  charged  that  his  contract  relation  with  defendant  ceased  at 
the  expiration  of  such  reasonable  time,  if  any,  and  the  defendant 
could  become  liable  only  through  failure  of  its  servants  to  exercise 
ordinary  care  against  inflicting  injury  upon  plaintiff.^^ 

STATION  FACILITIES. 

§  1757.     Degree  of  Care  Required  as  to  Station  Facilities,    (a)   You 

are  instructed  that  it  is  the  duty  of  a  carrier  of  passengers  to  provide 
and  keep  the  landing  places  and  platforms  used  by  it  for  discharging 
passengers  from  its  vehicles  and  all  passageways  leading  to  and  from 
such  places  in  a  reasonably  safe  condition  for  the  purposes  intended, 
and  for  any  violation  of  its  duty  in  this  i-espect  which  entails  injurj 
upon  a  passenger,  without  fault  on  his  part,  the  carrier  will  be  answer- 
able in  damages.-^ 

(b)  While  the  law  holds  a  railway  company  to  the  highest  degree 
of  care  as  to  its  cars  and  appliances,  and  railroad  track,  in  carrying 
its  passengers,  and  it  would  be  liable  for  the  slightest  negligence  in 
that  respect,  it  is  not  held  to  such  high  degree  of  care  as  to  its  station 
or  its  appliances.  The  degree  of  care  that  a  railway  company  is 
bound  to  exercise  as  to  its  platform  and  approaches  is  only  ordinary 
care;  hence  if  the  jury  find  in  this  case  that  the  defendant  has  exer- 
cised ordinary  care  as  to  the  safety  of  the  place  selected  for  passen- 
gers to  alight  from  its  cars,  and  that  such  place  was  reasonably  safe, 
and  such  a  place  that  a  person  of  ordinary  care  and  prudence  would 

25— Kennedy    v.    So.    Ry.    Co.,    59  whole    made    it    clear    to    the    jury 

S.    C.   535,   38   S.   E.   169    (170).  that   it    was   the   trial   court's   view 

26— St.  L.  S.  W.  Ry.  Co.  v.  that  not  the  hig-hest  pos.sible  de- 
Bryant,  —  Tex.  Civ.  App.  — ,  92  gree,  but  a  reasonable  degree  of 
S.  W.   813.  care   was   required.     That    at   least 

"As  applied  to  this  evidence  the  such  was  required  of  appellant  in 
special  charge  refused  contained  a  the  care  of  its  station  platforms  is 
correct  proposition  of  law  and  sustained  by  the  following:  Beth- 
should  have  been  given.  In  the  man  v.  Old  Colony  R.  Co.,  155 
case  of  Railway  Company  v.  Mar-  Mass.  352,  29  N.  E.  587;  Jordan  v 
tin.  —  Tex.  Civ.  App.  — ,  63  S.  W.  N.  Y.  N.  H.  &  H.  R.  Co.,  165  Mass. 
1089,  under  a  very  similar  state  of  346,  43  N.  E.  Ill,  32  L.  R.  A.  101, 
facts,  a  charge  practically  identi-  52  Am.  St.,  522;  Missouri  Pac.  Ry! 
cal  with  the  one  here  refused  was  Co.  v.  Wortham,  73  Tex.  25,  10  S. 
approved  and  the  refusal  thereof  W.  741,  3  L.  R.  A.  368;  Wallace  v. 
by  the  trial  court  constituted  one  Wilmington  &  N.  R.  Co.  8  Del. 
of  the  errors  for  which  the  case  529,  18  Atl.  818;  Knrght  v.  Portland" 
was    reversed."  S.   Sz  P.   R.  Co.,  56   Me.  234,  96  Am' 

27— Hart     v.     Seattle     R.     &     S.  Dec.   449:   Pennsylvania   Co    v    Mc- 

Ry.   Co..    37  Wash.  424,  79  Pac.   954.  Caffrey,  173  111.  169,  50  N.  E.  713." 

"We   think   the  instructions  as 


1140  FORMS  OF  INSTRUCTIONS.  [§  1758. 

have  used,  then  the  defendant  would  not  be  liable,  and  the  verdict 
should  be  in  its  favor.-^ 

§  1758.  Passenger  Using  Dilapidated  or  Unsafe  Platform.  If  you 
believe,  from  the  testimony,  that  the  platform  through  which  the  plain- 
tiff claims  to  have  fallen  was  in  a  dilapidated  or  unsafe  condition,  which 
was  open  and  apparent  to  a  reasonably  prudent  and  cautious  person, 
and  such  person,  under  the  circumstances,  and  under  such  opportunity 
as  plaintiff  had  to  know  the  condition  of  the  platform,  would  have 
discovered  that  such  platform  was  in  a  dilapidated  or  unsafe  condi- 
tion, or  had  holes  in  it,  then  you  are  charged  that  plaintiff  would  be 
presumed  to  know  of  such  conditions,  and  know  of  the  holes  in  the 
platform,  and  if,  under  the  circumstances,  you  believe  that  plaintiff 
went  upon  the  platform  and  was  any  way  negligent  in  moving  about 
or  stepping  from  the  platform,  and  he  was  thus  hurt  by  stepping  in  a 
hole  in  the  platform,  or  by  a  plank  therein  breaking,  and  he  was 
thus  thrown  or  fell,  and  was  injured,  then  plaintiff  is  not  entitled  to 
recover  in  this  case,  even  though  you  may  believe  defendant  was  neg- 
ligent.29 

ROADBED  AND  TRACK. 

§  1759.  Liability  for  Condition  of  Roadbed  and  Track,  (a)  The 
court  instructs  the  jury  that  the  duty  of  the  defendant  company  in 
engaging  to  carry  passengers  for  hire  is  to  exercise  extraordinary 
care  and  diligence;  that  is,  that  extreme  care  and  caution  which  very 
prudent  persons  exercise  in  securing  and  preserving  their  own  prop- 
erty. It  is  the  duty  of  the  defendant  to  exercise  that  care  and  dili- 
gence, not  only  in  the  construction  of  the  road  and  the  laying  of  the 
rails,  but  in  the  maintenance  of  that  road  and  those  rails;  and  it  is 
the  duty  of  the  defendant  that  extreme  care  and  caution  be  used  in 
the  management  of  its  cars,  through  its  operatives  and  employes.  And 
if  you  find  that  the  defendant  was  negligent  in  either  of  these  re- 
spects, and  that  negligence  was  the  proximate  cause  of  this  derailment 
and  the  injury,  and  the  plaintiff  could  not  have  avoided  the  conse- 
quences of  that  negligence  by  the  exercise  of  ordinary  care,  the  plain- 
tiff would  be  entitled  to  recover.^" 

(b)  Carriers  of  passengers  by  railroad  are  bound  to  use  all  rea- 
sonably practicable  precautions,  as  far  as  human  foresight  will  go, 
for  the  safety  of  their  passengers ;  and  they  are  answerable  to  injured 
passengers  for  slight  neglect  to  themselves  or  agents,  in  respect  to  the 
condition  of  the  track,  and  conduct  and  management  of  their  trains, 

28 — Kennedy    v.    So.    Ry.    Co.,    59  although    he    may   have    the    right 

S.  C.  535,  38  S.  E.  169  (170).  still   to  use  the  platform,   such  use 

29 — Houston,     E.     &     W.    T.     Ry.  must   be  with   care  proportioned  to 

Co.    V.    McCarty,   —   Tex.   — ,    89    S.  the    risk    arising    from    its    known, 

W.   805.  or  obvious  and  apparent  condition. 

"A   man    of  ordinary   care  would  Penn.    Co.    v.    Marion,   123   Ind.   415, 

use     more     care     and     caution     in  23    N.    E.    973,    7    L..    R.    A.    687,    18 

walking     upon     a     platform     with  Am.   St.    330." 

holes  in   it,   or  rotten   planks,  than  30 — Macon    Cons.    St.    R.    Co.    v. 

one    free    from    these    defects,    and  Barnes,  113  Ga.   212,  38  S.  E.  756. 


§  1760.]  NEGLIGENCE— PASSENGER  CARRIERS.  1141 

if  injury  ensues  therefrom,  and  the  passengers  themselves  are  without 
fault.^i 

§  1760.  Derailment  Through  Embankment  Giving  Way — Measure 
of  Care  as  to  Bridges  and  Culverts,  (a)  In  this  cause,  if  you  believe 
from  all  the  evidence,  that  the  sleeping  car  in  which  plaintiff  was  a 
passenger  was  derailed  and  overturned  as  a  direct  and  proximate 
result  of  a  rain  which  was  so  heavy,  unusual  and  extraordinary  that 
it  could  not  have  reasonably  been  expected  or  anticipated  by  defend- 
ant railroad  company,  and  that  such  unusual  and  extraordinary  rain 
was  the  cause  of  a  portion  of  defendant's  railroad  embankment  giving 
way,  and  the  consequent  derailment  of  said  sleeping  ear  in  which 
plaintiff  was  a  passenger,  and  that  said  accident  could  not  have  been 
prevented  by  the  exercise  of  the  utmost  degree  of  care  and  vigilance 
on  the  part  of  the  defendant,  then  plaintiff  cannot  recover. 

(b)  Defendant  railroad  company,  as  a  common  carrier,  does  not  in- 
sure the  absolute  safety  of  its  passenger,  and  is  not  responsible  for 
the  direct  and  violent  acts  of  nature,  which  could  not  reasonably  have 
been  foreseen  and' guarded  against  or  prevented  by  the  exercise  of  a 
high  degree  of  care,  skill  and  prudence ;  and  if  the  defendant  railroad 
company  maintained  its  culvert  and  the  railroad  embankment  at  the 
point  where  the  accident  occui'red  in  a  good  condition,  and  the  same 
were  safe  for  all  emergencies  which  could  reasonably  have  been  anti- 
cipated by  it,  and,  at  the  time  of  the  injury  complained  of,  defendant 
was  in  the  exercise  of  the  utmost  degree  of  care  and  prudence  both  in 
the  matter  of  the  maintenance  of  said  embankment  and  in  the  oper- 
ation of  its  trains  over  the  same,  then  said  defendant  is  not  liable. 

(c)  If  you  find  from  the  testimony  that  defendant  was  without 
negligence  in  the  construction  and  maintenance  of  the  culvert,  and 
that  the  injury  to  plaintiff  was  the  result  of  an  inevitable  accident, 
and  such  as  no  human  foresight  could  avert,  then  the  defendant  would 
not  be  liable,  and  your  verdict  must  be  in  favor  of  the  defendant. 

(d)  The  measure  of  diligence  required  in  the  maintenance  of 
bridges  and  culverts  by  railroad  companies  is  that  the  character  and 
size  of  the  stream,  the  extent  and  situation  of  the  agricultural  land 
about  it,  and  the  nature  of  the  rainfalls  and  floods  affecting  it  shall 
be  ascertained  and  provided  for,  so  far  as  the  exercise  of  ordinary 
foresight,  care  and  skill  can  accomplish  them ;  but  there  is  no  require- 
ment that  the  recurrence  of  cyclones,  cloudbursts  and  the  like,  shall 
be  foreseen  or  guarded  against,  though  it  is  known  that  they  have 
many  times  happened.  And,  therefore,  if  you  find,  from  the  proof, 
that  the  culvert  was  of  sufficient  capacity  to  cany  off  safely  all  ordi- 
nary accumulations  of  water,  and  that  the  defendant  constnieted  and 
maintained  the  same  with  due  care,  and  frequently  inspected  the 
same,  and  it  appeared  to  be  amply  sufficient  for  all  purposes,  then 
the  court  charges  you  that  the  company  would  not  be  liable  for  the 
injury  suffered  by  the  plaintiff  from  such  extraordinary  downpour  of 

31— G.   &   C.   U.   Rd.   Co.  V.   Tarwood.  17  111.   509;  Fuller  v.   N.   Rd. 
Co.,   21   Conn.  557. 


1142  FORMS  OF  INSTRUCTIONS.  [§  1761. 

rain  or  cloudburst   as  overtaxed   the   capacity  of  said  culvert,  and 
caused  a  washout  in  same.^- 

§  1761.  Injury  to  Passenger  Through  Obstruction  Near  or  on  Track. 
If  you  find,  from  the  evidence  in  the  case,  that  the  plaintiff  was  at- 
tempting to  go  upon  defendant's  coach,  and  that  he  was  obstructed 
in  the  way  b}^  other  passengers,  and  that  he  could  not  promptly  get 
in  the  coach,  and  while  he  was  endeavoring  to  make  his  way  in  the 
coach,  the  step  he  was  standing  on  was  knocked  off  by  an  obstruc- 
tion on  the  track,  and  you  find,  from  the  evidence  in  the  case,  that  in 
leaving  the  step  in  that  condition,  and  allowing  an  obstruction  upon 
the  track,  such  as  would  knock  the  step  from  its  place,  the  defend- 
ant was  not  in  the  exercise  of  that  diligence  that  the  law  requires,  the 
plaintiff  would  have  the  right  to  recover.^^ 

CARS  AND  APPLIANCES. 

§  1762.  Liability  as  to  Cars  and  Appliances.  It  is  the  duty  of  the 
railroad  company  to  use  properly  constructed  cars,  and  all  reasonably 
needful  appliances  which  extreme  care  and  caution  would  suggest,  in 
order  to  protect  the  lives  and  persons  of  its  passengers ;  and  the  fail- 
ure of  a  railroad  company  to  furnish  a  reasonably  safe  passenger 
train,  reasonably  provided  with  everything  necessary  to  save  the  pas- 
sengers against  dangers,  shall  not  afford  the  railroad  company  any 
excuse  against  the  duty  of  extraordinary  diligence  which  the  law 
requires.^* 

§  1763.  Failure  to  Properly  Heat  Car.  (a)  If  you  find  for  the 
plaintiff  on  the  issue  last  above  submitted,  and  you  further  believe 
that,  in  consequence  of  getting  cold  in  said  ear  from  W  to  S,  plaintiff 
and  his  wife,  or  either  of  them,  contracted  cold,  and  you  believe  such 
cold  resulted  in  sickness  to  the  plaintiff  and  his  wife,  or  either  of 
them,  as  alleged  by  plaintiff,  and  you  believe  that  the  cold  and  sick- 
ness of  plaintiff  and  his  wife,  or  either  of  them,  if  any  was  directly 
and  solely  caused  by  the  negligence,  if  any,  of  the  servants  of  de- 
fendant on  its  own  line,  or  if  you  believe  the  employes  of  the  connect- 
ing carriers,  or  either  of  them,  failed  to  furnish  plaintiff  and  his  wife 
with  a  reasonably  warm  and  comfortable  ear  to  ride  in  after  they 
left  S,  and  you  believe  the  plaintiff  and  his  wife  were  compelled  to 
ride  in  a  cold  and  uncomfortable  car  after  leaving  S,  and  you  believe 
the  servants  of  the  connecting  carriers,  or  either  of  them,  were  guilty 

32—111.    C.    R.    Co.    V.    Kuhn,    107  caused  by  a  sudden  jolting  of  the 

Tenn.  106,  64   S.  W.  202  (205).  cars    in    starting-    or    coming    to    a 

33 — Georgia    C.    &    N.    Ry.    Co.    v.  stop;    and    a    railroad    company    is 

Watkins,   97   Ga.    381,   24   S.   E.   35.  not     relieved     from     liability     from 

34— Macon,     D.    &    S.    R.    Co.    v.  reason    of    its    failure    to    keep    all 

Moore,  99  Gil.  229,  25  S.  E.  460  (461).  the  appliances  which  extraordinary 

"The  following  charge  stated  the  diligence    would    require    on    trains 

law    too    strongly   against   the   de-  adapted    for    transporting    passen- 

fendant    company:      'A    carrier    is  gers.'  " 
liable     for     injuries     on     its     cars, 


§  1763.]  NEGLIGENCE— PASSENGER  CARRIERS.  1143 

of  negligence,  as  that  term  is  hereinbefore  defined,  in  failing  to  fur- 
nish the  plaintiff  and  his  wife  with  a  reasonably  warm  and  comfortable 
car,  if  you  find  they  so  failed,  and  you  believe  the  negligence,  if  any, 
of  the  connecting  carriers,  or  either  of  them,  was  the  cause  of  the 
sickness  of  plaintiff  and  his  wife,  or  either  of  them,  then  you  will  also 
find  for  the  plaintiff  such  sum  as  will  now,  in  cash,  compensate  plain- 
tiff for  the  ph.ysical  pain  and  mental  anguish,  if  any,  that  he  and  his 
wife,  or  either  of  them,  suffered  and  will  suffer  in  consequence  of  such 
sickness,  if  any,  and  the  effect,  if  any,  of  plaintiff's  sickness  upon  his 
ability  to  labor  and  earn  money,  and  all  necessary  and  reasonable 
sums  he  has  paid  or  incurred  for  medicine  and  doctors'  bills  for  him- 
self and  his  wife  in  consequence  of  such  sickness. 

(b)  But  if  you  believe,  from  the  evidence,  that  the  defendant  fur- 
nished the  plaintiff  and  his  wife  with  a  reasonably  comfortable  car 
to  ride  in  from  W  to  S,  then  the  defendant  performed  all  the  duty  it 
owed  to  plaintiff,  and,  if  you  so  believe,  your  verdict  will  be  for  the 
defendant,  or  if  you  believe  the  defendant  did  fail  to  furnish  the 
plaintiff  and  his  wife  a  reasonably  comfortable  car  from  W  to  S,  and 
was  negligent,  and  that  plaintiff  and  his  wife  suffered  cold  from  the 
trip  to  S,  yet  you  will  find  for  the  defendant  on  the  issue  of  sickness, 
unless  you  further  believe  the  negligence,  if  any,  of  the  defendant, 
on  its  own  line,  contributed  the  cause,  and  concurTed  in  causing,  the 
sickness.  Or  if  you  believe  the  negligence,  if  any,  of  the  connecting 
carriers  alone,  was  the  cause  of  the  sickness,  you  will  find  for  the  de- 
fendant on  the  issue  of  sickness.^^ 

(c)  If  you  find,  from  the  evidence,  that  plaintiff  and  his  wife  at 
the  time  alleged  in  the  petition  became  and  were  passengers  on  one 
of  defendant's  passenger  trains  at  T,  and  that  they  became  and  were 
entitled  to  be  carried  or  transported  to  G  on  said  train,  and  if  you 
further  find  that  during  the  time  they  were  being  carried  from  T  to 
G,  the  weather  was  cold  and  disagreeable,  and  that  the  agents  and 

35 — Missouri,   K.   &  T.  Ry.  Co.  v.  car.      Its    negligence    in    furnishing 

Harrison,    —     Tex.     Civ.     App.    — ,  the   defective  car,    under   the   facts 

77  S.  W.  1036.  stated,    was    the    proximate    cause 

"The  charge  is  not  subject  to  the  of  the  injuries  to  appellee  and  his 

criticism  that  it  is  upon  the  weight  wife.      While    it    was    not    the    sole 

of  the   evidence,   in   assuming   that  cause,  it  was  the  concurring  cause 

the  appellant  furnished  the  car  for  — such    as    might    reasonably    have 

the    trip.      As    stated,    the    uncon-  been  contemplated  as  involving  the 

troverted     testimony     was     to     the  result,     under     the     attending     cir- 

effect  that  the  appellant  undertook  cumstances.    Gozales   v.   Galveston, 

to  operate  a  through  train  without  84    Tex.    7,    19    S.    W,    284,    31    Am. 

change  of  cars   from   Greenville  to  St.   17. 

Birmingham,  Ala.     The  court   was         In     addition    to     the    authorities 

authorized    to    assume    this    as    an  cited    as    bearing    upon    the    ques- 

established      fact.        Nor     did     the  tions    discussed,    see    Seale    v.    Ry. 

court    err    in    failing    to    limit    the  Co.,    65  Tex.   274,   57  Am.   Rep.   602; 

appellant's     liability     to     such     in-  Stone    v.     Dickinson,     5     Allen     29, 

juries  as  were  suffered  by  appellee  81  Am.  Dec.  727;  1  Shearman  &  R. 

and    his    wife    on    appellant's    line,  on  Neg.,   par.  31;   Jones  v.   George, 

The    appellant    could    not    by    con-  61     Tex.     353,     48     Am.     Rep.     280; 

tract   relieve   itself    from   its   negli-  Sutherland   on   Dam.   (3d    ed.),    par. 

gence   in    furnishing    the    defective  36,  p.   113,  and  section  38,  p.  116." 


1144  FORMS  OF  INSTRUCTIONS.  [§  1763. 

servants  in  charge  of  said  train  failed  and  neglected  to  keep  the  coach 
in  which  plaintiff  and  his  wife  rode  warm  and  comfortable,  but  per- 
mitted the  same  to  become  cold  and  disagreeable,  and  not  properly 
heated,  if  they  did,  and  if  you  further  find  that  plaintiff  and  his  wife 
were  exposed  to  cold,  and  if  you  further  find  that  in  consequence  of 
such  exposure,  if  any,  they  contracted  and  took  cold,  and  they  were 
thereby  injured  as  alleged  in  the  petition,  and  if  you  further  find  that 
the  failure  of  the  agents  and  servants  in  charge  of  such  trains,  if  you 
find  there  was  a  failure,  to  keep  the  coach,  in  which  plaintiff  and  his 
wife  rode,  warm  or  comfortable,  was  negligence,  as  that  term  is 
defined  in  the  first  paragraph  of  this  charge,  and  that  such  negligence, 
if  any,  was  the  proximate  cause  of  the  injury  of  each  of  them,  if  you 
finl  that  they  or  either  of  them  were  injured,  then  you  wull  find  for 
the  plaintiff,  unless  you  find  for  the  defendant  under  the  further  in- 
structions hereinafter  given  you.^^ 

(d)  By  proximate  cause  is  meant  a  cause  which  operating  in  nat- 
ural and  ordinaiy  sequence,  unbroken  by  any  new  cause,  produces  the 
event,  and  without  which  such  event  would  not  have  happened.  If 
you  believe,  from  the  evidence,  that  plaintiff  or  his  wife  has  suffered 
or  is  suffering  from  any  physical  pain,  injury,  or  disability,  and  if 
you  believe  that  plaintiff  and  his  wife  were  exposed  to  cold  while  on 
defendant's  cars  and  that  defendant  was  negligent,  then  plaintiff 
would  be  entitled  to  recover  only  for  such  pain,  injury,  or  disability 
as  was  proximately  caused  by  such  exposures,  if  any,  and  if  any  of 
such  pain,  injury,  or  physical  disability  was  proximately  caused  in 
any  other  way  than  by  such  exposure  on  defendant's  cars,  for  such 
injury,  pain,  or  disability  so  caused  the  plaintiff  cannot  recover  and 
you  will  so  find.^'^ 

(e)  If  you  believe,  from  the  evidence,  that  -the  passenger  coaches 
constituting  the  train  on  which  plaintiff's  wife  was  a  passenger,  when 
delivered  to  defendant's  connecting  carrier,  at  S,  were  equipped  and 
supplied  with  heating  apparatus  and  appliances  for  making  the 
said  cars  warm  and  comfortable,  of  such  character  and  in  such  con- 
dition that  the  servants  of  defendant's  connecting  carriers  could,  by 
the  use  of  a  very  high  degree  of  care,  have  made  the  said  coaches  or 
the  said  coach  warm  and  comfortable,  the  defendant  is  not  liable  in 
this  case  for  suffering  or  injuries,  if  any,  which  resulted  to  plaintiff's 

36 — St.    L.    S.    Ry.    Co.    v.   Haney,  general  charge  and  special  charges 

—  Tex.   Civ.   App.  — ,   94  S.   W.   386  requested   by  appellant    and  given, 

(387).  wherein    the    jury    were     specially 

"We  are  unable  to  see  any  instructed  to  consider  only  the  In- 
reversible  error  in  this  charge,  juries  received  during  the  trans- 
This  paragraph  limits  a  recovery  portation  from  Texarkana  to 
for  the  injuries  received  to  the  Greenville,  the  objections  to  said 
time  plaintiff  and  his  wife  were  paragraph  complained  of  must  be 
being  carried  from  Texarkana,  held  untenable." 
Tex.,  to  Greenville,  Tex.,  and,  37— St.  L.  S.  W.  Ry.  Co.  v. 
v/hen  taken  In  connection  with  Haney,  —  Tex.  Civ.  App.  — ,  94 
other    paragraphs    of    the    court's  S.  W.  386  (388). 


§  1764.]  NEGLIGENCE— PASSENGER  CARRIERS.  1145 

wife  from  any  cause  while  she  was  a  passenger  of  defendant's  con- 
necting, carriers,  and  you  will  so  find.^^ 

§  1764,  Furnishing  Filthy  or  Unfit  Car — Rule  in  Texas  as  to  Meas- 
ure of  Damages,  (a)  Now,  if  you  lind  and  believe,  from  the  evidence, 
that  defendant's  employes  furnished  to  plaintiff's  wife  a  car  to  take 
passage  in  from  Dallas  to  Grand  Saline,  which  was  not  lighted,  and 
was  filthy  and  dirty,  and  that  plaintiff's  wife's  fellow  passengers  were 
smoking,  drinking  whisky,  cursing  and  crowding  up  against  plaintiff's 
wife ;  and  you  further  find  that  the  omissions  and  acts,  if  any,  were 
negligence,  as  that  term  is  herein  defined ;  and  if  you  further  find  that, 
as  the  proximate  result  of  said  negligence,  if  any,  plaintiff's  wife  suf- 
fered inconvenience,  humiliation,  fright,  alarm  and  excitement,  and 
was  made  sick,  and  suffered  physical  pain  and  mental  suffering — then 
you  will  find  for  plaintiff  such  damages,  if  any,  as  plaintiff  may  have 
suffered  by  reason  of  the  loss  of  his  wife's  services,  and  such  dam- 
ages, if  any,  as  plaintiff's  wife  may  have  suffered;  and  in  estimating 
the  damages,  if  any,  you  may  take  into  consideration  the  loss  of  time 
of  plaintiff's  wife,  the  inconvenience,  fright,  alarm  and  excitement,  if 
any,  together  with  her  mental  suffering  and  physical  pain  while  sick, 
if  she  was  sick,  which  was  the  proximate  result  of  the  negligence,  if 
any,  of  defendant 's  employes  in  charge  of  its  train,  and  therefrom  you 
will  ascertain  and  determine  what  amount  of  cash  money  will  be  a 
fair  and  reasonable  compensation  for  such  injuries,  if  any.^^ 

(b)  Even  though  you  find,  from  the  evidence,  that  the  train  on 
which  the  plaintiff  took  passage  was  an  excursion  train,  still  it  was 
the  duty  of  the  railway  company  to  provide  sufficient  accommoda- 
tions for  the  safety  and  comfort  of  its  passengers ;  and  if  they  failed 
to  use  ordinary  care  to  keep  the  cars  comfortably  warm,  or  to  prevent 
plaintiff's  wife  from  being  subjected  to  noxious  influences  and  mis- 
conduct on  the  part  of  the  fellow  passengers  on  the  train,  and  by 
reason  of  such  failure,  if  any,  plaintiff's  wife  and  child  were  made 
sick,  or  plaintiff's  wife  suffered  humiliation  or  mental  anguish,  and 
by  reason  of  the  sickness  of  plaintiff's  wife  and  child,  if  you  find  they 
were  made  sick,  plaintiff  was  compelled  to  expend  money  for  medical 

38— Missouri,   K.  &  T.   Ry.  Co.  v.  complained    of    reads,    'That   if   the 

Foster,    —    Tex.    Civ.    App.    — ,    87  jury    found,    as    tiie    proximate    re- 

S.  W.   879  (881).  suit   of  said    negligence,   the   plain- 

"This    was    a    defensive    charge,  tiff's    wife    suffered    inconvenience, 

and    submitted    the   reverse    of   the  humiliation,      fright,      alarm,      and 

proposition   upon   which   the  plain-  excitement,    and    was    made     sick, 

tiff     was     authorized     to     recover,  and     suffered     physical     pain     and 

The    charge    is    correct,     and    was  mental     suffering,     then     the    jury 

properly  submitted."  could    find    for    the    plaintiff    such 

39— Texas      &      P.      Ry.      Co.      v.  damages     as     may     have     resulted 

Bratcher,    —    Tex.     Civ.     App.    — ,  therefrom,'     and     again     repeating 

78  S.   W.   531   (533).  the  results   of  such  injuries  in  the 

"Nor    is    the    charge    subject    to  part    referring    to    the    manner    of 

the     ciitinism     that     it    sets     forth  estimating  the  damages.     It  is  not 

with  undue  prominence  the  results  contended    that    the   verdict    is    ex- 

which   the  jury   might    consider   as  cessive,  and  we  think  it  clear  that 

flowing  from  the  negligence  of  de-  the    jury    were    not    prejudiced    by 

fendant.     The    part   of   the   charge  this   repetition." 


1146  FORMS  OF  INSTRUCTIONS.  [§  1765. 

services  and  drugs,  then,  in  that  event,  plaintiff  is  entitled  to  re- 
cover.'*" 

§  1765.  Riding  on  Loaded  Freight  Cars  Belonging  to  Another  Car- 
rier— Duty  of  Carrier  Furnishing  Motive  Power  as  to  Inspection  of 
Vehicles  Used.  The  defendant  prays  the  court  to  rule  that  if  the 
court  and  jury  shall  find  that  the  said  S  became  a  passenger  on  a 
freight  train  of  the  defendant  company,  and  that  said  freight  train 
was  made  up  partly  of  loaded  freight  cars  belonging  to  other  com- 
panies and  received  by  said  defendant  to  be  forwarded  over  its  line, 
then  the  said  S  assumed  the  risks  of  all  dangers  arising  from  defects 
in  such  foreign  cars  which  could  not  be  detected  by  the  defendant  by 
careful  inspection  of  said  cars,  made  with  due  regard  to  the  exigencies 
of  traffic,  provided  the  defendant  used  all  due  care  (in  the  operation 
of  said  train)  in  the  running  and  management  of  said  train,  and  in 
all  the  subsidiary  arrangements  necessary  to  the  safety  of  the  pas- 
senger.*^ 

§  1766.  Liability  for  Defective  Coupling,  (a)  You  are  instructed 
in  this  ease  that  when  the  defendant  received  the  plaintiff  upon  his 

car  as  a  passenger  for  hire  upon  the  day  of ,  that  the 

defendant  was  bound  to  make  up  its  train,  couple  its  cars,  and  man- 
age and  control  the  same,  in  such  a  careful,  skillful  and  prudent  man- 
ner as  to  carry  the  plain tii3:  with  reasonable  safety  as  such  passenger. 

(b)  You  are  therefore  instructed  that  if  you  find  the  plaintiff  was 
injured  by  reason  of  the  negligent  acts  of  the  defendant's  agents  or 
servants,  whereby  they  used  a  defective  link  or  pin  to  couple  said 
cars;  that  human  care,  vigilance  and  foresight  could  have  reasonably 
discovered  such  defect;  and  you  further  find  that  the  defendant  did 
not  contribute  to  such  injury,  and  was  using  all  reasonable  care  and 
caution  to  avoid  said  injury, — then  your  verdict  would  be  for  the 
plaintiff. 

(c)  On  the  other  hand,  you  are  instructed  that  the  defendant  is 
not  required  to  use  the  utmost  degree  of  care  which  the  human  mind 
is  capable  of  inventing,  but  is  only  required  to  use  the  highest  degree 
of  care  and  diligence  which  is  reasonably  practicable  under  the  cir- 
cumstances of  the  case  in  question.  The  defendant  was  not  an  insurer 
against  accidents,  nor  is  the  defendant  compelled  to  insure  the  abso- 
lute safety  of  its  passengers.  What  the  defendant  was  required  to 
do  was  to  do  all  that  human  care,  vigilance  and  foresight  could  rea- 

40— St.  L.  S.  W.  Ry.  Co.  v.  Duck,  inspection   is    the  measure  of  duty 

—  Tex.   Civ.  App.  — ,  69  S.  W.  1027.  which   the  company  was   hound   to 

41 — Western    M.    R.    Co.    v.    State,  perform  with  respect  to  such  cars, 

95  Md.  637,  53  Atl.  Rep.  969.  it  owed  no  higher  duty  to  the  de- 

"This       prayer,       as      presented,  ceased,    who    was    a    passenprer    on 

definitely    ruled    that    tihe   deceased  the    freight    train;    and    when    that 

assumed    the    risks    of    all    dangers  duty      was      done,      if      done,      the 

arising     from     defects     in     foreign  hazards      incident      to      hidden      or 

freight     cars     when     the     defects  latent       imperfections,       were       of 

could  not  be  detected  or  discovered  course   assumed    by   the   passenger 

by  careful  inspection.     As  such  an  on  such  a  train." 


§  1767.]  NEGLIGENCE— PASSENGER  CARRIERS.  114? 

sonably  do,  consistent  with  the  practical  operation  of  the  road,  in 
order  to  prevent  injury  to  the  plaintiff,  its  passenger.^- 

§  1767.  Use  of  Spark-arresters  on  Engines,  (a)  If,  from  the  evi- 
dence, you  believe  that  sparks  or  cinders  escaped  from  defendant's 
engine,  and  got  into  plaintiff's  eyes,  which  caused  plaintiff's  injuries, 
but  if,  fi'om  the  evidence,  you  believe  that  the  engine  from  which  the 
sparks  or  cinders  escaped  was  equipped  with  the  most  approved  spark- 
arrester,  and  that  the  agents  and  employes  of  the  defendant  in  charge 
of  said  engine  used  ordinary  care  in  operating  said  engine  to  prevent 
the  escape  of  sparks  or  cinders,  then  you  are  instructed  that  the  prima 
facie  case  made  out  by  proof  of  escape  of  sparks  or  cinders  is  re- 
butted, and,  if  you  so  believe,  you  will  find  for  the  defendant ;  but  if 
you  believe,  from  the  evidence,  that  the  defendant  failed  to  equip  its 
engine  from  which  the  sparks  or  cinders  escaped  that  caused  plaintiff's 
injuries  with  the  most  approved  spark-arrester  in  use,  or  that  the 
agents  and  employes  of  the  defendant  engaged  in  operating  said 
engine  failed  to  use  ordinary  care  to  prevent  the  escape  of  sparks 
or  cinders,  then  you  are  instructed  that  the  prima  facie  case  made 
out  by  proof  of  sparks  or  cinders  escaping  and  causing  plaintiff's  in- 
juries has  not  been  rebutted.*^ 

(b)  If  you  believe,  from  the  evidence,  that  said  engine  was,  at  the 
time  in  question,  equipped  with  the  best  approved  apparatus  and 
appliance  then  in  use  for  the  prevention  of  the  escape  of  sparks  or 
cinders  therefrom,  and  that  the  defendant  had  exercised  proper  care 
to  keep  said  appliances  and  apparatus  in  reasonably  good  repair  and 
condition  as  regards  the  escape  of  cinders,  then  you  will  find  for  the 
defendant,  although  you  may  further  believe  that  a  cinder  was  emitted 

42— Larkin  v.  C.  &  G.  "W.  Ry.  Co.  to    the    part    of    the    charge    last 

118  Iowa  652,  92  N.  W.  891  (893).  quoted    that    it    requires    the    jury, 

43 — St.     L.     S.     W.     Ry.     Co.     v.  before  they  can  find  for  appellant. 

Parks,   —  Tex.   Civ.   App.  — ,  73   S.  to   believe   from    the    evidence  that 

W.   439   (440).  the  engine   was  equipped  with   the 

"It    is    objected    to    this    part    of  most    approved    spark    arrester    in 

the    charg-e    that    it    assumes    that  use,     appellant's    contention    being 

plaintiff's    eyes    were    injured    by  that  its  duty  required   it   'to  exer- 

sparks     or     cinders     that     escaped  else  ordinary  care  in  selecting   the 

from    the    locomotive.     We    do    not  kind    of   spark   arrester   or   netting 

think  that  the  charge  is  obnoxious  to  prevent  the  escape  of  sparks  or 

to    the    objection    when    construed  cinders    from    its    engines.'      It    is 

in    the    light    of    Mo.    Pac.    Ry.    v.  said   by   tihe   Supreme   Court   in    M. 

Lehmberg,    75    Tex.    61,    12    S.    W.  K.  &  T.  Rv.  Co.  v.  Carter,  95  Tex. 

838,    and    Galveston,    H.    &    S.    A.  461.   68   S.    W.   164: 

Ry.    Co.    V.    Waldo,    —    Tex.    Civ.  "The  decision  of  this  court  estab- 

App.  — ,   32  S.   W.  783.  lishes      that      railroad      companies 

"The  evidence  shows  beyond  con-  must  equip   their  locomotives  with 

troversy  that  appellee's   eyes  were  the    best    approved    appliances    for 

injured     in     some    way,     and     the  the    prevention    of    the    escape    of 

charge     simply     leaves     it     to     the  fire;'   citing  Galveston,  H.   &   S.   A. 

jury   to   determine   whether   sparks  Ry.    Co.    v.    Home.    69    Tex.    646,    9 

or  cinders  escaped  from  appellant's  S.  W.   440,   from  which  the  part   of 

engine,   and  got   tnto  his  eyes  and  the     charge     under     consideration 

caused   his  injuries.  was     evidently      copied,      for     the 

"It  is  also  urged  as  an  objection  language  is  identical." 


1148  FORMS  OF  INSTRUCTIONS.  [§  1768. 

from  said  engine,  and  struck  the  plaintiff  in  the  eye  and  injured  him 
as  alleged  in  the  petition.** 


SERVANTS. 

§  1768.  Responsibility  of  Carrier  for  Negligence  or  Wrongful  Con- 
duct of  Servants,  (a)  If  the  plaintiff  was  a  passenger  upon  defend- 
ant's road  in  one  of  defendant's  coaches,  as  charged  in  her  complaint, 
the  defendant's  obligation  was  to  carry  her  safely  and  properly;  and, 
if  the  defendant  intrusted  this  duty  to  the  servants  of  the  company, 
the  law  holds  the  defendant  responsible  for  the  manner  in  which  they 
execute  it.  The  cai^rier  is  obliged  to  protect  its  passengers  from  im- 
proper and  unnecessary  violence  at  the  hands  of  its  own  servants. 
And  it  is  the  established  law  that  a  carrier  is  responsible  for  the  neg- 
ligence and  wrongful  conduct  of  its  servants,  suffered  or  done  in  the 
line  of  their  employment,  whereby  a  passenger  is  injured. 

(b)  A  carrier  of  passengers  for  pay  is  responsible  for  injuries  sus- 
tained by  a  passenger  through  the  neglect,  recklessness  and  careless- 
ness of  the  servants  of  such  carrier,  while  such  servants  are  engaged 
in  the  general  scope  of  their  employment,  whether  the  act  was  or  was 
not  authorized  by  the  master. 

(e)  If  plaintiff  did  not  receive  the  injuries  complained  of  by  any 
contributing  act  of  negligence  or  fault  of  her  own,  but  was  injured 
at  the  time  complained  of  by  the  carelessness  and  negligence  or  fault 
of  the  defendant's  servants,  or  one  of  them,  committed  in  the  general 
scope  of  employment  as  such  servants  or  servant,  the  defendant  is 
liable  for  such  damages  as  she  may  have  sustained  by  the  injuries  thus 
received.*^ 

(d)  It  is  the  duty  of  the  defendant  to  exercise  the  highest  degree 
of  care  toward  the  plaintiff  as  long  as  she  remained  a  passenger,  and 
you  are  instructed  that  if  it  is  admitted  by  defendant  that  she  was 
such  passenger,  then  she  is  entitled  to  safe  can'iage  to  the  end  of  her 
destination,  and  if  she,  while  such  passenger,  was  assaulted  by  an 
employe  of  the  defendant,  then  the  defendant  is  liable  for  such  as- 
sault and  injuries  sustained.*^ 

§  1769.  Negligence  in  Writing  Date  on  Pass  no  Excuse  for  Assault 
by  Conductor.    Even  though  the  jury  may  find,  from  the  evidence,  that 

44 — M.,  K.  &  T.  Ry.  Co.  v.  Flood,  cautious    person    w^ould    use    under 

35    Tex.    Civ.    App.    197,    79    S.    W.  similar    circumstances.      St.    L.    S. 

1106   ni07).  W.   Ry.   Co.    v.    Parks,   97  Tex.   131, 

"Thf  jury  could  not  have  under-  76    S.    W.    740.      The    charge,    as    a 

stood     that     by     proper    care    the  whole,     submitted     this     issue     as 

charge    meant   a   higher   degree   of  favorably    to   appellant   as    it    was 

care   than  the  care  due  by  a    car-  entitled    to." 

rier   to   a  passenger,    and    this   had  45 — Louisville,     etc.,     R.     Co.     v. 

been  correctly  defined.     The  appel-  Wood,    113    Ind.    544,    14    N.    E.    572 

lee  being  a  passenger,  the  appellant  (5.S2). 

owed  him  that  high  degree  of  care  46— Garvik  v.  B.,  C.  R.  &  N.  Ry. 

to   keep   its   engine   and    appliances  Co..    124    Iowa    691,    100    N.    W.    498 

In  repair  which  a  very  prudent  and  (499). 


§  1770.]  NEGLIGENCE— PASSENGER  CARRIERS.  1149 

the  defendant  negligently  wrote  the  date  on  the  pass,  so  that  it  ap- 
peared to  expire  May  1st,  instead  of  May  10th,  they  are  insti'ucted 
that  negligence  in  writing  the  date  on  said  pass  is  not  to  be  consid- 
ered by  the  jury  in  determining  the  liability  of  the  railway  company 
in  this  action.*^ 


MANAGEMENT  AND  OPERATION  OF  CARS  AND  VEHICLES. 

§  1770.  Duty  to  Run  Trains  According  to  Schedules — Damages — 
Burden  of  Proof,  (a)  The  published  schedules  or  time-tables  of  a 
railway  company  are  the  representations  to  the  public  as  to  the  time 
of  departure  of  its  trains  and  of  the  periods  within  which  their  jour- 
neys will  be  perfonned.  They  are  public  professions,  up  to  which  it 
must  use  diligence  to  act,  and,  if  it  fail  to  ijerform  its  trips  according 
to  them,  it  will  be  liable  to  the  passenger,  unless  it  shows  that  it  has 
made  reasonable  exertions  to  do  so,  and  has  been  prevented  by  acci- 
dents and  delays  not  attributable  to  its  negligence,  and  in  order  to 
exempt  itself  from  liability  it  must  show  that  it  exercised  due  care 
to  prevent  the  delay. 

(b)  A  railway  company  is  chargeable  with  damages  due  to  delay 
in  running  its  trains  according  to  schedule  time,  and  nothing  but 
accidents  resulting  from  causes  which  reasonable  care  could  not  have 
provided  against  will  excuse  liability  to  the  passenger  for  damages. 
If  the  conduct  of  the  railway  company  is  such  as  to  show  a  wanton 
or  willful  disregard  of  duty  to  such  passenger,  exemplary  or  punitive 
damages  may  be  awarded. 

(c)  Willful  acts,  for  which  exemplary  damages  may  be  awarded, 
may  be  shown  by  evidence  of  the  recklessly  omitting  or  neglecting 
to  do  something,  the  failure  to  do  which  shows  gross  or  utter  disre- 
gard. 

(d)  Exemplary  or  punitive  damages  are  awarded  as  a  punishment 
to  a  wrongdoer,  and  as  an  example  and  warning  to  the  wrongdoer  and 
others. 

(e)  The  neglect  of  a  railway  company  to  run  its  train  according 
to  its  schedule  may  be  in  itself  an  unlawful  act.  When  an  act  which 
is  in  itself  unlawful  is  committed,  the  law  will  presume  that  damages 

47— St.   L.   I.   M.   &   S.   Ry.   Co.  v.  any  neg-ligence  in  writing  the  pass. 

Harrison,    76    Ark.    430    (433),    89    S.  Such    assault    certainly    could    not 

W.   53  (54).  be  considered  anywhere  within  the 

"This    instruction,    asked   at   that  range  of  the  natural,  ordinary  and 

time,    was    an    effort    on    the    part  reasonable,  or  even  remotely  prob- 

of  appellant  to  have  the  court  cor-  able,  effect  of  negligence  in  making 

rect     the     improper     argument     of  out    the    pass.      St.    L.    I.    M.    &    S. 

counsel    and    nulify    whatever   pre-  Ry.    Co.    v.    Bragg,    69   Ark.   402,    64 

judicial     influence    it    might     have  S.   W.   226.   86   Arn.   St.   206;  1   siith. 

had  upon  the  jury.     The  appellant  on  Dam.  57;  McDonald  v.  Snelling' 

was  clearly   entitled    to   it,   for   the  14     Allen     295,     92     Am.     Dec.     76S; 

assault    of    the    conductor    on    the  Scheffer  v.   Railway  Co     105  U    s' 

passenger    bearing    the    pass    could  252,  26  L.  Ed.  1070;  M.  &'st    P    Ry' 

never     have     been     contemplated,  v.   Kellogg,  94  U.  S.   475    24  L    Ed' 

even  as  a   remote   consequence  of  256."  ' 


1150  FORMS  OF  INSTRUCTIONS.  [§1771. 

follow  as  a  necessaiy  consequence  thereof,  and  no  special  damages 
need  be  proven. 

(f)  When  a  railway  company  has  failed  to  carry  a  passenger  to 
his  destination  by  the  time  fixed  in  its  published  schedule,  the  burden 
is  upon  the  railway  company  to  prove  that  it  has  made  every  proper 
effort  to  prevent  the  delay.  If  it  fail  to  prove  this,  it  will  be  liable  to 
the  passenger  for  damages.'^^ 

§  1771.  When  Delay  is  Presumptively  Negligent,  (a)  Where  a 
railway  train  is  delayed  by  an  obsti-uetion  on  the  track,  the  law  pre- 
sumes that  the  obstruction,  on  the  track  is  caused  by  the  fault  of  the 
railway  company,  and  the  burden  is  upon  the  railway  company  to 
prove  that  the  obstruction  on  the  track  was  caused  by  inevitable  acci- 
dent or  other  causes  which  could  not  have  been  prevented  by  due  care 
and  foresight.  If  it  fail  to  prove  this,  it  will  be  liable  to  the  passen- 
ger for  damages. 

(b)  Where  a  delay  happens  from  the  breaking  down  of  any  of 
the  cars,  engines,  roadway,  or  other  appliances  or  equipments  under 
the  control  of  the  railway  company,  or  is  caused  by  the  mismanage- 
ment or  misconstruction  of  something  over  which  the  railway  com- 
pany has  control,  the  law  presumes  that  the  same  was  caused  by  the 
negligence  of  the  railway  company,  and  the  burden  is  upon  the  rail- 
way company  to  disprove  this  presumption,  and,  if  it  fail  to  disprove, 
it  will  be  liable  to  the  passenger  for  damages,  if  damages  result  there- 
from to  a  passenger.*^ 

§  1772.  Freight  Trains  Not  Required  to  Stop  at  Platforms  to  Re- 
ceive or  Discharge  Passengers,  (a)  The  court  instructs  the  jui-y  that 
the  law  does  not  require  of  railroad  companies  that  they  stop  their 
freight  trains,  upon  which  passengers  are  carried,  at  the  platforms  of 
their  passenger  depots,  for  the  purpose  of  receiving  passengers,  but 
they  have  the  right  to  receive  passengers  on  such  trains  at  the  usual 
places  adopted  for  that  mode  of  travel ;  and  you  are  further  instructed 
that  if  it  appears  from  the  evidence  that  the  plaintiff  was  entitled  to 
ride  upon  the  train  in  question,  and  that  it  was  a  freight  train,  and 
tbat  he  undertook  to  board  the  same  from  the  platform  of  the  passen- 
ger depot  of  defendant  at  F,  and  failed  because  the  train  did  not  stop 
at  the  platform,  and  it  is  not  shown  by  the  evidence  that  it  was  the 
custom  of  the  defendant  to  stop  that  particular  train  at  the  said-plat- 
form for  the  purpose  of  receiving  passengers,  there  can  be  no  recov- 
ery, and  your  verdict  must  be  for  the  defendant. ^° 

(b)  The  court  instructs  the  jury  that  if  j'ou  believe,  from  the  evi- 
'dence,  the  defendant  in  this  ease  while  the  plaintiff  was  a  passenger 
on  its  freight  train  on  the  day  named  in  the  declaration  on  the  arrival 
of  its  freight  train  at  the  station  of  K,  stopped  its  caboose  reason- 
ably near  the  platform  at  said  station  of  K,  due  regard  being  had  to 

48— Those  six  instructions  were  49— Miller  v.  So.  Ry.  Co.,  suprn, 
approved  in  Miller  v.  So.  Ry.  Co.,  50— Ohio  &  M.  Ry.  Co.  v.  Brown, 
169  S.  C.  116,  48  S.  E.  99.  46  111.   App.   137. 


§  1773.]  NEGLIGENCE-PASSENGER  CARRIERS.  1151 

the  surrounding  situation  and  location,  and  stopped  a  sufficient  length 
of  time  for  the  plaintiff  to  alight  in  safety  in  said  village  of  K,  and 
if  you  further  believe,  from  the  evidence,  that  the  plaintiff  refused 
to  alight  and  depart  from  said  car  because  said  car  had  not  reached 
the  depot  platform,  then  you  should  find  the  issue  for  the  defendant.s'^ 

§  1773.  Negligently  Starting  Train  While  Passenger  is  Getting  On. 
If  the  jury  find,  from  the  evidence,  that  plaintiff  was  at  the  depot  in 
Ft.  P,  and  had  a  ticket  to  C,  on  the  road  of  defendant,  and  if  they 
find  that,  when  the  train  came  up  and  stopped,  she  at  once  attempted 
to  get  aboard  the  train,  and  if  she  was  not  negligent,  as  explained  to 
you,  and  if  while  she  was  going  up  the  steps  to  the  ladies'  coach,  the 
train  was  suddenly  moved,  and  if  plaintiff  was  diligent  in  getting  on 
the  train,  and  was  getting  on  in  a  reasonable  time  after  the  train 
stopped,  and  if  she  was  thrown  down  by  the  sudden  moving  of  the 
train,  and  was  injured  thereby,  then  defendant  was  guilty  of  negli- 
gence, and  plaintiff  would  be  entitled  to  a  veixlict,  if  she  was  guilty  of 
no  contributoiy  negligence.^- 

§  1774.  No  Obligation  to  Stop  Train  After  Starting  to  Permit 
Passenger  to  Board  It.  If  the  evidence  shows  that  the  train  had 
started  off  and  was  in  motion,  then  there  was  no  obligation,  statutory 
or  otherwise,  upon  the  defendant  to  cause  the  train  to  wait  or  to  be 
stopped  to  permit  the  plaintiff  to  get  on  the  train. ^^ 

§  1775.  Boarding  Train  at  Place  Where  Stop  is  Required  by  Stat- 
ute— Effect  of  Usage,  (a)  The  court  instructs  the  jury  that  it  is  the 
duty  of  the  jury,  in  order  to  ascertain  whether  the  defendants,  or 
either  of  them,  by  their  or  its  conduct,  invited  the  public  to  take  pas- 
sage upon  the  suburban  trains  of  the  defendant,  C.  &  E.  I.  R.  Co., 
going  southward  at  a  place  between  T  and  T  streets  in  the  city  of 
C,  to  consider  all  the  evidence  in  this  case  in  relation  to  the  manner  in 
which  persons  getting  or  attempting  to  get  upon  any  of  such  trains 
at  that  point  where  treated  by  the  agents  and  employes  of  said  de- 
fendants or  either  of  them. 

51— C.  &  E.  I.  R.  R.  Co.  v.  Stone-  platform,    if    the    expectation    that 

cipher,  90  111.  App.  511  (514).  it     would     be     pulled     up     to     the 

"In  reference  to  the  last  instruc-  platform  was  the  only  reason  that 

tion    cited    it  is    conceded    by    ap-  she    did    not    g-et    off    there,    and    if 

pellee  that    passengers    on    freight  the    landing   there    was    reasonably 

trains     cannot    insist     upon     being  safe    and    convenient    and    was    the 

landed    at   a   platform    if    it    is   the  place   where   passengers  from   said 

custom    of    such    freight    trains    to  freight  train   g'oing    south    usually 

land   them  at  a  safe  place  reason-  landed,     then    her  reason    for    not 

ably    near    and    convenient    to    the  getting    off    was    not    a    sufficient 

station.     The  testimony  of  appellee  reason,  and  if,  in  consequence,  she 

shows   that   she    started   to   get   off  was    carried    past    the    depot,    and 

the  train  when  it  first  stopped  and  landed    half    a    mile    from    it,    that 

remained  for  eighteen  minutes,  but  fact   alone   does   not   entitle  her  to 

resumed  her  seat  upon  being  told  by  recover  damages." 

some    one,    she    don't   knOw    whom,  52 — Alabama    C.     S.     R.     Co.     v. 

that  it  would  pull  up  to   the  plat-  Siniard,    123     Ala.    557,     26     So.     6S9 

form.     Under  the   conflict   of  testi-  (690). 

mony   as    to    the    character   of    the  53 — Pickett    v.    So.     Ry.     Co.,     69 

landing    where    the     caboose     first  S.  C.  445,  48  S.  E.  466  (469). 

stopped,  and  its  distance  from  the  "Section    2134    of     the     Code     of 


1152  FORMS  OF  INSTRUCTIONS.  [§  1776. 

(b)  The  jury  is  instructed  that,  in  order  to  determine  whether  the 
plaintiff  exercised  due  care  and  caution  for  her  own  personal  safety 
at  the  time  of  her  alleged  injury,  it  is  their  duty  to  consider  all  the 
circumstances  at  the  time  and  immediately  before  the  plaintiff  was 
struck  by  the  passenger  train  of  the  defendant  C.  &  E.  I.  R.  Co.,  if 
the  evidence  shows  that  she  was  so  struck. 

(c)  The  juiy  is  instructed  that,  even  if  they  should  believe,  from 
the  evidence,  that  the  object  of  the  defendant,  C.  &  E.  I.  R.  Co.,  in 
stopping  its  south-bound  suburban  trains  at  a  point  between  T  and  T 
streets  in  C  was  to  comply  with  the  statutes  of  this  state  with  refer- 
ence to  stopping  trains  for  railroad  crossings,  yet  if  the  jury  further 
believe,  from  the  evidence,  that  the  defendant,  C.  &  E.  I.  R,  Co.,  had 
been  in  the  habit  for  years  of  permitting  passengers  to  board  its  trains 
at  said  point  and  taking  fares  from  them  and  otherwise  treating 
them  as  passengers,  this  evidence  should  be  considered,  together  with 
all  the  evidence  introduced  in  the  case,  in  order  to  determine  whether 
the  stopping  of  said  trains  was  made  exclusively  for  the  purpose  of 
complying  with  the  statute  above  referred  to.^* 

§  1776.  Duty  to  Give  Notice  of  Arrival  at  Stations.  You  are  in- 
structed that  it  was  the  duty  of  the  defendant  to  give  plaintiff  rea- 
sonably sufficient  notice  of  the  approach  and  arrival  of  the  train  at  C, 
and  to  afford  him  a  reasonable  opportunity  to  get  off  the  train;  that 
upon  the  arrival  of  said  train  at  C,  it  was  'the  duty  of  the  plaintiff  to 
alight  from  the  train  at  said  station.  If,  therefore,  you  find,  from 
the  evidence,  that  the  employes  of  defendant  in  charge  of  said  train 
gave  notice  of  the  approach  and  arrival  of  said  train  at  C  in  the 
usual  manner,  and  that  the  notice  of  such  approach  was  given  in  a 
manner  reasonably  calculated  to  inform  plaintiff  of  the  arrival  of 
said  train  at  said  station;  and  if  you  further  believe,  from  the  evi- 
dence, that  said  train  remained  at  said  station  a  sufficient  length  of 
time  to  enable  plaintiff  to  alight  therefrom,  and  that  he  failed  to  do 
so, — then  the  plaintiff  would  not  be  entitled  to  recover,  and  you 
should  find  a  verdict  for  the  defendant. ^'^ 

Laws  is  as  follows:  'Every  rail-  railroad  company,  and  thus  en- 
road  company  in  this  state  shall  hance  the  danger  to  the  traveling 
cause  all  its  trains  of  cars  for  public.  It  was,  therefore,  error  to 
passengers  to  entirely  stop  upon  refuse  the  request." 
each  arrival  at  a  station  adver-  54 — C.  &  W.  I.  R.  R.  Co.  v.  Doan, 
tised  by  such  company  as  a  sta-  93  111.  App.  247  (251),  aff'd  195  111. 
tion  for  receiving  passengers  upon  168,  62  N.  E.  826. 
such  trains  for  a  time  sufficient  "Taken  apart  from  each  other 
to  receive  and  let  off  passengers.'  and  from  the  other  evidence  in  the 
It  will  thus  be  seen  that  the  case,  the  above  instructions  are 
statute  has  made  provision  for  not  free  from  criticism;  but  when 
persons  desiring  to  board  the  read  in  connection  with  the  other 
train.  The  railroad  company  owes  instructions  in  the  case,  as  should 
no  duty  to  a  belated  passenger  to  always  be  done,  we  are  of  the 
stop  its  train  in  any  other  manner  opinion  "that  as  a  whole  they 
than  that  required  by  the  statute,  could  not  have  mislod  the  jury." 
Creech  v.  Ry.  Co..  66  S.  C.  528,  45  55— St.  L.  &  S.  W.  Ry.  Co.  v. 
S.   E.  86.  Ricketts.   22  Tex.   Civ.   App.   515,   54 

"A  "ontrary  doctrine  would  tend  S.  W.  1090. 
to  disarrange  the  schedules  of  the 


§  1777.]  NEGLIGENCE— PASSENGER  CARRIERS.  1153 

§  1777.  Duty  to  Announce  Stations — Passenger  Negligently  Fail- 
ing to  Hear  Announcement.  Gentlemen  of  the  jury,  you  are  instructed 
that  it  is  the  duty  of  a  passenger  on  a  railroad  train  to  use  his  senses, 
and  take  notice  of  the  usual  announcement  of  stations,  and  if,  by 
reason  of  his  negligence,  the  passenger  fails  to  hear  notice  given  of 
the  arrival  of  the  train  at  his  place  or  destination,  and  remains  on 
the  train,  and  is  carried  beyond,  the  fault  is  the  passenger's,  and  the 
carrier  is  not  liable  therefor.  If,  therefore,  you  believe,  from  the 
evidence,  that  defendant's  servants  in  charge  of  the  train  gave  the 
usual  announcements  of  stations  as  the  train  approached  C  and  if, 
by  reason  of  plaintiff's  negligence,  he  failed  to  hear  such  announce- 
ment, the  plaintiff  remained  on  the  train  and  was  carried  beyond,  the 
fault  was  the  plaintiff's,  and  the  defendant  is  not  liable  therefore,  and 
you  should  return  a  vei'dict  in  its  favor.^^ 

§  1778.  Effect  of  Conductor's  Promise  to  Come  for  Passenger  at 
Destination — Carrying  Passenger  Past  Destination,  (a)  The  jury  are 
instructed  that,  if  the  conductor  had  promised  to  come  to  her  when  the 
train  reached  B,  she  had  a  right  to  rely  on  that  promise,  and  that  he 
would  come,  and  she  was  not,  under  those  circumstances,  obliged  to 
take  notice  of  the  fact  that  the  train  had  got  to  B,  and  she  was  not 
obliged  to  listen  at  or  depend  upon  the  call  of  the  brakeman  when  the 
train  reached  B  as  a  passenger  would  be  required  to  do  if  the  passen- 
ger had  no  assurance  at  that  time  from  the  conductor. 

(b)  And  so,  though  the  train  got  to  B  and  stopped  here,  and 
though  the  brakeman  and  conductor  may  have — the  brakeman  may 
have — called  out  "B,"  thereby  giving  notice  to  the  passengers  of  the 
fact  the  train  was  at  B,  then  if  she,  relying  upon  his  promise  to  come 
to  her  at  that  time,  if  he  did  make  such  promise,  failed  to  hear  the 
brakeman  call  out  the  station  of  B,  why,  she  would  be  entitled  to  re- 
cover, because,  if  the  conductor  promised  to  come  to  her  at  B,  she 
had  a  right  to  rely  on  that  promise,  and  wait  in  her  seat  until  he 
came,  and  she  was  not  obliged  to  listen  to  the  brakeman  or  listen  at 
the  call  of  the  station,  but  might  simply  expect  him  to  come  and  do 
what  he  promised  to  do.^'' 

§  1779.  Duty  to  Stop  a  Reasonable  Time  for  Passengers  to  Alight, 
(a)  A  railroad  company  carrying  passengers  for  hire  has  not  dis- 
charged its  duty,  or  relieved  itself  from  liability,  to  them,  till  it 
stopped  at  the  end  of  their  journey  a  reasonable  time  for  them  to  get 
off  the  train  in  safety.^^ 

(b)  The  court  instructs  the  jury  that  it  was  the  duty  of  the  de- 
fendant company  to  stop  its  train  at  B  station,  on  the  occasion  in 
question,  a  reasonably  sufficient  length  of  time  to  enable  plaintiff's 
wife  to  alight  therefrom  in  safety,  and  a  failure  on  the  part  of  de- 

56— St.    L.    &    S.    W.    Ry.    Co.    v.         57— Louisville    &    N.    R.    Co     v. 
Ricketts,    22    Tex.    Civ.     App.    515.     Quick.  125  A  In.  55.'?.  28  So.  14  (16). 
54   S.    W.   1090.  58— Louisville,     etc.,     R.     Co.     v. 

Wood,  113  Ind.  544,  14  N.  E.  572. 
73 


1154  FORMS  OF  INSTRUCTIONS.  [§  1780. 

fendant's  employes  in  charge  of  its  train  to  use  that  high  degree  of 
care  to  discharge  such  duty  which  very  prudent  and  competent  per- 
sons would  usually  have  exercised  under  the  circumstances,  would  be 
negligence  of  the  defendant  company,  for  which  it  would  be  liable  to 
the  plaintiff  for  any  injuries  to  his  wife  as  the  evidence  may  show  was 
the  approximate  and  direct  result  of  such  negligence,  provided  that 
plaintiff's  wife  was  at  such  time  not  herself  guilty  of  contributory 
negligence. ^^ 

§  1780.  Degree  of  Care  Required  of  Carrier  While  Passengers  Are 
Alighting.  It  is  the  duty  of  a  railway  company  carrying  passengers 
to  exercise  a  high  degree  of  care  to  enable  its  passengers  to  alight 
from  its  ears  in  safety — the  degree  of  care  required  is  such  as  very 
prudent,  careful  and  competent  persons  would  exercise  under  similar 
circumstances — and  a  failure  to  exercise  such  care  constitutes  negli- 
gence.''*' 

§  1781.  Starting  Train  While  Passenger  is  in  Act  of  Alighting, 
(a)  If  you  find,  from  the  evidence,  that  when  the  train  on  which 
plaintiff's  wife  was  riding  reached  P  she  used  reasonable  diligence, 
situated  and  circumstanced  as  she  was,  to  get  off  said  train,  and  if 
said  train  did  not  stop  at  P  long  enough  for  her  to  have  alighted 
therefrom  in  safety,  and  if  while  she  was  endeavoring  to  get  off  said 
train,  it  was  started,  and  if,  by  reason  thereof,  or  if  by  reason  of  the 
negligence  of  the  parties  operating  said  train  in  failing  to  assist  her 
to  get  off — if  you  find  that  such  failure  was  negligence — she  was 
caused  to  fall  and  be  injured  without  fault  or  negligence  on  her  part, 
then  you  will  find  for  plaintiff.^^ 

59 — St.  L.  S.  Ry.  Co.  v.  Harrison,  support     in     the     authorities,     we 

32  Tex.  Civ.  App.  368,  73  S.  W.  38.  thinlc  it  has  no   application   to  the 

"It    correctly    defines    the    appel-  present    case,    since    undeniably    a 

lant's  duty,  and  states  the  circum-  passenger,     while     in     the     act     of 

stances    under    which    the    carrier  alighting-  from  a  railway  coach,  is 

would    be  liable,   and   leaves   it  for  quite    fully   committed   to    the   care 

the  jury  to  determine  whether  the  of   the    carrier    and    is    not    at    all 

circumstances     existed.       The     ap-  free     to     select     his     means     and 

pellant's   duty  to   Mrs.   H.    did  not  avenues  of  exit.     Tex.   &  Pac.  Ry. 

terminate    until    she    had    alighted  Co.  v.  Miller,   79  Tex.  78,  15  S.  W. 

from  the  train.     Railway  v.   Miller,  264,    11    L.    R.    A.    395,    23    Am.    St. 

79  Tex.   79,    15   S.   W.   264,   11   L.   R.  308;    Gulf,    Colorado    &    Santa    Fe 

A.   395,  23  Am.    St.   308."  Ry.    Co.    v.    Butcher,    83    Tex.    309, 

60— M.,  K.  &  T.   Ry.  Co.  v.  Wolf,  18  S.  W.  583;  Houston  &  Tex.  Cent. 

—  Tex.  Civ.  App.  — ,  89  S.  W.  778.  R.  R.  v.   Dotson,  15  Tex.  Civ.  App. 

"By       appropriate       propositions  80,   38   S.    W.    644;   Tex.    Mid.    R.    R. 

under    the    first    assignment,    it    is  Co.    v.    Brown,    —    Tex.    Civ.    App. 

insisted    that    the    high    degree    of  — ,   58   S.   W.   44;   M.    K.   &   T.    Ry. 

care    required    of    appellant    in    the  Co.  of  Tex.  v.  Soarhorongh.  —  Tex. 

first     paragraph      of     the     court's  Civ.   App.   — ,    51    S.   W.   356;   M.   & 

charge   is  applicable  only  to  those  T.    Ry.    Co.    of    Tex.    v.    Mitchell, 

cases    where     the     passenger     has  34  Tex.  Civ.  App.  394,  79  S.  W.  94." 

entrusted     himself    wholly    to    the  61— C.    R.    I.     &    T.    Ry.    Co.    v. 

custody     of     the     carrier,     as     his  Armes,    32    Tex.    Civ.    App.    32,    74 

bailee,  in  short,  and  not  to  a  case  S.    W.   77   (78). 

like    tlhis,    where    the    passenger    is  "Our  Supreme  Court,  in  the  case 

in    the   act    of    alighting   from    the  of   T.    &    P.    Ry.    Co.    v.    Miller,    79 

carrier's   train.     Yet,    if   we   accept  Tex.  78,  15   S.    W.   264,   11    L.    R.    A. 

the  principlfi  of  the  law  contended  395.      approves      a      charge      quite 

for,  which   appears  to   have   some  similar  to  tihe  above  clause  of  the 


§1782.]  NEGLIGENCE— PASSENGER  CARRIERS.  1155 

(b)     If  you  believe  from  the  evidence  that  on  the  ,  plaintiff 

with  his  father  and  mother,  were  passengers  on  one  of  the  de- 
fendant's trains,  bound  for  the  station  of  D;  and  if  you  further  be- 
lieve that  as  soon  as  the  train  stopped  at  D  the  plaintiff  and  his 
father  arose  from  their  seats,  and  proceeded  at  once  to  leave  said 
train;  and  if  you  further  believe  that  while  attempting-  to  alight  from 
the  train,  the  plaintiff  reached  the  steps  of  the  car;  and  if  you  further 
believe  that  while  plaintiff'  was  on  the  steps  of  the  car  (if  you  find  he 
was)  the  servants  of  the  defendant  in  charge  of  the  train  suddenly 
started  the  train;  and  if  you  further  believe  the  servants  in  charge 
of  said  train  failed  to  stop  the  same  a  reasonable  length  of  time  for 
the  passengers  to  get  off  without  injury  to  themselves;  and  if  you 
further  believe  that  the  sudden  starting  of  the  train  (if  you  find  it 
was  suddenly  started)  threw  the  plaintiff  from  the  car  steps  to  the 
platfoiTQ  below ;  and  if  you  further  believe  that  the  plaintiff  fell  on 
his  side,  and  was  injured,  as  alleged;  and  if  you  further  believe  the 
plaintiff  and  his  father,  in  attempting  to  alight  from  said  train  (if  you 
find  they  did)  used  such  haste  and  caution  as  persons  of  ordinary 
prudence  would  have  exercised  under  the  same  circumstances;  and  if 
you  further  believe  the  sei'vants  in  charge  of  said  train  were  guilty 
of  negligence  in  starting  the  train  under  the  circumstances  (if  you 
find  they  suddenly  started  the  same)  ;  and  if  you  further  believe  the 
plaintiff's  injuries,  or  any  part  of  them,  are  the  direct  and  proximate 
result  of  the  negligence  of  the  defendant, — then,  in  that  event,  you 
will  find  for  the  plaintiff;  but  unless  you  so  believe  you  will  find  for 
the  defendant.^" 

§  1782.  Fall  While  Alighting  Must  Be  Due  to  Negligence  of  Car- 
rier, or  His  Servants,  to  Render  Carrier  Liable.  The  court  instructs 
the  juiy  that  unless  you  find,  from  the  evidence,  that  plaintiff's  wife 
was  injured  by  falling  while  attempting  to  alight  from  said  train,  and 
that  such  fall  was  caused  by  the  negligence  of  the  defendant's  em- 
ployes in  charge  of  said  train,  you  will  find  for  the  defendant.  If  her 
injury,  if  she  was  injured,  was  produced  by  any  other  cause  than  by 
falling  while  attempting  to  get  off  said  train,  you  will  find  for  de- 
fendant.®^ 

§  1783.  Getting  Off  Train  While  in  Motion — Obeying  Directions  of 
Sleeping  Car  Porter,  (a)  The  court  instructs  the  juiy  that  if  you 
believe,  from  the  evidence,  that  the  plaintiff  was  a  through  passenger 
from  St.  L.,  Mo.,  to  N.  Y.  City  in  the  State  of  New  York,  by  way  of 
B,  in  said  State  of  New  York,  and  that  on ,  the  through  sleep- 
court's  charge  in  this  case.  We  as  will  enable  them  to  alight  at 
think  the  court  announced  a  cor-  their  destination  under  the  usual 
rect  proposition  of  law,  particu-  and  ordinary  circumstances." 
larly  as  applied  to  the  facts  of  this  62— St.  Louis  S.  W.  Ry.  Co.  v. 
case.  ...  It  must  certainly  be  Byers,  —  Tex.  Civ.  App.  — ,  70  S. 
held  as  a  matter  of  law  to  be  the     W.   558   (559). 

duty  of  a  railway  company  receiv-  63— Chicago,  R.  I.  &  T.  Ry.  Co. 
ing  passengers  for  transportation  v.  Armes,  32  Tex.  Civ.  App.  32, 
to  give  them  such  reasonable   time     74  S.  W.  77  (78). 


1156  FORMS  OF  INSTRUCTIONS.  [§  1784. 

ing  car  from  St.  L.  to  N.  Y.  City  on  which  plaintiff  was  being  carried 
as  such  passenger,  reached  the  E  S  Station  at  B,  in.  the  progi-ess  of 
said  journey  to  the  city  of  N.  Y.,  and  that  said  station  was  then  man- 
aged and  controlled  by  defendant;  and  if  you  further  believe  from 
the  evidence  that  said  car  arrived  at  said  B  station  at  6:30  p.  m.  of 
said  day  on  track  No.  6,  and  was  to  leave  said  station  on  the  way 
to  N.  Y,  at  6:50  p.  m.  over  defendant's  main  line,  the  N.  Y.  C.  &  H.  R. 
R.,  and  that  plaintiff  during  said  interval  of  time  between  6:30  and 
6 :50  p.  m.  visited  the  restaurant  in  said  station  to  obtain  refresh- 
ments, and  upon  his  return  to  the  train  shed  of  said  station,  before 
6:45  p.  m.  discovered  that  the  said  sleeping  car  on  which  he  had  been 
traveling  as  a  passenger,  as  aforesaid,  was  no  longer  standing  upon 
said  track  No.  6,  on  which  plaintiff  had  left  it,  and  that  plaintiff  did 
not  know  where  said  sleeping  car  was,  and  thereupon  endeavored  to 
find  the  said  car,  and  in  so  doing  observed  a  train  headed  towards  the 
east  upon  track  No.  4  in  said  station,  and  that  said  train  contained  sev- 
eral sleeping  cars  and  had  the  general  appearance  of  a  through  train, 
and  that,  on  asking  the  porter  on  one  of  said  sleeping  cars  of  said  train, 
plaintiff  was  told  by  him  that  said  train  was  the  train  for  N.  Y.,  and 
that  plaintiff  thereupon  and  in  consequence  of  said  statement  of  the 
porter  got  on  said  train,  believing  it  to  be  the  train  of  which  said 
sleeping  ear  on  which  he  rode  from  St.  L.  was  a  part,  and  that  after- 
wards plaintiff  was  informed  by  said  porter  that  said  train  was  the 
West  Shore  train  and  that  he  then  was  directed  by  said  porter  to 
jump  off,  and  that  plaintiff  then  stepped  to  the  platform  adjacent  to 
track  No.  4  of  said  station  from  the  step  of  said  sleeping  car  of  said 
West  Shore  train  while  the  latter  was  in  motion  and  in  so  doing 
plaintiff  slipped  upon  said  platfoi-m  and  fell  underneath  said  train 
and  was  run  over,  whereby  he  received  personal  injury  in  the  loss  of 
part  of  his  leg;  and  if  you  further  find  that  said  injury  was  so  received 
by  plaintiff  as  a  direct  consequence  of  negligence  on  the  part  of  de- 
fendant, as  defined  in  other  instructions,  and  that  plaintiff  was  not 
guilty  of  any  want  of  ordinary  care  on  his  part  contributing  to  his 
said  injury,  in  so  stepping  from  said  West  Shore  train, — then  your 
verdict  should  be  for  the  plaintiff.®* 

§  1784.     Obeying  Directions  of  Conductor  in  Alighting  from  Train. 

(a)     A  passenger  is  warranted  in  obeying  the  direction  of  the  ser- 

64 — Newcomb   v.    N.    T.    C.    &    H.  was    the   neglect    of   the    defendant 

R.  R.  Co.,  182  Mo.  687,  81  S.  W.  1069  to    point     out    the    right    train    to 

(1076).  him.     And  the  instruction  does  not 

"The  failure  to  direct  the  plain-  place  the  negligence  on  the  mis- 
tiff  to  his  proper  train  left  him  direction  of  the  porter,  but  de- 
to  wander  in  search  of  it,  and  in  scribes  the  situation  and  the 
his  search  he  fell  in  with  the  catastrophe,  and  then  says  that  if 
porter,  who  gave  him  misdirection,  it  was  caused  by  the  negligence 
If  there  had  boon  no  porter  on  the  of  defendant  as  defined  in  other 
platform,  and  plaintiff  had  boarded  instructions  the  defendant  was 
the  car  to  inquire,  the  consequence  liable.  The  other  instructions  re- 
in legal  effect  would  not  have  been  ferred  to  limit  the  negligence  to 
different.  The  proximate  cause  the  allegations  in  the  petition." 
of    his    boarding    the    wrong    train 


§  1785.]  NEGLIGENCE— PASSENGER  CARRIERS.  1157 

vants  and  agents  of  the  carrier,  when  given  within  the  scope  of  their 
duty,  unless  such  obedience  leads  to  a  known  peril  which  a  prudent 
person  would  not  encounter. 

(b)  If,  in  this  ease,  the  jury  believe,  from  a  fair  preponderance  of 
the  evidence,  that  the  plaintiff  obeyed  the  defendant's  conductor  in 
charge  of  the  train  upon  which  she  was  a  passenger,  in  getting  off 
the  train,  and  if  she  was  not  then  apprised  of  any  peril  that  she 
would  encounter  thereby,  she  would  not  be  guilty  of  contributing  to 
any  injuries  received  by  her  in  thus  alighting  from  the  train. °^ 

§  1785.  Conductor  Pulling  Passenger  from  Train  While  in  Motion. 
If  the  fact  be  that  the  defendant's  conductor,  having  charge  of  the 
train  upon  which  plaintiff  was  a  passenger,  seized  hold  of  her  while 
the  train  was  in  motion  and  was  moving  on,  and  pulled  her  from  the 
platform  of  the  coach  by  the  exercise  of  physical  force,  and  thereby 
caused  her  to  strike  the  ground  or  other  hard  substance  below, 
whereby  she  was  injured,  she  would  not  be  guilty  of  contributing  to 
injuries  received  thereby.^® 

§  1786.  Effect  of  Agreement  with  Conductor  to  Check  Speed  of 
Train  in  Order  that  Passenger  Might  Alight,  (a)  The  court  instructs 
the  jury  that  if  the  plaintiff  was  on  the  train  under  an  arrangement 
with  the  conductor,  as  alleged,  he  was  rightfully  on  the  train,  and  it 
was  the  duty  of  the  conductor  to  use  reasonable  diligence  and  care 
to  carry  out  the  agreement,  and  to  afford  plaintiff  an  opportunity  to 
safely  alight,  provided  he  himself  should  exercise  reasonable  care  in 
the  choosing  of  the  occasion  and  in  the  doing  of  the  act.  Such  ar- 
rangement would  not  bind  the  conductor  to  make  the  exit  of  the  plain- 
tiff safe,  but  only  by  reducing  the  speed  of  the  train,  if  it  was  going 
too  fast,  to  give  plaintiff  what  reasonably  appeared  to  the  conductor  a 
chance  to  get  off  in  safety,  in  the  use  of  ordinary  care  on  plaintiff's 
part.^'^ 

(b)  If  you  believe,  from  the  evidence,  that  plaintiff  was  on  the 
train  with  the  knowledge  of  the  conductor,  under  an  agreement  that 
he  should  ride  as  far  as  about  the  schoolhouse;  that  the  train  would 
then  go  at  such  a  rate  as  that  he  might  safely  alight,  provided  he 
acted  with  ordinary  care  in  so  doing;  and  that  the  train  did  not  at 

65 — Louisville,     etc.,     R.      Co.     V.  charg-e  does   not  apply   to  the  evi- 

Wood.  113  Ind.   544,   14  N.   E.   572.  dence    and    is    confusing    and    mis- 

66 — Louisville,     etc.,     R.     Co.     v.  leading-.'      Under     the     agreement, 

Wood,   113  Ind.    544,  14  N.  E.   572.  we  think  the  charge  not  objection- 

67— St.  L.  S.  W.  Ry.  Co.  v.  High-  able.     The  agreement  was  that  the 

note,    —    Tex.    Civ.    App.    — ,    84    S.  train  was  to  slow  up   at  a  certain 

W.  365  (366).  place,    and    when    it    did    slow    up 

"The     objection     urged     to     the  at  that  place  appellee  was  justified 

charge    is     that     'it    required    the  in  believing  that  it  was   the  occa- 

conductnr    to    use    reasonable    dili-  sion    contemplated    by    the'    agree- 

gence    and    care    to    carry    out    the  ment   for  him   to  alight,  and    if  he 

agreement,    and    to    afford    H.    an  used    proper    care    in    doing    so    he 

opportunity     to     alight     in     safety,  did    all   that  wa&  required    of  him, 

and   at   the  same   time   allowed   H.  and    it    was   the    conductor's    duty 

to    choose   the    time    and    place    in  to   use   care   to  see   that  the  train 

departing     from     the     train.       The  was  slowed  up." 


1158  FORMS  OF  INSTRUCTIONS.  [§  1787. 

that  place  go  at  such  speed  as  to  afford  him  a  reasonable  opportunity 
to  safely  alight,  in  the  use  of  ordinary  care,  but  was  going  faster  than 
was  agreed,  and  at  a  rate  that  made  it  unsafe  to  alight;  that  the 
conductor  knew,  or  ought,  in  the  exercise  of  ordinary  care,  to  have 
so  known;  and  that  the  plaintiff,  in  the  use  of  ordinary  care,  reason- 
ably believing  that  the  train  had  been  checked  in  speed,  and  was, 
under  an  agreement,  going  slow  enough  for  him  safely  to  get  off,  and 
reasonably  believing  that  he  could  get  off  with  safety,  alighted  from 
the  train,  using  ordinary  care  in  so  doing,  and  that  by-  reason  of  the 
fact  that  the  train  was  moving  too  fast  for  him  to  safely  alight,  and 
faster  than  it  had  been  agreed  it  should,  he,  in  alighting,  fell  and  was 
thereby  injured — you  will  find  for  the  plaintiff.*'^ 

§  1787.  Failure  to  Warn  Passenger  of  Danger  in  Alighting.  The 
jury  are  instructed  that  if  they  believe,  from  the  evidence,  that  the 
plaintiff  was  a  passenger,  as  alleged;  that  the  night  was  dark  and 
rainy;  that  the  brakeman  called  the  station  and  opened  the  doors;  that 
the  train  came  to  a  full  stop;  that  thereupon  plaintiff  went  on  the 
platform  where  the  brakeman  was  standing,  as  if  to  get  off,  and  that 
the  brakeman  failed  to  warn  him  of  danger,  and  to  inform  him  that 
the  train  had  not  reached  the  station,  and  that  plaintiff,  on  account  of 
the  darkness,  did  not  and  could  not  discover  that  the  car  was  not  at 
the  platform,  and  that,  exercising  ordinary  care,  he  attempted  to 
leave  the  train;  and  that  by  the  starting  thereof  he  was  thrown  or 
fell,  and  was  injured, — they  would  be  warranted  in  finding  negli- 
gence on  the  part  of  the  defendant. *^^ 

§  1788.  Stopping  at  Suitable  Place  for  Passenger  to  Alight,  (a) 
If  the  jury  believe,  from  the  evidence,  that  the  defendant  stopped 
their  train  for  passengers  to  alight  at  W  station  at  a  place  which 

68— St.  L.  S.  W.  Ry.  Co.  v.  High-  We  are   of   the   opinion   that   there 

note,    supra.  is    no    merit    in    the    second    and 

"The    objections    urged    to    this  third    objections.      As    to    the    first 

charge   are   (1)    that    it   makes   ap-  objection,    we    are    of    the    opinion 

pellant     liable     if     the     conductor  that  it   is   not  well  taken.     It  was 

knew,  or  ought   to  have  known  in  the   duty    of  the   conductor  to   use 

the  use  of  ordinary  care,  that  the  ordinary    care    to    have    the    train 

train    was   going    faster   than    was  running   at    that    point    at    such    a 

safe,   and    faster   than   was   agreed  rate   of  speed  as   that  the  appellee 

upon,     at     the     time     appellee     de-  could    have,    with   the   use   of   ordi- 

parted      therefrom,      whether      he  nary   care,   alighted   in   safety,   and 

knew,  or  by  the  use  of  reasonable  if  he   failed   to  use  that   care,   and 

care    ought    to    have    known,    that  the     appellee     alighted,     believing 

appellee  intended  to  depart  at   the  that     it     was     running     sufficiently 

time  he  did  depart,   or  knew  when  slow,    and    used    ordinary    care    in 

he   did    depart   from   the   train;   (2)  so    doing,    he    was    entitled    to    re- 

that    it    is    on    the    weight    of    the  cover." 

evidence,    and    assumes    that     the  69— Devine   v.   Chicago,    M.   &   St. 

train  was  moving  too  fast  for  ap-  P.   R.   Co.,   100  Iowa  692,   69  N.   W. 

pellee  to  safely  alight  at  the  time  1042    (1043). 

he  departed    therefrom;   (3)  that  it  "The     matters     recited     in     the 

is  upon  the  weight  of  the  evidence,  above  paragraph  of  the  charge  are 

and  assumes  that  the  rate  of  speed  all  alleged  as  circumstances  which 

was   faster    than    had    been    agreed  made     it     negligence     to     stop     the 

upon    between    the    conductor    and  train,    and    invite    or    permit    pas- 

O'Neil  at  the  time  appellee,  High-  sengers  to  then  leave  it." 
note,     departed     from     the     train. 


§  1789.]  NEGLIGENCE— PASSENGER  CARRIERS.  1159 

was  unsafe  and  dangerous  for  passengers  to  alight,  and  that  the 
plaintiff  was  told  or  encouraged  to  get  off  at  such  place,  and,  while 
so  doing,  she  was  injured,  then  the  defendant  would  be  liable,  and 
the  verdict  should  be  for  the  plaintiff,  if  she  did  not  contribute  to 
the  accident  by  the  want  of  ordinary  cai'e, — by  the  failure  to  obsei^ve 
ordinary  care.'^'* 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
alighted  from  defendant's  car  at  the  place  described  in  the  complaint, 
but  that  the  place  where  ^^laintiff  alighted  was,  considering  the  cir- 
cumstances, a  suitable  place  and  a  place  of  reasonable  safety  for  pas- 
sengers to  alight,  and  such  as  a  person  of  ordinaiy  care  might  select 
for  such  purpose,  then  the  defendant  would  have  discharged  its  duty 
under  the  law,  and  could  not,  under  the  pleadings  of  this  case,  be 
held  liable  to  the  plaintiff  for  injury  accidentally  occurring  to  the 
plaintiff  while  attempting  to  pass  to  the  car  on  the  connecting  roadJ^ 

§  1789.  Furnishing  Passenger  Safe  Means  for  Alighting,  (a)  The 
court  instructs  the  juiy  that  a  passenger  who  has  paid  his  fare  is 
entitled  to  be  carried  safely  to  the  place  of  his  destination  (that  is, 
the  place  to  which  he  has  paid  his  fare),  and  must  be  furnished  at 
said  place  safe  means  of  exit  and  landing;  and  if  the  train  is  stopped, 
and  he  is  directed  by  the  agents  in  charge  of  the  train  to  get  out  at 
said  place,  he  has  the  right  to  rely  on  their  direction,  and  can  presume 
that  the  place  is  safe  for  his  exit,  unless  the  danger  thereof  is  open 
and  apparent  to  him.'^^ 

(b)  If  you  believe,  from  the  evidence,  that  the  box  upon  which 
plaintiff  stepjDed  or  attempted  to  step  in  alighting  from  defendant's 
train  was  an  unsafe  device  to  be  used  for  so  alighting,  by  reason  of  its 
size  or  position,  or  the  character  of  the  ground  upon  which  it  rested; 
and  if  you  further  believe  that  by  reason  of  said  box  being  unsafe 
to  use  as  such  device,  the  plaintiff  in  descending  from  the  steps  of 
defendant's  car,  fell  and  was  injured;  and  if  you  further  believe 
from  the  evidence  that  the  defendant's  servants  were  guilty  of  negli- 
gence in  failing  to  furnish  plaintiff  a  safe  means  for  alighting  from 
said  train,  or  if  you  believe  that  defendant's  servants  upon  said  train 
were  guilty  of  negligence  in  failing  to  furnish  plaintiff  personal  assist- 
ance necessary  to  prevent  her  from  falling;  and  if  you  further  believe, 
from  the  evidence,  that  such  negligence,  if  any,  of  defendant's  ser- 
vants was  the  proximate  cause  of  plaintiff's  injuries,  if  any,  then  you 
will  find  for  the  plaintiff  against  the  defendant  such  sum  of  money  as 
damages  as  you  believe,  from  the  evidence,  will  reasonably  and  fairly 
compensate  plaintiff  for  the  bodily  and  mental  pain,  if  any,  reason- 
ably necessary  medical  expenses,  if  any,  loss  of  time  from  her  busi- 
ness, if  any,  and  diminished  capacity  to  pursue  her  occupation  in  the 

70— Brodie  v.  Carolina  M.  Ry.  72— Kennedy  v.  Southern  Ry.  Co., 
Co.,  46  S.  C.  203,  24  S.  E.  180  (182).         59  S.  C.  535,  38  S.  E.  169  (170). 

71— Kennedy    v.    So.    Rv.    Co.,    59 
S.   C.    535,   38   S.    E.   169   (170). 


1160  FORMS  OF  INSTRUCTIONS.  [§  1790. 

future,  if  any,  which  you  believe,  from  the  evidence,  the  plaintiff  has 
sustained  or  incurred  by  reason  of  said  injuries,  if  any. 

(c)  You  are  further  instructed  that  while  the  plaintiff  was  a  pas- 
senger on  defendant's  train,  the  defendant  owed  to  her  the  duty  to 
exercise  that  high  degree  of  care  for  her  personal  safety  that  a  very 
prudent  person  would  exercise  under  the  same  circumstances,  and  a 
failure,  if  any,  to  use  such  care  w^ould  be  negligence  in  the  sense  that 
the  word  ''negligence"  is  used  in  the  foregoing  portions  of  this 
charge.  The  burden  is  upon  the  plaintiff  to  make  out  her  case  by  a 
preponderance  of  the  evidence,  and  if  she  has  not  done  so,  you  will 
find  for  the  defendant. 

(d)  If  you  believe,  from  the  evidence,  that  defendant's  employes 
in  charge  of  said  train  exercised  that  liigh  degree  of  care  for  the  per- 
sonal safety  of  plaintiff  in  alighting  from  said  train  which  very  cau- 
tious and  prudent  persons  would  have  exercised  under  the  same  cir- 
cumstances, then  you  will  find  that  they  were  not  guilty  of  negligence; 
and  if  you  so  find  you  will  return  a  verdict  for  the  defendant.''^ 

§  1790.  Helping  Passengers  to  Alight.  The  jury  are  instructed 
that,  whether  or  not  the  failure  of  the  parties  in  charge  of  said  train 
to  assist  plaintiff's  wife  to  get  off  said  train  constituted  negligence  is 
a  question  of  fact  to  be  determined  by  you  under  the  circumstances, 
taking  into  consideration  the  failure  on  her  part  to  ask  for  such  as- 
sistance.'^'* 

§  1791.  Injury  to  Passenger  by  Having  Dress  Stepped  on  While 
Alighting.  If  you  find  that  while  plaintiff' 's  wife  was  alighting  from 
the  car  she  stepped  ui3on  her  dress  and  was  thereby  caused  to  fall 
and  be  injured,  or  if  some  persons  behind  her  stepped  upon  her  dress 
and  thereby  caused  her  to  fall  and  be  injured,  you  will  find  for  de- 
fendant. But  you  are  instructed  that  the  plaintiff  would  be  entitled 
to  recover  if  the  injury  to  his  wife,  if  she  was  injui'ed,  was  caused  by 
the  negligence  of  defendant  without  negligence  on  her  part  contrib- 
uting to  it,  and  if  you  so  find  it  will  make  no  difference  if  the  negli- 
gence of  defendant  was  contributed  to  by  the  act  of  some  fellow  pas- 
senger.''-'' 

§  1792.  Stopping  Train  a  Reasonable  Time  for  Refreshments.  If 
you  believe  and  find,  from  the  evidence,  that  while  the  plaintiff  was  a 
passenger  from  D  to  A,  said  train  stopped  at  M  Station,  on  its  line  of 
road,  and  that  the  plaintiff  alighted  from  said  train  to  procure  a  lunch 
at  said  station,  and  that  it  was  usual  and  customary  for  such  trains  to 

73— Missouri,    K.    &    T.    Ry.    Co.  did   not  allege   that  the  negligence 

V.  White,  22  Tex.  424,  55  S.  W.  593.  of  a   fellow   passenger   contributed 

74— Chi.    R.    I.    &    T.    Ry.    Co.    v.  to    his   wifp's    injury,    as    it    is   also 

Armes,    32    Tex.    Civ.    App.    32,    74  immaterial   th;it   there  was  no  evi- 

S.  W.  77  C78).  flenco  of   negligence   upon  the  part 

75 — M.,  K.  &  T.  Ry.   Co.  v.  Wolf,  of    any    fellow    passenger    in    step- 

—  Tex.   Civ.   App.  — ,  89  S.   W.  778.  ping  on  her  rlress,  sinee  the  eharge 

"There  Is  no  merit  in  the  eriti-  under  cons'deration  does  not  re- 
eisrn  of  the  court's  charge.  It  is  quire  that  the  act  of  a  fellow  pas- 
Immaterial   that  appellee's  petition  scnger   be    negligence.     We   under- 


§  1793.]  NEGLIGENCE— PASSENGER  CARRIERS.  1161 

allow  passengers  to  get  lunch  at  said  station,  and  if  you  further 
believe,  from  t&e  evidence,  that  while  plaintiff  was  eating  his  lunch 
the  signal  was  given  for  passengers  to  board  the  said  train,  and  there- 
after a  reasonably  sufficient  time  was  not  given  by  the  operatives  of 
said  train  to  enable  plaintiff  to  get  on  before  the  same  was  put 
in  motion,  and  that  by  reason  thereof  plaintiff  was  thrown  down  and 
injured,  as  alleged  in  his  petition,  or  in  either  of  the  ways  therein 
alleged,  and  that  such  failure,  if  any,  to  give  such  time  to  plaintiff  to 
board  the  train  was  negligence,  and  but  for  such  negligence,  if  any, 
plaintiff  would  not  have  been  injured,  or  if  you  believe  and  find,  from 
the  evidence,  that  after  said  train  was  put  in  motion  the  plaintiff  at- 
tempted to  board  the  same,  and  while  so  doing  the  sei'vants  and  em- 
ployes of  the  defendant  in  charge  of  and  operating  said  train,  caused 
the  same  to  give  a  sudden  jerk,  thereby  throwing  plaintiff  down  and 
injuring  him  in  the  manner  or  in  either  of  the  waj^s  alleged  in  his 
petition,  and  that  the  causing  of  said  train  to  give  such  sudden  jerk 
was  negligence,  and  that  but  for  such  negligence,  if  any,  plaintiff 
would  not  have  been  injured,  then,  in  either  such  case,  if  you  so  find, 
you  will  find  for  the  plaintiff  such  sum  as  will  actually  compensate 
him  for  the  damage,  if  any,  sustained  by  reason  of  such  injuries, 
unless  you  find  for  the  defendant  under  the  instructions  hereinafter 
given  you.''^ 

§  1793.  Duty  as  to  Operation  of  Stock  Trains  Carrying  Passen- 
gers. The  court  instructs  you  that  railroad  companies  have  a  legal 
right  to  operate  stock  trains  and  to  carry  passengers  upon  them; 
and  in  so  doing  they  are  required  to  use  only  such  equipment  as  is 
suitable  for  the  safe  operation  of  a  stock  train.  They  are  not  required 
to  have  such  a  train  equipped  with  appliances  such  as  are  useful  and 
necessary  in  handling  passenger  trains;  and  in  operating  such  stock 
trains  they  are  not  required  to  start,  move  or  stop  them  with  the  same 
degree  of  care  for  the  safety  or  convenience  of  the  passengers  there- 
on as  is  exacted  from  them  in  the  management  of  passenger  trains. 
And  if  you  believe,  from  the  evidence  in  this  case,  that  the  plaintiff 
was  injured  while  riding  upon  a  stock  train  operated  by  one  or  both 
of  the  defendants,  or  while  it  was  upon  the  track  of  one  or  both  of  the 
defendants,  and  if  you  further  believe,  from  the  evidence,  that  such 
train  was  then  properly  equipped  for  use  as  such  stock  train,  and  that 
the  defendant  who  was  then  moving  the  said  train,  started,  moved  and 
stopped  the  train  as  prudently  and  carefully  as  such  a  train  so 
equipped  could  be  started,  moved  and  stopped,  then  you  should  find 
both  defendants  not  guilty.''"' 

§  1794.  Injury  to  Stockman  by  Jerking  or  Jolting  Car  While  Prop- 
erly Tending  His  Stock.     If  you  believe,  from  the  evidence,  that  the 

stand  that  appellant  would  be  lia-  of  whether  or  not  the  same  was 
ble,     if     its     negligence     concurred     pleaded." 

with  the  act  of  a  fellow  passenger,  76 — Texas  &  P.  Ry.  Co.  v.  Gray, 
irrespective  of  whether  or  not  that  —  Tex.  Civ.  App.  — .  71  S.  W.  316. 
act  be  negligence,  and  irresoective        77 — Penn.    Co.    v.    Greso,    102    111. 

App.   252   (256). 


1162  FORMS  OP  INSTRUCTIONS.  [§  1795. 

plaintiff  R.  was  riding  in  the  stock  car  in  which  his  horses  and  cattle 
and  goods  were  being  transported  over  defendant's  road,  and  that 
while  the  train  was  stationary,  his  cattle  being  down,  and  needing  his 
attention,  he  at  the  time,  in  a  prudent  and  careful  manner,  attempted 
to  or  did  give  the  horses  and  cattle  the  attention  or  assistance  which 
they  needed,  and  that  the  plaintiff  was  injured  at  that  time  by  a 
sudden  and  unusual  hard  jerk  or  jolt  or  bumping  of  the  cars  in  which 
he  was  riding,  through  and  by  the  negligence  of  the  defendant  com- 
pany or  its  operatives,  you  will  find  for  the  plaintiff,  and  assess  actual 
damages  as  hereinafter  instructed.''^ 

§  1795.  Injury  to  Passenger  Through  Collision.  If  you  believe, 
from  the  evidence,  that  the  plaintiff  was  a  jDassenger  on  board  the 

cars  of  the  defendant,  in  the  month  of  last,  and  that  those 

ears  came  in  collision  with  another  train  of  cars,  by  and  through 
the  negligence  of  the  defendant's  agents  or  servants,  as  charged  in 
the  declaration,  and  that  by  reason  of  such  negligence  the  plaintiff 
was  injured  and  sustained  damage,  and  also  that  he  was  himself 
using  all  reasonable  care  and  caution  to  avoid  such  injury,  then  you 
should  find  a  verdict  for  the  plaintiff,  and  assess  his  damages.''^ 

§  1796.  Collision  Prima  Facie  Negligence.  If  you  believe,  from  the 
evidence,  that  the  plaintiff  was  injured  by  the  overturning  of  the  car 
in  which  he  was  a  passenger  (or  by  a  collision  of  the  cars,  etc.),  and 
was  thereby  injured,  without  any  fault  upon  his  pai't,  he  thereby 
makes  out  a  prima  facie  case  of  negligence  against  the  company,  and 
places  upon  it  the  burden  of  proving,  by  a  preponderance  of  evidence, 
that  the  accident  resulted  from  a  cause  which  could  not  have  been 
foreseen  or  prevented  by  the  exercise  of  all  reasonable  care,  vigilance 
and  foresight  on  behalf  of  the  company.^^ 

§  1797.  Derailment  of  Car  Prima  Facie  Negligence.  The  court  in- 
structs you  that  where  a  railway  car  is  thrown  from  the  track,  and 
the  passenger  for  hire  is  thereby  injured,  the  presumption  is  that  the 
accident  resulted  either  from  the  fact  that  the  track  was  out  of  order, 
or  the  train  badly  managed,  or  both  combined,  and  the  onus  is  on  the 
company  to  show,  by  a  preponderance  of  the  evidence,  that  it  was  not 
negligent  in  any  of  these  respects.®^ 

§  1798.  Care  Due  Passenger  While  Train  Is  Being  Switched,  (a) 
In  determining  the  question  of  liability  of  the  defendant  in  this  ease 
you  will  confine  yourselves  to  a  consideration  of  the  following  ques- 
tions, to-wit:  (1)  Did  the  defendant,  by  and  through  its  servants, 
discover  the  presence  of  the  plaintiff  in  one  of  the  defendant's  coaches 
after  the  same  had  been  put  in  motion  by  the  switch  engine  at  P.? 
(2)  If  tlie  defendant  did  so  discover  the  presence  of  the  plaintiff,  then 

78— Texas     and     P.     Railway     v.  Thompson,    56    111.    138;    Lemon    v. 

Rr-odor.     170     U.     S.     530     (535),     18  Chanslor,   68  Mo.   340. 

Sup.    Ct.    705.  81— P.     P.     &     J.     R.     R.     Co.     v. 

79— C,  B.  &  Q.   R.  R.  V.   George,  Reynold.s,   88   111.    418;    Fairdhild   v. 

19   111-  510.  Cal.  Stage  Co.,  13  Cal  599. 

SO-P.    C.    &   H.    L.    R.    R.    Co.    V. 


§i(y9.]  NEGLIGENCE— PASSENGER  CARRIERS.  1163 

did  the  defendant  thereafter  exex'cise  ordinary  care  to  avoid  injur- 
ing him?  (3)  Did  the  failure  of  the  defendant,  if  any,  to  exercise 
ordinary  care  to  avoid  injuring  the  plaintiff,  directly  and  immediately 
result  in  the  injuries  sustained  by  the  plaintiff?  (4)  Was  the  plain- 
tiff guilty  of  contributoiy  negligence  1 

(b)  If,  from  the  evidence,  you  believe  that  after  the  defendant's 
coaches  were  put  in  motion  by  the  switch  engine  at  P.  the  defendant, 
by  and  through  any  of  its  servants,  to  whom  it  had  intrusted  the  duty 
and  authority  of  directing  and  controlling  the  movements  of  its  trains 
while  the  same  was  being  switched,  discovered  the  presence  of  the 
plaintiff  in  one  of  said  coaches  while  being  so  moved  by  the  switch 
engine,  and,  having  so  discovered  the  plaintiff  therein,  if  such  was  the 
fact,  failed  to  exercise  ordinaiy  care  with  reference  to  his  safety,  and 
that  such  failure,  if  any,  to  exercise  ordinary  care,  directly  and  imme- 
diately, resulted  in  the  injuries  sustained  by  the  plaintiff,  then  you 
will  find  for  the  plaintiff,  unless  you  believe  that  he  was  guilty  of  con- 
tribi;tory  negligence  as  hereinafter  defined.*^ 

PROTECTION  OF  PASSENGER  BY  CARRIER. 

§  1799.  Duty  of  Conductor  to  Protect  Female  Passenger  from 
Vulgarity  and  Obscenity.  Ir  jou  believe,  from  the  evidence,  that 
plaintiff  was  with  other  passengers  on  the  train;  that  the  other  pas- 

82— Gulf,    C.    &    S.    F.    Ry.    Co.   v.  care.      There     is     evidence     in     the 

Shelton,    30    Tex.    Civ.    App.    72,    69  record   that    immediately   upon   the 

S.  W.  653  (655).  arrival   of  the  train   at   Purcell,   or 

"In     a     case     where     such     duty  a   very    few   minutes    thereafter,    it 

exists,   the   failure   to  use   ordinary  was  put  in  motion  under  the  direc- 

care   resulting  in   damages,   an   ac-  tion  of  the  switch   crew,   and   that 

tion    for    negligent    injury    may    be  there     were     coaches     attached     to 

maintained  and  a  recovery  had  for  that    train    in    which    the    appellee 

all    of    the    consequences    of   which  was  entitled  to  ride,  if  he  had  been 

such     failure     was     the    proximate  promptly    notified    of    their    exist- 

cause.     The  jury,   in  passing   upon  ence.      It    might    be    true    that    he 

and      determining       the       question  was     given     a     reasonable     oppor- 

whether   or  not   the   appellant    had  tunity      to      leave     the      particular 

exercised    ordinary    care   after   dis-  coach    that  he  was  occupying,    but 

covering    the    plaintiff    in    the    car,  in  view  of  his  right  of  continuous 

doubtless  concluded  that  the  facts  transportation  he  was  not  required 

introduced    upon    the    trial    and    as  to    leave    the    train,    and    had    the 

set   out    in   our   findings   were   suf-  right  to  ride  in  one  of  the  coaches 

ficient   to    indicate   that   the   appel-  that    was   going    through    to    New- 

lant   had  been  guilty  of  negligence  ton,   Kan.      The  facts  and   circum- 

in    the    manner    as    stated    in    the  stances     indicating     that     he     was 

findings     of     fact.      In     submitting  entitled  to  protection  as  a  passen- 

the  degree  of  care  or  duty  resting  ger     are     much     stronger     in     his 

upon    appellant   in    its    conduct   to-  favor   than   were   the   facts    in   the 

wards  appellee,    the   charge   of   the  case    of    Texas    &    C.    Rd.    Co.    v. 

court    was    very    conservative,    for  Dick.    26   Tex.    Civ.    App.    256,   63   S. 

the    facts    in    the    record    strongly  W.    895.    where,    after   a    review    of 

indicate    that    the   appellee,    at    the  authorities,    it    was    held    that    one 

time  he  received   his    injuries,  had  who    had    left    the    train    and    the 

not  lost  his  status  as  a  passenger;  depot     platform     was     entitled     to 

and,  if  such  was  the  case,  of  course  protection  as  a  passenger.     Our  in- 

the    appellant    was    burdened    with  formation    is    that    a    writ   of   error 

a  higiher  degree  of  care  in   its  con-  was  denied   by  the   Supreme  Court 

duct    towards    him    than    ordinary  in  that  case." 


1164  FORMS  OF   INSTRUCTIONS.  [§  1800. 

sengers,  in  her  presence  and  hearing,  in  the  same  coach  with  her, 
uttered  profane,  vulgar  and  obscene  words,  and  sang  obscene  songs; 
that  the  conductor  was  present,  and  knew  of  the  presence  of  plaintiff 
and  of  the  using  and  singing  of  said  words  and  songs  by  the  passen- 
gers, and  did  not  restrain  nor  endeavor  to  prevent  them  from  so 
doing ;  that  the  use  of  the  words  and  songs  alarmed  and  frightened  the 
plaintiff,  and  caused  her  shame,  humiliation  and  distress  of  mind; 
and  if  you  further  find  that  the  words  and  songs  were,  in  their  nature, 
calculated  and  likely,  under  the  circumstances,  to  produce  alarm, 
fright,  shame,  and  distress  of  mind  in  plaintiff,  and  that  persons  of 
ordinary  prudence  and  judgment,  acting  in  a  capacity  similar  to  that 
of  the  conductor,  under  like  circumstances,  would  have  commonly 
anticipated  or  perceived  such  a  result  to  plaintiff — you  will  find  for 
her  in  such  sum  as  you  deem  just  pecuniary  compensation  for  the 
alarm,  fright,  shame,  and  humiliation  and  distress  of  mind  caused  as 
aforesaid. ^^ 

CONTRIBUTORY  NEGLIGENCE. 

§  1800.  Contributory  Negligence  of  Passenger,  (a)  It  is  the  duty 
of  every  person  to  use  such  care  and  caution  as  a  person  of  ordinary 
prydence  and  caution  would  commonly  exercise  under  like  circum- 
stances to  avoid  injury  to  himself;  and  the  degree  of  care  required 
is  always  proportionate  to  the  degree  of  danger  indicated  by  the  facts 
and  circumstances  of  the  case,  or  that  which  might  reasonably  have 
been   foreseen   by   a  person  of  ordinary  prudence   and   a   failure  to 

83— St.   L.   S.   Ry.  Co.   v.  Wright,  entitled     in     the     event     the     jury 

—  Tex.   Civ.  App.  — ,  84  S.  W.   270  should  find  for  her,  and  leaves  the 

(271).  jury  free  to  determine  the  amount 

"It  is  insisted  that  this  dharge  of  the  .pecuniary  compensation 
is  on  the  weight  of  evidence,  and  regardless  of  the  evidence  in  the 
assumes  that  profane,  vulgar,  and  case.  The  first  part  of  the  para- 
obscene  words  were  used,  and  graph  required  the  jury  to  find  the 
vulgar  and  obscene  songs  were  language  was  used  and  the  songs 
sung,  by  passengers  on  appellant's  sung,  and  that  the  use  of  the 
train,  in  the  presence  of  appellee,  words  and  songs  alarmed  and 
The  specific  part  of  the  charge  frightened  plaintiff,  and  caused  her 
against  which  this  contention  is  humiliation  and  distress  of  mind, 
directed  is  'that  the  conductor  was  The  charge  authorized  the  jury  to 
present,  and  knew  of  the  presence  give  compensation  for  tihe  alarm 
of  plaintiff  and  of  the  using  and  and  fright,  shame  and  humiliation 
singing  of  said  words  and  songs  and  distress  of  mind,  caused  aa 
by  the  passengers.'  The  charge  is  aforesaid.  Thus  the  jury  were  re- 
nf)t  subject  to  the  criticism  made,  quired  to  find  first  that  the  words 
In  the  first  part  of  the  paragraph  were  used  and  the  songs  sung, 
the  jury  were  instructed,  in  effect,  and  that  thereby  plaintiff  was 
that  they  must  believe  from  the  alarmed  and  frightened,  and 
evidence  that  profane,  vulgar,  and  caused  shame,  humiliation,  and 
fii;sccne  language  was  uttered,  and  distress  of  mind;  and,  if  these 
vulg.'ir  songs  were  sung.  The  facts  are  found  in  the  affirmative, 
charge  does  not  assume  this  fact.  then   they   are  told  that  they  may 

Again     it     is    Insisted     that     the  find    for   her   pecuniary   comnenpa- 

charge  does  not  confine  the  jurv  *'ynr\  fnr  p^^Vi  "lor-m,  fr-'.^^-*  pV|o^- 
to   a    cnnsideraf ion    of  the   p\rirlr"n"^ 

In    df'terminiiig    the    componsntion  i     •( 
to    which    the    plaintiff    would    be 


§  1801.]  NEGLIGENCE— PASSENGER  CARRIERS.  1165 

exercise  such  care  is  negligence.  By  contributory  negligence  is  meant 
some  negligent  act  or  omission  on  the  part  of  the  plaintiff  which,  con- 
curring or  co-operating  with  some  negligent  act  or  omission  on  the 
part  of  the  defendant,  is  the  proximate  cause  of  the  injuries  com- 
plained of  by  plaintiff. 

(b)  If  you  believe,  from  the  evidence,  that  plaintiff  himself  was 
guilty  of  contributory  negligence  proximately  contributing  to  his  in- 
juries, as  contributory  negligence  has  been  heretofore  explained  and 
defined,  you  will  find  for  the  defendant,  even  though  you  should  be- 
lieve that  the  negligence  of  the  defendant,  its  servants  or  employes, 
contributed  to  cause  plaintiff's  injuries.  ...  In  determining 
,  .  .  as  to  whether  or  not  plaintiff  was  guilty  of  negligence  in 
being  upon  or  near  defendant's  track,  or  in  his  conduct  while  upon 
or  near  defendant's  track,  you  should  consider  all  the  facts  and  cir- 
cumstances in  evidence  which  tend  to  throw  light  upon  this  ques- 
tion.^* 

§  1801.  Ordinary  Care  and  Prudence  Required  of  Passenger,  (a) 
The  court  instructs  the  jury  the  plaintiff,  as  a  passenger,  was  not  re- 
quired by  law  to  exercise  extraordinaiy  care  or  manifest  the  highest 
degree  of  prudence  to  avoid  injury.  All  the  law  required  of  him 
while  traveling  as  a  passenger  was  that  he  should  exercise  ordinary 
care  and  prudence  for  his  safety,  such  as  ordinarily  careful  persons 
would  exercise  under  the  same  circumstances  as  those  shown  in 
evidence. ^^ 

(b)  *' Ordinary  care  and  caution,"  as  used  in  this  charge,  is  that 
degree  of  care  and  caution  that  a  person  of  ordinary  prudence  is 
accustomed  to  use  under  like  or  similar  circumstances.^^ 

(c)  The  plaintiff,  as  a  passenger,  was  not  required  by  law  to 
exercise  extraordinary  care,  or  manifest  the  highest  degi'ee  of  pru- 

84— St.    Louis    S.    W.    Ry.    Co.    v.  with    each     other    if    taken    in     a 

Cassaday,    92    Tex.    525,    50    S.    W.  general  sense,  while,  if  taken  in  a 

125  (126).  special   sense,    they   are   erroneous, 

"We    do    not    consider    that    this  because   they   pronounce   a  conclu- 

charge  does  any  more  than  to  de-  sion   from   the    evidence  which   the 

fine    contributory    negligence,    and  jury  may  lawfully  determine.  This 

inform    the    jury    that,    if    plaintiff  criticism  is  too  refined.      The  obvi- 

was  guilty  of   such   negligence,    he  ous  and  unmistakeable  meaning  of 

could  not  recover,  and  that,  in  de-  the  instinictions  is  that  all  the  care 

termining     whether      he      was      so  fhat  was   required   of  the    plaintiff 

guilty,   they  should  look  to  all  the  was   ordinary   care,   which   is   such 

circumstances  in  evidence.     It  does  a    degree     of    care    as    ordinarily 

not  undertake  to  apply  the  law   to  careful      persons      would      exercise 

the   very   facts  of  the  case,   as   we  under     similar     circumstances.       A 

have    held    a    party    is    entitled    to  like    instruction    was    approved    by 

have   done  if  he  requests  a  proper  this  court  in  C.   &  A.  R.  R.  Co.   v. 

charge.     Mo.    K.    &    T.    Rv.    Co.    v.  Fisher.  141  111.   614,  31  N.  E.  406." 
McGlamory,    89   Tex.    639.   35   S.    W.         86— St.    Louis    S.    W.    Ry.    Co.    v. 

1058;    Gulf,   C.   &    S.    F.    Rv.    Co.   v.  Brown.    30    Tex.    Civ.    App.    57,    69 

Shieder,  88  Tex.  152,  30  S.  W.  902."  S.   W.   1010. 

85 — W.    C.    St.    R.    R.    Co.    V.    Mc-         "Courts   are   not   required   to  use 

Nulty,    166    111.    203    (205),    46    N.    E.  the    exact    language    of    the    books 

784,  aff'g  64  111.  App.  549.  in  defining  such  terms  to  the  jury 

"It  is  said  that  the  two  sentences  though     it     would     be     wiser     and 

of   the    instruction    are    in   conflict  safer  to   follow  established  defini- 


1166  FORMS  OF  INSTRUCTIONS.  [§  1802. 

dence  to  avoid  injury.  All  the  law  required  of  him  while  traveling 
as  a  passenger  was  that  he  should  exercise  ordinary  care  and 
prudence. 

(d)  By  ordinary  care  the  law  means  such  a  degi-ee  of  care,  under 
the  circumstances  and  in  the  situation  in  which  plaintiff  was  placed, 
so  far  as  that  may  be  shown  by  the  evidence,  as  an  ordinaiy  prudent 
man  would  exercise  under  like  circumstances  and  in  the  same  situ- 
ation to  avoid  apparent  danger. 

(e)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff, 
while  in  the  exercise  of  ordinary  care,  was  injured  by  or  in  conse- 
quence of  the  negligence  of  the  defendant,  as  charged  in  the  decla- 
ration, or  in  either  one  of  the  counts  thereof,  then  you  should  find 
the  defendant  guilty.^^ 

§  1802.  Riding  Upon  Engine  Rightfully  at  Invitation  of  Con- 
ductor,    (a)    The  court  instructs  the  jury  that  if  they  believe,  from 

the  evidence,  that  deceased  was  the  husband  of  the  plaintiff 

in  this  suit,  and  that  the  said  was  rightfully  upon  the  de- 
fendant's engine  by  invitation  and  direction  of  the  conductor  and 
manager  of  the  same,  and  he  was  iising  ordinary  care  for  his  safety 
and  was,  by  and  through  the  carelessness  and  negligence  of  the  de- 
fendant's servants  in  running  and  handling  the  said  engine,  thrown 
from  the  said  engine  to  the  ground  and  run  over  by  a  car  and  in- 
jured, from  which  injuries  the  said  aftei-wards  died,  then  the 

jury  will  find  for  the  plaintiff,  and  assess  her  damages  at  such  sum 
as  they  believe,  from  the  evidence,  she  has  sustained,  not  exceed- 
ing $ . 

(b)  The  court  instructs  the  jury  that,  if  they  believe,  from  the 
evidence,  that  ,  the  deceased,  was  rightfully  on  the  defend- 
ant's engine  as  alleged  in  the  declaration  in  this  case,  and  that 
while  he  was  on  said  engine  he  was  using  ordinary  care  on  his  part 
for  his  safety  and  was,  by  and  through  the  carelessness  and  negli- 
gence of  the  defendant's  servants  in  running  and  handling  said 
engine,  thrown  from  said  engine  and  injured,  from  which  said  in- 
juries the  said  died,  then  the  jury  should  find  for  the  plain- 
tiff and  give  her  such  damages  as  they  deem  a  fair  and  just  com- 
pensation with  respect  to  the  pecuniary  injuries  resulting  from  such 
death  to  the  wife  and  next  of  kin  of  the  said  deceased,  not  exceed- 
ing  $ .88 

§  1803.    Alighting  from  Train  Encumbered  by  Grips  and  Valises. 

But  if  you  find,  from  the  evidence,  that  as  plaintiff  attempted  to 
alight  from  said  train  he  carried  a  grip  and  valise  on  his  back  and 

tlons.      We    think,    however,    there  such   person    is   accustomed    to    do 

can    be   no   valid    objection    to   the  under  similar  circumstances." 

definition      given      by      the      court.  87— C.   &  A.   R.    R.   Co.   v.   Fisher, 

There   can    be   no   practical    differ-  SS  111.  App.  33  (39  nnd  40),  aff'd  141 

enr-o    between    wihat     a    person    of  111.    614,   31   N.   F.    406. 

ordinary      prudence     would      ordi-  SS— L.    S.    &    M.    S.    Ry.     Co.    v. 

narily  do,  or  u.sually  do,  and  what  Brown,  123  111.  162,  14   N.   F.  197,  5 

Am.   St.   510. 


§1804.]  NEGLIGENCE— PASSENGER  CARRIERS.  1167 

in  his  hand,  and  if  you  further  find  that  an  ordinarily  prudent  per- 
son, situated  and  circumstanced  as  plaintiff  was,  would  not  have 
attempted  to  alight  from  said  train  incumbered  with  said  grip  and 
valise,  and  if  you  further  find  that  in  attempting  to  so  alight,  if  he 
did,  he  failed  to  exercise  that  degi-ee  of  care  that  an  ordinarily 
prudent  person  would  have  exercised  under  the  same  or  similar  cir- 
cumstances, and  that  such  failure,  if  any,  caused  or  contributed  to 
his  injury,  or  if  you  find  that  as  plaintiff  was  coming  down  the  steps 
he  stumbled  and  started  to  fall,  and  he  was  caught  by  the  defend- 
ant's servant,  and  was  prevented  from  falling,  then,  in  either  event, 
you  will  find  for  the  defendant.^^ 

§  1804.  Passenger  Stumbling  or  Falling  While  Alighting.  If 
the  plaintiff  stumbled  or  fell  while  he  was  in  the  act  of  alighting 
from  the  train,  and  was  injured  in  consequence  to  any  extent,  and 
he  was  caused  to  fall  for  any  reason  except  the  moving  of  the  foot- 
stool by  the  porter,  then  he  is  not  entitled  to  recover,  and  you  should 
return  a  verdict  for  the  defendant.^" 

§  1805.  Boarding  Moving  Train.  The  court  instructs  the  jury  that 
even  if  defendant's  train  was  not  stopped  a  sufficient  length  of  time 
to  enable  plaintiff  to  get  aboard  said  train  safely,  and  if  plaintiff  at- 
tempted to  get  aboard  of  said  train  while  in  motion,  and  was  thrown 
from  the  train  because  of  said  attempt  to  get  aboard  the  train  while 
in  motion,  and  was  thereby  injured,  then  she  was  guilty  of  contribu- 
tory negligence,  and  cannot  recover  in  this  case.^^ 

§  1806.  Getting  Off  Moving  Train,  (a)  If  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  left  the  car  of  the  defendant,  C.  T.  T. 
R.  R.  Co.,  while  the  same  was  in  motion,  and  if  they  further  believe 
from  the  evidence  that  he  knew  of  the  proximity  of  the  tracks  of  the 
C.  B.  &  Q.  R.  R.  Co.,  they  must  take  these  facts  into  consideration  in 
determining  whether  the  plaintiff  was  exercising  due  care  and  caution 
for  his  own  safety.^^ 

(b)  The  jury  are  instructed  that  if  you  believe  from  the  evidence 
before  you  in  this  case  that  the  deceased,  G.  C,  left  or  attempted  to 
leave  the  defendant's  train  on  which  he  was  riding  before  the  train 
reached  the  accustomed  place  for  stopping  at  said  station,  and  while 
the  said  train  was  still  in  motion,  and  that  in  doing  so,  if  he  did,  he 
failed  to  exercise  that  degree  of  care  and  prudence  which  an  ordinar- 
ily careful  and  prudent  person  would  have  exercised  under  the  same 
or  similar  circumstances,  and  that  such  failure,  if  any,  contributed  to 
cause  the  injuries  to  the  deceased  which  resulted  in  his  death,  then  you 
are  instructed  that  the  plaintiff  cannot  recover,  and  if  you  so  find  you 
will  return  a  verdict  for  the  defendant,  even  though  you  should  find 

89— St.  L.  S.  Ry.  Co.  v.  Johnson,  91— Pence  v.  Wabash  R.  Co.,  116 
—  Tex.    Civ.   App.  — ,   94   S.   W.   163.      Iowa   279.    90    N.    W.    59. 

90— St.  L.  S.  W.  Ry.  Co.  v.  John-  92— C.  T.  T.  R.  R.  Co.  v.  Schmell- 
son,  —  Tex.  — ,  97  S.  W.  1039.  iner.    197   Til.    619   (625),   64  N.   E.   714, 

aff'f?  99  111.   App.   577. 


1168  FORMS  OF   INSTRUCTIONS.  [§  1806. 

from  the  evidence  that  the  employes  of  defendant  negligently  failed 
to  stop  said  train  at  said  station  as  charged  by  plaintiff.^^* 

(c)  If  the  speed  of  the  train  was  too  fast  for  a  person  of  ordinary 
prudence  to  undertake  to  alight,  and  if  plaintiif  did  not  know  nor  be- 
lieve it  was  going  too  fast  for  him  safely  to  alight,  his  want  of  knowl- 
edge or  belief  did  not  excuse  his  act,  unless  he  used  ordinary  care  in 
the  judging  and  determining,  and  did  in  fact  reasonably  believe  that 
the  train  had  been  slowed  up  for  him  to  get  off  and  that  its  speed  was 
such  that  he  could  safely  do  so.  If  he  believed  the  train  was  going  be- 
yond the  point  of  his  agreed  destination,  that  was  no  justification  for 
his  attempt  to  get  off  while  the  train  was  going  at  a  rate  that  a  person 
of  ordinary  prudence  would  have  perceived  to  be  unsafe.^* 

(d)  If  you  find  that  said  train  did  not  stop  long  enough  at  P.  to 
enable  plaintiff's  wife,  in  her  condition  and  circumstances,  to  get  off 
in  safety,  and  if,  when  she  was  trying  to  get  off,  the  train  started,  and 
if  while  it  was  moving  she  undertook  to  get  off  and  was  injured,  and  if 
in  so  trying  to  get  off  a  moving  train  she  was  herself  guilty  of  a  want 
of  ordinary  care  as  defined  to  you  hereinafter,  then  you  will  find  for 
the  defendant. 

(e)  If  said  train  stopped  long  enough  for  plaintiff's  wife  to  have 
gotten  off  safely,  circumstances,  and  conditioned  as  she  was,  and  if 
she  failed  to  use  reasonable  diligence  to  get  off,  and  unnecessarily  and 
negligently  remained  upon  the  train  until  it  started  and  then  under- 
took to  get  off,  and  in  attempting  to  get  off  fell  and  was  injured,  you 
will  find  for  defendant. 

(f)  It  was  the  duty  of  plaintiff's  wife  to  exercise  ordinaiy  care  for 
her  own  safety.  Ordinary  care  means  such  care  as  an  ordinarily 
prudent  and  careful  person,  similarly  situated  and  circumstanced,  as 
plaintiff's  wife  was,  would  have  exercised,  and  a  failure  to  exercise 
such  care  would  be  negligence. 

93 — Galveston,  H.  &  S.  A.  Ry.  Co.  as  to  its  being-  slowed  up  for  him 

V.    De    Castillo,   —  Tex.    Civ.   App.  to    depart    therefrom,    and    not    to 

— ,    83    S.    W.    25    (26).  that   of  the   conductor.      The  testi- 

"It  g-ave  a  correct  enunciation  of  mony    shows    that    before    appellee 

the   law    as   applied   to   appellant's  alighted  he  saw  Martin  alight  and 

theory  of  the  case,  and  supplied   a  the    effect    it    had    upon    him.      He 

clear  omission  in  the  charge  of  the  then    went    back    into     the    train, 

court.     That  charge  was  abstractly  pulled     the     bell     cord,     and     then 

correct,  but  it  failed  to  define  con-  walked    out    on    the    steps    of    the 

tributory  negligence  and   render  it  platform,  where  he  remained  until 

clear     under     what     circumstances  the   train   had   reached   its   slowest 

deceased  should  be  found  g-uilty  of  speed.     He   pulled  the  bell  cord  to 

contributory   negligence.     St.   L.   &  notify  the  trainmen    of  the  agree- 

f?.    v.    R.    Co.    V.    Traweek,    84   Tex.  ment,  and  when  he  pulled  the  cord 

65,  19  S.  W.  370;  Missouri,  K.  &  T.  the  whistle  of  the  engine  immedi- 

R.   Co.    V.    Miller,   8  Tex.   Civ.   App.  ately  sounded  and  the  train  began 

241,    27   S.    W.    905.      The    last   case  to   slow   up.     Under  these   facts   it 

cited   is  very  similar  to  this."  was   a  question  whether  or  not  he 

94 — St.    Louis,    S.    W.    Ry.    Co.   v.  used  ordinary  care  in  acting  as  he 

HIghnote.  —  Tex.   Civ.   App.   — ,  84  did.     We   do   not    think    it   was   in- 

K.    W.    365    (367).  cumbent  upon   him,   under  the  cir- 

"The  objection  to  this  charge  is  cumstances,  to  obtain  the  views  of 

thnt   It   left   it   to   appellee's   deter-  the  conductor   as  to   the   propriety 

mination   nnd   judgment   as   to  the  of  his   alighting  at  that  point." 
pr-'  'd    of  the   train,   and   his   belief 


§  1807.]  NEGLIGENCE— PASSENGER  CARRIERS.  1169 

(g)  If  you  find  from  the  evidence  that  plaintiff's  -wife,  in  attempt- 
ing to  get  off  said  train,  failed  to  exercise  ordinary  care  for  her  own 
safety,  and  thereby  contributed  to  her  fall,  or  if  she  was  guilty  of 
negligence  (that  is,  if  she  failed  to  exercise  ordinary  care)  by  attempt- 
ing to  get  off  said  train  while  it  was  in  motion,  if  she  did  so,  under 
the  circumstances  surrounding  her,  and  if  she  thereby  contributed  to 
her  fall — then  you  will  find  for  the  defendant,  even  though  you  should 
find  that  the  defendant  was  guilty  of  all  the  negligences  charged 
against  it.^^ 

§  1807.  Jumping  Off  Moving  Train  After  Sufi&cient  Time  to  Alight 
Has  Been  Given.  If  the  jury  believe  from  the  evidence  that  the  em- 
ployes of  the  defendant,  in  operating  the  train  on  which  the  plaintiff 
was  riding  as  a  passenger,  announced  the  station  of  A.  prior  to  the 
train  reaching  said  station;  and  if  you  find  from  the  evidence  that 
said  train  was  stopped  a  sufficient  length  of  time  for  passengers  to  get 
off,  and  the  plaintiff  failed  to  do  so,  without  the  fault  of  th€  employes 
in  charge  of  said  train,  and  the  conductor  did  not  know  and  had  no 
reason  to  believe  that  she  was  still  on  the  train  in  the  act  of  getting 
off,  and  gave  the  signal  for  the  train  to  start,  and  that  after  the  train 
started,  she  stepped  off  or  jumped  off  the  train  while  it  was  in  motion, 
and  was  injured — then  you  are  charged  that  she  cannot  recover,  and  if 
you  so  find  you  will  return  a  verdict  for  the  defendant. ^^ 

§  1808.  Effect  of  Direction  of  Carrier's  Servant  to  Passenger  to 
Get  Off  Moving  Train.  If  the  plaintiff  having  stepped  upon  the  first 
step  of  one  of  the  cars  of  train  in  question,  and  before  getting  into  the 
ear,  attempted  to  get  off  the  same  whether  the  train  was  in  motion  or 
not,  and  fell  while  attempting  to  get  off,  or  just  after  getting  off,  and 
received  the  injuries  complained  of  from  such  fall,  then  the  de- 
fendant is  not  liable  for  such  injuries,  unless  she  was  directed  to 
get  off  by  an  employe  of  the  defendant  in  charge  of  the  operation 
of  said  train,  and  obedience  to  such  direction  would  not  lead  her 
into  any  apparent  danger  such  as  the  ordinarily  prudent  person 
would  not  assume.®^ 

§  1809.  Effect  of  Direction  of  Carriers'  Servant  to  Passenger  Not 
to  Get  Off  Moving  Train.  If  the  jury  believe  from  the  evidence  that 
as  soon  as  the  conductor  saw  the  plaintiff  coming  out  of  the  car, 
apparently  to  get  off  the  train,  after  the  same  had  started  to  depart 
from  the  station,  he  told  her  not  to  get  off  or  try  to  get  off,  but 
wait  and  he  would  stop  the  train  so  she  could  get  off,  and  she  heard 
him,  but,  disregarding  what  he  told  her,  proceeded  to  get  off  the 
train  while  the  same  was  in  motion  and  before  the  conductor  had 
time  to  bring  the  same  to  a  full  stop,  and  in  stepping  or  jumping 

95— C.     R.     I.    &    P.    Ry.    Co.    V.  Co.,  36  Tex.   Civ.  App.  94,  80  S.  W. 

Armes,  32  Tex.  Civ.  App.   32,  74  S.  1023   (1024). 

W.  Rep.  77.  97— Pence  v.    Wabash  R.  Co.,  116 

96— Harris  v.  Gulf,  C.  &  S.  P.  Ry.  Iowa  279,   90  N.  W.  59. 

74 


1170  FORMS  OF  INSTRUCTIONS.  [§1810. 

off  the  train,  if  she  did,  was  hurt,  then  she  cannot  recover,  and  if 
you  so  find,  you  will  return  a  verdict  for  the  defendant.^^ 

§  1810.  Effect  of  Carrier's  Discovery  of  Passenger's  Peril  in  Time 
to  Avoid  Consequences  of  Passenger's  Contributory  Negligence.  The 
court  instructs  the  jury  that,  even  though  it  should  believe  from  the 
evidence  that  the  plaintiff  was  guilty  of  contributory  negligence  in 
getting  off  of  said  car,  and  even  though  they  should  believe  from  the 
evidence  that  her  negligence  contributed  to  the  accident,  yet  if  they 
further  believe  from  the  evidence  that  the  conductor,  after  he  dis- 
covered the  plaintiff's  peril,  by  the  exercise  of  proper  care  and 
caution  could  have  avoided  the  mischief  which  happened,  and  failed 
to  do  so,  the  plaintiff's  negligence  will  not  excuse  the  defendant,  and 
the  plaintiff  is  entitled  to  recover.^'' 

§  1811.  Jumping  from  the  Cars  Negligence,  When.  If  the  jury 
believe,  from  the  evidence,  that  the  plaintiff  leaped  from  the  cars, 
at  the  time  of  the  injury,  under  circumstances  that  would  not  have 
justified  such  an  act  on  the  part  of  an  ordinarily  careful  and  prudent 
man,  and  that  the  injury  was  caused  by  such  jumping,  and  that  if 
he  had  remained  on  the  car  no  injury  would  have  happened,  then 
the  plaintiff  cannot  recover  in  this  suit.^"** 

§  1812.  Jumping  From  Moving  Train  When  Suddenly  Placed  in 
a  Perilous  Position  by  Carrier,  (a)  Although  you  may  believe,  from 
the  evidence,  that  the  plaintiff  jumped  or  stepped  from  the  train  in 
question  after  it  was  in  motion,  whereby  she  received  the  injuries 
complained  of,  yet  if  you  further  believe,  from  the  evidence,  that 
while  the  plaintiff  was  descending  the  steps  of  said  train  the  same 
was  suddenly,  carelessly  and  without  warning  'to  her  set  in  motion 
by  the  defendant,  and  that  the  plaintiff  was  thereby  placed  in  a  peril- 
ous position,  then  it  is  for  you  to  determine,  from  the  evidence, 
whether  the  plaintiff  acted  as  a  reasonably  prudent  person  would 
have  done  under  like  circumstances;  and  if  you  believe,  from  the  evi- 
dence, that  under  the  surrounding  circumstances  the  plaintiff  was  not 
guilty  of  negligence,  but  acted  as  a  reasonably  prudent  person  would 
have  done  under  like  circumstances,  then  the  fact  of  her  so  stepping 
or  jumping  from  said  train  while  the  same  was  in  motion  will  not 
prevent  the  plaintiff  from  recovering  in  this  case.^ 

(b)  If  the  juiy  shall  find,  as  a  matter  of  fact,  that  the  negligence' 
of  the  defendant  placed  the  deceased  S  in  a  state  of  peril,  and  he  had 
at  that  time  a  reasonable  ground  for  supposing  he  would  be  injured. 

98 — Harris  v.  Gulf,  etc.,   Ry.  Co.,  "We  see  no  error  in  this  instruc- 

36  Tex.  Civ.  App.  94,  80  S.  W.  1023.  tion.      If    a    person    while    in    the 

99 — Richmond  Passenger  &  Pow-  exercise   of   due   care   for  his   own 

'^.r  Co.   v.   Allen,  101  Va.  200,   43  S.  safety  be  placed  in  a  perilous  posi- 

E.   ?,r,C,.  tion    by    the    wrongful    act    of    an- 

100 — Lucas  v.  Taunton,  etc.,  Rd.  other,  if  his  conduct  in  attempt- 
Co.,  6  Gray  64;  Damont  v.  N.  O.  ing  to  extricate  himself  from  that 
etc.  Rd.  Co.,  9  J^n.  Aim.  441.  peril   is   that  of  a   reasonably  pru- 

1— C.  &  R.    I.   R.   R.   Co.  v.   Stor-  dent  person,  acting  in  view  of  such 

mfnt,  190  111.  42  (i'>),  60  N.  E.  104,  peril,  he  may  recover,  if  injured."' 
affg   90  111.   App.   585, 


§  1813.]  NEGLIGENCE— PASSENGER  CARRIERS.  1171 

by  remaining  on  the  train,  then  the  plaintiffs  are  entitled  to  recover, 
although  the  juiy  may  find,  as  a  matter  of  fact,  that  the  jumping  of 
the  deceased  S  increased  the  peril  or  caused  his  death,  and  although 
they  may  find  that  he  would  probably  have  sustained  little  or  no 
injury  if  he  remained  on  the  car.^ 

(c)  The  court  instructs  the  jury,  that  the  fact,  if  proved,  that  the 
plaintiff  jumped  from  the  cars  to  the  ground,  while  said  cars  were  in 
motion,  and  thus  sustained  the  injury  complained  of,  will  not  alone 
deprive  him  of  his  right  to  a  recovery  against  defendant,  if  the  jury 
further  believe,  from  the  evidence,  that  an  accident  had  occurred  to 
the  train,  which  resulted  from  any  want  of  reasonable  care  and  cau- 
tion on  the  part  of  the  defendant,  and  that  the  plaintiff  had  reasonable 
ground  to  believe,  and  did  believe,  that  his  life  or  limb  was  in  danger, 
and  that  it  was  necessary  to  leap  from  the  ears  in  order  to  avoid  the 
danger  which  threatened  him.  The  question  is  not  so  much  whether 
there  was,  in  point  of  fact,  any  danger  in  remaining  on  the  cars,  as 
whether  the  plaintiff  reasonably  apprehended  danger,  and  so  leaped 
from  the  cars  to  escape  it.^ 

§  1813.  Contributory  Negligence  of  Shipper  of  Live  Stock  in  Riding 
on  Engine.  You  are  charged  that  if  you  believe,  from  the  evidence, 
that  the  engine  of  the  train  was  a  more  dangerous  place  to  ride  than 
the  caboose  thereof,  and  that  the  plaintiff,  at  the  time  he  went  upon 
the  engine  prior  to  the  wreck,  or  while  he  was  upon  said  engine  prior 
to  said  wreck,  knew  that  he  was  violating  a  rule  of  the  railway  com- 
pany, or  that  the  said  engine  was  a  more  dangerous  and  hazardous 
place  to  ride  than  the  caboose,  or  by  the  use  of  such  care  on  his  part 
as  was  reasonably  to  be  expected  of  a  boy  of  his  age  and  mental 
development  would  have  known  said  facts,  or  either  of  them,  and 
that  he  voluntarily  went  on  said  engine  or  remained  there,  then  he 
would  be  guilty  of  negligence,  and  you  will  find  for  the  defendants.* 

§  1814.  Jumping  from  Train  on  Seeing  Another  Train  Approach- 
ing, (a)  If  you  find,  from  the  testimony,  that  the  defendant's  pas- 
senger train,  upon  which  this  plaintiff  was  a  passenger,  was  stopped 
upon  the  main  track  of  defendant's  line  of  railway  by  reason  of  a 
freight  train  obstructing  said  track,  and  that  while  said  passenger 
train  was  so  stopped  upon  said  main  track  another  freight  train 
approached  said  passenger  train  from  the  rear,  in  such  close  proximity 
thereto  as  to  make  it  reasonably  appear  to  this  plaintiff  that  there 
was  imminent  danger  of  there  being  a  collision  between  said  passen- 
ger train  and  said  approaching  freight  train;  and  you  further  find 
that  by  reason  of  the  manner  in  which  said  trains  were  operated  this 
plaintiff  had,  under  all  the   circumstances,  reasonable  gTounds   for 

2— Western    Maryland    R.    Co.    v.  Bills,   9  Met.   1;  Ry.   Co.  v.   Aspell, 

State,  95   Md.   637,  53  Atl.   969   (970).  23   Penn.    St.   147. 

3— Buell  V.  N.  Y.  Cent.  R.  R.  Co.,         4— Missouri,   K.   &   T.   Ry.   Co.   of 

31  N.  T.   314;  Galena  &  C.  Rd.  Co.  Texas   v.    Avis,   —    Tex.    Civ.    App. 

V.   Tarwood,  17   111.   509;  S.   W.  Rd.  — ,    91   S.   W.    877   (878). 
Co.  V.  Paulk,  24  Ga.  356;  Ingalls  v. 


1172  FORMS  OF  INSTRUCTIONS.  [§  1814. 

believing,  and  did  actually  believe,  that  there  was  great  danger  of  a 
collision  of  said  trains,  and  that  if  he  remained  upon  said  passenger 
train  he  was  in  imminent  danger  of  losing  his  life  or  receiving  great 
bodily  injury,  and,  so  believing,  that  this  plaintiff  left  his  seat  and 
uent  upon  the  platform  of  defendant's  passenger  coach,  and  that 
while  plaintiff  was  attempting  to  alight  from  said  train  the  passenger 
train  was  suddenly  started,  and  that  this  plaintiff  was  thereby  thrown 
or  fell  to  the  ground  and  injured,  as  alleged  in  his  petition;  and  you 
further  find  that  in  operating  its  trains  in  such  manner  as  to  make  it 
reasonably  appear  to  plaintiff  that  there  was  imminent  danger  of  a 
collision  between  the  passenger  train  on  which  plaintiff  was  riding 
and  the  approaching  freight  train,  if  you  find  they  were  so  operated, 
and  in  allowing  said  passenger  train  to  move  suddenly  forward  as 
plaintiff  attempted  to  alight  from  said  train,  if  you  find  it  was  so 
moved,  defendant  company  was  guilty  of  negligence,  and  that  such 
negligence,  if  any,  was  the  proximate  cause  of  plaintiff's  injury,  if 
any;  and  you  further  find  that  plaintiff  was  not  guilty  of  any  negli- 
gence that  either  caused  or  contributed  to  his  injury,  if  any — then 
you  will  find  for  plaintiff.  By  "reasonable  grounds,"  as  used  in  this 
charge,  is  meant  such  a  condition  of  apparent  danger  as  would  ordi- 
narily cause  an  oi'dinarily  prudent  and  considerate  person  to  become 
apprehensive  of  danger  to  himself  under  like  circumstances  and  con- 
ditions. 

(b)  If,  however,  you  find  that  the  defendant  company  used  that 
high  degree  of  care  that  a  very  cautious,  competent  and  prudent  per- 
son would  have  used  under  similar  circumstances  to  prevent  any 
collision  between  defendant's  passenger  train  and  an  approaching 
freight  train,  and  that  its  said  trains  were  operated  in  such  a  manner 
that  an  ordinarily  prudent  person,  under  all  the  circumstances,  would 
not  have  had  reasonable  grounds  for  believing  that  there  was  im- 
minent danger  of  a  collision  of  said  trains,  and  that  he  was  in  im- 
minent danger  of  losing  his  life  or  receiving  great  injuiy  if  he  re- 
mained upon  said  train,  and  that  plaintiff's  endeavor  to  get  off  of 
said  train  at  said  time  and  place  either  caused  or  contributed  to  his 
injury,  if  any,  then  you  are  charged  that  plaintiff  cannot  recover,  and 
you  will  find  by  your  verdict.  Or  if  you  find  thujt  plaintiff  was  guilty 
of  any  negligence  in  going  upon  said  platform  or  in  getting  off  of  said 
train,  and  that  such  negligence,  if  any,  either  caused  or  contributed 
to  his  said  injury,  if  any,  then  your  verdict  must  be  for  defendant, 
and  you  will  so  find.  ''Negligence,"  as  applied  to  plaintiff  herein, 
means  a  failure  to  use  that  degree  of  care  that  would  be  exercised 
by  an  ordinarily  prudent  person  under  similar  circumstances;  and, 
as  applied  to  the  defendant  herein,  means  a  failure  to  use  that  high 
degree  of  care  that  would  be  exercised  by  a  very  cautious,  competent 
and  prudent  person  under  similar  circumstances." 

5— Williams     v.     Galveston,     etc.,     Rv.    Co.,   34  Tex.    Civ.   App.   145,   78 
S.   W.    45   (47). 


§  1815.]  NEGLIGENCE— PA&SENOER  CARRIERS.  1173 

§  1815.  Live  Stock  Shipper  Remaining  in  Car  with  Stock  When 
He  Knows  His  Position  Is  Perilous.  If  you  believe,  from  the  evi- 
dence, that  plaintiff  saw  the  approach  of  the  engine  and  cars,  and 
that  they  were  about  to  strike  against  the  one  in  which  his  hogs  were 
contained,  and  if  you  further  believe,  from  the  evidence,  that  the 
plaintiff  was  in  a  position  he  knew  to  be  perilous  to  his  safety  from 
such  contact,  then  he  would  not  be  justified  or  authorized  in  law  to 
take  the  risk  of  remaining  in  or  on  the  car  to  prevent  his  hogs  from 
escaping.® 

§  1816.  Standing  on  Platform  of  Car,  If  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  had  an  opportunity  to  take  a  seat  in 
the  car  at  A,  and  that  he  voluntarily  and  negligently  abandoned  his 
opportunity  to  take  such  a  seat  there,  and  voluntarily  and  negligently 
took  a  position  on  the  platfoim  steps  of  the  ear,  and  maintained  such 
position  until  he  reached  P,  and  if  the  jury  further  believe,  from  the 
evidence,  that  the  plaintiff  before  reaching  P  could  by  the  exercise 
of  ordinary  care  have  found  sufficient  standing  room  inside  the  car, 
and  that  he  would  there  have  been  safer,  then  the  plaintiff  can  not 
recover,  and  the  jury  should  find  for  the  defendant.' 

§  1817.    Passing  from  Car  to  Car  While  Train  Is  in  Motion.    The 

jury  are  instructed  that  they  must  find  for  the  defendant  unless  they 
shall  believe,  from  the  evidence,  that  the  defendant  was  guilty  of 
negligence.  If  they  so  believe,  they  must  find  for  the  plaintiff,  unless 
they  further  believe,  from  the  evidence,  that  the  plaintiff  was  guilty 
of  contributory  negligence  on  his  part;  and,  if  they  believe,  from  the 
evidence,  that  the  plaintiff  was  guilty  of  contributory  negligence,  they 
must  find  for  the  defendant.  The  jury  are  insti'ucted  that  if  they 
believe,  from  the  evidence,  that  the  plaintiff,  after  getting  on  the  car 
he  first  entered,  was  unable  to  find  a  seat  therein,  by  reason  of  its 
crowded  condition;  that  he  was  told  by  the  conductor  of  the  train 
that  he  might  find  a  seat  in  the  forward  car;  that  he  went  forward 
after  receiving  such  suggestion,  and  attempted  to  pass  from  the  ear 
to  the  next  one;  that,  when  he  got  out  on  the  platform,  he  did 
not  remain  there,  but  attempted  to  pass  into  the  next  car,  with  rea- 
sonable pi'omptness;  that,  while  so  passing  he  exercised  reasonable 
care  and  caution  under  the  circumstances;  that,  while  so  passing,  he 
was  thrown  fi'om  the  car  by  reason  of  the  defendant's  train  being 
run  over  the  switch  aad  along  the  curve  mentioned  in  the  declaration 
at  a  dangerous  i^ate  of  speed, — they  must  find  for  the  plaintiff.  The 
burden  of  proving  these  facts  is  upon  the  plaintiff.  But  if  the  jury 
shall  believe  that  he  did  not  receive  any  such  suggestion  from  the 
conductor,  or  that  if  he  received  it,  in  passing  from  one  car  to  the 
other,  or  in  loitering  upon  the  platform,  or  in  the  selection  of  the 
time  when  he  undertook  to  so  cross  the  platform  in  any  other  par- 

6—1.  C.  R.  R.  Co.  V.  Anderson.  7— Chicagro  &  A.  R.  R.  Co.  v. 
184  111.  294  (297),  56  N.  E.  331,  aff'g  Fisher,  38  111.  App.  33  (42),  aff d  141 
81  111.   App.    137.  111.   614,   31   N.   E.   406. 


1174 


FORMS  OF  INSTRUCTIONS. 


[§  1818. 


ticular,  he  did  not  exercise  such  care  and  caution  as  a  reasonably 
prudent  man,  under  all  the  circumstances  should  have  exercised  for 
his  own  protection,  they  should  find  for  the  defendant.^ 

§  1818.  Duty  of  Passenger  to  Mitigate  Injuries  as  Far  as  Possible. 
It  was  the  duty  of  plaintiff  to  exercise  such  care  as  a  person  of  ordi- 
naiT  prudence  would  have  exercised  under  similar  circumstances  to 
facilitate  the  cure  of  his  injuries,  and  he  cannot  recover  for  any 
injury  which  by  the  use  of  such  care  he  could  have  avoided.^ 


RULES  AND  REGULATIONS  OF  CARRIER. 

§  1819.  Right  to  Prescribe  Rules.  The  jury  are  instructed,  that 
a  railroad  company  has  a  right  to  require  of  its  passengers  the  ob- 
servance of  all  reasonable  rules,  calculated  to  insure   the   comfort, 


&— Chesapeake  &  O.  Ry.  Co.  v. 
Clowes,  93  Va.  189,  24  S.  E.  Rep. 
833   (835). 

The  above  instruction  has  been 
changed  from  that  given  by  the 
trial  court  by  omitting  the  words 
"at  an  unusually  rapid  rate  of 
speed"  and  inserting  the  words  "at 
a  dangerous  rate  of  speed."  This 
change  was  made  to  conform  to 
the  following  opinion  of  the  court: 

"The  instructions  given  by  the 
court  state  the  law  correctly  as 
to  the  effect  upon  the  plaintiff's 
right  to  recover  of  his  attempt  to 
pass  from  one  car  to  the  other,  in 
order  to  find  a  seat.  The  jury  are 
told  that  if  the  plaintiff  was  un- 
able to  find  a  seat  in  the  car  which 
he  first  entered,  and  he  was  in- 
formed by  the  conductor  that  he 
might  find  a  seat  in  the  forward 
car,  and,  in  attempting  to  pass  to 
the  next  car,  he  exercised  reason- 
able care  and  caution,  those  cir- 
cumstances do  not  constitute  con- 
tributory negligence;  and  in  this 
there  is  no  error.  But,  while  these 
circumstances  do  not  show  con- 
tributory negligence,  on  the  part  of 
the  plaintiff,  it  remains  for  him  to 
.show  negligence  on  the  part  of  the 
defendant,  to  entitle  him  to  re- 
cover; and  it  is  to  that  clause  of 
the  instruction  which  points  out 
the  negligence  of  the  defendant  to 
which,  we  think,  exception  can 
Justly  be  taken.  The  instruction 
says  that  'If  the  jury  believe  that, 
while  so  passing,  he  was  thrown 
from  the  car,  by  reason  of  the 
defendant's  train  being  run  over 
the  .switch  and  along  the  curve 
mentioned  in  the  declaration  at 
unuHunlly  rapid  rate  of  speed, 
they  must  find  for  the  plaintiff.' 
In    other    words,    this    instruction 


contains  two  propositions,  the  first 
being  that  certain  acts  upon  the 
part  of  the  plaintiff  did  not  con- 
stitute contributory  negligence; 
secondly,  that  running  over  the 
switch  and  curve  at  an  'unusually 
rapid  rate  of  speed'  constituted 
negligence  upon  the  part  of  the 
defendant.  In  this,  we  think,  there 
was  error.  We  cannot  say,  as  a 
matter  of  law,  that  the  mere  rate 
of  speed  is  negligence,  although  it 
may  be  unusual.  It  is  true  that 
'negligence'  is  a  relative  term;  that 
what  may  be  negligence  under  one 
condition  of  facts  would  not  only 
not  be  negligei^ce,  but  highest  pru- 
dence, under  a  different  condition 
of  facts.  The  question  for  the 
jury  always  is,  was  the  act,  taken 
in  connection  with  all  of  its  at- 
tending circumstances,  negligent? 
Without  doubt,  a  rate  of  speed 
may  be  dangerous,  taken  in  con- 
nection with  other  circumstances; 
as,  for  instance,  the  condition  of 
the  track,  which  would  be  entirely 
safe  under  other  circumstances. 
The  degree  of  curvature  may  be 
such  as  to  render  more  than  a 
given  rate  of  speed  dangerous,  and 
a  dangerous  rate  of  speed  is  negli- 
gence. If,  therefore,  the  instruc- 
tion had  satd  that  the  defendant's 
train  was  being  run  over  the 
switch  and  along  the  curve  men- 
tioned in  the  declaration  at  'dan- 
gerous rate  of  speed,'  we  sihould 
have  held  the  instruction  to  be  al- 
together proper,  but  we  cannot 
hold  that  what  is  unusual  is  there- 
fore dangerous.  We  think  that 
the  circuit  court  erred  in  this  re- 
spect  in   its   instruction." 

9— Oulf.  C.  &  S.  F.  Ry.  Co.  v. 
Denson,  —  Tex.  Civ.  App  — ,  72 
S.  W.  70. 


§  1820.]  NEGLIGENCE— PASSENGER  CARRIERS.  1175 

convenience,  good  order  and  behavior  of  all  persons  on  the  train,  and 
to  secure  the  proper  conduct  of  its  business;  and  if  a  passenger  wan- 
tonly disregards  any  such  reasonable  rule,  the  obligation  to  cari-y  him 
farther  ceases,  and  the  company  may  expel  him  from  the  train  at  any 
regular  station,  using  no  more  force  than  may  be  necessary  for  that 
purpose. ^° 

§  1820.  Carrier  May  Set  Apart  Separate  Cars  for  Ladies.  The 
court  further  instructs  you,  that  whatever  rules  tend  to  the  comfort, 
order  and  safety  of  the  passengers  on  a  railroad,  the  companies  are 
authorized  to  make  and  enforce ;  but  such  rules  must  be  reasonable 
and  uniform.  A  rule  setting  apart  a  car  for  the  exclusive  use  of 
ladies,  and  gentlemen  accompanied  by  ladies,  is  a  reasonable  rule, 
and  it  may  be  enforced. ^^ 

§  1821.  When  Carrier  May  Refuse  to  Receive  Intoxicated  Persons 
as  Passengers.  A  railroad  company  may  refuse  to  receive  as  a  pas- 
senger, a  person  who  is  so  intoxicated  as  to  be  disgusting,  offensive, 
disagreeable  or  annoying  to  the  other  passengers,  generally,  so  long 
as  he  continues  in  that  condition,  though  he  may  have  purchased  a 
ticket — though  a  slight  intoxication,  such  as  would  not  seriously 
affect  the  conduct  of  the  passenger,  would  not  justify  a  railroad 
company  in  refusing  to  receive  and  carry  one  as  a  passenger  who  had 
purchased  his  tieket.^^ 

TICKETS. 

§  1822.  When  Representations  of  Ticket  Agent  Are  Binding  on 
Carrier.  A  railway  company  is  bound  by  the  representations  of  its 
ticket  agent  to  the  purchaser  of  a  ticket,  provided,  the  representa- 
tions were  made  at  the  time  of  the  sale  of  the  ticket. ^^ 

§  1«23.  Requiring  Higher  Fare  When  Paid  on  Train,  (a)  There 
is  no  question  that  railroad  companies  may  make  such  regulations  as 
I  have  charged  you,  provided  passengers  are  given  convenient  place 
and  suflScient  opportunity  to  procure  tickets  previous  to  boarding 
the  train  to  become  passengers,  and  such  regulations  would  not  be 
unreasonable,  nor  oppi'essive,  nor  open  to  the  objection  that  it  makes 
the  fare  charged  higher  than  the  rate  allowed  by  law,  which  in  this 
state,  by  statutory  provision,  is  three  cents  per  mile.  Now,  you  have 
heard  the  testimony  as  to  the  station  here  at  N,  and  you  must  say, 

from  the  testimony,  whether  or  not  the  defendant,  on  the  day 

of  May,  ,  had  provided  or  built  convenient  places  for  those  in- 
tending to  become  passengers  on  their  passenger  trains  to  procure 

10— Sandford     v.      Eighth     Ave.,  11— C.    &  N.  W.   Rd.   Co.  v.  Wil- 

etc,    Rd.    Co.,    23   N.    Y.    343;    I.    C.  liams,  55  111.  185;  Bass  v.  Chi.  &  N. 

Rd.    Co.    V.    Whitmore,    43    111.    420;  W.    Rd.    Co.,    36   Wis.    450;    Com.   V. 

Crawford    v.    Cincinnati,    etc..    Rd.  Power,  7  Met.  596. 

Co.,     26     Ohio     St.     580;     State     v.  12— Pittsburg,     etc..     Rd.     Co.     v. 

Chovia,   7  la.  204;   Shelton   v.   Lake  Van  Dyne,   57   Ind.   576. 

Shore,    etc.,    Rd.    Co.,    29    Ohio    St.  13— Miller    v.    Southern    Ry.    Co., 

214.  69  S.  C.  116,  48  S.   E.  99. 


1176  FORMS  OF  INSTRUCTIONS.  [§1823. 

tickets  for  their  journey,  and  there  was  sufficient  opportunity  afforded 
the  plaintiff,  on  the  occasion  referred  to,  to  procure  his  ticket  before 
boarding  defendant's  passenger  train  for  Helena.  These  are  ques- 
tions for  you.  Such  regulation  is  conducive,  says  the  law,  to  the 
rapid,  orderly  and  convenient  dispatch  of  the  conductor's  part  in  the 
collection  of  fares,  and  thus  leaving  him  free  for  the  performance 
of  his  other  duties  in  connection  with  stops  at  stations,  the  entrance 
and  exit  of  passengers,  and  the  whole  supervision  of  the  safety  and 
comfort  of  those  under  his  care.  There  may  be  circumstances  which 
would  render  the  enforcement  of  such  regulation  unreasonable, — as 
where  the  passengers  boarded  the  train  at  a  station  where  no  tickets 
were  sold,  where  the  office  provided  by  the  railroad  company  for  the 
sale  of  tickets  was  closed,  or  where  the  agent  had  lost  the  key,  as  in 
one  of  the  illustrations  that  counsel  referred  to,  and  in  consequence 
could  not  furnish  the  passenger  with  a  ticket;  but,  ordinarily,  I  would 
say,  such  regulations  are  not  only  reasonable  but  valid.  Now,  you 
are  to  say,  from  the  testimony,  whether  or  not  any  reasons  for  the 
non-enforcement  of  the  regulation  in  this  case  existed,  or  if  there  is 
any  other  valid  reason  proved  which  would  exempt  the  plaintiff  from 
the  enforcement  of  the  regulation  against  him  on  the  occasion  of  which 
he  complains.  I  say  you  are  to  take  that  into  consideration,  and 
you  are  to  find  the  testimony  applicable  to  it,  and  determine  that 
question.  If  there  was,  that  enforcement  of  the  rule  against  him 
would  have  been  wrong,  and  his  ejection  under  the  circumstances 
would  have  been  unlawful. 

(b)  If  the  plaintiff  boarded  the  passenger  train  of  the  defendant 
at  N  (and  that  is  a  question  for  you)  without  a  ticket,  having  had 
opportunity  to  procure  a  ticket,  and  when  called  upon  to  pay  his  fare 
refused  to  pay  the  fare,  he  became  a  trespasser  on  the  defendant's 
train  ab  initio  (that  is,  from  the  beginning),  and  the  conductor  had 
the  right  to  put  him  off;  for  the  conductor  may  put  off  a  passenger 
who  refuses  to  pay  the  fare  for  transportation  at  any  point  on  the 
defendant's  road  in  a  proper  place  and  in  a  proper  manner  (that  is, 
at  any  place  where  the  passenger  would  not  be  injured  or  in  danger), 
and  to  use  just  so  much  force  as  was  necessary  for  the  purpose  of 
doing  it,  but  no  more.  So,  if  the  conductor  on  this  occasion,  if  the 
plaintiff  boarded  the  passenger  car  of  the  defendant  at  N,  having 
had  an  opportunity  to  procure  a  ticket,  and  did  not  do  so,  and  when 
his  fare  and  the  excess  required  of  passengers  who  get  on  passenger 
cars  of  the  defendant  at  stations  where  tickets  were  sold,  was  de- 
manded by  the  conductor,  the  plaintiff  refused  to  pay  it,  the  con- 
ductor had  the  right,  under  the  regulations  of  the  company,  if  you 
are  satisfied,  from  the  testimony,  that  such  regulations  existed,  and 
that  such  were  the  circumstances  as  I  have  stated  (these  are  the  facts 
which  you  must  determine),  to  put  the  plaintiff  off,  and  to  use  so 
much  force  as  was  necessary  for  the  purpose  of  doing  it.  The  facts, 
as  I  say,  must  be  found  by  you  from  the  testimony ;  must  not  be  what 
you  til  ink  about  it,  but  you  are  to  take  the  testimony  as  the  witnesses 


§il824.]  NEGLIGENCE— PASSENGER  CARRIERS.  1177 

have  given  it  to  you,  and  you  must  determine  it  on  that.  You  must, 
in  determining  all  facts,  be  governed  by  the  preponderance  of  the 
evidence,  as  I  have  told  you.^* 

§  1824.  Validation  of  Reduced  Rate  Round-Trip  Tickets  at  Desti- 
nation by  Identification  and  Stamping.  The  jury  are  instructed  that 
a  condition  in  a  round-trip  railroad  ticket,  sold  at  a  reduced  rate  of 
fare,  that  the  purchaser  will  identify  himself  to  the  satisfaction  of 
the  agent  of  the  company  at  the  point  of  destination,  and  sign  the 
same  and  have  it  'stamped,  is  a  reasonable  condition,  and  the  pur- 
chaser of  such  a  ticket  is  not  entitled  to  return  on  such  a  ticket  until 
it  is  so  signed  and  stamped.^^ 

§  1825.  Effect  of  Purchaser  Signing  a  Round-Trip  Ticket.  The 
jury  are  instructed  that  a  person  who  intends  traveling  on  a  railroad 
train,  and  purchases  a  round-trip  ticket  at  a  reduced  rate  of  fare,  and 
signs  the  contract  printed  upon  its  face,  is  bound  by  all  of  its  reason- 
able provisions,  whether  she  had  actually  read  the  same  or  not,  and 
she  is  presumed  to  know  the  same.^® 

LIMITATION   OF  LIABILITY. 

§  1826.  Limitation  of  Liability — Existence  of  Contracts  a  Question 
of  Fact  for  the  Jury.  I  will  say  to  you  that  it  takes  two  to  make  a 
contract;  that  is,  there  must  be  two  contracting  parties.  There  may 
be  more  than  two  contracting  parties,  but  there  must  be  one  on  one 
side  and  one  on  the  other;  and  there  is  no  contract  unless  and  until 
their  minds  meet.  They  must  come  together  on  some  proposition, 
and  on  the  proposition  about  which  the  contract  is  to  be  made.  The 
minds  must  meet.  They  must  agree;  must  come  together  and  discuss 
the  matter;  a  week,  a  day;  no  matter  how  long;  discuss  the  matter 
about  which  they  shall  contract.  There  will  be  no  contract  until  the 
minds  meet,  come  together;  and  there  will  be  no  binding  contract 
if  there  is  misrepresentation  or  fraud,  because  that  vitiates  every- 
thing. But  it  is  for  you  to  say  whether  there  was  a  contract  between 
these  parties,  plaintiff  and  the  railroad  company,  by  the  agent  of  the 
railroad  or  otherwise.  You  must  say  whether  there  was  a  contract, 
then  you  must  say  what  the  contract  was.  That  is  a  matter  of  fact 
for  you.     I  have  nothing  to  say  about  that.^^ 

EJECTION  OF  PASSENGERS. 

§  1827.  Carrier  May  Eject  Person  Refusing  to  Produce  a  Ticket 
or  Pay  His  Fare,  (a)  A  railroad  company  has  a  right  to  prescribe 
reasonable  rules  for  the  government  of  its  employes  in  the  conduct 

14— Kibley    v.    Southern    Ry.    Co.,  16— Daniels  v.     Florida    Cent.    & 

62  S.  C.  252.  40  S.  E.  556.  P.    R.    Co.,    62  S.   C.   1,    39   S.    E.    762. 

15— Daniels    v.    Florida    Cent.    R.  17— Daniels  v.     Florida    Cent.     & 

Co.,  62  S.  C.  1,  39  S.  E.  762.  P.   R.  Co.,  62  S.   C.  1,   39  S.   E.   762. 


1178  FORMS  OF  INSTRUCTIONS.  [§  1327. 

of  its  business  upon  its  trains,  and  passengers  may  be  required  to 
conform  to  such  rules,  and  a  rule  requiring  a  conductor  to  eject  from 
the  train  a  passenger  who  refuses  to  produce  a  ticket  or  pay  his  fare 
on  demand  is  a  reasonable  one.  Whether,  in  this  case,  the  defend- 
ant had  such  a  rule  and  whether  the  plaintiff  did  refuse  to  produce  a 
ticket  or  pay  his  fare  on  demand,  etc.,  etc.,  are  all  questions  of  fact 
to  be  determined  by  the  jury  by  a  preponderance  of  the  evidence.^^ 

(b)  A  conductor  or  agent  on  a  railroad  train  has  a  right  to  expel 
a  passenger  for  the  non-payment  of  his  fare  or  his  refusal  to  deliver 
his  ticket  within  a  reasonable  time,  but  he  has  no  right  to  use  any 
more  force  than  is  reasonably  necessary  for  that  purpose ;  and  in  this 
ease,  even  if  you  find  that  the  plaintiff  refused  to  pay  his  fare  or 
surrender  his  ticket,  the  agent  of  the  company  had  no  right  to  use 
unnecessary  force  or  violence  toward  the  plaintiff,  and  if  you  should 
find  that  he  did  use  more  force  than  was  reasonably  necessary,  you 
should  find  for  the  plaintiff. 

(e)  It  is  not  sufficient  that  passenger  has  a  ticket  in  his  possession 
but  he  must  offer  to  surrender  it,  and  actually  tender  it  to  the  proper 
conductor  when  demanded,  to  entitle  the  passenger  to  the  rights  of  a 
passenger.^'' 

(d)  The  jury  are  instructed  that  it  is  the  right  of  a  railroad  com- 
pany to  expel  a  passenger  who  is  found  upon  one  of  its  trains  who 
fails  to  present  a  valid  ticket  for  her  passage  or  to  pay  her  fare.  I 
charge  you  that  is  the  law,  as  I  understand  it.  If  the  ticket  is 
wrong,  the  conductor  must  go  according  to  the  rules  of  the  company, 
which  has  to  carry  the  public  and  at  certain  times  has  a  great  duty 
imposed  upon  it;  and,  if  he  has  to  put  off  a  passenger  because  the 
ticket  is  wrong,  the  conductor  must  do  that.  The  railroad  may  be 
liable  for  issuing  the  wrong  ticket,  but  not  for  putting  her  off.^" 

(e)  If  the  jury  believe,  from  the  evidence,  that  the  defendant's 
conductor  demanded  of  plaintiff  her  ticket,  and  that  on  said  demand 
being  made  the  plaintiff  failed,  or  refused,  to  produce  her  ticket  or 
pay  her  fare,  then  said  conductor  had  the  right  to  eject  her  from  the 
train,  using  no  more  force  than  was  necessary  to  eject  her  from  the 

18 — Crawford  v.  Rd.  Co.,  26  Ohio  cept  that  excessive  force  was  used. 

St.  580;  Toledo,  W.   &  W.    Rd.  Co.  "Appellee    testified    that    he    had 

V.   Wright,   68   Ind.   586.  the    ticket    in    his    possession,    but 

19 — Terre   Haute   &    I.    R.    Co.   v.  was    unable    to    find    it    upon    de- 

Pritfhard,   37   Ind.    App.   420,   76  N.  mand;   that   he   offered    to   pay   his 

E.  1070.  fare.     The  conductor  of  appellant's 

"It  is  contended  that  the  giving  train  testified  that  the  plaintiff  re- 
ef the  first  instruction  was  error  fused  to  give  a  ticket,  or  to  pay  his 
because,  'upon  a  theory  not  set  up  fare.  These  instructions  we  think 
in  the  pleadings  nor  within  the  are  pertinent  to  the  pleadings  and 
evidence  in  the  cause';  that  the  within  the  evidence.  Some  fault 
complaint  proceeds  upon  the  theory  is  found  with  other  instructions; 
that  the  plaintiff  was  rightfully  but,  considered  together,  they  fair- 
upon  appellant's  train,  and  was  ly  present  the  law,  and  were  not 
wrongfully  ejected;  that  the  in-  prejudicial  to  appellant." 
Btruction  is  on  the  theory  that  he  20 — Daniels  v.  Florida  C.  &  P. 
was  wrongfully  on  defendant's  R,  Co.,  62  S.  C.  1,  39  S.  E.  762. 
train  and  was  properly  ejected,  ex- 


§  1828.]  NEGLIGENCE— PASSENGER  CARRIERS.  1179 

train;  and  unless  you  believe,  from  the  evidence,  he  used  more  force 
than  was  necessary  to  eject  her  from  the  train,  or  that  he  was  rude, 
insulting,  rough  or  boisterous  in  manner  towards  her,  you  should 
find  for  defendant. 

(f)  If  you  believe,  from  the  evidence,  that  defendant's  conductor 
in  charge  of  its  train  was  insulting  in  his  manner,  words,  or  tone 
towards  plaintiff,  or  that  he  rudely  and  roughly  grabbed  her  by  the 
arm,  while  she  was  sitting  in  her  seat,  then  you  may,  in  addition  to 
compensatory  damages,  award  her  punitive  damages  in  any  sum  you 
may  deem  proper,  not  exceeding  in  all  more  than  $3,000.^^ 

§  1828.  Carrier  May  Eject  Passenger  Using  Abusive  or  Obscene 
Language.  The  court  further  instructs  you,  that  the  use  of  grossly 
profane  and  abusive  or  obscene  language,  by  a  passenger  in  a  railway 
car  where  there  are  ladies,  is  such  a  breach  of  decorum,  no  matter  if 
it  is  provoked,  as  will  work  a  forfeiture  of  his  rights  to  be  carried  as 
a  passenger,  and  the  conductor  has  a  right  to  cause  him  to  be  expelled 
from  the  cars,  using  no  more  force  than  is  necessary  for  that  pur- 
pose.22 

§  1829.  Right  of  Conductor  to  Eject  Passenger  Using  Obscene  or 
Abusive  Language — Rule  in  Alabama.  Under  the  law  in  this  state, 
the  conductor  of  a  railroad  train  is  a  police  officer,  and  not  only  has 
the  right,  but  it  is  his  duty,  to  keep  order  on  the  train  on  which  he  is 
conductor,  and  to  eject  all  persons  who  use  obscene  or  abusive  lan- 
guage in  the  presence  and  hearing  of  the  passengers. ^^ 

§  1830.  Injuries  to  Passenger  Brought  on  by  Refusal  to  Leave 
Train  When  Ordered  by  Conductor,  (a)  It  is  not  necessary  that  a 
person  claiming  to  be,  or  actually  being,  a  passenger  on  a  train  of  a 
railroad  company,  should  forcibly  resist  an  attempt  of  the  conductor 
to  remove  him  therefi'om  in  order  to  entitle  such  person  to  maintain 
an  action  against  the  company  for  a  wrongful  ejection.  So  in  this 
case,  if  you  believe,  from  the  evidence,  that  the  conductor  of  the  train 
in  question  demanded  the  fare  from  the  plaintiff,  and  that  the  plain- 
tiff refused  to  pay  the  same,  or  to  produce  a  ticket  entitling  him  to 
passage  on  that  train,  and  that  the  conductor  then  told  plaintiff  he 
must  leave  the  train,  and  that  plaintiff  refused  to  leave  the  same, 
then  he  cannot  recover  for  any  injury  he  may  have  sustained  while 
being  put  off  the  train,  except  for  such  injuries,  if  any,  which  were 
caused  by  the  use  of  unreasonable  force  by  the  servant  or  servants  of 
the  defendant — if  you  believe  such  unreasonable  force  was  used. 

(b)  When  the  conductor  demanded  that  appellee  should  pay  fare 
or  leave  the  train,  he  would  have  been  justified  in  refusing  to  pay 
fare  and  leaving  the  train  on  the  command  of  the  conductor;  and 
had  he   done  so   he  would  have  received  no  personal   injuries,   and 

21— Louisville    &     N.     R.  Co.  v.  Griffin,   68   111.   499;    Vinton   v.   Mid- 
Fowler,    29    Ky.    Law    Rep.  905,  96  diesex,   11   Allen   304. 
S.    W.    568    (570).  23— Moore    v.    Nashville   C.    &    St. 

22— C,    B.    &    Q.     R.    R.  Co.  v.  L.    Ry.,   137  Ala.   495,   34   So.   617. 


1180  FORMS  OF  INSTRUCTIONS.  [§  1831. 

mio-ht  then  have  brought  his  action  and  recovered,  as  before  stated; 
but  when  he  refused  to  leave  the  train,  and  thus  comiielled  the  con- 
ductor to  resort  to  force,  he  can  not  recover  for  an  injury  which  he 
voluntarily  brought  upon  himself.^-* 

§  1831.  Ejection  cf  Passenger  from  Train  While  in  Motion.  If 
the  jury  believe,  from  the  weight  of  the  evidence,  that  A.  B.,  the 
plaintiff  in  this  suit,  was  on  defendant's  passenger  train  on  defend- 
ant 's  railroad,  on  or  about  the day  of ,  and  that  plain- 
tiff, while  using  due  care  for  his  personal  safety,  was  forcibly  ejected 
from  said  train  by  the  brakeman  thereon,  employed  on  said  train, 
while  said  train  was  in  motion,  as  alleged  in  the  declaration,  or  any 
count  thereof,  then  the  jury  should  find  the  defendant  guilty,  and 
assess  the  plaintiff's  damages  at  whatever  you  find  he  has  sustained 
by  reason  of  injuries  received  thereby.^^ 


BAGGAGE. 

§  1832.  Liability  for  Baggage.  The  jury  are  instructed,  that  a 
common  carrier  of  passengers,  by  receiving  the  baggage  of  a  traveler 
who  has  engaged  his  passage,  becomes  immediately  responsible  for 
its  safe  delivery  at  the  place  of  destination,  and  nothing  but  the  act 
of  God  or  the  public  enemies  will  excuse  a  non-delivery. 

The  court  instructs  you  that  the  term  baggage  includes  a  reasonable 
amount  of  money  in  a  trunk,  intended  for  traveling  expenses,  and 
such  articles  of  necessity  and  convenience  as  are  usually  carried  by 
passengers  for  their  personal  use,  instruction,  amusement  or  pi'otec- 
tion.2^ 

§1833.    What  Term  "Baggage"  Does  Not  Extend  to.     (a)     The 

court  instructs  you,  that  the  term  baggage  does  not  extend  to  money, 
merchandise,  or  other  valuables  which  are  designed  for  purposes  of 
business,  and  not  for  the  traveling  expenses,  personal  use,  comfort,  in- 
struction, amusement  or  protection  of  the  passenger. 

(b)  You  are  instructed,  that  while  the  implied  undertaking  of  a 
common  carrier  to  insure  the  safe  delivery  of  baggage  as  against 
everything  but  the  act  of  God,  and  the  public  enemies,  does  not  extend 
to  the  contents  of  a  trunk  consisting  of  merchandise,  money  or  other 
valuables,  which  are  designed  for  the  purposes  of  trade  or  business; 
still  the  common  carrier,  if  he  takes  charge  of  such  property  for  the 
purpose  of  transporting,  assumes  the  relation  to  it  of  an  ordinary 
bailee,  and  is  bound  to  take  such  care  of  it,  as  men  of  ordinary  care 

24— C.  &  E.  I.   R.  R.  Co.  V.  Cas-  Rd.   Co.,   42  N.  Y.   326;   Parmlee  v, 

azza,   83   111.   App.   421   (427).  Fischer,  22  Til.  212;  Porter  v.  Hilde- 

2r>— St.   L.   A.   &  T.   H.   R.  R.   Co.  brand.    14   Penn.    St.   129;   Hannibal, 

V.   Rfajcan,   52   111.   App.   488   (489).  etc.,    Rd.    Co.   v.    Swift,   12   Wallace 

26— Wfoks   V.    N.    Y.,   etc.,   R.    R.  262;  Gleason  v.  Goodrich  T.  Co.,  Sa 

Co.,   16  N.  Y.   Sup.  Ct.  669;  Hutch-  Wis.  85;  Toledo,  etc.,  v.  Hammond, 

in^H  V.  Wfstern,  etc..  R.  R.  Co.,  25  23  Ind.  .S79. 
Ga.    63;    Doxtor   v.    Syracuse,    etc.. 


§^1834.]  NEGLIGENCE— PASSENGER  CARRIERS.  1181 

and  prudence  would  usually  take  of  their  own  property  under  the 
same  circumstances.^^ 

§  1834.  If  a  Trunk  Contains  Articles  of  Special  Value,  Carrier 
Should  be  Notified.  The  court  instructs  the  jury,  that  a  traveler  who 
presents  to  a  carrier  of  passengers,  a  trunk  or  valise,  such  as  is  com- 
monly used  for  the  transportation  of  wearing  apparel,  represents  by 
implication,  that  it  contains  only  such  articles  as  are  necessary  for 
his  comfort  and  convenience  on  the  journey,  and  if  it,  in  fact,  con- 
tains merchandise,  jewelry  or  other  valuables,  and  the  fact  is  not 
mentioned,  the  traveler  is  guilty  of  such  a  legal  fraud  as  to  absolve 
the  carrier  from  the  extraordinary  liability  of  insurer.^^ 

§  1835.  Carrier  Not  Bound  to  Inauire  as  to  Contents  of  Trunk. 
(a)  The  court  instructs  you,  that  a  carrier  of  passengers  is  not  bound 
to  inquire  as  to  the  contents  of  a  trunk,  delivered  to  it  as  ordinary 
baggage,  such  as  travelers  usually  carrj^,  even  if  the  same  is  of  con- 
siderable weight,  but  the  carrier  may  rely  upon  the  representation, 
arising  by  implication,  that  it  contains  nothing  more  than  baggage. 

(b)  The  court  instructs  you,  that  where  a  person,  under  the  pre- 
tense of  having  baggage  transported,  places  in  the  hands  of  the  agents 
of  a  railroad  company,  merchandise,  jewelry  and  other  valuables, 
without  notifying  them  of  its  character  and  value,  he  practices  a 
fraud  upon  the  company,  which  will  prevent  his  recovery  in  case  of 
loss,  except  it  occurs  through  gross  negligence  of  the  company.^^ 

§  1836.  Baggage — Liability  of  Carrier  for  Terminates,  When.  The 
court  instructs  the  jury,  that  the  responsibility  of  a  railroad  com- 
pany, as  a  common  carrier,  for  the  baggage  of  a  passenger,  termi- 
nates on  the  expiration  of  a  reasonable  time  for  the  passenger  to 
come  or  send  for  the  baggage,  after  the  arrival  of  the  train  at  the 
passenger's  place  of  destination.  After  such  reasonable  time,  the 
company  may  store  the  baggage  in  its  warehouse,  and  it  will  then 
hold  it  as  a  warehouseman  only.^" 

SLEEPING  CAR  COMPANIES. 

§  1837.    Care  Due  Property  of  Passenger  by  Sleeping  Car  Company. 

It  is  the  duty  of  a  sleeping  car  company  to  exercise  reasonable  dili- 
gence in  looking  after  the  person  and  property  of  passengers  on  its 
car  while  they  are  asleep.^^ 

§  1838.  Liability  of  Sleeping  Car  Company  for  Theft  of  Passen- 
ger's Diamond,     (a)     If  the  juiy  believe,  from  the  evidence,  that  the 

27— Penn.    Co.   v.    Miller,   35   Ohio  30— Chicago,    etc.,    R.    R.    Co.    v. 

St.  541;  Wood  v.  Devine,  13  111.  746.  Boyce.  73  III.  510;  Mote  v.  Chicago. 

28— Smith   et  al.   v.    B.   &   M.    Ry.  etc.,   Rd.   Co.,   27  la.   22;   Louisville, 

Co.,  44  N.  H.  325;  Magniu  v.  Dins-  etc.,  Rd.  Co.   v.  Maihn,  8  Bust.   184; 

more,    62   N.   Y.    35.  Ross   v.    Mo.    Rd.   Co.,   4   Mo.   App. 

29— Mich.  Cent.  R.  R.  Co.  v.  Car-  582. 

row.     73     111.      348;     Whitmore     v.  31— Pullman  P.  C.  Co.  v.  Adams, 

Steamboat,   etc.,   20   Mo.   513;  Doyle  120  Ala.  581,  24  So.   921,  45  L.  R.  A. 

V.  Kiser,  6   lud.  242.  767,    74   Am.    St.    Rep.    53. 


1182  FORMS  OF  INSTRUCTIONS.  [5  1839. 

diamond  ring  alleged  to  have  been  lost  or  stolen  was  not  in  a  condi- 
tion that  it  could  have  been  worn,  for  the  use,  convenience,  or  orna- 
ment of  plaintiff,  on  said  trip,  they  cannot  find  against  defendant  on 
account  of  its  loss. 

(b)  The  court  charges  the  jury  that  unless  the  ring  alleged  to 
have  been  lost  by  plaintiff  was  in  such  condition  that  it  could  be  of 
sei-\'ice  to  plaintiff  for  his  personal  use,  comfort,  convenience,  or 
ornament  on  said  trip,  they  cannot  find  against  defendant  for  its  loss 
under  the  evidence  in  this  case. 

(c)  Under  the  evidence  in  this  case  there  can  be  no  recovery  for 
the  value  of  the  diamond  ring  that  was  lost  by  the  plaintiff,  unless 
the  jury  believe,  from  the  evidence,  that  the  diamond  ring,  the  value 
of  which  is  sued  for,  was  in  such  condition  at  the  beginning  and 
during  the  journey  made  by  the  plaintiff  that  the  same  could  be  used 
or  worn  by  him,  they  cannot  find  against  the  defendant  for  any 
damages  for  its  loss.^- 

BURDEN  OF  PROOF. 

§  1839.  Rule  in  Georgia  as  to  Burden  of  Proof  When  Fact  that 
Plaintiff  Was  a  Passenger  Is  Shown.  (a)  The  burden  is 
on  the  plaintiff  to  establish  the  truth  of  the  allegations  in  -the  decla- 
ration by  a  preponderance  of  the  testimony, — that  is  to  say,  in  a 
case  of  this  character,  it  is  incumbent  upon  the  plaintiff  to  establish 
the  fact  {hat  he  was  a  passenger  upon  the  car  and  was  injured;  and 
when  he  has  established  that  by  a  preponderance  of  the  evidence,  or 
made  it  appear  by  any  admissions  in  the  pleadings  satisfactory  to 
you,  as  to  the  fact  that  he  was  a  passenger  and  was  injured,  or  estab- 
lished it  by  evidence  to  a  reasonable  and  moral  certainty,  then  the 
law  shifts  the  burden,  and  it  is  incumbent  upon  the  defendant  to 
establish,  by  a  preponderance  of  the  evidence,  one  of  two  facts, — 
either  that  it  was  without  negligence,  or  that  the  plaintiff  could  have 
avoided  the  consequence  of  the  negligence  by  the  exercise  of  ordi- 
nary care.^^ 

(b)  The  effect  of  the  plea,  gentlemen,  is  to  put  the  burden  of 
proof  on  the  plaintiff,  the  party  bringing  the  suit,  to  show  to  your 
satisfaction,  by  a  legal  preponderance  of  the  evidence  in  the  case, 
that  the  allegations  he  makes  are  true. 

(c)  If  you  believe  the  plaintiff  was  a  passenger  of  the  defendant, 
then  the  law  would  raise  a  presumption  against  the  defendant  com- 

32 — Pullman  P.  Car  Co.  v.  Adams,  mere  fact  that  a  person  is  injured 

120  Ala.  581,  24  So.  921,  45  L.  R.  A.  while     a     passenger     without     any 

767,   74    Am.    St.   53.  reference  as  to  how  he  was  injured 

33 — Macon    Cons.    St.    R.    Co.    v.  furnishes    no    ground     for     a    pre- 

Barnr^s,   113  Ga.   212,  38  S.   E.  756.  sumption     of     negligence.      See     in 

Such     instructions     as     the     one  this   connection  Western   Maryland 

above  are  good  in  Georgia  and  sev-  R.  Co.  v.  State,  95  Md.  637,  53  Atl. 

eral  other  states,  but  would  be  er-  969.    (Editor.) 
roneous  in  many  jurisdictions.  The 


§  1840.]  NEGLIGENCE— PASSENGER  CARRIERS.  1183 

pany  that  it  was  negligent,  and  the  burden  would  be  on  the  defendant 
to  rebut  that  presumption  by  showing  it  was  not  negligent,  or  that 
the  plaintiif,  by  the  exercise  of  ordinary  care  on  his  part,  could  have 
avoided  the  consequences  to  himself  of  the  defendant's  negligence,  if 
that  appears.''^ 

§  1840.  Burden  of  Proof  Where  Negligence  Is  Shown  in  Construc- 
tion, Operation  or  Maintenance  of  Rolling  Stock  or  Roadbed.  If  you 
find  that  the  plaintiff  has  shown  conditions  existing  at  the  time  and 
place  of  the  accident,  either  in  the  rolling  stock  or  track  involved,  and 
in  use  at  the  time  and  place  thereof,  in  some  respect  as  complained  of, 
from  which  the  jury  may  find  or  infer  that  the  defendant  was  negli- 
gent in  some  manner  as  claimed,  then  the  burden  is  cast  upon  the  de- 
fendant of  proving  that  such  conditions  or  circumstances  were  not 
the  cause  of  the  alleged  accident,  and  that  it  was  not  negligent  in 
any  manner  as  claimed  in  the  construction,  operation  or  maintenance 
of  the  rolling  stock  or  roadbed  at  the  time  and  place  of  the  alleged 
accident. ^^ 

§  1841.  Burden  of  Proof  as  to  Conditions  in  Passenger's  Tickets. 
The  juiy  are  instructed  that  where  a  railroad  company  issues  tickets 
with  special  conditions,  the  burden  of  proof  is  upon  it  to  show  what 
were  those  special  conditions,  where  they  are  relied  upon  to  relieve 
the  railroad  from  liability.^^ 

ELEVATORS. 

§  1842.    Injury  to  Passenger  Through  Fall  of  Elevator.   The  court 

instructs  the  jury  that  if  they  believe,  fi'om  the  evidence  in  this  case, 

34 — Freeman    v.    Collins    Park    &  was  bound  to  go   further,  and  ex- 

B.  Ry.  Co.,  117  Ga.  78,  43  S.  E.  411.  culpate     itself     from     every     other 

35 — Cronk  v.   Wabash  R.   Co.,  123  charge  of  negligence  stated  in  the 

Iowa  349,   98   N.    W.   884  (886).  petition.     If  the  cause  were  proven, 

"It  is  said  that  if  the  jury  found  then  the  derailment  could  not  have 
the  roadbed  or  rolling  stock  de-  been  occasioned  by  something  else, 
fective  in  any  one  of  the  ten  or  and  therefore  in  establishing  the 
twelve  particulars  alleged,  this  cause,  and  its  freedom  from  negli- 
cast  the  burden  of  the  proof  upon  gence,  the  defendant  necessarily 
the  defendant  to  Show  that  it  was  proved  that  the  derailment  did  not 
not  negligent,  not  only  as  to  that  result  from  some  other  cause.  More- 
one,  but  as  to  all  of  the  specifica-  over  the  instructions  must  be  read 
tions  contained  in  the  petition.  It  together,  and  the  jury  was  dis- 
was  not  incumbent  upon  the  tinctly  advised  in  the  third  para- 
plaintiff,  however,  in  the  first  in-  graph,  that  in  order  to  find  for 
stance,  to  prove  any  of  these  de-  plaintiff  it  must  appear  not  only 
fects.  Upon  proof  that  the  injury  that  he  w^as  injured,  but  that  'the 
of  plaintiff  resulted  from  the  de-  defendant  was  negligent  in  some 
railment  of  the  train,  the  proof  one  or  more  of  the  particulars 
shifted  and  was  cast  upon  the  de-  charged  in  the  petition,  and  that 
fendant  to  show  that  the  accident  such  negligence  was  the  direct 
was  not  occasioned  by  any  negli-  cause  of  the  injury.'  While  the  in- 
gence  on  its  part.  Whittlesey  v.  struction  was  not  as  specific  as 
Railway,  90  N.  W.  516;  Smith  v.  might  have  been  wished,  we  are 
Railway,  32  Minn.  1,  18  N.  W.  827,  satisfied  that  the  jury  was  not  mis- 
50  Am.  Rep.  550.     But  appellant  in-  led  thereby." 

sists    that,     even    though    it    then  36 — Daniels  v.   Florida  Central   & 

proved    the    efl^cient    cause    of    the  P.    R.    Co.,  62  S.    C.   1,  39  S.    E.   762 

accident,  under  this  instruction  it  (763). 


11S4  FORMS  OF  INSTRUCTIONS.  [§1842. 

that  the  plaintiff  on  or  about  ,  was  rightfully  in  an  elevator 

in  the  possession  of  and  operated  by  the  defendant,  and  situated  in 
the  defendant's  building,  for  the  purpose  of  being  carried  thereby 
from  one  of  the  upper  floors  of  defendant's  said  building  to  the 
ground  floor  thereof;  and  if  you  further  believe,  from  the  evidence, 
that  while  the  plaintiff  was  so  in  such  elevator,  and  in  the  exercise 
of  reasonable  and  ordinary  care  on  his  part,  said  elevator,  owing  to 
the  negligent  and  faulty  construction  thereof,  or  owing  to  the  negli- 
gence and  carelessness  on  the  part  of  the  servants  of  the  defendant 
in  operating  the  same,  fell ;  and  if  you  further  believe,  from  the  evi- 
dence, that  the  injury  to  the  plaintiff  complained  of  was  caused  by 
the  fall  of  such  elevator,  then  your  verdict  should  be  for  the  com- 
plainant.^^ 

Degree  of  Care  of  Hotel  Keeper  toward  Servants  Riding  on  Passen- 
ger Elevator,  (b)  The  court  instructs  the  jury  that  the  plaintiff  was 
not  in  the  position  of  a  passenger  upon  the  elevator  in  question,  and 
that  the  plaintiff  was  not  in  the  position  of  a  guest  of  the  hotel  in 
boarding  and  riding  upon  the  elevator  in  question,  and  that  the  de- 
fendant did  not  owe  to  the  plaintiff  that  highest  degree  of  care  which 
would  be  owing  to  a  passenger  or  guest  of  the  hotel,  but  that  the 
test  of  the  duty  of  the  defendant  toward  the  plaintiff  was  a  test  of 
ordinary  care  on  the  part  of  his  servant  in  charge  of  the  elevator.^^ 

37— Hartford   Deposit   Co.   v.    Sol-  111.    222;    Masonic    Fraternity    Ass'n 

litt,    172    111.    222    (224),    aff'g    70    111.  v.  Collins,  210  111.  482).  The  relation 

App.    166,   50   N.   E.   178,   64  Am.    St.  of     master     and     servant,     creates 

Rep.   35.  very    different    duties,    and    as    be- 

"The  evidence  introduced  on  the  fore    stated,    the    proprietor    of    an 

trial    on    the    part    of    the    plaintiff  elevator  does  not  occupy  the  posi- 

showed   that  the  elevator  fell,   and  tion   of  a  carrier  of  passengers   as 

showed  the  injury  to  the  plaintiff,  to  his  own  employees.     *    *    *  rpj^g 

and   tended   to   show   that   the   ele-  plaintiff  was  returning  to  her  room 

vator    was    overloaded."  for    the    purpose    of    resuming    her 

38— Walsh    Ex'r  v.    Cullen,  235  111.  work    in    the    morning,    and    there 

91    (1908).    "The  law   makes   no   dis-  was   no    evidence   under   which   she 

tinction    between    an    undertaking  could    be    held    a    passenger    while 

to   carry    passsengers   in    buildings  being    in   the   elevator.      The   court 

by  means  of  elevators  and  an  un-  erred    in    refusing    to    give   the    in- 

dertaking  to  carry  them  upon   the  struction." 

streets,     highways,     or      railroads,  It    is    manifest    from    the    above 

and    the    same    obligation    to    exer-  that    an    instruction    on    behalf    of 

else  care  and  skill  applies   in  each  the     plaintiff    in     substantially     the 

case.     This  has  been  held  to  be  the  following  form  would  be  approved: 

law  with  respect  to  an  elevator  in  The  court  instructs  the  jury  that 

an    apartment    house    occupied    for  a    master    who    provides    a    passen- 

residence  purpo.se   (Hodges  v    Per-  ^^^^^^^^  ^^^  pl'^mit^^his^'se?;! 

cival      132    111.      53);      elevators      m  ^^^^   ^^  ^ide   upon   a  passenger  ele- 

buildmgs      occupied     for      busine.ss  ^^tor      provided       for       passengers, 

purposes  (Sprmger  v.  Ford,  189  111.  should     exercise     ordinary     care     in 

430;    Beidler   v.    Bradshaw,    200    111.  the    operation    of   such    elevator,    so 

435);  and  elevators  supplied  for  the  as     to    make    the    same    reasonably 

Ti.se    of    tenants    in    office    buildings  safe    for     such    servants     while     so 

(Hartford  Deposit  Co.  v.  Sollitt,  172  using   such   elevator. 


CHAPTER  LXIX. 
NEGLIGENCE— RAILROADS. 

See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


MACHINERY    AXD    APPLIANCES. 

§  1843.  Duty  to  furnish  safe  ma- 
chinery. 

§  1844.  Liabihty  of  railroad  for  ma- 
licious use  of  appliances  by 
sei'vants. 

§  1845.  Negligence  to  put  car  in  mo- 
tion without  proper  appli- 
ances for  stopping  it. 

TBACK    AND    ROAD    BED. 

5 1846.  Maintenance      of     track     in 

good    condition   when   duty 
imposed    by    statute. 

5 1847.  Turntable    as   attraction  for 

children. 

OPERATION     AND     MANAGEMENT     OF 
TRAINS. 

5  1848.  Rate  of  speed. 

§  1849.  Backing  engine,  tender  fore- 
most, not  ,of  itself  negli- 
gence. 

§  1850.  Backing  train  without  light 
or  flagman. 

§  1851.  Duty  of  railroad  company  to 
use  reasonable  care  to 
avoid  injuring  person  on 
track. 

§  1852.  Degree  of  care  due  towards 
child   on  track. 

§  1853.  Duty  tov.ard  helpless  person 
on  track. 

S 1854.  Failure  to  keep  a  proper 
lookout  on  down  grade. 

§  1855.  Care  due  by  servants  of  rail- 
way company  to  avoid  a 
collision. 


TRESPASSERS. 

§  1856.  Liability  as  to  trespassers. 

§  1857.  Willful  and  wanton  miscon- 
duct toward  trespasser — 
What  amounts  to. 

S 1858.  Injury  to  trespasser  while 
getting   on  moving  train. 

§  1859.  When  person  crossing  track 
is  not  a  trespasser. 

LICENSEES. 

S  1860.  Duty  to  maintain  lookout  as 
to  licensees  on  track. 

75  1185 


§  1S61.  Temporary  revocation  of 
license  to  public  to  cross 
track  ,at  certain  point. 

INJURIES   AT  HIGHWAY   CROSSINGS. 

§  1862.  Highway  crossings  must  be 
put  in  safe  condition. 

§  1863.  Reasonable  care  required  at 
highway  crossings. 

§  1864.  Necessity  of  greater  caution 
when  large  number  of  per- 
sons use  crossing  daily. 

§  1865.  Other  persons  crossing  track 
in  safety  before  accident 
not  evidence  of  safety. 

§  1866.  Defendant  guilty  of  negli- 
gence as  charged  in  the 
declaration. 

§  1867.  Rights  and  liabilities  of 
railroad  companies  and 
travelers  are  equal  and 
mutual. 

§  1868.  Owing  to  force  and  momen- 
tum train  -has  preference 
in   crossing  point. 

§  1869.  Measuring  the  distance  and 
time  it  would  take  to  cross 
— Assuming  risk. 

§  1870.  Reasonable  warning  should 
be  given  by  train  in  ap- 
proaching highway  cross- 
ings. 

§  1871.  Engineer  and  fireman  bound 
to  use  reasonable  care. 

§  1872.  Elements  to  be  taken  into 
consideration  —  Sparsely 
settled  and  populous  dis- 
tricts. 

§  1873.  Engineer  not  bound  to  neg- 
lect his  usual  and  ordinary 
duties  to  keep  extraordi- 
nary lookout  for  danger 
ahead. 

§  1874.  Liability  of  railroad  for 
frightening  horses — Negli- 
gence, and  wanton  defined. 

§  1875.  Frightening  horses  through 
usual  and   ordinarj'  noise. 

§  1876.  Frightening  horses  through 
negligent  unloading  of  cin- 
ders. 


1186 


FORMS  OF  INSTRUCTIONS. 


§  1S77.  Company  must  not  suffer 
tall  weeds  or  brush  to  ob- 
struct the  view  of  the 
track. 

§  1878.  Obstructing  view  of  track  at 
crossing  .by  line  of  box 
cars. 

§  1879.  Duty  to  observe  ordinances 
of  municipalities. 

§  1880.  Running  train  at  greater 
speed  than  that  allowed  by 
ordinance — Negligence      per 

SB. 

§  1881.  Speed  of  train  when  no  ordi- 
nance exists. 

§  1882.  Duty  to  ring  bell— Duty  of 
person  crossing  tracks. 

S  1883.  Person  may  assume  that  or- 
dinance as  to  ringing  bell 
will    be   obeyed. 

§  1884.  When  failure  to  ring  bell  is 
excused. 

§  1885.  Failure  to  sound  whistle  or 
to  ring  bell  not  negligence 
per  se. 

§  1886.  Whistle  need  not  be  blown 
continuously. 

§  1887.  Blowing  whistle  at  insuf- 
ficient distance  while  going 
at  a  dangerous  rate. 

§  1888.  When  suit  based  on  failure 
to  give  signals,  recovery 
must  be  for  such  omission. 

§  1889.  No  duty  ordinarily  to  give 
signals  at  private  cross- 
ings. 

§  1890.  But  duty  to  give  warning  at 
crossing  made  public  by 
customary   use. 

§1891.  No  absolute  duty  to  main- 
tain gates  or  flagman  at 
crossing. 

§  1892.  When  flagman  reasonably 
necessary  for  safety  at 
crossing. 

S  1893.  Open  gates  as  an  invitation 
to  cross. 

5 1894.  Backing   cars   up   after  gate 

is   opened. 

51895.  When  "kicking"  car  amounts 

to  willful  negligence  while 
person   is  crossing   track. 
§  1896.  Failure    of    defendant's    ser- 
vants   to   avoid   threatened 
injury    when   possible. 

5 1897.  Ordinary        care        towards 

watchman  at   CTOs.sing. 

5 1898.  Injury    at    crossing    through 

horse    balking. 

§  1899.  Reasonable  and  ordinary 
care  only  required  in 
switching. 

S 1900.  Right  to  raise  and  lower 
traxL'k — Duty  of  public  au- 
thorities as  to  approaches 
thereto. 


§  1901.  Injury  to  person  at  crossing 

by  employe  operating  hand 

car  for  his  own  private  use. 

§  1902.  Care   required   of   travelers. 

§  1903.  High  rate  of  speed  will  not 
excuse  want  of  ordinary 
care. 

§  1904.  Failure  to  have  gate  keeper 
required  by  ordinance  will 
not  excuse  traveler  from 
using  ordinary  care. 

§  1905.  Failure  to  give  signals  does 
not  excuse  traveler  from 
using  ordinary  care. 

§  1906.  Flagman's  signal  to  cross 
will  not  excuse  want  of  or- 
dinary care. 

§  1907.  Voluntarily  crossing  over  tQ 
a  place  of  danger. 

§  1908.  Track  itself  is  a  proclama- 
tion  of  danger. 

§  1909.  Person  must  use  his  faculties 
in  proportion  to  the  known 
danger. 

§  1910.  Duty  of  person  crossing 
tracks  to  stop,  look  and 
listen. 

§  1911.  Failure  of  person  at  cross- 
ing to  stop,  look  and  listen. 

§  1912.  Failure  to  select  the  best 
place  to  stop,  look  and 
listen. 

§  1913.  Evidence  of  constant  habit 
to  stop,  .look  and  listen. 

§  1914.  When  duty  to  look  and  list- 
en, is  excused. 

§  1915.  Crossing  track  on  bicycle 
without  looking  and  listen- 
ing. 

§  1916.  Ci'ossing  in  covered  milk 
wagon. 

§  1917.  Looking  out  of  glass  at  back 
of  buggy  only — Contribu- 
tory negligence  defined. 

§  1918.  When  contributory  negli- 
gence cannot  be  imputed 
from  fact  that  gates  were 
down. 

§  1919.  Attempting    to     drive    upon 
track    although    view    ob- 
structed— Looking  and  list- 
ening. 
§  1920.  Negligence     to     go     forward 
when  there  is  a  permanent 
obstruction    and    a    trans- 
ient noise. 
§  1921.  Presumption       that       party 
crossing      track      stopped, 
looked  and  listened. 
§  1922.  Failure   of   driver  of  vehicle 
to  turn  in  seat  on  sounding 
of    whistle    or    ringing    of 
bell. 
§  1923.  Discovery      of      approaching 
train  in  time  to  avoid  going 
on  crossing. 


NEGLIGENCE— RAILROADS. 


1187 


§  1924.  Failure  to  heed  watchman's 
signal  to  stop. 

§  1925.  Right  of  railroad  company's 
servants  to  assume  that 
driver  of  vehicle  will  re- 
main at  a  safe   distance. 

§  1926.  Driving  over  tracks  with 
lines  .hanging   loose. 

§  1927.  Injury  through  team  being 
unmanageable. 

§  1928.  Negligence  per  se  in  travel- 
er. 

§  1929.  Conduct  in  ,presence  of  sud- 
den danger. 

§  1930.  Jury  may  consider  sur- 
rounding    circumstances. 

§  1931.  Imputed  negligence — Parent 
and   child. 

§  1932.  When  negligence  of  driver  of 
plaintiff's  vehicle  in  cross- 
ing track  will  prevent  re- 
covery. 

§  1933.  Proof  of  death  at  crossing 
must  correspond  with 
plaintiff's  allegation  that  it 
occurred   there. 

§  1934.  Violation  'of  ordinances — 
Negligence  may  be  in- 
ferred from  injury  at 
crossing. 

§  1935.  Fact  that  deceased  was 
killed  by  cars  of  defendant 
insufficient,  standing  alone, 
to  justify  verdict  for 
plaintiff. 

§  1936.  When  no  eye  witness  to  kill- 
ing of  person  by  railroad 
train  presumption  of  due 
care  by  deceased  usually 
exists. 

§  1937.  Railroad  company's  duty  in 
crosshig  tracks  of  another 
railroad. 

5 1938.  Liability  of  railroad  and 
street  car  companies  for 
repair  of  tracks  at  cross- 
ing. 

DUTY      TO      SHIPPERS      AND      CON- 
SIGNEES. 

§  1939.  Duty  toward  shipper  loading 
car. 

§1940.  Liability  for  injury  to  con- 
signee while  unloading  car. 

§  1941.  Injury  while  going  to  car 
although  told  it  could  not 
be  unloaded  that  day. 

§1942.  Assault  upon  person  getting 
freight  by  company's  agent 
or  servant. 

BTJLES    AND    REGULATIONS. 

§1943.  Right  to  make  reasonable 
rules  for  management  of 
trains. 

§  1944.  Expelling  a  person  from  the 
cars. 


CONTRIBUTORY  NEGLIGENCE   ( SEE  ALSO 
INJURIES    AT    HIGHWAY    CROS- 
SINGS). 

§  1945.  Plaintiff  must  exercise  ordi- 
nary care. 

§  1946.  Plaintiff  not  bound  to  high- 
est degree  of  care  and 
prudence. 

§  1947.  Plaintiff  must  exercise  rea- 
sonable care  and  prudence. 

§  1948.  Contributory  negligence  of 
children. 

§  1949.  Eye-witness  as  to  care  and 
caution  of  party  injured 
not  essential. 

§  1950.  Contributory  negligence  of 
person  injured  at  crossing. 

§  1951.  Person  crossing  track  know- 
ing that  cars  were  shifted 
at  that  point. 

§  1952.  Standing  on  track^Duty  to 
look  and  listen. 

§  1953.  Contributory  negligence  — ' 
Failure  of  plaintiff  to  dis- 
cover approaching  train. 

§  1954.  Knowledge  of  the  deceased 
of  the  presence  of  one  en- 
gine at  crossing  and  the 
approach  of  another  en- 
gine. 

§  1955.  Contributory  negligence  — 
Driving  across  track  in  a 
careless  or  indifferent  man- 
ner. 

§  1956.  Contributory  negligence  — 
Riding  upon  locomotive. 

§  1957.  Riding  on  coal  car  without 
consent  of  defendant's  em- 
ployes. 

§  1958.  Contributory  negligence  of 
plaintiff  no  defense  if  de- 
fendant could  have  avoid- 
ed injury  after  discovering 
plaintiff's   peril. 

§  1959.  Attendant  circumstances  de- 
termine whether  uncon- 
scious person  is  guilty  of 
contributory  negligence. 

§  1960.  Failure  of  law  to  regulate 
speed  does  not  authorize 
wanton,  reckless  and  dan- 
gerous rate  of  speed — 
What  will  not  amount  to 
wanton  misconduct. 

§  1961.  Rule  that  burden  of  proof 
as  to  contributory  negli- 
gence is  on  defendant. 

FENCING     TRACK — LIVE     STOCK. 

§  1962.  Failure  to  comply  with  law 
negligence   per  se. 

§  1963.  Company  must  exercise  rea- 
sonable care. 

§  1964.  Company  only  held  to 
reasonable  care  —  Casual 
breach  in  fence. 


1188 


FORMS  OF  INSTRUCTIONS. 


§  1965.  Stock  unlawfully  running  at 
large. 

§  1966.  Obligation  to  fence  not  lim- 
ited to  adjoining  owner. 

§  1967.  Cattle  guards. 

§  1968.  Plaintiff's  contributory  neg- 
ligence. 

§  1969.  Stock  escaping  and  running 
at  large. 

FENCING  TBACK.      (CHILDREN.) 
§  1970.  Duty    of    railroad    to    fence 
track  is  also  for  benefit  of 
children. 

ACTIONS  FOR  KILLING  LIVE  STOCK. 

§  1971.  Actions  for  killing  live  stock 
— Care  due  in  operation  of 
trains. 

§  1972.  Highest  duty  of  engineer  of 
passenger  train  is  to  his 
passengers — Series. 

§  1973.  Duty  to  avoid  injury  after 
discovei'ing  dangerous  posi- 
tion of  live  stock. 

§  1974.  Injury  to  stock  at  crossing. 

§  1975.  Elements  of  liability  for 
killing  of  heifer. 

§  1976.  Failure  to  keep  a  proper 
lookout  for  horses  on  track 
negligence. 

§  1977.  Railroad  company  not  liable 
for  injury  to  horse  on  track 
where  reasonable  care  used. 

§  1978.  Animals  coming  on  track  so 
suddenly  that  accident 
cannot  be  prevented. 

§  1979.  Failure  of  engineer  to  see 
anim.als  on  track  when  he 
should,  under  the  circum- 
stances. 

§  1980.  Horse  Injured  in  flangeway 
— Duty  of  railroad  in  con- 
structing road  across  the 
street — Series. 

§  1981.  Injury  to  animal  on  track — 
Burden  of  proof  as  to  neg- 
ligence. 

§  1982.  Running  extra  train,  or 
train  not  on  schedule  time, 
not  negligence  as  to  live 
stock. 

S  1983.  Burden  of  proof  as  to  place 
of  injury  of  live  stock  is  on 
plaintiff. 

§1984.  Neglect  to  ring  the  bell,  etc., 
prima  facie  evidence  of 
negligence. 

§  1985.  Burden  of  proof  as  to  ring- 
ing bull. 

i  1986.  Must  exercise  reasonable 
care  and  watchfulness  to 
avoid    injuring  stock. 

S  1987.  Sp<;f;d  through  cities  and  vil- 
lages. 

INJURIES    BY    FIRE. 

{ 1988.  Prima  facie  negligence. 


§  1989.  But  not  conclusive  evidence 
of  negligence. 

§  1990.  No  recovery  against  railroad 
w;hen  origin  of  fire  left  to 
guess  or  conjecture. 

§  1991.  Rule  that  burden  of  proof  is 
on  plaintiff  to  show  negli- 
gence on  defendant  in 
starting  fire. 

§  1992.  Rule  in  Texas  as  to  instruc- 
tion of  juries  in  actions  for 
injuries  by  fire. 

§  1993.  Statutory  rule  in  South  Caro- 
lina. 

§  1994.  Elements  constituting  neg- 
ligence in  injuries  by  fire. 

§  1995.  Heavy  grade  requiring  en- 
gines to  be  worked  hard 
and  to  emit  sparks. 

§  1996.  Running  engine  past  cotton 
compress  or  yard — Series. 

§  1997.  Reasonable  care  required  to 
prevent  spread  of  fire. 

§  1998.  Must  provide  most  improved 
apparatus  to  prevent  es- 
cape  of   fire. 

§  1999.  Effect  of  failure  to  use  most 
approved  apparatus  to 
prevent  escape  of  fire  or  to 
use  ordinary  care  in  pre- 
venting escape  of  sparks. 

§  2000.  Dry  weeds  and  grass. 

§  2001.  Damages  to  turf  from  which 
grass  is  burned. 

§  2002.  Degree  of  care  required  of 
land  owner. 

§  2003.  Effect  of  plaintiff's  building 
being  defendant's  right  of 
way. 

§  2004.  Reasonable  care  and  dili- 
gence only  required  by  the 
company. 


OBSTRUCTING  HIGHWAYS. 
2005.  Obstructing      highways 


leaving 
track. 


by 
standing    on 


DEDICATION   OF  LANDS. 
§  2006.  Dedication   of   lands  for   use 
by  railroads. 

SWITCHES   AND  FARM   CROSSINGS. 

§  2007.  When  switch  presumed  to  be 
permanent  —  Measure  of 
damages  for  removal. 

§  2008.  Establishment  of  "neces- 
sary" plantation  roads 
under  terms  of  statute. 

§  200p.  Less  degree  of  care  required 
at  farm  crossings  than  at 
public  crossings. 

§  2010.  Injuries  to  stock  at  farm 
crossings. 

§  2011.  Defective  bridge  over  farm 
crossing — Duty  of  railroad 
company  to  repair  it. 


§  1843.]  NEGLIGENCE— RAILROADS.  1189 

MACHINERY  AND  APPLIANCES. 

§  1843.  Duty  to  Furnish  Safe  Machinery.  The  court  instructs  the 
jury  that  it  is  the  duty  of  railroad  companies  to  use  all  reasonable 
means  and  efforts  to  furnish  good  and  well  constructed  machinery, 
adapted  to  the  purposes  of  its  use,  of  good  material,  and  of  the  kind 
that  is  found  to  be  safest  when  applied  to  use ;  and  while  they  are 
not  required  to  seek  and  apply  every  new  invention,  they  must  adopt 
such  as  are  found,  by  experience,  to  combine  the  greatest  safety  with 
practical  use.^ 

§  1844.  Liability  of  Railroad  for  Malicious  Use  of  Appliances  by 
Servants.  You  are  instructed  that  if  the  servants  of  a  railroad  com- 
pany, whil'e  in  the  discharge  of  their  duties,  pervert  the  appliances 
of  the  company  to  wanton  or  malicious  purposes,  to  the  injury  of 
others,  the  company  is  liable  for  such  injuries.- 

§  1845.  Negligence  to  Put  Car  in  Motion  Without  Proper  Appli- 
ances for  Stopping  It.  The  court  instructs  the  juiy  that  it  is  negli- 
gent for  pei'sons  engaged  in  using  cars  on  a  railroad  track  to  put  a 
car  in  motion  where  it  may  do  injury  to  others,  without  making  any 
provision  for  stopping  it,  or  examining  to  see  whether  any  person  is 
on  or  about  other  cars  on  the  same  track,  with  which  the  one  put  in 
motion  may  collide ;  and  if  injury  results  therefrom  to  one  who  is 
guilty  of  no  negligence  himself,  he  will  be  entitled  to  recover  for 
such  injury.^ 

TRACK  AND  ROAD  BED. 

§  1846.  Maintenance  of  Track  in  Good  Condition — Duty  Imposed 
by  Statute.  It  was  the  duty  of  the  defendant  railroad  company  to 
maintain  its  track  along  T.  street  in  the  eit}'  of  A.,  in  such  condition 
that  it  would  be  reasonably  safe  for  persons  traveling  along  or  across 
said  street  on  horseback  or  otherwise  to  cross  said  track  at  any  point 
in  said  street.'* 

§  1847.  Turntable  as  Attraction  for  Children.  If  you  find  and 
believe  from  the  evidence  that  the  defendant's  turntable,  in  its  con- 
struction and  place  where  situated,  was  not  especially  and  unusually 

1— St.  Louis,  etc.,  Rd.  Co.  v.  Vali-  "Article    4426,    Rev.    St.    of    Tex. 

rius,    56    Ind.    511;    Wedgewood    v.  1895,   reads  as   follows:     'Such   cor- 

Chicago,  etc.,  Rd.   Co.,  41  Wis.  478;  poration    (meaning  a   railroad   cor- 

Pittsburgh  R.   R.  Co.  v.  Nelson,  51  poration)    shall    have    the    right    to 

Ind.    150;   Porter  v.    Hannibal,   etc.,  construct  its  road  across,  along  or 

Rd.  Co.,  60  Mo.  160;  T.,  W.   &  W.  upon   any  stream  of  water,  water 

Ry.  V.  Fredericks,  71  111.   294.  course,      street,      highway,      plank 

2 — C.  B.  &  Q.  Rd.  Co.  v.  Dickson,  road,  turnpike  or  canal,  which  the 

63  111.  151.  route   of   said    railway    shall   inter- 

3 — Noble    V.    Cunningham,    74    111.  sect   or   touch.     But   such   corpora- 

Cl;   Quackenbush  v.   Chi.   &   N.  W.  tion  shall  restore  the  stream,  water 

R.  R.  Co.,  73  la.  458,  35  N.  W.  523.  course,      street,      highway.      plank 

4 — Inter.  &  G.  N.  R.  Co.  v.  Had-  road,  turnpike  or  canal  thus  intei- 

dox,  36  Tex.  Civ.  App.  385,  81  S.  W.  sected    or    touched    to    its    formel 

1036.  state,    or   to   such   state  a-s   not   to 


1190 


FORMS  OF  INSTRUCTIONS. 


[§  1848. 


calculated  to  attract  to  it  children  of  immature  judgment,  as  a  place 
of  amusement  and  a  thing  to  use  as  a  plaything,  then  you  will  find 
for  the  defendant  as  against  both  plaintiffs.^ 

OPERATION  AND  MANAGEMENT  OF  TRAINS. 

§  1848.  Rate  of  Speed,  (a)  The  court  instructs  the  jury  that 
the  fact  that  the  defendant's  train  was  running  at  a  greater  rate  of 
speed  than  ten  miles  an  hour  will  not  of  itself  alone  make  it  liable 
for  the  death  of  this  boy,  unless  the  fact  that  the  train  was  running 
at  a  rate  of  speed  in  excess  of  the  ordinary  rate  at  the  time  the  boy 
was  struck  by  the  driving  rod  of  the  engine  as  it  passed  by  him  on 
the  crossing,  was  the  direct  and  proximate  cause  of  the  accident.*^ 

(b)  The  court  instructs  the  jury  that  the  mere  violation  of  a  city 
ordinance  regulating  the  rate  of  speed  of  a  train  through  a  city,  or 
the  rules  of  the  railroad  company  with  reference  to  the  management 
of  its  trains,  does  not  of  itself  amount  to  a  willful  and  wanton  mis- 
conduct.'^ 

§  1849.  Backing  Engine,  Tender  Foremost,  not  of  Itself  Negligence. 
The  jury  are  instructed  that  the  fact  that  the  engine  of  the  train  was 
backing,  tender  foremost,  hauling  the  train  behind  the  engine,  is  no 
evidence  of  negligence  upon  the  part  of  the  defendant,  and  is  not  so 
charged  in  the  declaration.^ 


unnecessarily  impair  its  usefulness, 
and  shall  keep  such  crossing  iu  re- 
pair.' The  charge  given  is  not 
literally  in  the  language  of  the 
article  of  the  statute  quoted,  but 
the  court  must  have  had  in  mind 
this  provision  of  the  law  in  giving 
the  charge  complained  of.  The 
charge  instructs  the  jury  that  it 
was  the  duty  of  the  railway  com- 
pany to  maintain  its  track  along 
the  public  street  in  a  reasonably 
safe  condition  for  persons  traveling 
on  or  across  the  same.  The  lan- 
guage of  the  statute  is  that  said 
street  shall  be  restored  'to  its  for- 
mer state,  or  to  such  state  as  to 
not  unnecessarily  impair  its  use- 
fulness.' The  failure  of  the  rail- 
way company  to  keep  the  street  in 
a  reasonably  safe  condition  for 
persons  who  may  be  entitled  to 
use  the  same  would,  to  some  ex- 
tent, unnecessarily  impair  its  use- 
fulne.ss.  The  primary  object  of 
streets  In  a  city  is  to  furnish  a  pas- 
sageway, in  the  interest  of  the 
public,  to  and  from  different  points 
in  the  city.  They  are  designed  to 
be  used  ])y  the  public  for  the  pur- 
poses of  travel,  and  whatever  might 
unnecessarily  impair  their  useful- 
ness for  such  purpose,  by  permit- 


ting obstructions  to  remain  in  the 
same  of  a  nature  described  in  the 
plaintiff's  petition,  and  shown  by 
the  evidence  in  this  case,  would 
create  a  condition  that  would  make 
the  use  of  the  street  not  reasonably 
safe  for  persons  traveling  across 
the  same.  The  charge  submitted 
substantially  embraced  the  require- 
ments of  the  law,  and,  if  the  duty 
was  statutory,  as  is  tiie  case  here, 
it  would  be  no  defense  if  the  appel- 
lant had  exercised  ordinary  care  to 
maintain  its  tracks  along  the  street 
in  a  proper  condition." 

5— Denison  &  P.  S.  Ry.  Co.  V. 
Harlan,  —  Tex.  Civ.  App.  — ,  87 
S.  W.  732  (734). 

6— C.  &  N.  W.  Ry.  Co.  v.  Jamie- 
son,  112  111.  App.  69  (76). 

7—1.  C.  R.  R.  Co.  v.  Leiner,  202 
111.  624,  aff'g  103  111.  App.  438,  67  N. 
E.  308. 

8— Battishill  v.  Humphrey,  64 
Mich.   494,   31  N.   W.  894  (903). 

"This  request  was  refused  and  no 
reference  made  to  it  in  the  charge 
of  the  court.  There  was  error  in 
this  refusal,  as  the  charge  was 
proper,  and  should  have  been  given. 
The  engine  being  reversed,  might 
call  for  greater  vigilance  upon  the 
part  of  the  train  hands  in  looking 


§  1850.]  NHGLIGBNCE— RAILROADS.  1191 

§  1850.    Backing  Train  Without  Light  or  Flagman.    If  the  train 

was  backing  under  the  shed  without  displaying  the  light  from  the 
front  end  of  the  leading  ear,  and  without  having  a  flagman  stationed 
thereon,  and  was  backing  without  due  care,  and  the  intestate  knew 
it,  and  placed  himself  in  a  position  of  danger,  his  negligence  was  the 
proximate  cause  of  the  injury  (he  had  the  last  chance  to  avoid  the 
injury) ;  and,  this  being  so,  he,  and  not  the  defendant,  would  be 
responsible  for  his  death.  On  the  contrary,  if  P.  was  standing  on 
or  near  the  track,  he  was  not  called  upon  to  look  out  for  a  backing 
train  which  displayed  no  light  and  had  no  flagman,  if  you  should  so 
find,  on  the  front  of  the  leading  car,  for  it  was  the  duty  of  the 
defendant,  as  before  explained,  to  display  the  light,  and  have  a  flag- 
man at  his  post,  he  not  being  bound  to  expect  a  violation  of  duty. 
If,  therefore,  he  (P.)  was  standing  on  or  near  the  track,  and  the 
defendant  backed  its  train  under  the  shed  without  the  light  on  the 
front  end  of  the  leading  car,  or  in  a  conspicuous  place  thereon,  or 
without  a  flagman  thereon,  and  if  the  jury  should  further  find  that 
P.  did  not  discover  the  train  in  time  to  escape,  then  the  defendant  was 
negligent,  and  such  negligence  was  the  cause  of  the  injury.^ 

§  1851.  Duty  of  Railway  Company  to  Use  Reasonable  Care  to 
Avoid  Injuring  Person  on  Track.  The  court  instructs  the  jury  that 
it  is  the  duty  of  the  employes  of  a  railway  company  operating  its 
train  to  use  reasonable  care  to  discover  and  to  avoid  injuring  persons 
who  may  be  upon  its  track,  the  degree  of  such  care  being  such  as 
a  person  of  ordinary  prudence  and  caution  would  commonly  exercise 
under  like  circumstances,  and  varying  as  the  known  probability  of 
danger  may  vary  along  the  different  portions  of  the  route  over  which 
trains  are  run;  and  a  failure  to  use  such  care  by  its  employes  is 
negligence  upon  the  part  of  such  company,  for  which  it  is  liable  in 
damages  for  any  injury  resulting  from  such  negligence,  unless  such 
liability  is  defeated  by  contributory  negligence  on  the  part  of  the 
person  injured.^" 

§  1852.    Degree  of  Care  Due  Towards  Child  on  Track.    As  to  the 

degree  of  care  and  circumspection  required  of  A.,  whose  age  is  alleged 
to  have  been  11  years  when  the  accident  happened,  I  instruct  you 
that  a  child  of  tender  years  is  not  held  in  the  same  degree  of  ac- 
countability as  an  adult  man,  but  the  question  of  his  intelligence  and 
mental  capacity  must  be  left  for  your  determination  from  all  the  facts 
and  circumstances  in  evidence  before  you.^^ 

out,  but  of  itself  was  no  evidence  v.  Phillips,  —  Tex.  Civ.  App.  — ,  37 

of  negligence."  S.    W.    621.      That    was   a   case    of 

9— Purnell  v.  R.  &  G.  R.  Co.,  122  similar  facts  to  this,  and  the  court, 

N.  C.  832,  29  S.  E.  953  (955).  referring  to  several  decisions  of  our 

io — H.  &  T.  C.  R.  Co.  V.  Harvin,  supreme       court,       approved       the 

—  Tex.   Civ.  App.  — ,   54   S.  W.   629  charge  as  correct." 
(631).  11— Texas  &   P.   Ry.   Co.   v.  Ball, 

"This    charge    was    copied    from  —  Tex.  Civ.  App.  — ,  85  S.  W.  456. 
one  in  the  case  of  Tex.  &  P.  R.  Co, 


1192  FORMS   OF   INSTRUCTIONS.  [§  1853, 

§  1853.  Duty  Toward  Helpless  Person  on  Track,  (a)  The  court 
instructs  the  juiy  that  the  law  is  different  as  to  a  dumb  animal  and 
a  human  being,  because  of  the  intelligence  of  a  human  being.  If  a 
human  being  is  upon  or  near  a  track,  and  apparently  in  possession  of 
his  senses,  the  engineer  is  justified  in  assuming  that  such  person  will 
use  his  faculties  for  his  own  safety  and  get  out  of  the  way. 

(b)  But  if  a  person  on  or  near  enough  to  the  track  to  be  in 
danger  is  down,  and  in  such  a  condition  as  to  indicate  that  he  is 
helpless,  then  it  becomes  the  duty  of  the  engineer  to  take  notice  of 
this  apparently  helpless  condition,  if  he  sees  him  in  time,  or  could 
have  seen  him  in  time  in  the  exercise  of  due  care.^^ 

§  1854.    Failure  to  Keep  a  Proper  Lookout  on  Down  G-rade.     (a) 

If  you  believe  from  the  evidence  that  B.  had  charge  or  control  of 
the  car,  which  ran  over  and  injured  the  plaintiff,  and  that  B.,  while 
letting  said  car  down  grade,  was  guilty  of  negligence  in  failing  to 
keep  a  proper  and  sufficient  lookout  upon  the  track  in  front  of  the 
ear,  and  that  such  failure  was  the  proximate  cause  of  the  injury 
complained  of,  you  must  find  for  the  plaintiff,  unless  you  further  be- 
lieve from  the  evidence  that  the  plaintiff  was  guilty  of  negligence  that 
proximately  contributed  to  his  injury. 

(b)  If  you  believe  from  the  evidence  that  B.  had  charge  or  con- 
trol of  the  car  which  ran  over  and  injured  the  plaintiff,  and  that  B. 
negligently  failed  to  stop  said  car  or  to  take  proper  precautions  to 
prevent  the  same  from  running  over  the  plaintiff,  and  that  suok 
failure  was  the  proximate  cause  of  the  injury  complained  of,  you 
must  find  for  the  plaintiff  unless  you  further  believe  from  the  evi- 
dence that  the  plaintiff  was  guilty  of  negligence  that  proximately 
contributed  to  his  injury.^^ 

§  1855.  Care  Due  by  Servants  of  Railway  Company  to  Avoid  a 
Collision.  Tlie  court  instructs  the  jury  that  if  you  believe,  from  the 
evidence  in  this  case,  that  the  servants  of  the  defendant  discovered 
the  slack  ear,  by  which  the  deceased  was  killed,  in  motion,  and  dis- 
covered that  a  collision  was  probable,  in  time  to  have  stopped  their 
train  and  prevented  such  collision  by  the  exercise  of  ordinary  care 
and  diligence,  and  if  the  juiy  believe,  from  the  evidence,  that  the 
defendant's  servants  did  not  use  ordinary  care  and  diligence,  and 
that  such  want  of  ordinary  care  and  diligence  caused  the  death  of  B. 
while  he  was  in  the  exercise  of  due  care  and  caution  for  his  own 
safety,   then  you  should   find  the   defendant  guilty,   and   assess  the 

12 — Stewart    v.    No.    Carolina    R.  that,   unless  they  found   the  intes- 

Cc,  136  N.  C.  385.  48  S.  E.  793  (795).  tate      was      actually      down,      they 

"The    plaintiff    excepted    to    that  should  answer  the  third  issue — the 

part   of   the  charge.     He   contends  last  clear  chance,  as   it  is  called — 

that  the   Instruction  made  the  lia-  'NO.'     The  exception  was  too  tech- 

billty  of  the  defendant  in  this  case  nical    to    be    sustained.      The    jury 

to  depend  on  whether  the  intes-  could  not  have  been  misled  by  it." 
tate   was  actually  down,  and   loav-         13 — L,.   &  N.   R.   Co.   v.   Thornton, 

Ing  the  Jury  under  the  impression  117  Ala.  274,  23  So.  VH  (779). 


§  1856.]  NEGLIGENCE— RAILROADS.  1193 

plaintiff's  damages  in  such  sum,  if  any,  as  you  believe  the  evidence 
warrants.^* 

TRESPASSERS. 

§  1856.  Liability  as  to  Trespassers,  (a)  The  court  instructs  the 
jury  that  the  plaintiff  in  this  ease  is  not  entitled  to  recover,  unless 
you  believe  from  the  preponderances  of  the  evidence  in  the  case  that 
the  servants  of  the  defendant  in  charge  of  the  trains  in  question,  or 
some  of  them  in  charge  of  said  trains,  were  at  the  time  guilty  of 
willful  and  wanton  misconduct,  and  that  such  willful  and  wanton 
misconduct  resulted  in,  and  was  the  cause  of  the  death  of  said  W.^^ 

(b)  The  jury  are  instructed  that  if  it  appears  from  the  evidence 
in  this  case  that  the  plaintiff  was  a  trespasser  upon  the  track  or 
bridge  of  the  defendant  receiver  at  the  time  he  was  struck  and 
injured,  then  said  defendant  receiver  was  not  required,  and  the  law 
did  not  impose  any  duty  whatever  upon  his  engineer,  to  discover  the 
plaintiff's  presence  upon  the  same,  but  only  required  him  after  he 
discovered  the  plaintiff  and  had  knowledge  that  he  was  in  a  perilous 
position  to  exercise  reasonable  care  and  prudence  to  avoid  collision, 
and  if  it  further  appears  that  the  engineer  did  exercise  such  care  and 
prudence  and  did  everything  within  his  power  to  prevent  the  train 
from  colliding  with  the  plaintiff  after  he  discovered  him,  then  your 
verdict  must  be  for  the  defendants. 

(e)  The  jury  are  instructed  that  the  defendants  are  liable  in  this 
case  only  if  the  engineer  failed  to  exercise  ordinary  care  to  prevent 
the  injury  after  he  became  aware  of  the  danger  to  which  the  plaintiff 
was  exposed;  and  by  ordinary  care  is  meant  such  care  as  would  be 
ordinarily  used  by  a  prudent  person  performing  like  services  under 
similar  circumstances.^* 

§  1857.  Willful  and  Wanton  Misconduct  toward  Trespassers — 
What  Amounts  to.  (a)  The  court  instructs  the  jury  that  what  is 
meant  by  willful  and  wanton  misconduct  is  such  conduct  as  amounts 

14 — C.  &  A.  R.  R.  Co.  V.  Ander-  "The     above     instructions     were 

son,   166   111.    572    (573),   aff'g   67   111.  given  on  behalf  of  the  defendant, 

App.  386,  46  N.  E.  1125.  and  two  instructions  were  given  on 

The     instruction     given     in     the  behalf    of    the    plaintiff,    and    they 

above  case  used  the  words  "proper  each  lay  down  the  same  rule  as  to 

precautions   and   reasonable   care."  the    defendant's    liability   stated    in 

This  the  court  says  was  technical-  the  foregoing  instructions,  and  cor- 

ly  inaccurate,  as  all  the  defendant's  rectly    announce    the   law    as    held 

servants  were  required  to  exercise  in  I.  C.  R.  R.  Co.  v.  Noble,  142  111. 

was  ordinary  care.    The  court,  how-  578,  32  N.  E.  684,  and  W.  R.  R.  Co. 

ever   held    that    the    difference    be-  v.   Jones,   163    111.   167,  45   N.    E.    50. 

tween    the   words    used    and    those  Moreover,    it    is    well    settled    that 

which  ought  to  have  been  used  was  the    defendants    having    asked    the 

so    slight   that   the   jury   were   not  court  to  instruct  the  jury  as  they 

misled.  did  cannot  now   be   heard   to  ques- 

15—1.  C.  R.  R.  Co.  V.  Leiner,  202  tion  the  correctness  of  the  instruc- 

111.    624,    aff'g   103    111.    App.    438,    67  tions  given  on  behalf  of  the  plain- 

N.  E.  398,  95  Am.  St.  266.  tiff  to  the  same  effect.    (Cons.  Coal 

16— Pierce  v.   Waters,   164  111.   560  Co.  v.  Haenni,  146  111.  614,  35  N.  E. 

(563),  45   N.   E.   1068.  W2)." 


1194  FORMS  OF  INSTRUCTIONS,  [§  1858. 

to  an  intentional  wrong,  or  of  such  a  reckless  character  as  shows  that 
the  person  or  persons  guilty  of  such  misconduct  were  at  the  time 
acting  in  such  manner  as  shows  that  they  had  an  utter  disregard  for 
the  safety  and  lives  of  other  persons. ^'^ 

(b)  In  order  that  plaintiff  may  recover,  it  is  not  necessary  that 
the  jury  believe  that  in  kicking,  knocking  or  shoving  the  plaintiff 
from  the  ear  (if  the  jury  believe  from  the  evidence  he  was  so  kicked, 
knocked  or  shoved)  the  conductor  actually  desired  to  injure  plaintiff. 

(c)  It  is  not  necessary  for  plaintiff  to  prove  in  order  to  recover 
that  defendant  or  defendant's  agent  had  any  actual  desire  to  injure 
him. 

(d)  If  the  jury  believe  from  the  evidence  that  the  plaintiff  wan- 
tonly and  recklessly  or  intentionally  caused  plaintiff's  injuries  as 
stated  in  the  complaint,  then  the  jury  must  find  for  plaintiff.^^ 

(e)  Wantonness  or  willfulness  is  such  gross  want  of  care  and  re- 
gard for  the  rights  of  others  as  show  a  disregard  of  consequences  or 
a  willingness  to  inflict  an  injury. 

(f )  You  are  instructed  that  willful  or  wanton  conduct,  whereby  one 
may  be  injured,  does  not  necessarily  mean  ill-will  or  malice  towards 
the  person  injured,  but  it  may  consist  in  such  lack  of  care  for  the 
safety  of  the  person  injured,  known  to  be  in  imminent  peril,  as 
implies  an  utter  disregard  of  consequences  or  a  willingness  to  inflict 
injury  upon  such  person. 

(g)  You  are  instructed  that  the  words  willful  and  wanton  as  used 
in  this  ease,  do  not  necessarily  imply  malice  or  ill-will,  but  may  mean 
such  gross  or  willful  negligence  as  to  indicate  a  total  disregard  of 
consequences  and  indifference  to  the  safety  of  others.^^ 

§  1858.    Injury  to  Trespasser  While  Getting  on  Moving  Train,     (a) 

The  jury  are  instructed  as  a  matter  of  law  that  if  you  shall  find  fi'om 
the  evidence  that  the  injury  to  the  plaintiff  was  caused  by  an  attempt 
on  his  part  to  climb  upon  the  train  in  question  while  the  same  was  in 
motion,  then  he  is  not  entitled  to  recover  and  your  verdict  should  be 
for  the  defendant. 

(b)     If  the  jury  shall  find  from  the  evidence  that  at  the  time  of 

the  accident,  the  defendant  did  not  have  stationed  at  street 

crossing  any  flagman,  and  that  this  crossing  was  a  place  of  danger, 
and  that  it  was  the  duty  of  the  defendant,  at  the  time  in  question, 
to  have  stationed  at  his  crossing  a  flagman,  but  the  injury  to  plaintiff 
was  caused  by  his  attempting  to  climb  upon  the  defendant's  train 
while  the  train  was  in  motion,  then  you  are  instructed  to  disregard 
the  evidence  as  to  failure  to  station  a  flagman  at  such  crossing,  or 
as  to  the  speed  of  the  train,  and  that  the  plaintiff  cannot  recover, 
and  your  verdict  should  be  for  the  defendant.^" 

17—1.  C.  R.  R.  Co.  V.  Leiner,  202  19— C.   C.   C.   &  St.  L.   R.   Co.  v. 

111.  624,  affg  103  111.  App.  438,  67  N.  Ricker,  116  111.  App.   428. 

E.  398,  9.'>  Am.  St.  266.  20— C.   W.  I.   R.   R.  Co.  v.  Roath, 

18— Highland  Ave.  &  B,  R.  Co.  v.  35  111.  App.  349  (351). 
Robinson,  125  Ala.  483,  28  So.  28  (29). 


§  1859.]  NEGLIGENCE— RAILROADS.  1195 

§  1859.    When  Person  Crossing  Track  Is  Not  a  Trespasser.   If  you 

believe  from  the  evidence  that  at  the  place  where  A.  was  struck 
by  the  defendant's  engine  a  pathway  crossed  said  railroad  track, 
which  had  been  commonly  used  by  the  public  for  a  long  period  of  time 
prior  to  said  accident  without  objection  on  the  defendant's  part,  and 
said  A.  was  crossing  said  tiaek  on  said  pathway  when  he  was 
struck,  then  the  said  A.  would  not  be  a  trespasser  in  walking  across 
said  traek.*^ 

LICENSEES. 

§  1860.    Duty  to  Maintain  Lookout  for  Licensees  on  Track,     (a) 

You  have  heard  a  gTeat  deal  about  "lookout."  What  does  that  mean 
— the  duty  of  the  railroad  to  keep  a  lookout?  That  means  this:  Take 
all  the  facts  and  circumstances  under  consideration;  would  a  man 
of  ordinary  prudence  and  reason  be  expected  to  keep  a  lookout  under 
those  circumstances;  in  other  words,  take  into  consideration  the 
character  of  the  country,  take  into  consideration  the  surrounding 
circumstances,  and  ask  yourself  the  question,  would  ordinary  care 
and  foresight  and  prudence  require  a  reasonable  lookout  to  be  kept 
under  those  circumstances?  Suppose  a  reasonable  lookout  had  been 
kept,  was  it  negligence  in  not  seeing  this  particular  man ;  would  an 
engineer  of  ordinary  foresight,  ordinary  reason  and  prudence,  if  he 
had  been  keeping  a  reasonable  lookout,  have  discovered  the  presence 
of  this  man  if  he  was  upon  the  track,  in  time  to  have  stopped  the 
train  and  thereby  avoid  the  injury?  In  determining  that  take  into 
consideration  the  surrounding  circumstances;  take  a  man  of  ordinary 
firmness  and  reason,  a  man  who  has  other  duties  to  perform,  and  say 
whether  or  not  such  a  man,  by  the  exercise  of  ordinary  firmness  and 
reason,  would  have  discovered  this  man  upon  the  track,  if  he  was 
there,  in  time  to  have  stopped  his  train  and  thereby  avoid  collision? 

(b)     If  the  jury  find  from  the  evidence  that  the  deceased,  , 

was  killed  by  a  train  on  defendant's  railroad,  and  at  such  time  he 
was  in  apparently  helpless  condition;  and  if  they  further  find  that 
at  the  place  of  such  killing,  the  public,  by  the  pei-mission  of  the  rail- 
way company,  had  been  accustomed  without  objection  from  the  de- 
fendant to  travel  for  more  than  twenty  years — then  it  would  not 
excuse  the  defendant  simply  to  show  that  their  agent  in  charge  of 
said  train  did  not  see  the  deceased  in  time  to  avoid  the  killing,  for 
under  such  circumstances  it  may  be  the  duty  of  the  defendant  to 
keep  a  reasonable  outlook  at  such  places  to  discover  any  apparently 
helpless  person  who  may  be  upon  the  track. 

(e)  If  persons  have  long  been  accustomed  to  use  the  track  of  a 
company  for  a  passageway  at  certain  localities,  the  company  is 
charged  with  notice  of  such  usage,  and  is  under  obligation  to  exer- 

21— Texas  &  P.   Ry.   Co.   v.   Ball,- Tex.   Civ.  App.  — ,  85  S.  W.  456(458). 


1196  FORMS  OP  INSTRUCTIONS.  [§  1861. 

cise  reasonable  care  in  keeping  lookout  at  such  places,  among  other 
things,  for  apparently  helpless  persons. ^^ 

§  1861.  Temporary  Revocation  of  License  to  Public  to  Cross  Track 
at  Certain  Point,  (a)  You  are  instructed  that  if  you  should  find 
from  the  evidence  that  the  general  public  with  the  knowledge  of  the 
railway  company  had  been  using  certain  spaces  between  the  tracks 
from  L.  street  to  G.  avenue  as  driveways  and  footways  at  and  prior 
to  the  time  of  the  accident  in  question  yet  such  finding  would  not 
authorize  plaintiff's  child  to  be  at  any  other  place  or  places  than 
those  named,  or  to  be  under  defendant's  cars  or  south  of  its  cars 
between  the  rails  of  the  scale  track;  and  if  you  find  from  the  evi- 
dence that  it  was  under  the  defendant's  cars  or  at  or  near  the  south 
end  of  them,  between  the  rails  of  the  scale  track,  at  and  just  prior  to 
its  injury,  and  the  defendant's  employes  did  not  see  it  in  time  to 
prevent  the  accident,  then  it  was  a  trespasser  and  plaintiff  is  not 
entitled  to  recover,  and  your  verdict  must  be  for  defendant. 

(b)  You  are  instructed  that  at  and  just  prior  to  the  time  of  the 
accident  in  question  defendant  was  in  the  actual  use  and  occupancy 
of  its  scale  tracks,  where  its  cars  were  standing,  and  that  such  use 
and  occupancy,  while  it  lasted,  amounted  to  a  suspension  and  revoca- 
tion of  any  right,  if  such  you  find  there  was  or  had  been,  in  the  public 
to  cross  said  track  when  so  occupied;  and  if  you  find  from  the  evi- 
dence that  plaintiff's  child  attempted  to  do  so  by  crawling  under  de- 
fendant's cars,  and  was  killed,  while  so  doing,  by  the  movement  of 
the  cars,  defendant  would  not  be  liable  and  your  verdict  should  be 
for  the  defendant.-^ 

INJURIES  AT  HIGHWAY  CROSSINGS. 
§  1862.     Highway  Crossings  Must  Be  Put  in  Safe  Condition.     By 

the  law  of  this  State,  every  corporation  owning  or  operating  a  railroad 
in  this  State,  is  required  to  construct  reasonably  safe  crossings  at  all 
points  where  it  intersects  a  public  highway;  and  it  is  liable  for  all  in- 
juries resulting  from  neglect  of  this  duty,  if  the  party  injured  is 
guilty  of  no  negligence  contributing  to  such  injury.^^ 

22— Sentell  v.  So.  Ry.  Co.,  70  S.  C.  circuit  court  called  the  attention  of 

183,  49  S.  E.  215.  the  jury  to  the  fact  that  under  the 

"We    think,   under   the   authority  consent,  either  express  or  implied, 

of  Jones  V.  Railroad,  61  S.  C.  556,  39  she  was  there  as  a  licensee.    We  do 

S.  E.  758,  the  presiding  judge  was  not  think  the  presiding  judge  erred 

correct  in  charging  the  jury  as  to  a  in  speaking  of  a  lookout  by  telling 

licensee.     The    trend    of   the   testi-  the  jury  what  it  meant,  and  under 

mony   was  to  show   that   for  more  what    circumstances    a    defendant 

than  20  years  the  railroad  company  should  exercise  this  duty.     Did  not 

had    acquiesced   in    the    u.se   of  the  ordinary  cars  require  this  duty  of 

walk    alongside    of    its    track,    and  defendant  in  its  acquiescence  in  the 

certainly  had  not  forbidden  its  use  use    of    its    track    by    pedestrians? 

by  pedestrians;  also  the  feet  of  the  Again,  we  refer  to  the  extracts  we 

intestate  were  on   the  path  of  that  have  made  from  the  case  of  Jones 

walkway  when  he  was  stricken  by  v.   R.    R.,   supra." 

the    train    of   defendant,    though    it  23— Wagner    v.    C.    &    N.    W.    Ry. 

Is  true  he  was  seated  on  a  cross-tie  Co.,  122  Iowa  360,  98  N.  W.  141  (143). 

of  the  track.    In  Jones  v.  R.  R.  Co.,  24— Farley  v.  The  C,   R.  I.   &  P. 

supra,    ahe    was    walking    on    the  Rd.  Co.,  42  la.  234. 
trestle,  and  yet  the  charge  of  the 


§  1863.]  NE'GLIGENCE— RAILROADS.  1197 

§  1863.  Reasonable  Care  Eeauired  at  Highway  Crossings,  (a) 
The  jury  are  instructed  that,  although  a  person  may  be  improperly 
or  unlawfully  upon  a  railroad  track,  that  fact  alone  will  not  discharge 
the  company  or  its  employes  from  the  observance  of  reasonable  care ; 
and  if  such  a  person  is  run  over  by  the  train,  and  killed  or  injured, 
the  company  will  be  responsible,  if  its  employes  could  have  avoided 
the  accident  by  the  exercise  of  reasonable  and  ordinary  care  and 
watchfulness.^^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
constructed  a  highway  crossing  at  the  point  in  question,  and  that, 
taking  into  account  the  location,  nature  of  the  ground  and  all  the 
surroundings  of  the  place,  the  crossing  was  constructed  in  such  a 
manner  as  to  render  it  easy  to  approach  and  cross  by  travelers  and 
teams  on  the  highway,  without  danger  to  persons  using  reasonable  and 
ordinary  care,  then  the  defendant  did  all  that  was  required  of  it  in 
making  the  crossing,  and  would  not  be  guilty  of  negligence,  as  re- 
gards the  manner  of  constructing  the  crossing.^^ 

(c)  It  was  the  duty  of  the  railway  company  to  use  ordinary  care 
to  prevent  an  injury  to  plaintiff.  By  ordinary  care  is  meant  such 
care  as  an  ordinarily  prudent  person  would  have  used  under  like  cir- 
cumstances.^'^ 

§  1864.  Necessity  of  Greater  Caution  When  Large  Number  of  Per- 
sons Use  Crossing  Daily.  If  you  find  from  the  evidence  that  the 
crossing  upon  which  the  deceased  was  killed  was  a  public  highway, 
and  had  been  used  as  such  for  a  long  number  of  years  prior  to  the 
accident,  and  if  you  further  find  that  a  large  number  of  teams  and 
persons  passed  over  said  crossing  each  day,  and  at  all  hours  of  the 
day,  then  I  charge  you  that  it  was  the  duty  of  the  engineer  of  the 
train,  when  approaching  the  crossing,  to  have  been  on  the  lookout 
for  teams  and  persons  on  the  crossing,  or  in  such  close  proximity 
thereto,  as  to  be  in  danger  of  colliding  with  the  train,  then  to  use  all 
reasonable  care  and  diligence,  and  make  use  of  all  the  appliances  at 
his  command  to  have  the  train  under  control,  and  stop,  if  necessary, 
to  avoid  a  collision  with  an  injury  to  such  team  or  persons;  and  if 
you  further  find  that  the  engineer  was  negligent  in  not  keeping  such 
a  lookout,  and  in  not  discovering  the  peinl  of  the  deceased  in  time 
to  have  avoided  the  accident,  and  that  he  did  or  could  have  discovered 

25— Isabel  v.   Hannival,   etc.,   Rd.  assignments    of   error.     The   exist- 

Co.,  60  Mo.  475.  once  of  no  fact  is  assumed  therein. 

26— Ind.,   St.   Li.  Rd.   v.    Stout,   53  The   court  merely   charged   a  gen- 

Ind.  143.  eral    duty    that    the    railway    com- 

27— Galveston,  H.  &  S.  A.  Ry.  Co.  pany    owed    to    appellee,    and    the 

v.    Vollrath,   —  Tex.    Civ.   App.   — ,  clause    should    be    read    and    con- 

89  S.  W.  279  (282).  strued  in  connection  with  the  other 

"That  charge  is  attacked  on  the  portions   of  the  charge.     It   cannot 

ground    that    it    assumes    that    the  be     logically     contended     that    the 

railway   company    injured    appellee  railway    company    was    not    under 

and  also  assumed  that  it  was  guilty  any     obligations    to    use     ordinary 

of    negligence.     The    charge    is   not  care   to    prevent   injury   to   persons 

open  to  the  criticisms  stated  in  the  on  its  track,  at  a  public  crossing." 


1198 


FORMS  OF  INSTRUCTIONS. 


[§  1865. 


him,  and  the  peril  he  was  in,  in  time  to  avoid  the  collision,  if  he  had 
been  on  the  lookout,  then  I  charge  you  'that  the  defendant  is  liable 
for  the  killing  of  0.,  and  the  plaintiffs  are  entitled  to  recover  in  this 
aetion.^^ 

§  1865.  Other  Persons  Crossing  Track  in  Safety  Before  Accident 
Not  Evidence  of  Safety.  The  fact,  if  it  is  a  fact,  that  other  people 
passed  over  this  walk  that  day,  is  not  evidence,  and  cannot  be  con- 
sidered by  you  as  evidence,  that  it  was  a  safe  place  in  which  to  pass. 
You  will  determine  that  question  from  the  evidence  in  this  case,  and 
not  from  what  some  other  person  has  done  or  may  have  done.^^ 

§  1866.  Defendant  Guilty  of  Negligence  as  Charged  in  the  Declara- 
tion. The  court  instructs  the  jury,  that  if  they  believe,  from  the  evi- 
dence, that  the  plaintiif's  intestate,  while  exercising  ordinary  care  to 
avoid  injury,  was  killed  by  the  negligence  of  defendant,  as  charged 
in  the  declaration,  then  you  can  find  for  the  plaintiff.^** 

§  1867.  Rights  and  Liabilities  of  Railroad  Companies  and  Travel- 
ers Are  Equal  and  Mutual,  (a)  The  court  instructs  the  jury  that 
railroad  companies,  under  their  charters,  have   the   same  rights   to 


28— Olson  V.  Oregon  S.  L..  R.  Co., 
24  Utah  460,  68  Pac.  148. 

29— Sosnofski  v.  L.  S.  &  M.  S.  Ry. 
Co.,  134  Mich.  72  (76),  95  N.  W.  1077 
(1078). 

30— L.  S.  &  M.  S.  Ry.  Co.  v.  Hes- 
sions,  150  111.  546  (554),  37  N.  E.  905. 

"It  is  objected  that  thereby  the 
jury  were  left  to  consider  the  case, 
as  charged  in  the  declaration, 
while  there  was  no  evidence  before 
the  jury  to  prove  the  negligence  al- 
leged in  one  or  more  of  the  counts 
thereof.  It  is  hardly  to  be  sup- 
posed that  the  jury  would  under- 
stand the  instruction  to  authorize 
them  to  consider  negligence 
charged  in  the  counts  of  the  decla- 
ration, not  proved.  They  were  to 
believe,  from  the  evidence,  that  the 
intestate  was  killed  by  the  negli- 
gence of  the  defendant,  as  charged, 
and  were  expressly  told,  in  very 
many  instructions,  that  they  must 
form  their  judgment  from  the  evi- 
dence. Moreover,  by  the  instruc- 
tions given  on  behalf  of  the  defend- 
ant, the  jury  were  told  there  could 
be  no  recovery  under  the  first  and 
sixth  counts  of  the  plaintiff's  dec- 
laration. 

"It  Is  also  urged  that  the  in- 
struction is  faulty  because  it  tells 
the  jury  that  if  the  deceased  was 
in  the  exercise  of  ordinary  care,  at 
the  time,  etc.,  to  avoid  injury,  that 
will  suffice,  instead  of  requiring 
that  they  should  find  that  he  was 
in  the  exercise  of  ordinary  care  in 


entering  upon  the  railroad  tracks, 
etc.  The  instruction,  we  think,  is 
not  subject  to  the  criticism.  (C.  & 
A.  R.  R.  Co.  V.  Fisher,  141  111.  625, 
31  N.  E.  406;  L.  S.  &  M.  S.  R.  R.  Co. 
V.  Johnson,  135  111.  641,  26  N.  E. 
510;  McNulty  v.  Lockridge,  137  111. 
270,  27  N.  E.  452.)  Be  this  as  it 
may,  in  the  fourth  and  fifth  in- 
structions on  behalf  of  the  defend- 
ant the  correct  rule  was  given,  and 
they  were  told  that,  to  entitle  the 
plaintiff  to  recover,  the  jury  must 
believe,  from  a  preponderance  of 
the  evidence,  that  the  deceased,  at 
the  time  of  and  just  prior  to  his 
receiving  the  injury,  was  in  the 
exercise  of  due  and  ordinary  care 
for  his  safety.  In  cases  of  this 
kind,  where  the  party  injured  has 
been  struck  by  a  moving  train 
while  upon  or  attempting  to  cross 
railway  tracks,  it  has  been  repeat- 
edly held  to  be  error  to  limit  the 
requirement  that  he  should  be  in 
the  exercise  of  ordinary  care,  to 
the  exact  time  of  the  injury.  (I. 
C.  R.  R.  Co.  V.  Weldon,  52  111.  290; 
C.  M.  &  St.  P.  R.  R.  Co.  V.  Halsey, 
133  111.  248,  23  N.  E.  1028.)  The  ques- 
tion of  whether  he  exercised  ordi- 
nary care  in  going  upon  the  track 
is  always  necessarily  involved.  But 
in  view  of  the  instructions  given, 
the  first  general  and  the  others 
specific,  as  to  what  should  be  con- 
sidered, the  jury  could  not  have 
been  misled." 


§  1868.]  NEGLIGENCE— RAILROADS.  1199 

use  that  portion  of  the  public  highway  over  which  their  track  passes 
as  the  public  have  to  use  the  same  highway.  Their  rights  and  those 
of  the  public,  as  to  the  use  of  the  highway  at  such  point  of  intersec- 
tion, are  mutual  and  reciprocal;  and,  in  the  exercise  of  such  rights, 
both  the  company  and  those  using  the  highway  must  have  due  regard 
for  the  safetj'  of  others,  and  use  every  reasonable  effort  to  avoid 
injury  to  others.^^ 

(b)  The  court  instructs  the  jury  that  both  the  deceased  and  the 
railway  company  have  an  equal  right  to  cross  the  street  at  the  point 
where  the  accident  happened,  and  that  the  law  imposes  on  both  par- 
ties the  duty  of  using  reasonable  and  prudent  precaution  to  avoid  ac- 
cident and  danger;  and  while  it  was  incumbent  upon  the  railroad 
company  in  running  its  train  on  the  occasion  referred  to,  to  give 
the  required  signal  by  ringing  the  bell  or  sounding  the  whistle  eighty 
rods  before  reaching  the  crossing,  it  was  also  the  duty  of  the  deceased 
to  look  out  for  the  approach  of  the  train  and  to  observe  all  reasona- 
ble precautions  before  attempting  to  cross  the  traek.^^ 

§  1868.  Owing  to  Force  and  Momentum  Train  Has  Preference  in 
Crossing  First,  (a)  You  are  instructed  that  if  a  railroad  crosses  a 
common  road  on  the  same  level  or  practically  so,  those  traveling  on 
either  have  a  legal  right  to  pass  over  the  point  of  crossing,  and  to 
require  reasonable  care  and  caution  of  those  traveling  on  the  other 
road  to  avoid  a  collision ;  and  that,  while  a  passing  train  from  its 
force  and  momentum  will  have  the  preference  in  crossing  first,  yet 
those  in  charge  of  it  are  bound  to  give  reasonable  warning,  so  that  a 
person  about  to  cross  with  a  team  and  wagon  may  stop  and  allow  the 
train  to  pass,  and  such  warning  must  be  reasonable  and  timely,  taking 
into  consideration  the  location,  situation  and  surroundings  existing 
at  such  crossing.^^ 

(b)  Because  of  the  character  and  momentum  of  the  defendant's 
train,  the  law  would  not  require  it  to  stop  its  train  and  give  prece- 
dence to  Mrs.  M.,  who  was  on  foot,  to  make  the  crossing  first.  It 
was  the  duty  of  Mrs.  M.  to  wait  for  the  train  to  pass  before  she 
attempted  to  cross,  and  if  she  could,  by  the  exercise  of  due  diligence, 
have  discovered  the  approach  of  defendant's  train,  and  if  she  at- 
tempted to  cross  in  front  of  defendant's  train  knowing  of  its  ap- 
proach, or  if  by  the  exercise  of  due  diligence  she  could  have  discovered 
its  approach,  she  would  be  the  author  of  her  own  misfortunes,  and 
could  not  recover  in  this  action,  unless  the  jury  should  believe  from 
the  evidence  that,  upon  the  manifestation  of  Mrs.  M. 's  peril,  those 
who  controlled  defendant's  train  failed  to  use  the  diligence  to  pre- 
vent the  injury,  or  that  they  wantonly  or  intentionally  injured  her.^* 

31— Ind.  &  St.  L.  R.  Co.  v.  Stables,  Patohen,   167  111.   204   (212),   affg   66 

62   111.   313;   Penn.   R.    Co.   v.   Heile-  III.  App.  206,  47  N.  E.  368. 

man,    49    Penn.    St.    60;    Cleveland,  33— C.  C.   C.   &  St.   L.   Ry.   Co.  v. 

etc.,    R.    Co.    v.    Terry,    8    Ohio    St.  Baker,  106  111.  App.  500  (504). 

570.  34— Memphis  &  C.  R.  Co.  v.  Mar- 

32— L.    N.    A.    &    C.    Ry.    Co.    v.  tin,  117  Ala.  367,  23  So.  231  (235). 


1200  FORMS  OF  INSTRUCTIONS.  [§  1869. 

§  1869.  Measuring  the  Distance  and  Time  It  Would  Take  to  Cross 
— Assuming  Risk.  If  the  jury  believe  from  the  evidence  that  Mrs. 
M.  approached  the  railroad  crossing,  wishing  to  cross,  and  that  she 
saw  or  heard  the  train  approaching  and  that  she  for  herself  measured 
the  distance  and  time  it  would  take  to  cross,  then  I  charge  you  that 
she  assumed  the  risk,  and  her  administrator  cannot  hold  the  railroad 
company  responsible,  unless  Mrs.  M. 's  intention  was  apparent  to  the 
employes  of  defendant  operating  the  train,  and  after  her  perilous  in- 
tention and  conduct  became  apparent,  by  the  exercise  of  due  care  and 
diligence,  the  injury  could  have  been  avoided.^^ 

§  1870.  Reasonable  Warning  Should  Be  Given  by  Train  in  Ap- 
proaching Highway  Crossings.  The  jury  are  instructed  that  if  a  rail- 
road crosses  a  common  road  on  the  same  level,  those  traveling  on 
either  have  a  legal  right  to  pass  over  the  point  of  crossing,  and  to 
require  reasonable  care  and  caution  of  those  traveling  on  the  other 
road  to  avoid  a  collision;  that  while  a  passing  train,  from  its  force 
and  momentum,  will  have  the  preference  in  crossing  first,  yet  those 
in  charge  of  it  are  bound  to  give  reasonable  warning,  so  that  a  per- 
son about  to  cross  with  a  team  and  wagon  may  stop  and  allow  the 
train  to  pass,  and  such  warning  must  be  reasonable  and  timely,  so 
far  as  the  circumstances  will  reasonably  admit  of.^® 

§  1871.  Engineer  and  Fireman  Bound  to  Use  Reasonable  Care. 
(a)  If  the  jury  believe  from  the  evidence  that  the  injury  complained 
of  was  occasioned  by  a  collision  between  the  team  and  wagon  of  the 
plaintiff  and  a  locomotive  engine  of  the  defendant,  on  a  public  road,  at 
a  place  where  such  road  crossed  the  railroad  of  the  defendant,  and  that 

"This    charge    requested    by    the  following'     language:       "A     person 

defendant  should  have  been  given,  wishing    to    cross    the    track    of    a 

This  charge  in   effect  is   the  same  railroad    at    a    public    crossing,    or 

as    tbat    approved,  in    the    case    of  any  place  where  trains  are  not  re- 

Gothard  v.  Ala.  Ga.  So.  R.  R.  Co.,  quired    to    stop,    and    sees    a    train 

67  Ala.  114."  approaching,   and   who  for  himself 

35 — Memphis  &  C.  R.  Co.  v.  Mar-  measures  the  distance  and  time  it 

tin,  117  Ala.  367,  23  So.  231.  will  take  to  cross,  and  acting  upon 

We  are  of  the  opinion  that  this  his  own  judgment,  undertakes  to 
charge  requested  by  the  defendant  cross,  assumes  the  risk,  and  if  in- 
asserted  a  correct  proposition  of  jured,  cannot  hold  the  railroad  re- 
law  and  should  have  been  given,  sponsible,  unless  his  intention  was 
We  find  no  conflict  in  the  evidence  apparent  to  the  employees  of  de- 
that  after  the  deceased  crossed,  the  fendant  operating  the  train,  and 
side  track  and  before  reaching  the  after  suoh  perilous  intention  and 
main  track  upon  which  the  train  conduct  became  apparent,  by  the 
was  approaching  there  was  noth-  exercise  of  due  care  and  reasonable 
Ing  to  obstruct  the  view  for  some  diligence,  the  injury  could  have 
distance.  There  was  evidence  also  been  avoided."  The  same  principle 
tending  to  show  that  deceased  just  is  asserted  in  the  case  of  Ga.  Pac. 
before  stepping  on  the  main  track,  Ry.  Co.  v.  Lee,  92  Ala.  272,  and  in 
halted  and  looked  towards  the  Glass  v.  M.  &  C.  R.  R.  Co.,  94  Ala. 
train,  and  that  the  train  at  that  590.  To  the  same  effect  are  the  fol- 
tlme  was  in  sight  or  within  hear-  lowing  cases:  Railroad  v.  Houston, 
Ing  and  approaching,  and  that  she  95  U.  S.  697,  Schofleld  v.  Railroad, 
started  to  run  across  the  track.  114  U.  S.  614,  Gothard  v.  Ala.  G. 
These  facts  are  sufficiently  predi-  Southern  R.  R.  Co.,  67  Ala.  114. 
Gated  In  the  charge.  In  the  case  36— C,  B.  &  Q.  R.  Co.  v.  Lee,  87 
of  Highland  Ave.  &  B.  R.  R.  Co.  v.  111.  454. 
Sampson,  91  Ala.  564,  we  used  the 


§  1872.]  NEGLIGENCE— RAILROADS.  1201 

the  plaintiff  used  ordinary  care  and  caution  to  avoid  a  collision,  and 
that  the  collision  was  owing  to  the  negligent,  careless  and  unskillful 
manner  in  which  the  servants  of  the  defendant  managed  the  locomotive 
and  train  of  cars  attached,  as  charged  in  the  declaration,  then  the 
jury  should  find  a  verdict  for  the  plaintiff. 

(b)  The  court  further  instructs  the  jury,  that  if  they  believe,  from 
the  evidence,  that  the  engineer  or  fireman  on  the  locomotive  which 
struck  the  wagon  of  the  deceased,  and  caused  his  death — if  they  be- 
lieve, from  the  evidence,  his  death  was  so  caused — could,  by  the  ex- 
ercise of  reasonable  care  and  watchfulness,  have  seen  the  deceased 
in  time  to  have  stopped  said  engine,  and  avoided  the  injury,  without 
danger  to  themselves  or  train,  then  the  railroad  company  is  liable  for 
the  want  of  such  care  and  watchfulness,  and  the  injuiy  occasioned 
thereby;  provided,  the  jury  further  believe,  from  the  evidence,  that 
the  deceased  was,  at  the  time,  exercising  all  reasonable  care  and 
caution  to  avoid  the  injury.^^ 

(c)  The  court  instructs  the  jury  that  it  was  the  duty  of  defend- 
ant 's  servants,  in  the  running  and  handling  of  said  east-bound  engine 
and  train  of  cars,  to  have  exercised  that  degree  of  care  and  prudence 
which  an  ordinarily  careful  and  prudent  person,  engaged  in  like  busi- 
ness, would  have  exercised  under  like  circumstances,  and  a  failure  to 
exercise  such  a  degree  of  care  and  prudence  would  render  the  defend- 
ant guilty  of  negligence  in  that  respect.^^ 

§  1872.  Elements  to  Be  Taken  into  Consideration — Sparsely  Set- 
tled and  Populous  Districts.  The  court  instructs  the  juiy  that,  in  de- 
termining the  question  as  to  whether  the  defendant's  servants  and 
employes  were  guilty  of  negligence  in  the  present  case,  the  jury  are 
authorized  to  and  should  take  into  consideration  the  place  at  which 
the  accident  occurred,  the  manner  in  which  the  trains  were  being 
propelled,  the  number  of  dwelling  houses  in  that  vicinity,  their  dis- 
tance from  the  track,  and  the  probability  of  pedestrians  being  on  the 
track  at  that  time  and  place,  if  any.  What  would  be  ordinary  care 
and  prudence  in  running  a  train  of  ears  in  a  sparsely-populated  lo- 
cality might  be  negligence  in  a  more  populous  district,  and  it  is  for 
the  jury  to  determine,  in  view  of  all  the  facts  and  circumstances  of 
the  case,  whether  defendant's  servants  did  exercise  ordinary'  care  and 
prudence  in  the  management  of  said  train  at  the  time  and  place  men- 
tioned in  the  evidence  in  this  case.^^ 

§  1873.  Engineer  Not  Bound  to  Neglect  His  Usual  and  Ordinary 
Duties  to  Keep  Extraordinary  Lookout  for  Danger  Ahead.  The  de- 
fendant's servants  in  this  case  were  not  bound  to  use  extraordinary 
care  or  extraordinary  means  to  prevent  accidents.  They  were  only 
bound  to  use  what  in  that  peculiar  business  is  ordinary  care  and  dili- 

37— Chi.  &  A.  Rd.  Co.  v.  Murray,  39— Schmitt  v.  Mo.  Pac.  Ry.  Co., 
62  Til.  326.  supra. 

38— Schmitt  v.  Mo.  Pac.   Ry.  Co., 
160  Mo.  43,  60  S,  W.  1043. 
76 


1202  FORMS  OF  INSTRUCTIONS.  [§  1874. 

genee,  and  the  paramount  duty  of  the  employes  on  the  train  was  the 
protection  of  the  passengers,  the  property  in  the  train  and  the  train 
itself.  If  you  believe,  from  the  evidence,  that  in  the  usual  and  ordi- 
nary management  of  the  train  for  the  safety  of  the  passengers  and 
property,  the  engineer  had  to  perform  other  duties  besides  watching 
the  track  ahead,  such  as  gauging  his  steam,  watching  his  time  table, 
examining  his  machinery,  watching  for  the  station  signals,  then  he 
had  a  lawful  right  to  perform  these  duties,  and  he  was  not  bound  to 
neglect  them  in  order  to  watch  the  track  ahead  while  performing  his 
duties.  And  if  the  jury  find,  from  the  evidence,  that  the  engineer  in 
charge  of  the  engine  was  attending  to  any  or  all  of  these  duties  at  the 
time  of  the  accident,  and  that  for  this  reason  the  stock  was  not  dis- 
covered in  time  to  save  them  by  using  ordinary  means  to  stop  the 
train,  then  the  defendant  is  not  liable.'**^ 

§  1874.  Liability  of  Railroad  for  Frightening  Horses — Negligence, 
and  Wanton  Defined,  (a)  The  court  instructs  the  jury  that  a  rail- 
road company  is  not  liable  when  an  injury  results  from  horses  being 
frightened  from  the  noise  or  appearance  of  the  train,  when  due  and 
proper  care  in  the  management  of  the  train  is  used.  If  the  engineer 
wantonly  and  maliciously  made  unnecessary  noise  for  the  purpose  of 
searing  the  horses,  and  thereby  the  injury  was  brought  about,  in  the 
loss  of  the  horses,  defendant  would  be  liable.  Negligence  is  the  fail- 
ure to  observe,  for  the  protection  of  the  interests  of  another  person, 
that  degree  of  care,  precaution,  and  vigilance  which  the  circumstances 
justly  demand,  whereby  such  other  person  suffers  injury.  An  act  is 
wantonly  done  when  it  is  needless  for  any  rightful  purpose,  and  mani- 
fests a  reckless  indifference  to  the  rights  and  interests  of  another.^^ 

(b)  The  defendant  had  a  legal  right  to  use  its  road,  engine  and 
cars  upon  its  tracks  in  the  usual  course  of  business,  or  in  any  other 
manner,  so  far  as  the  rights  of  the  plaintiff  in  this  case  are  con- 
cerned, provided,  in  doing  so  they  do  not  negligently,  needlessly  and 
wantonly  increase  the  danger  to  the  plaintiff  in  passing  from  a  pub- 
licly traveled  highway  across  its  track. 

(c)  If  the  defendant's  servants  while  said  engine  was  standing 
still  knew,  or  would  have  known  by  the  exercise  of  reasonable  and 
ordinary  care,  which  would  have  ordinarily  been  used  by  ordinarily 
prudent  men  under  like  circumstances,  that  the  plaintiff  was  either 
upon  the  track  of  its  railway,  or  just  passing  off  the  same,  then  the 
defendant  had  no  right  uselessly  or  needlessly  to  blow  the  whistle  of 
the  engine,  or  cause  any  other  noise  likely  to  frighten  or  cause  plain- 
tiff's team  to  run  away. 

(d)  If  at  the  time  plaintiff  entered  upon  the  track  of  the  railroad, 
the  engine  was  standing  still,  and  if  defendant's  servants  in  charge 
of  the  engine  knew  of  that  fact,  or  if  they  would  have  known  such 

40— Cincinnati  &  Z.  R.  Co.  v.  D.  R.  Co.,  121  N.  C.  519,  27  S.  E. 
Smith.  22  Ohio  St.  227.  991. 

41— Everett  v.  Receivers  of  R.  & 


§  1875.]  NEGLIGENCE— RAILROADS.  1203 

fact  by  the  use  of  ordinary  care  and  prudence,  then  defendant  would 
be  required  to  use  care  and  prudence  and  refrain  from  mak- 
ing a  noise  from  the  blowing  of  the  whistle  in  a  manner  calculated 
to  frighten  the  team  driven  by  plaintiff,  or  cause  them  to  run  away; 
and  if  the  said  defendant's  servants  did  so  cause  the  whistle  to  be 
blown,  under  such  circumstances,  while  plaintiff  was  acting  prudently 
in  attempting  to  cross  said  railroad  track,  and  if  such  noise  caused  by 
the  blowing  of  the  whistle  was  the  cause  of  the  runaway,  producing 
the  injuries  complained  of,  or  some  of  them,  then  defendant  would 
be  liable  to  the  extent  of  the  injuries  caused  by  such  wrongful  con- 
duct on  the  part  of  the  defendant's  said  servants. *- 

(e)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  on 
the  day  and  at  the  place  in  question  and  immediately  before  and  at 
the  time  of  the  accident  in  question  was  in  the  exercise  of  the  care 
and  caution  for  his  own  safety  Avhieh  a  reasonably  prudent  and  care- 
ful man  under  the  same  circumstances  would  have  exercised;  and  if 
the  jury  further  believe,  from  the  evidence,  that  the  engineer  or  fire- 
man of  the  engine  in  question  saw  the  plaintiff's  position  at  the  head 
of  his  team  within  thirty  feet  of  the  track  over  which  said  engine 
was  then  passing,  and  then  negligently  or  wantonly  caused  the  whis- 
tle of  said  engine  to  be  sounded  in  a  short,  sharp,  shrill  and  unusual 
manner,  and  the  steam  to  escape  from  said  engine  in  a  reckless  and 
negligent  manner;  and  if  the  jury  further  believe,  from  the  evidence, 
that  the  sounding  of  said  whistle  as  aforesaid  or  escaping  of  said 
steam  as  aforesaid  frightened  the  team  of  the  plaintiff  so  that  said 
team  thereupon  ran  away  and  injured  said  plaintiff,  then  the  plaintiff 
should  recover.*^ 

§  1875.  Frightening  Horses  Through  Usual  and  Ordinary  Noise. 
If  you  believe  that  the  plaintiff  was  injured  by  reason  of  the  defend- 
ant's engine  emitting  a  noise  as  described  in  the  plaintiff's  pleadings, 
and  frightening  his  horse,  but  if  you  further  believe  that  such  noise 
was  not  occasioned  by  the  engineer,  or  by  any  of  defendant's  em- 
ployes, working  its  engine,  but  that  it  was  occasioned  merely  by  the 
escape  of  steam  through  a  proper,  usual  and  necessary  apparatus  for 
the  escape  of  an  excess  of  steam,  and  that  such  noise  was  usual  and 
incident  to  the  use  of  its  engine  while  under  the  proper  amount  of 
steam,  and  used  in  its  ordinary  manner,  then  you  will  tind  for  the  de- 
fendant, provided  you  believe  that  such  noise  was  the  sole  cause  of 
the  plaintiff's  injury,** 

42 — C.     R.    I.     &    P.    Ry.    Co.    v.  that  the  engineer,  who,  it  seems  to 

Parks,    59    Kas.    709,    54    Pac.    1052  be     assumed,     blew     the     whistle, 

(1054).  should     have     seen     appellee.     The 

43 — C.    B.    &   Q.    R.    Co.   v.   Yorty,  fact     that    he    saw    the    men    and 

158   111.    321    (324),   aff'g   56   111.   App.  teams  at  work  on  the  east   side  of 

242.  42  N.   E.  64.  the    track    was    sufficient    to    warn 

"The    instruction    stated   the  law  him    against   making   any    unusual 

less   favorably   to    appellee   than    it  or  unnecessary  noise." 

might  with  perfect  propriety  have  44 — Galveston    H.     &    S.    A.    Ry. 

done,  for  in  order  to  create  liability  Co.  v.  Simon,  —  Tex.  Civ.  App.  — , 

in  appellant  it  was   not   necessary  54  S.  W.  309  (311). 


1204  FORMS  OF  INSTRUCTIONS.  [§  1876. 

§  1876.  Frightening  Horses  Through  Negligent  Unloading  of  Cin- 
ders, (a)  The  court  instructs  the  jury  that,  to  justify  a  verdict  for 
the  plaintiff,  you  must  be  satisfied  from  the  weight  of  affirmative 
evidence  that  cinders  were  negligently  unloaded  and  in  such  a  man- 
ner as  was  calculated  to  frighten  horses  crossing  the  railroad,  and, 
unless  you  so  believe,  your  verdict  should  be  not  guilty. 

(b)  The  court  instructs  the  jury  that,  unless  you  believe,  from 
the  evidence,  that  the  plaintiff  has  shown  by  a  preponderance  of  the 
evidence  that  she  was  exercising  the  care  and  caution  of  an  ordinary 
prudent  woman  at  the  time  immediately  preceding  the  accident,  you 
should  find  the  defendant  not  guilty. 

(c)  The  defendant  railroad  company  cannot  be  found  guilty  in 
this  case  unless  you  believe,  from  the  evidence,  that  the  plaintiff  was 
injured  in  consequence  of  the  negligence  of  the  defendant.*^ 

§  1877.  Company  Must  Not  Suffer  Tall  Weeds  or  Brush  to  Ob- 
struct the  View  of  the  Track.  The  court  instructs  the  jury  that  it  is 
negligence  in  a  railroad  company  to  permit  or  suffer  brush  or  tall 
weeds  to  grow  upon  its  right  of  way,  so  as  materially  to  obstruct  the 
view  of  the  track  or  approaching  trains  by  persons  about  to  cross 
the  track;  and,  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  the  defendant  permitted  and  suffered  brush  and  tall  weeds  to 
grow  upon  its  right  of  way,  so  as  to  obstruct  materially  the  view  of 
the  track  and  of  approaching  trains  by  persons  about  to  cross  the 
railroad  on  the  crossing  in  question,  and  that  but  for  such  obstruc- 
tion the  injury  in  question  would  not  have  happened,  then  the  com- 
pany is  liable,  in  this  case,  unless  the  jury  further  believe,  from  the 
evidence,  that  the  plaintiff's  own  negligence  directly  contributed  to 
the  injury.*^ 

§  1878.  Obstructing  View  of  Track  at  Crossing  by  Line  of  Box 
Cars.  It  was  the  duty  of  the  defendant's  lessee  to  use  signals  in  ap- 
proaching the  crossing;  and  if  the  jury  believe  from  the  evidence  that 
defendant's  lessee  was  running  its  train  at  a  greater  rate  of  speed 
than  eight  miles  an  hour,  and  failed  to  ring  its  bell  or  blow  its  whistle 
as  it  approached  the  crossing,  and  a  line  of  box  cars  was  standing 
on  the  side  track  so  as  to  obstruct  the  sight  and  interfere  with  the 
hearing,  and  that  its  failure  to  give  the  signals  under  the  circum- 
stances was  the  proximate  cause  of  the  injury,  then  you  should  an- 
swer the  second  issue,  "No."'*'' 

§  1879.  Duty  to  Observe  Ordinances  of  Municipalities.  I  charge 
you  tliat  the  duty  of  railroad  companies  includes  the  observance  of 
the  reasonable  ordinances  of  the  city,  which  have  been  properly  prom- 
ulgated.    It  is  necessary  for  them  to  take  all  reasonable  care  under 

45—1.   C.  R.  Co.  V.   Griffin,  84  111.  Keeley,  23  Ind.  133;  Tabor  v.  Mo.  V. 

A  pp.    152    (158),    aff'd    184    111.    9,    56  R.   Co.,   46   Mo.   353;  I.   &   St.   L.   R. 

N.  K.  337.  Co.  v.  Smith,  78  111.  112. 

46— O'Mara  v.  Hudson  R.  R.  Co.,  47— Norton    v.    N.    C.    R.    Co.,    122 

38   N.   Y.   445;   Artz  v.   C,   etc.,   Rd.  N.   C.  910,  29  S.  E.  886  (889). 
Co.,  34  la.  153;  Ind.,  etc.,  R.  Co.  v. 


§  1880.]  NEGLIGENCE— RAILROADS.  1205 

the  common  law,  and  it  is  necessary  to  observe  an  ordinance,  if  such 
ordinance  of  the  city  has  been  properly  promulgated.*^ 

§  1880.  Running  Train  at  Greater  Speed  Than  That  Allowed  by 
Ordinance — Negligence  Per  Se.  (a)  The  court  instructs  the  jury  that 
if  you  believe  from  the  evidence  that  at  the  time  the  deceased,  J.,  was 
struck  and  killed  by  defendant's  train  of  ears,  such  engine  and  cars 
were  being  run  at  a  greater  rate  of  speed  than  ten  miles  in  the  cor- 
porate limits  of  the  city  of  W.,  and  that  by  reason  of  such  running 
of  cars  the  said  J.  was  struck  and  killed  without  negligence  on  his 
part,  contributing  to  his  death,  then  you  should  find  for  the  plaintiff 
in  the  sum  of  not  exceeding  $ .*^ 

(b)  If  you  find  from  the  evidence  that  the  view  of  the  approach- 
ing train  was  obstructed  by  buildings,  trees,  and  ears  on  defendant's 
railroad  at  such  crossing  to  a  traveler  on  such  street  from  the  north, 
and  at  the  time  of  the  injury  a  valid  ordinance  of  the  city  of  W. 
was  in  force  limiting  the  rate  of  speed  of  defendant's  trains  to  five 
miles  an  hour  in  said  city,  and  that  the  train  which  injured  plaintiff 
was  at  the  time  of  the  injury  running  at  the  rate  of  ten  or  fifteen 
miles  an  hour,  then  the  defendant  was  guilty  of  negligence;  and  if 
you  find  that  such  negligence  produced  the  plaintiff's  injuiy  without 
any  negligence  on  the  plaintiff's  part  which  contributed  to  the  in- 
jury, then  your  verdict  should  be  for  the  plaintiff.^" 

§  188L     Speed  of  Train  When  No  Ordinance  Exists,     (a)     In  the 

absence  of  any  proof  of  an  ordinance  limiting  the  speed  of  a  rail- 
road train  through  a  city  or  village,  the  railroad  company  would 
have  a  right  to  run  its  trains  through  any  such  village  or  city  at  any 
rate  of  speed  it  thought  proper,  consistent  with  the  safety  of  its  train 
and  passengers,  and  of  persons  rightfully  upon  its  right  of  way  at 
road  crossings,  who  were  exercising  ordinary  care  in  crossing  the 
railroad.  And  any  person  without  ordinary  care  crossing  such  rail- 
road, and  receiving  any  injury  for  the  want  of  such  care,  could  not 
recover  therefor  on  account  of  such  speed  alone.^^ 

48— Brasington   v.    So.    Bound    R.  50  Ind.  65;  Penn.  Co.  v.  Hensil,  70 

Co.,  62  S.   C.  325,  40  S.  E.  665  (668),  Ind.  569,  36  Am.  Rep.  188;  Penn  Co. 

89  Am.  St.  905.  v.  Stegemeier,  118  Ind.  303,  20  N.  E. 

49— Jackson  v.  K.  C.  Ft.  S.  &  M.  843,  10  Am.  St.  136.    The  instruction 

R.  Co.,  157  Mo.  621,  58  S.  W.  32  (34),  does  nothing  more  than  inform  the 

80  Am.  St.  650.  jury  of  the  law  upon  this  subject, 

50 — Penn.  Co.  v.  Horton,  132  Ind.  leaving-  it  to  the  other  and  subse- 

189,  31  N.  E.  45  (47).  quent  charges  to  direct  their  atten- 

"Thls  instruction  contained  a  cor-  tion  to  the  subject  of  contributory 

rect  enunciation  of  the  law  relating  negligence.     We   discover  no   infir- 

to  what  it  took  to  establish  action-  mity  in  this  instruction." 

able  negligence  on  the  part  of  the  51 — Partlow  v.  I.  C.  R.  Co.  150  111. 

defendant.     It  is  negligence  per  se  321   (324),  37  N.  E.   663. 

to  run  a  train  of  cars  iia  violation  "We  perceive  no  substantial  ob- 

of  a  city  ordinance,  and  if  any  one  jcction     to     this    instruction.      The 

is   injured   in    consequence  of   such  village  had  passed  no  ordinance  on 

negligence,    without    being    himself  the  subject,  and  in  the  absence  of 

guilty    of    contributory    negligence,  all   instruction   on  the   part  of   the 

he  may   recover  damages  for  such  municipality,     by     ordinance,     the 

injury.     Railroad    Co.    v.    Mathias,  railroad    company    might    properly 


1206  FORMS  OF  INSTRUCTIONS.  [§1882. 

(b)  The  defendant  liad  the  right  to  run  the  train  at  the  time  and 
place  of  this  collision  at  any  speed  consistent  with  the  safety  which 
was  necessary  in  the  conduct  of  its  business  in  the  usual  and  ordinary 
mannei',  taking  into  consideration  however  all  the  circumstances  sur- 
rounding that  crossing  affecting  the  traveling  public,  and  having  a 
due  regard  for  the  safety  of  the  public  using  the  crossing.^^ 

(c)  The  general  statutes  of  our  State  do  not  regulate  the  rate  of 
speed  that  a  railroad  company  shall  run  its  cars;  yet  the  failure  of 
the  law  to  regulate  the  rate  of  speed  does  not  authorize  a  railroad 
company  to  run  its  train  at  a  wanton,  reckless,  and  dangerous  rate  of 
speed  over  a  public  crossing  in  an  incorporated  town  or  village,  a 
point  where  the  people  cross  and  recross  the  public  crossing  in  num- 
bers and  frequently.^^ 

§  1882.  Duty  to  Ring  Bell— Duty  of  Person  Crossing  Tracks. 
(a)  The  court  instructs  the  jury  that  it  was  the  duty  of  the  defend- 
ant's servants  in  charge  of  said  east-bound  engine  and  train  of  cars, 
while  running  or  moving  within  the  limits  of  the  City  of  B.,  to  cause 
the  bell  on  the  engine  thereof  to  be  constantly  sounded;  and,  if  you 
believe  from  the  evidence  that  the  bell  on  the  engine  of  the  train 
in  question  was  not  constantly  sounded  while  said  train  was  running 
or  moving  within  said  limits,  then  you  should  find  that  the  defendant 
was  guilty  of  negligence  in  that  respect.^* 

(b)  It  is  the  duty  of  an  engineer  in  charge  of  a  running  train  to 
give  some  signal  of  its  approach  to  the  crossing  of  a  public  street  or 

determine  for  itself  the  rate  of  be  his  duty  to  look  at  the  same 
speed,  consistent  with  the  safety  time  to  the  sides.  If,  however, 
of  its  train  and  passengers,  and  while  looking-  ahead  his  eye  takes 
those  who  had  occasion  to  cross  the  in  a  person  approaching  the  track 
railroad  track  in  traveling  on  the  at  a  crossing  or  elsewhere,  he  is 
highway.  As  to  the  last  clause  of  then  bound  to  use  ordinary  care  to 
the  instruction,  the  rule  is  so  well  prevent  injury,  his  first  care,  how- 
settled  that  a  person  cannot  recov-  ever,  being  for  the  safety  of  his 
er  for  an  injury  unless  in  the  exer-  passengers  and  pi'operty  on  board 
cise  of  ordinary  care,  that  it  will  for  transportation.  He  may  pre- 
not  be  necessary  to  cite  cases  in  its  sume  that  such  persons  will  keep 
support."  away  from  the  track  until  the  train 

52 — N.   Y.   C.   &   St.  L.   R.   Co.  v.  passes,  but  when  it  become  evident 

Kistler,  66  Ohio  St.  326,  64  N.  E.  130  that  the  person  cannot  or  will  not 

(132).  keep  away  from  the  track,  then  he 

"In  Cleveland  C.  &  C.  R.  R.  Co.  must  do  all  he  can  to  prevent  in- 
v.  Elliott,  4  Ohio  St.  474-476,  this  jury.  *  *  *  It  has  often  been  held 
court  held  that  'The  paramount  by  courts  that  when  a  person  sud- 
duty  of  the  conductor  of  a  train  is  denly  finds  himself  in  a  position  of 
to  watch  over  the  safety  of  the  imminent  peril  or  danger,  he  can- 
persons  and  property  in  his  charge,  not  be  held  to  a  strict  account  as 
The  same  is  true  of  an  engineer,  to  the  course  of  conduct  to  be  by 
His  paramount  and  first  duty  is  to  him  pursued  to  avoid  injury.  R.  R. 
watch  over  and  guard  the  safety  of  Co.  v.  Iron  Mowery,  36  Ohio  St.  418, 
the  persons  and  property  in  his  38  Am.  Rep.  597;  Elliott  R.  R.,  para, 
charge,  and  that  is  most  effectual-  1173;  Penn.  R.  R.  Co.  v.  Snyder,  55 
ly  done  by  keeping  a  strict  outlook  Ohio  St.  342,  45  N.  E.  559,  60  Am. 
ahead  upon   the  track  so  as  to  see  St.  700." 

any  obstruction  at  the  earliest  mo-  53 — Memphis  &  C.  R.  Co.  v.  Mar- 

ment,    and    thus    be    prepared    to  tin.  117  Ala.  367,  23  So.  231  (238). 

avert  danger  to  his  train.  *  *  *  His  54 — Schmitt  v.  Mo.  Pac.  Ry.  Co., 

duty  being  to  look  ahead,  it  cannot  160  Mo.  43,  60  S.  W.  1043. 


§  1882.]  NEGLIGENCE— RAILROADS.  1207 

highway  over  a  railroad  track;  and  when  he  fails  to  do  so  the  rail- 
road company  is  deemed  negligent,  and  answerable  for  any  injury 
due  to  such  omission  of  duty.^^ 

(c)  The  statute  requires  every  railroad  corpoi'ation  to  cause  a  bell 
of  at  least  thirty  pounds  to  be  rung  or  a  steam  w'histle  to  be  sounded  at 
the  distance  of  at  least  eighty  rods  before  a  public  highway  is  reached 
by  a  train  or  locomotive  and  kept  on  ringing  or  being  sounded  until 
the  highway  is  reached,  and  when  this  is  done  the  railroad  company 
has  discharged  its  duty  imposed  by  the  statute,  whether  such  signal 
is  heard  or  not.  The  statute  does  not  require  the  giving  of  such  sig- 
nals of  the  approach  of  a  train  so  as  to  enable  others  absolutely  to 
ascertain  its  approach  or  avoid  being  injured.  If  the  railroad  com- 
pany has  such  bell  on  its  engine  attached  to  the  train  as  the  statute 
requires,  and  it  is  rung  in  the  manner  required,  then  so  far  as  the 
giving  of  the  signals  before  'a  train  reaches  a  public  highway  cross- 
ing is  concerned,  the  company  is  without  blame,  whether  the  signal 
so  given  is  observed  or  heeded  or  not  by  any  one  attempting  to  cross 
the  railway  track  on  a  public  highway.^^ 

(d)  It  was  the  duty  of  the  company  to  give  proper  warning  at  a 
proper  place  of  the  approach  of  the  passenger  train.  If  the  com- 
pany through  its  servants  performed  that  duty  on  this  occasion  in 
the  usual  way,  by  blowing  a  w^iistle  or  ringing  a  bell,  or  both,  de- 
pending upon  circumstances,  plaintiff  cannot  recover.  The  plaintiff, 
in  order  to  show  the  company  was  neglectful  in  this  particular,  testi- 
fied he  listened,  and  that  neither  a  bell  was  rung  nor  a  whistle  blown. 
Two  witnesses,  docking  bosses,  I  think,  testified  that  they  were  at 
the  top  of  the  lookout  breaker  and  saw  most  of  the  occurrence;  that 
the  whistle  did  not  blow.  The  last  witness  said  he  did  not  remember 
that  the  bell  rang,  and,  if  it  had  rung,  he  would  remember  it.  The 
other  said  he  was  not  sure,  would  not  say  whether  the  bell  rang  or 
not.  There  may  have  been  other  witnesses,  but  I  call  your  attention 
to  these  because  it  appears  to  be  they  were  in  a  position  to  hear  and 
see.  Upon  the  side  of  the  defendant  many  witnesses  have  been 
called — persons  w^ho  were  upon  the  passenger  train,  workmen  upon 
other  trains,  and  some  persons  who  stood  by — who  testified  just  as 
positively  the  whistle  was  blown  and  the  bell  rang.  The  engineer  tes- 
tified he  started  the  bell,  an  automatic  bell,  ringing,  as  I  remember  it, 
very  near  Kingston.  This  is  a  question  of  fact,  a  question  as  to  the 
credibility  of  the  witnesses,  and  you  are  the  judges  of  these  facts  and 
of  the  credibility  of  these  men.  It  is  not  my  province  and  I  have  no 
right  to  interfere  where  it  is  your  duty  to  decide.  You  are  to  judge 
of  the  men  from  any  apparent  interest  or  bias  they  may  have  shown 
or  have  in  the  case,  from  their  appearance,  their  manner  of  testifying. 
Size  them  up  generally  as  they  appeared  before  you  in  the  witness 
stand,  and,  as  you  listened  to  the  testimony,  then  decide  upon  their 
credibility.     Believe  them  all,  if  you  can.     If  j'ou  cannot,  then  give 

55— Norton  v.  N.  C.  R.  R.  Co.,  122  56— Cox  v.  C.  &  N.  W.  Ry.  Co.,  92 
N.  C.  910,  29  S.   E.  886  (889).  111.   App.    15   (19.) 


1208  FORMS  OF  INSTRUCTIONS.  [§  1882. 

credit  to  those  whom  you  think  are  entitled  to  credit.  If  you  decide, 
as  testified  to  by  several  witnesses  upon  the  part  of  the  defendant, 
that  the  whistle  on  the  passenger  locomotive  was  blown  at  or  near  the 
signal  post,  which  was  in  the  neighborhood  of  1,000  feet  below  the 
crossing,  the  defendant  did  its  whole  duty,  and  however  unfortunate 
it  may  have  been  for  P.,  he  cannot  recover  in  this  action. ^^ 

(e)  The  jury  are  instructed  that  it  was  the  duty  of  defendant  and 
the  employes  in  charge  of  the  engine  and  train  that  struck  and  killed 
L.,  to  sound  the  engine  whistle  or  ring  the  engine  bell  at  a  point  not 
less  than  50  rods  east  of  the  crossing  at  which  he  was  struck  and 
killed,  and  to  sound  the  whistle  or  ring  the  bell  continuously  or  al- 
ternately from  that  point  to  the  crossing,  and  if  the  jury  believe  from 
the  evidence  that  the  location  of  the  crossing  at  which  L.  was  killed, 
and  the  amount  of  public  travel  thereon,  and  the  buildings  or  other 
structures  of  the  defendant  company  in  proximity  to  the  crossing, 
obstructed  the  view  and  hearing  of  approaching  trains,  and  that,  for 
these  reasons,  the  crossing  was  unusually  dangerous  to  travelers,  and 
that  the  sounding  of  the  whistle  and  ringing  the  bell  as  directed  was 
not  sufficient  to  give  reasonable  notice  of  the  approach  of  trains  to 
the  traveling  public  at  said  crossing,  and  this  was  known  to  defend- 
ant, or  by  exercise  of  ordinary  care,  could  have  been  known  by  it, 
then  it  was  the  further  duty  of  the  defendant,  and  the  persons  in 
charge  of  its  train,  to  use  such  other  means  to  prevent  injury  to 
travelers  at  said  crossing  as,  in  the  exercise  of  a  reasonable  judgment 
by  ordinarily  prudent  persons  operating  the  railroad,  might  be  con- 
sidered necessary,  and  if  the  jury  believe  from  the  evidence  that 
the  defendant  and  the  employes  in  charge  of  the  train  that  struck 
L.  failed  to  discharge  the  duty  imposed  by  ringing  the  bell  or  sound- 
ing the  whistle,  as  herein  set  out,  or  to  provide  the  other  methods 
herein  set  out,  if  considered  necessary  for  the  reasons  herein  stated, 
by  the  persons  operating  the  said  road,  and  further  believe  that  de- 
ceased lost  his  life  by  the  negligence  and  carelessness  of  defendant 
and  said  employes,  if  any  has  been  proven,  then  they  should  find  for 
plaintiff,  unless  they  believe  the  state  of  facts  existed  that  are  set 
out  in  instruction  No.  3  (regarding  contributory  negligence). 

(f)  The  jury  are  instructed  that  it  was  the  duty  of  L.  in  crossing 
the  tracks  of  defendant  at  the  place  he  was  killed,  to  take  such  care 
for  his  own  safety  as  a  reasonably  prudent  man  would  have  exer- 
cised under  circumstances  similar  to  those  proven  in  this  case,  who 

57— Pyne  v.  Delaware  L.  &  W.  R.  required   varies    with   the    circum- 

Co..  212  Pa.  142.  61  Atl.  817.  stances,  the  question  of  negligence 

"Did  the  degree  of  care  required  is  necessarily  for  the  jury.     Penn. 

vary  under  the  facts  of  this  case?  R.    R.    Co.    v.    "White,    88    Pa.    327; 

We  think  it  did.     If  so,  it  was  for  Penn.   R.   R.   Co.  v.  Peters,  116  Pa. 

the  jury   to  determine  whether  he  206,  9  Atl.  317;  Rusterholtz  v.  N.  Y., 

pfrformod    his   duty   under   all   the  etc.,  R.  R.   Co.,  191  Pa.  390,  43  Atl. 

clrcum. 'Stances.  Where  there  is  doubt  208;  Cohen  v.  Phil.  «&  R.  R.  R.  Co., 

as    to    the    inference    to    be    drawn  211  Pa.  227.  60  Atl.  729.     The  charge 

from  the  facts,  or  where  the  meas-  of    the    learned    trial    judge    fairly 

ure  of  duty  is  ordinary  and  reason-  and  adequately  presented  the  case 

able  care,  and  the  degree  of  care  to  the  consideration  of  the  jury." 


§  1883.]  NEGLIGENCE— RAILROADS.  1209 

was  acquainted  with  the  character  of  the  crossing,  and  the  obstruc- 
tions, if  any,  that  prevented  seeing  or  hearing  approaching  trains, 
if  he  (L.)  knew,  or  by  the  exercise  of  ordinary  care  could  have 
known,  that  the  crossing  was  dangerous,  if  it  was  dangerous,  on  ac- 
count of  its  location  and  the  obstructions,  if  any;  and  if  L.  failed  to 
exercise  this  degree  of  cai'e,  or  if  they  believe  from  the  evidence  that 
he  knew,  or,  by  the  exercise  of  ordinary  care  could  have  known,  that 
tho  train  was  approaching  in  proximity  to  said  crossing,  and  failed 
to  take  such  care  for  his  own  safety  as  an  ordinarily  prudent  man 
would  have  taken,  and  that  on  account  of  his  negligence  and  careless- 
ness in  these  respects,  if  any,  the  injury  to  him  that  resulted  in  his 
death  occurred,  and  would  not  have  occurred  but  for  such  negligence 
and  carelessness,  if  any,  they  should  find  for  the  defendant. ^^ 

§  1883.  Person  May  Assume  That  Ordinance  as  to  Ringing  Bell 
Will  Be  Obeyed.  In  the  absence  of  some  warning  or  evidence  to  the 
contrary,  the  plaintiff  had  the  right  to  assume  that  defendant  would 
obey  the  city  ordinance,  and  cause  the  bell  attached  to  said  locomo- 
tive to  be  rung  to  give  warning  of  the  movement  of  its  train.  Whether 
or  not  the  bell  was  so  rung  in  comj^liance  with  said  ordinance  is  a 
question  of  fact  for  you  to  determine  from  all  the  facts  and  circum- 
stances shown  by  the  evidence.  If  you  find  from  the  evidence  that 
the  bell  was  not  rung,  then  I  instruct  you  that,  in  determining  the 
question  whether  the  plaintiff  was  or  was  not  guilty  of  contributory 
negligence,  you  may  in  connection  with  all  other  facts  and  circum- 
stances shown  by  the  evidence  consider  that  plaintiff  had  a  right  to 
assume  that  if  said  train  should  be  moved  backward,  some  warning 
of  such  movement  would  be  given  him  by  the  ringing  of  the  bell  as 
required  by  said  ordinance.^® 

§  1884.  When  Failure  to  Ring  Bell  Is  Excused.  The  court  in- 
structs the  jury  that  if  they  believe  from  the  evidence  that  E.  had 

58— Louisville  &  N.   R.   R.   Co.  v.  appellant  in  thus  regard  would  not 

Lucas,  30  Ky.  L.  359,  98  S.  W.  308.  excuse    her    from    the    exercise    of 

59 — p.   C.   C.   &  St.   L.   Ry.   Co.   v.  reasonable   care,   her  conduct   is  to 

McNeil,   34  Ind.   App.   310,  69  N.   E.  be  judged. in  the  light  of  such  pre- 

471  (474).  sumption.'      That    case    is    in    har- 

"Under  the  authority  of  Louis-  mony  with  the  instruction  here 
villa,  etc.,  R.  R.  Co.  v.  Williams,  20  given.  See  also  Indianapolis,  etc., 
Ind.  App.  576,  51  N.  E.  128,  the  in-  R.  R.  Co.  v.  McLin,  82  Ind.  435; 
struction  as  given  correctly  stated  Penn.  Co.  v.  Stegemeier,  118  Ind. 
^the  law.  The  particular  objection  305,  20  N.  E.  843,  10  Am.  St.  136.  In 
urged  to  the  instruction  is  that  it  Chicago,  etc.,  R.  R.  Co.  v.  Boggs, 
told  the  jury  that  appellee,  in  the  101  Ind.  522,  51  Am.  Rep.  761,  it  was 
absence  of  some  warning  or  evi-  held  that  a  traveler  at  a  railroad 
dence  to  the  contrary,  had  the  crossing  had  a  right  to  presume 
right  to  assume  that  appellant  that  the  railroad  company  would 
would  obey  the  city  ordinance,  etc.  obey  the  law.  See  also  Stoy  v. 
In  Cleveland,  etc.,  Ry.  Co.  v.  Har-  LouLsville  E.  &  St.  L.  Cons.  R.  R. 
rington,  131  Ind.  426.  13  N.  E.  37.  Co.,  160  Ind.  144,  66  N.  E.  615;  Ma- 
it  was  said:  'In  the  absence  of  lott  (Receiver)  v.  Hawkins,  159  Ind. 
some  evidence  to  the  contrary,  we  127,  63  N.  E.  308.  It  was  the  prov- 
think  the  appellee  had  the  right  to  ince  of  the  jury  to  determine  the 
presume  that  the  appellant  would  question  of  appellee's  negligence  in 
obey  the  city  ordinance.'  etc.  'And  the  light  of  all  the  facts  pertinent 
while  the  wrongful  conduct  of  the  thereto." 


1210  FORMS  OF  INSTRUCTIONS.  [§  1885. 

actual  timely  notice  of  the  approach  of  the  engine  which  struck  him, 
that  is,  sufficient  notice  to  enable  him  to  get  out  of  the  way  by  the 
exercise  of  ordinary  care,  whether  such  notice  was  received  by  him 
from  a  bystander  or  from  hearing  or  seeing  the  engine  as  she  ap- 
proached, then  it  makes  no  difference  in  this  case  whether  the  bell 
of  the  engine  was  ringing  or  not,  or  whether  she  was  running  at  a 
greater  rate  of  speed  than  six  miles  per  hour.^^ 

§  1885.  Failure  to  Sound  Whistle  or  to  Ring  Bell  not  Negligence 
Per  Se.  (a)  The  court  instructs  the  jury  that  the  neglect  to  sound 
the  whistle  or  ring  the  bell  of  an  engine  is  not  of  itself  such  negli- 
gence as  will  justify  a  recovery  for  damages,  to  person  or  property, 
injured  upon  the  track.  To  entitle  the  plaintiff  to  recover  for  such 
injmy,  it  must  appear,  from  the  evidence,  that  the  injury  was  the 
result  of  such  omission  to  ring  the  bell  or  sound  the  whistle. "^^ 

(b)  The  jury  are  instructed  that  it  is  not  enough  to  create  a  lia- 
bility for  injuries  caused  by  a  railroad  train,  to  prove  the  bell  was 
not  rung,  or  the  whistle  sounded.  The  jury  must  further  believe, 
from  the  facts  and  circumstances  proved,  that  the  accident  was  caused 
by  reason  of  such  neglect. 

(c)  The  jury  are  instructed  that,  although  they  may  believe,  from 
the  evidence,  that  the  (cow)  in  question  was  killed  by  the  defend- 
ant's locomotive,  and  that  there  was  a  failure  to  ring  the  bell  or 
blow  the  whistle,  for  a  distance  of  (eighty)  rods  before  reaching  the 
crossing,  still,  if  the  jury  further  believe,  from  the  evidence,  that 
there  was  no  connection  between  the  failure  to  ring  the  bell,  or  blow 
the  whistle,  and  the  killing  of  the  (cow),  then  the  jury  should  find  the 
defendant  not  guilty,  unless  they  find,  from  the  evidence,  that  the  in- 
jury was  occasioned  by  some  negligence  or  misconduct,  other  than  the 
f ailufe  to  ring  the  bell  or  sound  the  whistle. 

(d)  The  jury  are  instructed  that,  whether  the  failure  to  ring  the 
bell,  or  sound  the  whistle,  on  approaching  the  highway,  by  the  train 
in  question,  was,  or  was  not,  the  cause  of  the  injury  complained  of, 
is  a  question  of  fact,  to  be  determined  by  the  jury,  from  a  considera- 
tion of  all  the  evidence  in  the  case.®^ 

§  1886.  Whistle  Need  Not  Be  Blown  Continuously.  The  law  does 
not  require  tliat  the  whistle  shall  be  blown  more  than  once,  or  blown 
all  the  time  from  where  it  is  first  sounded  until  such  public  crossing 
is  passed,  but  only  requires  that  it  shall  be  blown  a  reasonable  length 
of  time  to  give  persons  warning  who  are  about  to  go  upon  the  pub- 
lic crossing,  or. may  be  already  upon  same,  that  the  train  is  approach- 
ing.«'' 

§  1887.  Blowing  Whistle  at  Insufficient  Distance  While  Going  at 
Dangerous  Rate  of  Speed.     If  the  jury  find  from  the   evidence  that 

60— East   St.    Ij.    Con.   Ry.   Co.   v.  62—1.    C.    Rd.    Co.    v.   Benton,    69 

Eppman,  71    111.    App.    32   (37),   aff'd  111.  174. 

170  111.  .W8,  48  N.  E.  981.  63— Houston    &    T.    C.    R.    Co.    v. 

61— Inrl.     &     St.     I..     Rd.     Co.     v.  Blan,  —  Tex.  Civ.  App.  — ,  62  S.  W. 

Blackman,  63  III.  117.  552  (553). 


§  1888.]  NEGLIGENCE— RAILROADS.  1211 

the  defendant's  sen-ants  in  charge  of  the  train  that  killed  said  A.  B. 
gave  signals  by  whistling  once,  and  no  more,  at  such  distance,  if  it 
exceeded  100  rods  from  G.  street,  that  said  A.  B.  would  naturally 
think  that  he  could  safely  cross  before  the  train  arrived  at  G.  street 
if  he  heard  such  a  whistle,  and  that  he  did  hear  it,  and  further  find 
that  no  bell  was  rung,  and  that  said  train  was  going  at  a  greater 
rate  of  speed  than  men  of  ordinary  care  anl  prudence  in  like  em- 
ployment would  have  run  it  under  like  circumstances  and  conditions, 
and  that  said  A.  B.,  as  a  reasonable  man,  was  thereby  deceived  and 
led  to  believe  that  he  could  cross  the  tracks  of  said  defendant's  rail- 
road in  safety,  and  that  if,  attempting  under  these  circumstances,  to 
cross  said  tracks,  without  fault  or  negligence  on  his  part,  he  was,  on 
account  of  carelessness  upon  the  part  of  the  servants  of  said  defend- 
ant in  operating  said  train  at  an  unusual  and  dangerous  rate  of 
speed,  struck  and  killed,  then  plaintiff  would  be  entitled  to  recover, 
if  such  carelessness  was  the  sole  cause  of  his  injuries.*^* 

§  1888.  When  Suit  Based  on  Failure  to  Give  Signals,  Recovery 
Must  Be  for  Such  Omission.  Though  the  jury  may  believe  the  re- 
quired signals  were  not  given  by  the  defendant,  unless  the  accident 
resulted  as  a  consequence  of  such  omission,  the  plaintiff  is  not  enti- 
tled to  recover  by  reason  of  failure  to  give  the  signals.*^^ 

§  1889.  No  Duty  Ordinarily  to  Give  Signals  at  Private  Crossings. 
The  jurj-  are  further  instructed  that  the  statutes  of  this  State  do  not 
regrulate  or  prescribe  the  speed  at  which  trains  may  be  run,  nor  do 
they  require  any  whistle  to  be  sounded  or  bell  rung  on  trains  ap- 
proaching private  crossings,  and  within  the  enclosed  right  of  way  of 
the  railroad  company.     While  it  is  true  that  even  at  such  places  cir- 

64 — Schweinfurth    v.    C.    C.    C.    &  case,  it  was  necessary  for  the  jury 

St.   L.    Ry.   Co.,   60  Ohio  St.  215,  54  to  find,  and  they  were  so  told,  the 

N.  E.  89  (92).  existence   of   the   facts  thus   calcu- 

"The     objection     urged     to     the  lated  to  mislead  the  deceased,  and, 

charge  is  that  it  makes  the  defend-  further,  that  he  exercised  the  care 

ant  liable  for  the  mistake  or  mis-  of   a  person    of   ordinary    prudence 

calculation    of    tlie   person    injured,  in   forming   his   conclusion   that   he 

But  that,  we  think,  is  not  its  effect,  could    safely   cross    under    the    cir- 

It  does  no  more  than  hold  the  de-  cumstances,    and    that    the    injury 

fendant   responsible   for  the   proxi-  he  received  was  caused  wholly  by 

mate   consequences   resulting   from  the    negligent    acts    and    omissions 

the  position  in  which  the  deceased  of    the    defendant.       If    the    facts 

was    induced    to    place    himself    by  stated  were  established  to  the  sat- 

its   negligent   omission   to   give  the  isfaction  of  the  jury,  the  deceased 

required  signals  of  the  approaching  was  not  guilty  of  contributory  neg- 

train  where  they  might  be  reason-  ligence  which  precluded  a  recovery 

ably  expected  by  persons  about  to  by  his  administrator." 

use  the  crossing,  and  upon  the  ab-  65 — St.    L.   A.   &   T.   H.   R.   Co.  v. 

sence  of  which  they  might  reason-  Odum,   156  111.    78    (82),   aff'g   52   111. 

ably  rely   as  an   assurance   that   it  App.   519,  40  N.  E.  559. 

was   safe   to   cross   over,   and   from  "Under  this  instruction,  the  fact 

the   running   of    the    train    without  that  plaintiff  may  have  been  lulled 

such  signals  at  an  unusual  and  for-  into   a    feeling   of   security   for   the 

bidden  rate  of  speed,  whereby  per-  reason   the  signals  were  not   given 

sons  who  otherwise  might  cross  in  as  a  matter  of  no  moment.     Unless 

safety  would   be  placed   in   a   posi-  the     accident     resulted     from     the 

tion  of  extraordinaj-y  peril.  To  give  omission,  a  recovery  could  not   be 

the    instruction    applicable    to    the  had." 


1212  FORMS  OF  INSTRUCTIONS.  [§  1890. 

eumstanees  may  exist  which  would  render  it  the  duty  of  the  engineer, 
or  person  in  charge  of  said  train  to  ring  the  bell  or  sound  the  whistle 
or  stop  the  train,  yet  such  duty  would  only  arise  when  such  facts 
and  circumstances  are  averred  and  proven  as  would  make  it  a  duty 
to  do  so,  and  to  show  that  a  failure  to  do  so  would  be  negligence; 
and  in  this  ease,  unless  you  believe,  from  the  evidence,  that  such 
facts  and  circumstances  are  proven,  there  was  no  duty  to  make  any 
signal  or  stop  the  train.*'^ 

§  1890.  But  Duty  to  Give  Warning  at  Crossing  Made  Public  by 
Customary  Use.  The  jury  are  instructed  that  it  is  admitted  that 
plaintiff  is  the  widow  of  E.,  deceased,  and  that  suit  was  begun  within 
six  months  after  his  death ;  and  if  the  jury  believe  from  the  evidence 

that  said  E.  was,  on  or  about  the day  of ,  19 — ,  struck  by  a 

locomotive  engine  then  being  run  on  defendant's  railroad  by  its 
servants  and  employes,  and  that  he  was  thereby  so  injured  that  his 
death  resulted  therefrom,  and  that  at  the  place  where  said  E.  was 
struck  many  people  were  at  that  time,  and  had  been  for  several  years 
prior  thereto,  accustomed  to  use  said  track  as  a  footpath  to  and  from 
points  in  the  southern  part  of  the  city  of  B.  and  beyond,  and  that 
said  track  had  been  used  in  this  way  continuously  for  many  years, 
and  that  defendant's  servants  and  agents  in  charge  of  said  train 
could  reasonably  have  expected  to  find  persons  on  said  track  at  that 
place,  on  account  of  the  frequent  and  continuous  use  thereof  by  foot- 
men, and  that  no  signal  or  warning  was  given  by  defendant's  serv- 
ants and  agents  in  charge  of  its  engine  as  it  approached  the  de- 
ceased, and  no  efforts  were  made  by  them  to  prevent  said  injury,  and 
that  said  E.  was  not  conscious  that  said  train  was  coming  towards 
him,  and  if  the  jury  shall  further  find  that  defendant's  servants  and 
agents  could,  by  the  exercise  of  reasonable  care  and  diligence,  have 
seen  said  E.  upon  said  track  a  sufficient  distance  ahead  of  said  train, 
so  that  by  giving  such  signals  or  warnings,  or  taking  such  other  action 
as  a  reasonably  prudent  man  would  have  done  under  the  circum- 
stances, said  accident  could  have  been  avoided,  but  that  defendant's 
agents  and  servants  in  charge  of  said  train  through  their  carelessness 
and  negligence  either  failed  to  observe  said  E.  upon  said  track,  or 
failed  to  give  proper  signals  or  warnings,  or  to  take  such  other  action 
as  a  reasonably  prudent  man  would  have  done  to  avoid  said  injury, 
then  the  jury  should  find  the  issues  for  the  plaintiff,  notwithstanding 
they  may  believe  from  the  evidence  that  said  E.  was  on  said  railroad 
track  without  legal  right,  and  was  himself  guilty  of  negligence  in 
being  there."^ 

§  1891.  No  Absolute  Duty  to  Maintain  Gates  or  Flagman  at  Cross- 
ing, (a)  The  court  instructs  the  jury  tliat  there  was  no  al)solute 
duty  imposed  by  law  on   the  defendant  to   maintain   either  gates  or 

66— Chi.  &  A.  R.  R.  Co.  v.  Sand-         67— Eppstein  v.  Mo.  Pac.  Ry.  Co., 
ers,    irA    III.    531    (.'i34),    aff' g    55    111. '   197  Mo.  720,  94  S.  W.  971. 
App.  87,   39  N.  K.  481. 


§  1892.]  'NEGLIGENCE— RAILROADS.  1213 

a  flagman  at  the  crossing  in  question,  and  if  you  believe,  from  the 
evidence,  that  there  were  no  gates  or  flagmen  there  at  the  time  of 
the  alleged  injury,  that  is  not  of  itself  evidence  of  negligence  on  the 
part  of  defendant.  The  plaintiff  does  not  allege  or  claim  any  negli- 
gence on  the  part  of  defendant  in  regard  to  this.  Evidence  as  to 
whether  there  were  gates  or  a  flagman  at  the  crossing  in  question  at 
the  time  of  the  alleged  injury  was  admitted  by  the  court,  and  should 
be  considered  by  the  jury,  not  as  tending,  of  itself,  to  establish  neg- 
ligence, but  solely  for  the  purpose  of  showing  the  general  condition  of 
things  at  the  locality  of  such  crossing  at  the  time  of  the  alleged  in- 
jury, so  as  to  assist  the  jury  to  determine  from  all  the  circumstances 
and  evidence  in  the  case,  and  under  the  instructions  of  the  court, 
whether  the  defendant  was  guilty  of  negligence  as  charged  by  the 
plaintiff  in  his  declaration.*'^ 

(b)  The  railroad  law  of  this  State  lays  upon  the  railroad  com- 
missioners of  this  State  the  duty  of  determining  the  necessity  of 
establishing  a  flagman  upon  any  particular  street  crossing  of  a  rail- 
way; and  upon  the  testimony,  and  under  the  pleadings  in  this  case, 
the  absence  of  a  flagman  at  S.  Avenue,  is  no  evidence  of  negligence 
upon  the  part  of  the  receivers. ^^ 

§  1892.  When  Flagman  Reasonably  Necessary  for  Safety  at  Cross- 
ing, (a)  If  the  jury  believe  from  the  evidence  that  such  flagman 
was  reasonably  necessary  for  said  purpose  (the  reasonable  safety  of 
those  traveling  over  the  crossing)  at  the  time,  to  make  such  cross- 
ing reasonably  safe,  then,  under  the  law,  the  presence  of  a  flagman 
employed  by  the  city  up  until  just  before  the  injury  occurred,  would 
not  release  the  defendant  from  its  duty  to  provide  such  flagman  upon 
that  crossing  at  the  time  of  the  injury,  provided  the  appellant  had 
notice  that  their  city  flagman  usually  quit  his  station  before  the  time 
of  day  when  the  injuiy  occurred.'^'* 

(b)  The  second  matter  of  negligence  that  is  alleged  is  a  failure  to 
provide  a  switchman  or  flagman  at  this  crossing,  or  to  provide  gates 
which  should  be  closed  and  opened,  so  as  to  prevent  passengers  upon 

68— Dick    V.    Marble,    155    111.    137  fused,  that  the  jury  will  take  such 

(139),  39  N.  E.  602,  rev'g  51  111.  App.  refusal   as   a   liberty  to   infer  that 

351.  the  request  is  wrong^  in  law,  unless 

"We  do  not  deem  it  necessary  to  some   explanation   is   made   by   the 

discuss     this     instruction      further  court   of  the   reasons  for  such   re- 

than  to  say  that  it  is  fully  in  ac-  fusal   to  rebut  such  natural  infer- 

cord   with   the   views  we   have   ex-  ence." 

pressed  in  the  case  of  Chicago  &  I.  70 — P.  &  P.  Union  Ry.  Co.  v.  Her- 

R.   R.   Co.   V.   Lane,   130  111.   116,   22  man,  39  111.  App.  2S7  C294,  297). 

N.   E.   513,    and   that   it   states  the  "In   view    of   the   decision,    while 

law   applicable   to   this   case."  this   instruction  may  not   be  logic- 

69 — Battishill     v.     Humphrey,     64  ally   correct,    we   can    see   no    such 

Mich.  494,  31  N.  W.  894  (903).  error   in    it    as   would   be    likely   to 

"This  request  of  the  defendant  mislead  a  jury,  and  we  can  see  no 
should  have  been  given.  No  refer-  cause  for  reversal  in  the  giving 
ence  was  made  to  this  matter  in  of  that  instruction.  In  addition 
the  charge  of  the  court;  and  it  may  the  declaration  specifies  as  a  cause 
well  be  considered,  when  a  request  *of  action  the  failure  to  keep  a  flag- 
Is  specifically  made,  and  it  is  re-  man  at   the   crossing." 


1214  FORMS  OF  INSTRUCTIONS.    '  [§  1892. 

the  highway  from  being  exposed  to  danger.  The  plaintiffs  claim 
that  under  the  facts  and  circumstances  developed  in  this  case,  that 
this  became  a  duty  which  the  defendants  owed  to  the  traveling  pub- 
lic. The  terms  ''neglect,"  ''negligence,"  "negligent,"  negligently," 
import  a  want  of  such  attention  to  the  nature  or  probable  conse- 
quences of  the  act  or  omission  as  a  prudent  man  ordinarily  bestows 
in  acting  in  his  own  concerns.  Now,  just  simply  apply  that  rule,  gen- 
tlemen, to  the  facts  in  this  ease,  and  you  can  by  that  determine 
whether  or  not  the  defendants  have  been  guilty  of  negligence  in  this 
matter.  Did  their  conduct  in  operating  this  railroad  track  crossing, 
this  highway,  under  all  the  circumstances  and  facts  that  have  been 
detailed  in  evidence,  import  a  want  of  such  attention  to  the  nature 
and  probable  consequences  of  their  acts  as  a  prudent  man  ordinarily 
bestows  in  his  own  concern?  If  it  does,  if  there  was  such  a  want, 
then  there  is  negligence,  and  it  constitutes  a  ground  of  complaint  on 
behalf  of  any  person  who  is  injured  by  reason  of  it.  As  to  what  a 
prudent  man  would  do  under  the  circumstances,  gentlemen,  it  is  for 
you  to  determine,  and  you  are  to  determine  it  for  yourselves.''^ 

(c)  If  you  find  from  a  preponderance  of  the  testimony  that  it 
was  necessary  to  protect  the  public  traveling  on  B.  avenue  for  the 
defendant  to  keep  said  crossing  watched  and  guarded,  and  if  you  find 
fi'om  the  preponderance  of  the  testimony  that  the  defendant  did  not 
exercise  reasonable  care  to  keep  the  crossing  watched  and  guarded, 
and  you  further  find  from  a  prejDonderance  of  the  testi- 
mony that  the  injury  and  death  of  T.  was  caused  by  the  negligence  of 
the  defendant  in  not  exercising  reasonable  care  to  have  said  crossing 
properly  watched  and  guarded,  you  will  find  for  the  plaintiff  on  both 
causes  of  action,  unless  the  deceased  was  guilty  of  negligence  that 
contributed  to  his  injury  and  death. ^^^ 

71 — English  v.  So.  Pac.  R.  Co.,  13  passing  over  the  crossing.    Numer- 

Utah  407,  45  Pac.  47  (49),  57  Am.  St.  ous    railroad    tracks    of    the    three 

772,  35  L.  R.  A.  155.  railroad       companies      cross       this 

"The  statutes  of  Utah  only  im-  street,  and  engines  and  cars  are 
pose  upon  railroad  companies  the  very  frequently,  and  almost  con- 
duty  of  ringing  the  bells  and  stantly,  passing  and  being 
sounding  the  whistles  upon  the  ap-  switched  one  way  or  the  other  over 
proach    of    trains    at    public    cross-  this  street." 

ings,    and    the    appellants    contend  72 — Tiffin  v.  St.  Louis,  I.  M.  &  S. 

that,    if   the   defendants   performed  Ry.    Co.,    78   Ark.    55,   93   S.   W.    564 

the    statutory    requirement    before  (565). 

reaching  the  crossing,  no  additional  "We  think  that  the  above  in- 
duty  was  imposed  under  any  cir-  structiou  fully  placed  before  the 
cumstances  to  prevent  injury.  This  jury  the  measure  of  the  duty  of 
question  is  surrounded  with  much  the  railway  company,  and  that  ap- 
difficulty  and  many  conflicting  de-  pellant  was  not  prejudiced  by  the 
f  Islons.  In  discussing  it,  we  must  refusal  to  give  the  above  instruc- 
remember  that  this  crossing  is  over  tion.  The  instr  iction  given  permit- 
one  of  the  main  streets  and  ave-  ted  the  jury  to  say,  from  the  testi- 
mjes  of  travel  in  Ogden  city,  about  mony,  that  It  was  necessary,  in  or- 
three  blocks  from  the  business  por-  der  to  protect  travelers  on  the 
tion  of  the  city,  containing  15.000  .street  from  danger  of  passing 
people,  and  that  the  street  is  well  trains,  that  the  company  should 
settled ;  thnt  farmers  and  the  trav-  .have  provided  gates  or  other  bar- 
ellng  public  are  almost  constautly  riers,   or  watchmen   to   flag  trains 


§  1893.]  NEGLIGENCE— RAILROADS.  1215 

§  1893.     Open  Gate  as  an  Invitation  to  Cross,     (a)     If  you  believe 

from  the  evidence  that  on  or  about  the  day  of  ,  plaintiff 

was  riding  in  his  buggy,  drawn  by  his  horse,  and  endeavored  to  cross 
the  railroad  track  of  the  defendant  at  the  point  where  the  track  in- 
tersects F.  street,  and  that  plaintiff  drove  upon  the  track,  and  as  he 
did  so  a  car  of  the  defendant  was  pushed  over  the  railroad  track  by 
the  engine,  and  collided  with  plaintiff's  vehicle  and  horse,  and  in 
consequence  thereof  plaintiff  was  injured,  as  claimed  by  plaintiff  in 
his  petition;  and  if  you  further  believe  from  the  evidence  that  no 
warning  was  given  of  the  car's  approach  by  either  ringing  a  bell  or 
blowing  a  whistle,  or  that  the  car  had  no  lookout  upon  the  same,  and 
had  no  light  upon  it,  and  that  the  defendant  was  negligent  in  causing 
the  car  to  be  so  moved  over  the  railroad  track,  if  you  find  it  was  so 
moved,  and  that  this  negligence,  if  any,  was  the  direct  cause  of  the 
injuries,  if  any,  to  plaintiff,  and  that  plaintiff  was  not  guilty  of  any 
negligence  which  contributed  to  his  injuries,  if  anj^,  then  your  verdict 
must  be  for  the  plaintiff. 

(b)     Or  if  you  believe  from  the  evidence  that  on  or  about  the  

day  of ,  plaintiff  was  riding  in  his  buggy,  drawn  by  his  horse, 

and  endeavored  to  cross  the  railroad  track  of  the  defendant  at  the 
point  where  the  track  intersects  F.  street,  and  that  plaintiff  drove 
upon  the  track,  and  as  he  did  so  a  car  of  the  defendant  was  pushed 
over  the  track  by  the  engine,  and  collided  with  plaintiff's  vehicle  and 
his  horse,  in  consequence  of  which  plaintiff  was  injured,  as  claimed 
by  plaintiff  in  his  petition ;  and  if  you  further  believe  from  the  evi- 
dence that  it  was  the  duty  of  the  defendant  to  maintain  gates  where 
its  tracks  intersect  F.  street,  and  that  the  defendant  did  maintain 
gates  thereat ;  and  if  you  further  believe  from  the  evidence  that  at 
the  time  plaintiff  endeavored  to  cross  the  track,  and  if  he  did  so  en- 
deavor to  cross  the  track,  the  aforesaid  gates  were  up,  and  that  this 
indicated  that  no  cars  or  engines  were  about  to  cross  said  F.  street 
over  the  railroad  track;  and  you  further  believe  from  the  facts  and 
circumstances  before  you  that  the  defendant  was  guilty  of  negligence 
in  allowing  said  gates  to  be  up  when  a  car  was  crossing  the  track 
over  F.  street,  if  you  so  find  the  facts,  and  that  such  negligence,  if 
any,  was  the  direct  cause  of  the  injuries,  if  any,  to  plaintiff,  and 
that  plaintiff  was  not  guilty  of  any  negligence  which  contributed  to 
his  injuries  if  any,  then,  in  this  event,  I  also  charge  you  your  verdict 
must  be  for  the  plaintiff. '^^ 

§  1894.     Backing  Cars  Up  After  Gate  Is  Opened.     If  you  believe 

from  the  evidence  that  on  or  about  the  day  of ,  plaintiff 

was  riding  in  a  one-horse  wagon  or  cart,  with  a  horse  attached,  and 

and  warn  travelers,  and  that  the  neglig-ence  if  gates  were  necessary- 
failure  to  provide  either  or  all  of  to  the  protection  of  travelers.  St. 
those  means  of  protection  was  neg-  L.,  I.  M.  &  S.  Ry.  Co.  v.  Baker,  67 
ligence.  Therefore,  no  error  was  Ark.  531,  55  S.  W.  941." 
committed  in  refusing  to  instruct  73— San  Ant.  &  A.  P.  Ry.  Co.  v. 
the  jury  specifically  that  the  fail-  Votaw,  —  Tex.  Civ.  App.  — ,  81  S. 
ure  to  provide  gates  amounted  to  W.  130  (131). 


1216  FORMS  OF  INSTRUCTIONS.  [§  1895. 

proceeded  to  cross  over  defendant 's  railroad  tracks  at  the  point  where 
the  tracks  intersect  B.  street,  and  if  you  further  believe  from  the 
evidence  that  the  defendant  maintained  crossing  gates  on  said  B. 
street  crossing,  and  that  the  gates  on  said  B.  street  crossing  were 
opened  and  raised  by  defendant,  and  if  you  further  believe  from  the 
evidence  that  the  plaintiff  proceeded  to  cross  over  defendant's  tracks 
at  said  B.  street  crossing,  and  that  while  doing  so,  if  he  did  so,  the 
defendant  moved  and  backed  a  car  against  plaintiff's  wagon,  and 
injured  him,  as  alleged  in  plaintiff's  petition;  and  if  you  further  be- 
lieve from  the  evidence  that  said  car  came  to  a  stop,  and  then  was 
moved  forward,  and  that  plaintiff's  vehicle  was  dragged  with  plain- 
tiff in  it,  and  that  plaintiff  was  thereby  injured  as  alleged  in  plain- 
tiff's petition;  and  if  you  further  believe  from  the  evidence  that  it 
was  negligence  on  the  part  of  the  defendant,  under  all  the  facts  and 
circumstances  in  evidence  before  you,  to  move  said  car  against  plain- 
tiff's wagon,  if  it  did  so,  and  then  to  move  said  car  forward  and 
drag  plaintiff's  said  vehicle  with  plaintiff  in  it,  if  it  did  so,  and  that 
such  negligence,  if  any,  was  the  direct  cause  of  plaintiff's  injuries, 
if  any,  and  that  plaintiff  was  not  guilty  of  contributory  negligence, 
then  your  verdict  must  be  for  the  plaintiff.'^'* 

§1895.  When  "Kicking"  Car  Amounts  to  Willful  Negligence 
While  Person  Is  Crossing  Track.  The  jury  are  instructed  that,  in 
order  to  find  a  verdict  against  defendant  in  this  ease  and  under  the 
pleadings  in  the  case,  you  must  believe,  from  the  evidence,  that  the 
injury  to  and  the  death  of  said  E.  was  caused  as  stated  in  the 
declaration  or  in  some  one  or  more  counts  thereof,  by  the  defendant, 
and  that  in  so  causing  such  injury  at  the  time  and  place  thereof,  as 
appears  from  the  evidence,  the  defendant  was  then  and  there  guilty 
of  a  degree  of  negligence  so  gross  as  to  amount  to  a  willful,  reck- 
less and  wanton  disregard  of  the  rights  and  safety  of  said  E.  It 
is  not  necessary  that  the  action  of  the  defendant  shall  be  shown 
by  the  evidence  to  have  been  willful,  in  the  sense  that  it  was  in- 
tentional on  the  part  of  the  defendant  or  its  servants,  but  before 
you  can  render  a  verdict  against  the  defendant  in  this  case  you  must 
believe,  from  a  fair  and  impartial  consideration  of  all  the  evidence 
in  the  case,  that  the  injury  to,  and  the  death  of  said  E.  was  the 
proximate  result  of  such  a  want  of  care  and  regard  for  the  rights 
and  safety  of  others  (in  other  words,  of  such  gross  negligence)  as 
justifies  the  presumption  of  willfulness  or  wantonness  on  the  part  of 
the  defendant.'^^ 

§  1896.  Failure  of  Defendant's  Servants  to  Avoid  Threatened  In- 
jury, When  Possible,  (a)  Even  though  the  jury  should  find  that  S. 
was  negligent  in  attempting  to  cross  or  walk  upon  defendant's  rail- 
road track,  and  that  the  plaintiffs  were  also  guilty  of  negligence  in 
the  custody  and  care  of  their  said  son,  and  even  though  you  believe 

74_Oalv.  H.  &  S.  A.  Ry.  Co.  v.  75— C.  B.  &  Q.  R.  Co.  v.  O'Neil, 
Fry.  —  Tex.  Civ.  App.  — ,  84  S.  W.  172  111.  527.  aff'g  64  111.  App.  623,  50 
664  (665).  N.  E.  216. 


§  1896.]  NEGLIGENCE— RAILROADS.  1217 

from  the  evidence  that  the  negligence  of  either  the  plaintiffs  or  their 
said  son,  S.,  directly  contributed  to  cause  the  injuries  complained  of, 
still  if  you  further  believe  from  the  evidence  that  S.  had  placed 
himself  in  a  dangerous  position  by  going  on  defendant's  railroad 
track,  and  thereafter  such  dangerous  position  became  known,  or  in 
the  exercise  of  ordinary  care  and  diligence  could  have  become  known 
to  defendant's  servants  in  charge  of  said  train  in  question,  in  time 
to  have  stopped  said  train  by  the  exercise  of  oi'dinary  care,  and 
avoided  the  injury  complained  of,  and  failed  to  do  so,  then  your  ver- 
dict should  be  for  the  plaintiffs. 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  deceased  saw  the  engine  approaching,  or  knew  of 
its  approach,  before  he  got  upon  the  track,  or  could  have  seen  such 
engine  by  looking,  or  could  have  heard  it  approaching  by  listening, 
then  the  failure  of  defendant's  servants  to  ring  the  bell  of  the 
engine,  if  a  fact,  is  immaterial,  and  plaintiff  is  not  entitled  to  re- 
cover on  that  ground  of  negligence.  The  court  further  instructs 
the  jury  that  plaintiffs  ought  not  to  recover  in  this  case  unless 
they  find  from  the  evidence  that  the  servants  and  agents  of  defendant 
in  charge  of  the  engine  saw,  or  by  the  exercise  of  ordinary  care 
and  diligence  might  have  seen,  deceased  on  defendant's  track  in 
time  to  have  stopped  the  train,  and  thus  averted  the  injury.  The 
jury  are  also  instructed  that  if,  after  deceased  entered  upon  the  rail- 
road track,  the  emjiloyes  in  charge  of  the  train  which  struck  him 
did  not  have  time,  by  the  exercise  of  ordinary  diligence,  to  stop 
the  train,  then  no  negligence  can  be  imputed  to  defendant  com- 
pany because  they  did  not  do  so,  and  the  verdict  should  be  for  the 
defendant. 

(c)  The  jury  are  further  instructed  that,  while  it  may  have  been 
the  duty  of  defendant's  servants  or  agents  to  make  all  reasonable 
efforts  to  stop  the  train  and  avoid  a  collision,  yet  a  duty  also  de- 
volved upon  the  deceased,  and  if  after  he  saw  the  train  coming,  or 
might  be  looking  or  listening  have  seen  or  heard  it  coming,  he  could 
have  gotten  out  of  its  way,  but  did  not,  then  the  plaintiffs  cannot 
recover,  unless  you  should  further  find  from  the  evidence  that  after 
the  deceased  was  in  a  position  of  peril  the  defendant's  servants  in 
charge  of  said  train  either  saw  him,  or  by  the  exercise  of  ordinary 
care  might  have  seen  him,  in  time  to  have  stopped  the  train,  by  the 
exercise  of  ordinary  care,  before  it  struck  him. 

(d)  Although  the  juiy  may  believe  from  the  evidence  that  de- 
fendant's employes  were  guilty  of  negligence  in  failing  to  discover 
the  presence  of  plaintiff's  son,  S.,  on  the  track,  yet  if  they  also  be- 
lieve from  the  evidence  that  said  S.  was  negligent  in  failing  to 
discover  the  approach  of  defendant's  train  in  time  to  have  kept  out 
of  its  way,  or  to  have  gotten  out  of  its  way,  if  in  it,  then  your 
verdict  will  be  for  the  defendant,  unless  you  should  further  find  from 
the  evidence  that  after  the  deceased  was  in  a  position  of  peril  the 
defendant's  servants  in  charge  of  said  train  either  saw  liim,  or  by 

77 


1218  FORMS  OF  INSTRUCTIONS.  [§  1897. 

the  exercise  of  ordinary  care  might  have  seen  him,  in  time  to  have 
stopped  the  train,  by  the  exercise  of  ordinary  care  before  it  struck 
him.  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  death  of  plaintiff's  son,  S.,  was  the  result  of  mere 
accident  or  casualty,  and  not  of  negligence  on  the  part  of  the  de- 
fendant, your  verdict  will  be  for  the  defendant.'^^ 

§  1897.  Ordinary  Care  Towards  Watchman  at  Crossing.  The  court 
instructs  the  jury  that  by  ordinary  care  in  this  case  the  law  means 
such  a  degree  of  care,  under  the  circumstances  and  in  the  situation 
in  which  the  plaintiff  was  placed,  so  far  as  may  be  shown,  by  the 
evidence,  as  an  ordinarily  prudent  person  would  exercise  under  the 
same  circumstances  and  in  like  situation  to  avoid  danger.'^''' 

§  1898.  Injury  at  Crossing  Through  Horse  Balking.  If  you  be- 
lieve from  the  evidence  that  the  accident  was  caused  by  the  plain- 
tiff's horse  balking  and  backing,  and  that  such  balking  and  backing 
was  not  caused  by  fright  from  the  whistle  of  the  engine  being  blown, 
then  3'ou  will  consider  no  further,  but  return  your  verdict  for  the  de- 
fendant.'^^ 

§  1899.  Reasonable  and  Ordinary  Care  Only  Required  in  Switch- 
ing. The  coui't  instructs  the  jury  that  the  defendant,  while  using 
the  railroad  track  in  moving  cars  thereon,  was  only  bound  to  use 
reasonable  care  to  avoid  injuring  persons  and  proiDerty  of  people 
being  in  and  approaching  its  line  of  railroad.  And  if  the  jury  be- 
lieve, from  the  evidence  in  this  case,  that  the  defendant,  by  its 
servants,  exercised  reasonable  and  ordinary  care  in  moving  and 
managing  the  cars  it  was  hauling,  and  to  ascertain  the  condition 
of  the  switches  before  attempting  to  place  their  cars  in  position  for 
the  use  of  the  X.  company,  then  it  performed  its  whole  duty,  and 
the  jury  will  find  a  verdict  for  the  defendant."^ 

§  1900.  Right  to  Raise  and  Lower  Track — Duty  of  Public  Authori- 
ties as  to  Approaches  Thereto,  (a)  If  the  jury  find  from  the  evi- 
dence in  this  case  that,  after  defendant  raised  its  track  at  the  time 
and  place  in  question,  that  its  crossing  over  said  track,  as  well  as 
the  ai^proaches  thereto,  were  then  and  thei'e  in  good  condition,  but 
that  the  county  authorities  of  M.  county  then  and  there  failed  to 
make  a  proper  connection  with  said  approaches  and  said  crossing  on 

76 — Above    instructions    approved  rence  v.  Hagerman,  56  III.  68;  Lou- 

in  Schmitt  v.  Mo.  Pac.  Ry.  Co..  160  ranee    v.    Goodwin,    170    111.    390.    48 

Mo.  43,  60  S.  W.  1043.  N.  E.  903;  111.  C.  Ry.  Co.  v.  Bannis- 

77— T.  P.  &  W.  Ry.  Co.  v.  Ham-  ter,  195  III.  48,  62  N.  E.  864." 
mett,  115  111.   App.  268  (276).  78— Houston    &    T.    C.    R.    Co.    v. 

"We     cannot     believe     appellant  Carruth,   —   Tex.    Civ.    App.   — ,   50 

was   injured   or  prejudiced  by  this  S.  W.  1036  (1038). 
Instruction  having  been  given  when        "There  was  some  evidence  tend- 

we   consider   all    the    evidence   and  ing  to  support  this  theory,  .ind  the 

the   other   instruction   in    the   case,  charge  should  have  been  given." 
It  has  been  repeatedly  held  that  all         79— C.   &  A.   R.   R.   Co.   v.   Ander- 

tho  Instructions  in   the  case  are  to  son,   67   III.  App.   386   (389),   aff'd  166 

be    considered    as    one    series,    and  111.  572,  46  N.  E.  1125. 
read  and  construed  together.   Law- 


§  1901.]  NEGLIGENCE— RAILROADS.  1219 

the  county  road,  then  and  there  under  the  sole  control  of  said  county 
authorities;  and  if  they  find  from  said  evidence  that  whatever  de- 
fect, if  any,  existed  in  said  highway  at  said  time  and  place  was 
occasioned  by  reason  of  said  county  authorities  of  M.  county  failing 
to  make  a  proper  or  safe  connection  in  said  county  road  with  the 
crossing  and  approaches  thereto  constructed  by  the  defendant,  whereby 
in  driving  down  said  approach  the  plaintiff  was  then  and  there  thrown 
out  of  his  wagon  on  the  county  road,  or  at  the  junction  thereto 
with  the  approach  to  defendant's  crossing,  occasioned  by  said  failure 
of  said  county  authorities  to  make  a  proper  and  safe  connection  be- 
tween said  county  road  and  said  crossing  as  aforesaid,  then  they 
are  instructed  that  plaintiff  is  not  entitled  to  recover  on  account 
of  said  injury,  and  your  verdict  must  he  for  the  defendant. 

(b)  The  jury  are  instructed  that  the  defendant  had  a  lawful  right 
either  to  raise  or  lower  its  track  at  the  place  in  question  at  any 
time  whenever,  in  its  judgment,  the  interests  of  the  traveling  public 
and  the  line  of  railroad  then  owned  and  operated  by  the  defendant 
required  such  change  in  track;  and  ii  the  jury  find  fi'om  the  evi- 
dence in  this  case  that  the  crossing  constructed  by  the  defendant 
after  its  track  was  raised  as   aforesaid,  as  well  as  the  approaches 

thereto,  were  in  proper  and  safe  condition  on  the day  of , 

1899,  and  the  plaintiff  was  not  injured  either  upon  said  crossing  or 
upon  said  approach  by  reason  of  any  defect  or  imperfection  in  said 
crossing  or  said  approach,  then  they  are  instructed  that  the  plain- 
tiff is  not  entitled  to  recover  in  this  action,  and  your  verdict  must 
be  for  the  defendant. ^° 

§  1901.  Injury  to  Person  at  Crossing  by  Employe  Operating  Hand 
Car  for  His  Own  Private  Use — Series,  (a)  The  plaintiff'  sues  the  de- 
fendant company  for  injuries  inflicted  upon  the  wife  of  plaintiff, 
damages  to  his  buggy  and  horse,  and  expenses  incurred  in  the  treat- 
ment of  his  wife,  alleging  that  these  injuries  were  caused  by  a  hand 
ear  of  said  comi3any  striking  the  buggy  in  which  they  were  riding 
at  the  crossing  of  one  of  the  streets  of  N.  B.,  alleging  that  said  hand 
car  was  negligently  used,  and  thus  negligently  caused  this  injury. 

(b)  The  defendant  company,  as  a  defense,  alleges  that  at  the  time 
of  said  injuiy  the  hand  car  was  not  being  used  in  the  business  of  the 
company,  but  that  said  car  was  then  being  used  only  for  the  private 
use  of  the  person  operating  it. 

(c)  The  jury  are  charged  that  the  uncontradicted  testimony  shows 
that  at  the  time  of  the  injury  one  B.,  an  employe  of  the  company,  who 
had  charge  of  the  hand  ear,  was  using  said  car  for  his  own  private 
use,  and  was  not  using  same  for  the  company's  business;  and  the 
company  would  not  be  liable  unless  the  evidence  shows  said  B.  to  be 
a  disobedient  and  untrustworthy  sei-\'ant,  and  was  in  the  habit  of 
disobeying  the  company's  rules  in  running  and  using  said  car,  and 
that  said  company  knew,  or  could  have  known  by  the  use  of  ordinary 
care,  that  said  B.  was  in   the   habit  of  disobeying  the  rules  of  the 

80— Camp   v.   Wabash   R.   Co.,   94     Mo.  App.  272,  68  S.  W.  96  (97). 


1220  FORMS  OF  INSTRUCTIONS.  [§  1901. 

company  which  forbid  the  use  of  the  hand  ear  at  night  unless  by 
order  of  the   eomjDan}-. 

(d)  You  will  determine  from  all  the  facts  and  circumstances  in 
proof  whether  said  B.  was  a  disobedient  and  untrustworthy  servant, 
and  did  frequently  use  said  hand  car  when  forbidden  by  the  rules 
of  the  company,  and  that  the  company  did  know  or  could  have  known 
this  fact  lay  the  use  of  reasonable  diligence;  and  if  you  so  believe, 
then  j^ou  will  find  for  the  plaintiff,  if  said  car  was  negligently  run  and 
used,  and  did  thus  cause  the  injuries.  If,  upon  the  other  hand,  you  do 
not  so  believe,  you  should  find  for  the  defendant.  If  you  find  for  the 
plaintiff,  you  will  find  such  an  amount  as  damages  as  will  fairly  and 
justly  compensate  the  plaintiff  for  the  injuries  he  has  sustained.  In 
doing  this,  you  will  consider  the  pain  and  suffering  of  his  wife,  the 
value  of  the  loss  of  time  from  labor  caused  by  the  injury,  the  value 
of  any  impairment  she  has  suffered  to  labor  or  earn  wages,  and 
whether  tem20orary  or  permanent.  You  will  estimate  the  value  of 
the  injury  to  the  buggy  and  horse;  also  the  expenses  incurred  inci- 
dent to  her  injury,  such  as  doctor's  bill  and  medicine,  not  to  exceed 
the  several  amounts  sued  for  in  plaintiff's  petition. 

(e)  Negligence  is  the  failure  on  the  part  of  the  defendant,  while 
resting  under  a  legal  duty  or  obligation  to  the  plaintiff,  to  do  what 
an  ordinarily  prudent  and  careful  person  would  have  done  under 
the  fac+s  and  circumstances  surrounding  the  transaction  complained 
of,  or  the  doing  by  the  defendant,  while  resting  under  a  legal  duty  or 
obligation  to  the  jDlaintiff,  of  some  act  resulting  in  injury  to 
the  plaintiff,  which  an  ordinarily  prudent  and  careful  person,  under 
the  same  or  similar  circumstances,  would  not  have  done. 

(f)  The  jury  are  instructed  that  by  the  term  ''ordinary  care,"  as 
used  in  the  charge  of  the  court,  is  meant  such  care  as  an  ordinarily 
prudent  and  careful  person  would  have  exercised  under  all  the  facts 
and  circumstances  surrounding  the  transaction  under  investigation. 

(g)  The  jury  are  instructed  that  it  devolved  upon  the  plaintiff, 
J.  B.,  in  driving  his  buggy  to  a  railroad  crossing  on  one  of  the  streets 
of  the  city  of  N.  B.,  to  exercise  such  care  as  an  ordinarily  prudent 
and  careful  person  would  have  exercised  under  similar  circumstances; 
and  that  if  he  failed  to  exercise  such  care,  and  it  contributed  di- 
rectly and  proximately  to  producing  or  causing  the  injuries  com- 
plained of,  you  will  return  a  verdict  for  the  defendant.  In  this 
connection,  you  are  also  instructed  that  it  likewise  devolved  upon 
L.  B.,  plaintiff's  wife,  for  alleged  injuries  to  whom  he  seeks  dam- 
ages, also  to  exercise  ordinary  care  in  going  upon  the  crossing;  and 
if  from  the  evidence  you  believe  that  the  said  L.  B.  failed  to  exercise 
such  ordinary  care,  and  that  such  failure  on  her  part  contributed 
directly  and  pi'oximately  to  the  infliction  of  the  injuries  complained 
of,  you  will  return  a  verdict  for  the  defendant. 

(h)  The  jury  are  instructed  that  the  fact  that  the  defendant, 
after  the  happening  of  the  accident  complained  of,  did  not  discharge 
B.  for  using  the  hand  car  upon  his  own  business  at  the  time  men- 


§  1902.]  NEGLIGENCE— RAILROADS.  1221 

tioned  in  plaintiff's  petition,  does  not  prove  or  tend  to  prove  that  he 
was  using  the  same  in  furtherance  of  the  business  of  the  com- 
pany.*^ 

§  1902.  Care  Required  of  Travelers,  (a)  The  jury  are  instructed, 
as  a  matter  of  law,  that  both  the  plaintiff  (or  the  deceased)  and 
the  railway  company  had  an  equal  right  to  cross  the  street  at  the 
point  whex-e  the  accident  hajipened  and  that  the  law  imposes  upon 
both  parties  the  duty  of  using  reasonable  and  prudent  precautions  to 
avoid  accident  and  danger;  and,  while  it  was  incumbent  upon  the  rail- 
way company,  in  running  its  train  on  the  occasion  referred  to,  to  give 
the  required  signal  by  ringing  the  bell  or  sounding  the  whistle 
(eighty)  rods  before  reaching  the  crossing,  it  was  also  the  duty  of 
the  plaintiff  (or  deceased)  to  look  out  for  the  approach  of  the  train, 
and  to  observe  all  reasonable  precautions  before  attempting  to  cross 
the  track. 

(b)  Every  pei'son  is  bound  to  know  that  a  railroad  crossing  is  a 
dangerous  place,  and  he  is  guilty  of  neglect  unless  he  approaches  it 
as  if  it  were  dangerous.  And  if  the  jury  believe,  from  the  evidence, 
that  the  plaintiff  (or  the  deceased),  as  he  approached  the  railroad 
track,  did  not  look  or  listen  to  ascertain  if  a  train  was  coming,  and 
observe  all  reasonable  precautions  to  avoid  danger,  but,  on  the  con- 
traiy,  drove  directly  onto  the  track,  where  the  accident  happened, 
without  taking  any  steps  to  ascertain  if  a  train  was  approaching, 
then  he  was  guilty  of  such  negligence  as  precludes  a  recovery  in 
this  case,  unless  the  jury  believe,  from  the  evidence,  that  the  servants 
of  the  railway  company,  upon  such  occasion,  were  guilty  of  gross 
negligence,  as  explained  in  these  instructions.*- 

(c)  The  plaintiff'  was  bound  to  use  oi'dinaiy  care  under  the  cir- 
cumstances shown  to  have  existed  in  this  case.  He  was  bound  to 
approach  the  railroad  carefully,  and  to  look  and  listen  for  the  ap- 
proach of  trains ;  and  if  the  evidence  shows  that  he  did  this  with  that 
degree  of  care  that  an  ordinarily  prudent  person  would  have  exer- 
cised under  all  the  circumstances,  and  was  unable  to  hear  or  see  the 
train  ajDproaehing  until  it  was  too  late  to  avoid  the  collision,  then 
he  was  not  guilty  of  contributory  negligence. 

(d)  There  is  no  law  requiring  a  man,  in  the  lawful  use  of  a  public 
street  approaching  a  railroad  crossing,  to  stop  his  vehicle  before 
crossing,  but  he  is  bound  to  use  such  care,  under  all  the  circum- 
stances, as  a  man  of  ordinary  care  must  have  exercised  under  like 
circumstances;  and  if  you  find  that  H.  exercised  such  care  at  the 
time  of  and  preceding  the  injury,  he  was  not  guilty  of  contributory 
negligence. ^^ 

81 — Those    instructions    approved  Cent.,  47  N.  Y.  400;  Allyn  v.  Rail- 

iu     Infl    &     G.    N.    R.     R.     Co.     v.  road,  105  Mass.  77;  Belief ontaine  R. 

Branch,    29    Tex.    Civ.   App.    144,   68  Co.  v.  Hunter,  33  Ind.  353;  Pena.  R. 

S.  W.   33S.  Co.  v.  Beale,  73  Penn.  St.  504. 

82— Lake  S.  &  M.  S.  R.  Co.  v.  Mil-  83— Penn.  Co.  v.   Horton,  132  Ind. 

ler,  25  Mich.  274;  C.  &  N.  W.  R.  Co.  189,   31   N.   E.   45   (47). 

V.  Hatch,  79  111.  137;  Davis  v.  N.  Y.  "Counsel   for  the   appellant   con- 


1222  FORMS  OF  INSTRUCTIONS.  [§  1902. 

(e)  This  is  an  action  by  T.,  as  administrator  of  the  estate  of 
M.,  deceased,  to  recover  damages  for  the  death  of  the  latter,  and 
the  court  instructs  you  that  before  plaintiff:  can  recover  he  must 
show  that  the  deceased  M.  at  the  time  and  immediately  before  the 
accident  was  in  the  exercise  of  due  and  reasonable  care  for  his 
safety,  for  the  law  requires  that  all  persons  about  to  cross  or  step 
upon  railroad  tracks  shall  exercise  such  care  and  caution  for  their 
safety  as  prudent  and  careful  men  would  properly  exercise  under  the 
circumstances ;  and  if  you  find,  from  the  evidence,  that  M.,  the  de- 
ceased, either  walked   upon  or  attempted   to  cross  the  tracks  upon 

which  he  was  killed  without  exercising-  such  care  and  caution  for  his 
safety  as  a  reasonably  prudent  man  under  all  the  circumstances 
would  have  exercised,  and  that  his  failure  to  exercise  such  care  and 
caution  materially  contributed  to  the  accident,  then  your  verdict  must 
be  for  the  defendant.** 

(f)  If  the  jury  should  find  that  the  defendant  was  negligent,  and 
should  also  find  that  the  deceased,  H.,  was  himself  guilty  of  negli- 
gence which  directly  and  proximately  caused  or  contributed  to  the 
accident,  then  the  plaintiff  cannot  recover,  and  you  will  find  for  the 
defendant. 

(g)  It  was  the  duty  of  H.  in  going  along  S.  street  to  exercise 
such  caution  and  care  to  avoid  being  injured  while  crossing  the 
railroad  tracks  as  a  person  of  ordinary  prudence  would  have  ex- 
ercised with  reference  to  a  similar  matter  under  similar  circum- 
stances, and  if  he  failed  to  do  so,  it  was  negligence  on  his  part.^^ 

(h)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  at  the  time  of,  and  immediately  before,  the  collision 
between  the  car  and  plaintiff's  wagon,  the  plaintiff,  by  the  exercise 
of  ordinary  care  in  looking  out  for  the  approach  of  a  car  on  the 
east  track  of  the  defendant's  line,  could  have  avoided  said  collision, 
and  that  he  omitted  to  use  such  care  up  to  the  time  of  such  collision, 
and  that  his  said  omission  directly  contributed  to  produce  the  said 
collision,  then  your  verdict  should  be  for  the  defendant. 

(i)      The    court    instructs    the    jury    that    if    they    find    fi'om    the 

cede  the  law  to  be  as  laid  down  in  cumstances  to  have  shown  him  to 

these    instructions    as   an    abstract  be  in   the  exercise   of  due  care,   it 

proposition,    but    insist   that    when  was    not    necessary,    nor   would    it 

applied    to   the   facts   of   this   case,  have  been  proper,  for  the  court  to 

they  were  too  general  and  indefinite  have   entered   into   a   discussion   of 

and  such  as  tended  to  mislead  the  the    facts.      The    court    stated    the 

jury.     We  are  satisfied  that  these  law   to   the   jury  applicable   to   the 

instructions  were  not  only  correct  case,    and    left    it    to    them    to   de- 

as    abstract    propositions    of    law,  termine  from  the  evidence  whether 

but  that,  when  taken  in  connection  there   had   been   negligence   on   the 

with    the    other    instructions,    they  part    of    the    plaintiff    contributing 

correctly   and   fairly  submitted  the  to    the   injury." 

questions    of    law    involved    in    the  84— Chi.,   M.   &  St.   P.   Ry.   Co.  v. 

case    to   the   jury.     The   objections  O'Sullivan,  143  111.  48  (51),  32  N.  E. 

urged    to    these    charges    are    that  398. 

they   do    not   state    any   facts,    nor  85— Tex.  &  P.  Ry.  Co.  v.  Hagood, 

:ulv<se   the  jury   what   the  appellee  21  Tex.  Civ,  App.  442,  52  S.  W.  574 

should    have    done    under   the    cir-  (575). 


§  1903.]  NEGLIGENCE— RAILROADS.  1223 

evidence  that  by  exercising  ordinary  care  plaintiff,  up  to  the  moment 
of  the  said  collision  of  his  wagon  and  the  car,  could  have  avoided 
said  collision,  and  that  the  collision  occurred  because  plaintiff  failed 
to  exercise  such  ordinary  care  to  avoid  it,  then  your  verdict  should 
be  for  the  defendant,  even  though  you  may  further  find  from  the 
evidence  that  the  defendant's  employes  in  charge  of  the  car  in 
question  were  also  guilty  of  negligence  in  any  of  the  particulars 
charged  or  alleged  by  the  plaintiff  in  this  case.*® 

§  1903.  High  Rate  of  Speed  Will  Not  Excuse  Want  of  Ordinary 
Care.  You  are  instructed  that,  although  you  may  find  from  the 
evidence  that  the  defendant's  train  of  cars  was  running  at  a  high 
or  excessive  rate  of  speed,  that  would  not  excuse  or  overcome  the 
negligence  of  the  deceased,  if  he  was  negligent,  in  attempting  to 
cross  the  railroad  track  in  front  of  a  rapidly  approaching  train 
without  first  looking  and  listening.®'' 

§  1904.  Failure  to  Have  Gate-keeper  Required  By  Ordinance  Will 
Not  Excuse  Traveler  From  Using  Ordinary  Care.  The  court  in- 
structs the  jury  that,  although  you  may  believe  from  the  evidence 
that  an  ordinance  of  the  city  of  D.  required  the  defendant  to  have 
a  gate  at  the  C.  street  crossing,  with  a  man  in  charge  of  the  same, 
and  to  lower  said  gate  whenever  a  ti'ain  attempted  to  ci'oss  said 
street,  and  although  you  may  believe  from  the  evidence  that  the 
defendant  company  failed  to  provide  said  gate-keeper  at  the  cross- 
ing in  question,  or  to  have  said  gate  lowered  on  the  occasion  of  the 
accident,  and  although  you  may  believe  that  the  defendant  company 
failed  to  have  at  the  front  of  the  train  as  it  approached  said  crossing 
a  light  or  to  signal  its  approach  by  bell  or  otherwise,  yet  the  said 
failures  on  the  part  of  the  company  did  not  relieve  the  plaintiff's 
intestate,  R.,  from  exercising  care  and  caution  in  attempting  to  avoid 
injury  from  the  approaching  train;  that  it  was  the  duty  of  said  R. 
before  attempting  to  cross  said  track,  or  while  standing  on  or  near 
said  track,  to  look  in  both  directions,  and  to  listen  for  approaching 
trains;  and  that  if  said  R.  stepped  upon  said  track  without  looking 
and  listening,  or  stood  in  such  close  proximity  to  said  track,  without 
looking  and  listening,  as  to  be  struck  by  said  train,  then  said  R.  was 
guilty  of  such  contributoiy  negligence  as  precludes  any  recovery,  and 
the  jury  must  therefore  find  for  the  defendant. ®® 

§  1905.  Failure  to  Give  Signals  Does  Not  Excuse  Traveler  From 
Using  Ordinary  Care.  The  court  instructs  the  jury  that  when  the 
railroad  company  fails  to  give  the  statutory  signals,  this  will  not 
excuse  the  traveler  from  using  ordinary  care  at  a  highway  crossing. 

(b)  There  is  no  rule  of  law  which  relieves  or  absolves  a  person 
from  looking  out  for  the  train  when  he  goes  to  cross  the  track, 
though   no   whistle   may  blow   or  bell   ring.     The   traveler  must   use 

86— Schafstette    v.     St.    Louis    &  L.  Ry.  Co.,  60  Ohio  St.  215,  54  N.  E. 

M.  R.  R.  Co.,  175  Mo.  142,  74  S.  W.  89  (91). 
826  (830).  88— Rangeley's  Adm'r  v.    So.   Ry. 

87— Schweinfurth  v.  C.  C.  C.  &  St.  Co.,  95  Va.  715,  30  S.  E.  386. 


1224  FORMS  OB"  INSTRUCTIONS.  [§  1906. 

ordinary  care,  and  that  involves  the  use  of  all  his  senses,  and  it  is 
for  the  jury  to  determine,  whether,  under  the  circumstances  of  each 
particular  case,  the  traveler  used  reasonable  eare.^^ 

(e)  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  the  plaintiff  could  have  discovered  the  approaching 
train  by  the  exercise  of  ordinary  care,  in  time  to  have  enabled  her 
to  avoid  the  accident  by  the  exercise  of  ordinary  care  on  her  part, 
and  that  she  did  not  exercise  such  care,  you  will  find  the  defendant 
not  guilty.^" 

(d)  If  you  find  that  at  the  time  of  and  just  preceding  the  injury 
A.  approached  the  railway  crossing,  and  could,  by  looking  in  the 
proper  direction,  have  seen  the  train  coming  towards  him  in  time  to 
have  avoided  the  injury,  although  the  engineer  gave  no  warning  of 
his  approach  by  ringing  the  engine  bell  or  otherwise,  and  though  the 
train  was  running  fifteen  or  twenty  miles  an  hour,  still  your  verdict 
must  be  for  the  defendant ;  for,  if  you  find,  under  such  circumstances, 
A.  omitted  to  look  for  the  train,  he  was  guilty  of  such  negligence 
as  deprives  him  of  the  right  to  recover.''^ 

§  1906.  Flagman's  Signal  to  Cross  Will  Not  Excuse  Want  of 
Ordinary  Care.  The  jury  are  instructed,  as  a  matter  of  law,  that 
under  the  evidence  in  this  case,  the  plaintiff  is  not  entitled  to  recover 
even  if  the  jury  believe,  from  the  evidence,  that  the  flagman  sig- 
nalled to  him  to  come  across  the  track,  and  if  the  jury  also  believe, 
from  the  evidence,  that  no  bell  was  rung  or  whistle  sounded,  pro- 
vided the  juiy  believe,  from  the  evidence,  that  the  plaintiff  did  not 
exercise  ordinary  and  reasonable  care  under  all  the  circumstances  as 
shown  by  the  evidence  to  discover  the  approach  of  the  train  and 
prevent  being  injured.^- 

§  1907.  Voluntarily  Crossing  Over  to  a  Place  of  Danger.  The  jury 
is  charged  tliat  if  you  believe  from  the  testimony  that  plaintiff,  C, 
crossed  over  to  the  southeast  side  of  defendant's  track  and  train 
in  H.  at  the  time  he  was  injured  in  full  view  of  defendant's  running 
trains  on  the  switches  and  side  tracks  at  H.,  and  if  you  believe  that 
plaintiff  voluntarily  went  across  said  track  into  a  place  of  danger, 
knowing  that  the  place  he  went  was  not  a  place  where  defendant 
usually  received  and  discharged  passengers  in  H.,  and  knowing  that 

8&— Edwards  v.  So.  Ry.  Co.,  63  S.  icism  is  made  of  other  instructions, 

C.  271,  41  S.  E.  458  (459).  but,    as    no    objections   were   made 

90 — C.  &  E.  I.  R.  R.  Co  V.  Zapp,  to  them  upon  the  trial,  we  cannot 

110  111.   App.   553   (556),   affd  209  111.  consider    them    now.      Taken    as    a 

339,  70  N.  E.  623.  whole,    the   instructions   were  quite 

91— Penn.  Co.  v.  Horton,  132  Ind.  favorable  to  the  defendant." 

189.   31  N.  E.  45  (47).  92— C.    R.    I.     &    P.     Ry.     Co.     v. 

"This  instruction  was  pertinent  to  Clouprh.   134   111.   5S6   (595),  25  N.   E. 

the    theory    of   the    defense.     That  664,  29  N.  E.  184. 

the    plaintiff    might,     by    looking,  "This  instruction   stated  the  law 

have    seen    the   approaching    train,  in  substantial  conformity  with  the 

was    not    objectionable    on    account  views  heretofore  expressed  by  this 

of  the  omission   of  the  elements  of  court.     See  C.   St.  L.  &  P.   Ry.  Co. 

listening,  which  wns  fully  treated  v.  Hutchinson,  120  111.  587,  11  N.  E. 
of  In  other  Instructions.    Some  crit — '855,  and  authorities  there  cited.'- 


§  1908.]  NEGLIGENCE— RAILROADS.  1225 

the  usual  place  for  receiving  passengers  for  defendant  was  safe; 
and  if  plaintiff,  after  crossing  said  main  track,  failed  to  see  or 
hear  the  movement  of  said  cars  in  time  to  avoid  injuiy;  and  if  you 
further  believe  that  such  conduct  on  the  part  of  plaintiff  was  negli- 
gent on  his  part,  and  that  it  was  not  such  care  and  prudence  as 
would  have  been  exercised  by  a  person  of  ordinaiT  prudence  and  care 
under  the  circumstances;  and  if  you  believe  also  that  such  negligence 
of  plaintiff  contributed  to  his  injury,  then  plaintiff  is  not  entitled 
to  recover  in  any  sum,  and  you  will  find  a  verdict  for  the  de- 
fendant, even  though  you  should  find  that  defendant  was  also  negli- 
gent.^^ 

§  1908.  Track  Itself  is  a  Proclamation  of  Danger.  While  it  is  the 
duty  of  the  defendant  receivers  to  give  notice  of  the  approach  of  its 
trains  to  a  crossing,  by  the  ringing  of  its  bell,  the  blowing  of  the 
whistle  or  otherwise,  and  that  its  failure  to  give  such  notice  is  negli- 
gence, there  are  also  reciprocal  duties  imposed  on  the  plaintiff's 
intestate;  that  a  traveler  cannot  go  upon  the  track  even  at  a  public 
crossing,  without  exercising  ordinary  care  and  caution,  that  the  track 
itself  is  a  proclamation  of  danger,  and  that  it  is  the  duty  of  anyone 
going  upon  it  to  use  his  eyes  and  ears.  He  should  look  in  either 
direction  from  which  the  train  could  come  and  listen  to  ascertain 
if  it  is  approaching,  and  if  his  faculties  warn  him  of  the  near 
approach  of  a  train  it  is  his  duty  to  keep  off  the  track;  and  if  a 
traveler  fails  to  so  look  and  listen,  as  duty  requires  of  him,  and 
attempts  to  cross  the  track  in  front  of  a  moving  train,  and  is  caught 
before  he  can  get  across,  and  killed,  his  own  act  and  his  own 
negligence  so  contributed  to  the  injury  that  a  recovery  therefor  can- 
not be  sustained,  and  the  jury  must  find  for  the  defendant.''* 

§  1909.  Person  Must  Use  His  Faculties  in  Proportion  to  the  Known 
Danger,  (a)  The  court  instructs  the  jury  that  he  must  use  his 
faculties  in  proportion  to  the  danger  impending,  and  should  look  and 
listen  before  attempting  to  ei'oss,  provided  you  find  that  an  ordinary 
prudent  man  under  the  same  circumstances  would  do  that.'''' 

(b)  You  are  charged  that  it  was  the  duty  of  the  deceased,  as  he 
approached  the  said  crossing  just  before  the  time  of  the  accident  which 
resulted  in  his  death,  both  to  listen  for  and  looTi  in  the  direction 
from  which  the  train  approached,  to  ascertain  if  any  train  was  ap- 
proaching, and  it  was  his  duty  to  continue  to  so  look  and  listen  until 
he  had  crossed  said  railroad.  The  failure  of  the  company,  if  it  did 
fail,  to   ring  the  bell,  sound   its   whistle,   or  give   any  alarm   of  its 

93— St.    Louis    S.    W.    Ry.    Co.    of  &  T.  R.  Co.  v.  McGlamory,  89  Tex. 

Tex.    V.    Casseday,    92    Tex.    525,    .50  639.  35  S.  W.  1058;  G.  C.  &  S.  F.  R. 

S.  W.  125.  Co.    V.    Shieder,    88   Tex.    152,    30    S. 

"We  are  of  the  opinion  that  this  W.   902." 

special   charge   applied    the   law  to  94 — Kimball  v.  Frind's  Adm'x,  95 

the  very  facts  of  the  case,  and  that  Va.  125,  27  S.  E.  901  (902). 

it  was  error  to  refuse  it,  for  which  95 — Edwards    v.    So.    Ry.    Co.,    63 

the   judgment   must     be     reversed,  S.  C.  271,  41  S.  E.  458  (459). 
and  the  cause  remanded.     Mo.   K, 


1226  FORMS  OF  INSTRUCTIONS.  [§  1910. 

approach,  did  not  relieve  the  deceased  from  the  obligations  to  per- 
form the  said  duty  of  listening  and  looking,  and  if  the  said  de- 
ceased, as  he  approached  said  crossing,  by  the  use  of  his  senses  of 
sight  and  hearing  in  looking  and  listening  for  the  approach  of  the 
said  train,  could  have  discovered  that  it  was  approaching,  and  have 
avoided  said  collision,  then  the  plaintiffs  cannot  recover  in  this 
ease. 

(c)  If  without  so  looking  and  listening  for  an  approaching  train, 
a  person  attempts  to  cross  a  railroad  track,  and  is  injured  by  a 
passing  train,  his  own  careless  conduct  is  deemed,  in  law,  to  have 
assisted  in  bringing  about  the  injury,  and  he  cannot  complain  of 
the  other  party  concerned  in  the  transaction,  even  though  such  other 
party  may  also  have  been  negligent.^*^ 

(d)  The  court  instructs  the  jury  that  if  you  believe  and  find  from 
the  evidence  in  this  case  that  the  plaintiff  and  the  person  driving 
the  vehicle  in  which  plaintiff  was  riding  had  knowledge  of  the  fact 
that  a  train  of  cars  was,  at  the  time,  in  the  switchyards  at  P.,  Mis- 
souri, and  with  such  knowledge  approached  the  railroad  crossing  at 
W.  street,  in  said  city  of  P.,  then  it  became  the  duty  of  plaintiff, 
before  undertaking  to  cross  the  railroad  tracks  at  said  W.  street 
crossing,  either  by  her  sense  of  hearing  or  by  her  sense  of  sight  to 
determine  whether  or  not  any  train  of  cars  was  about  to  cross  said 
street  at  said  crossing  before  undertaking  to  cross  the  same,  and,  if 
necessary,  to  stop  at  such  distance  before  reaching  said  crossing  as 
would  enable  her  to  determine  this  fact;  and  if  you  find  and  believe 
from  the  evidence  that  she  failed  to  do  so,  then  your  finding  must 
be  for  the  defendant. 

(e)  The  admitted  facts  in  this  case  disclose  that  from  the  north 
rail  of  the  main  track  to  the  north  rail  of  the  L.  &  S.  track  the 
distance  was  13  feet  4  inches.  If,  therefore,  the  jury  believe  from 
the  evidence  that  without  any  lights  a  person  in  the  exercise  of 
ordinary  care  could  have  seen  a  moving  box  car  at  the  rear  of  de- 
fendant's train,  at  such  a  distance  therefrom  as  to  be  able  to  stop 
and  avoid  a  collision,  then  it  was  the  duty  of  plaintiff,  before  passing 
over  defendant's  main  track,  to  stop  at  a  reasonable  distance  there- 
from for  the  purpose  of  learning  of  the  approach  of  said  train  and 
preventing  a  collision.  If  she  failed  to  do  so,  and  by  reason  thereof 
caused  or  contributed  to  the  injuries  complained  of,  she  is  not  entitled 
to  recover  in  this  action.^''^ 

§  1910.  Duty  of  Person  Crossing  Tracks  to  Stop,  Look  and  Listen, 
(a)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  it  may 
be  tlie  duty  of  a  person  approaching  the  crossing  of  a  railroad, 
with  a  wagon  and  team,  along  a  highway,  to  stop,  to  listen  and  to 

9G— Olson  v.  Oregon  S.  L.  R.  Co.,  fined  plaintiff's  duty  as  to  stopping, 

24   Utah   460,   68   Pac.   148   (152).  loolcing,    and    listening    before    en- 

97— Montgomery  v.   Mo.  Pac.  Ry.  tering  upon  the  crossing,  and  were 

Co.,  181   Mo.  508,  79  S.  W.  930  (932,  as    favorable   as    defendant   had   a 

936).  right  to  ask." 

"The  above  instructions  fully  de- 


§  1910.]  NEGLIGENCE— RAILROADS.  1227 

look  both  ways  along  the  railroad  before  going  upon  it.  If,  from 
a  rise  in  the  ground  or  other  obstructions,  or  if,  by  reason  of  a 
defect  of  his  sense  of  sight  or  hearing,  he  cannot  determine  with 
certainty  whether  or  not  a  train  of  cars  is  approaching  without 
stopping,  and,  if  necessary,  going  in  advance  of  his  team  to  examine, 
it  is  his  duty  to  do  so.  If,  in  such  case,  he  goes  upon  the  track 
without  taking  such  precaution,  he  does  so  at  his  own  peril,  and 
cannot  recover,  if  injury  results. ^^ 

(b)  If  the  jury  believe  that  tiie  train  was  running  beyond  the 
rate  of  eight  miles  an  hour,  that  no  bell  was  ringing  or  other  signal 
given  of  the  approach  of  the  train  to  the  crossing,  still  this  or  any 
other  negligence  of  the  defendant  did  not  excuse  plaintiff  from  the 
use  of  the  proper  care  for  his  safety.  It  was  his  duty  to  have 
looked  and  listened  all  the  time  until  he  reached  the  crossing;  and, 
if  his  failure  to  do  so  was  the  proximate  cause  of  his  injury,  the 
answer  to  the  second  issue  should  be,  *'Yes.  "^^ 

(c)  A  person  about  to  cross  the  track  of  a  railroad,  upon  a 
public  highway,  is  bound  to  exercise  all  reasonable  care  and  caution 
to  avoid  injury  upon  the  crossing.  In  his  approach  to  the  crossing, 
it  may  be  incumbent  upon  him  to  exercise  care  and  caution  by 
stojDping,  looking  and  listening  for  any  train  that  may  be  approach- 
ing, so  as  to  avoid  a  collision;  otherwise  he  cannot  recover  for  an 
injury  so  received,  unless  it  appears  that  the  injuiy  was  inflicted 
willfully  or  wantonly.^"" 

(d)  And,  on  the  other  hand,  it  was  the  duty  of  S.,  in  attempting 
to  cross  or  walk  upon  defendant's  track,  to  have  exercised  that  de- 
gree of  care  and  prudence  that  an  ordinarily  careful  and  prudent 
person  of  his  age  and  intelligence,  under  like  circumstances,  would 
have  exercised,  and  a  failure  to  exercise  such  a  degree  of  care  and 
prudence   would  render  him   guilty  of  negligence.^ 

(e)  The  jury  are  instructed  that  if  they  believe,  from  the  evi- 
dence, that  the  said  A.  B.  was  guilty  of  negligence,  which  materially 
contributed  to  the  accident,  by  driving  upon  the  track  of  the  rail- 
road without  first  looking  and  listening  to  see  if  a  train  was  ap- 
proaching, then  the  defendant  cannot  be  found  guilty  in  this  case, 
unless  the  jury  believe,  from  the  evidence,  that  the  defendant's 
servants  were  guilty  of  gross  negligence,  which  caused  the  accident. 
And  the  jury  are  instructed,  that  in  this  connection  gross  negligence 
means  a  willful  act  or  omission,  or  one  which  shows  a  reckless  dis- 
regard of  life  or  property. 

(f)  The  court  further  instructs  the  jury,  that  while  a  traveler 
on  the  highway  is  not  required  to  leave  his  wagon,  or  to  use  any 
other   unusual   means   to    discover  an   approaching   train,   he    cannot 

98— C.   B.   &  Q.   R.   Co.  v.  Lee,  87  Co.,   50    Cal.    482;    Toledo,    etc.,    Rd. 

111.   454;    Dolan  v.    Delaware,   71  N.  Co.  v.  Shuckman,  50  Ind.  42;  Haines 

Y.   285.  v.   111.   C.  R.   Co.,  41   Iowa  227. 

99— Norton   v.    N.    C.    R.    Co.,   122  1— Schmitt   v.    Mo.    Pac.   Ry.    Co.. 

N.  C.  910,  29  S.  E.  886  (889).  160  Mo.   43,   63  S.  W.  1043. 

100 — Hearne  v.  Southern,  etc.,  Rd. 


1228  FORMS  OF  INSTRUCTIONS.  [§  1911. 

voluntarily  close  his  eyes  to  danger,  or  needlessly  expose  himself  to 
it,  and  then  claim  compensation  for  an  injury  thus  received.  And 
if  the  jury  believe,  from  the  evidence,  that  the  said  A.  B.,  if  he  had 
looked,  could  have  seen  the  approaching  train,  for  a  distance  of, 
etc.,  before  the  train  reached  the  crossing,  and  that  either  he  did  not 
look,  or  else  paid  no  attention  to  the  train,  but  went  upon  the  track 
while  the  train  was  approaching,  and  so  near  to  the  crossing  as 
to  cause  the  accident,  then  he  was  guilty  of  gross  negligence,  and 
cannot  recover  in  this  suit." 

(g)  If  you  find  and  believe  from  a  preponderance  of  the  evidence 
in  this  cause  that  B.  failed  to  look  and  listen  for  cars  before  going 
upon  the  track  where  he  was  killed;  and  if  you  believe  such  failure 
to  look  and  listen  for  approaching  cars  was  negligence  on  the  part 
of  the  said  B.,  as  the  same  is  hereinbefore  defined;  and  if  you  be- 
lieve that  the  said  B.,  by  so  looking  or  listening,  could  have  dis- 
covered the  approaching  cars,  you  will  find  for  the  defendant. 

(h)  If  you  believe  from  a  prei^onderanee  of  the  evidence  that  the 
said  B.  attempted  to  cross  the  defendant's  track  in  front  of  the 
moving  cars,  and  that  he  was  thereby  run  over  and  killed  by  the  cars 
of  defendant;  and  if  you  believe  that  the  said  B.,  in.  so  attempting 
to  cross  said  track,  was  guilty  of  negligence  as  the  same  is  herein- 
before defined,  you  will  find  for  the  defendant. 

(i)  Gentlemen  of  the  jury,  in  response  to  your  inquiry  made 
verbally  in  open  court,  you  are  charged  that,  if  you  find  and  believe, 
from  a  preponderance  of  the  evidence,  that  the  agents  and  employes 
of  the  defendant  were  guilty  of  negligence  in  running  over  and  kill- 
ing the  said  B.,  and  you  further  believe,  from  a  preponderance  of  the 
evidence,  that  the  said  B.  was  himself  guilty  of  negligence  in  going 
upon  and  being  upon  the  track  of  the  railroad  at  the  time,  and  if  you 
believe  that  such  negligence  on  the  part  of  the  said  B.  contributed 
proximately  to  his  death,  then,  if  such  you  find  the  facts  to  be,  the 
plaintiff  cannot  recover,  and  should,  if  you  so  find,  return  a  verdict 
for  the  defendant  railroad  company.^ 

§  1911.     Failure  of  Person  at  Crossing  to  Stop,  Look  and  Listen. 

(a)  If  the  jury  believe  the  train  was  running  beyond  the  rate  of 
eight  miles  an  hour,  that  no  bell  was  ringing  or  other  signal  given  of 
the  approach  of  the  train  to  the  crossing,  still  this  or  any  other  neg- 
ligence of  the  defendant  did  not  excuse  the  plaintiff  from  his  use  of 
the  proper  care  for  his  own  safety;  he  should  have  looked  and  listened 
all  the  time,  until  he  reached  the  crossing,  and,  if  his  failure  to  do 
either  was  the  cause  of  his  injury,  the  answer  to  the  second  issue 
should  be,  "Yes." 

(b)     When  the  plaintiff  saw  the  freight  cars  on  the  siding  cut  off 

2 — Rockford,     etc.,     Rd.      Co.     v.      Fletcher  v.  Atlantic,  etc.,  Rd.  Co., 
Byam,   80  111.   528;   Benton  v.   Cent.      64   Mo.   484. 

Rd.  Co.,  42  la.  192;  Cleveland,  etc.,  3— Lumsden  v.  C.  R.  I.  &  P.  Ry. 
Rd.  Co.  v.  Elliott,  28  Ohio  St.  340;      Co.,  31  Tex.  Civ.  App.  604,  73  S.  W. 

428. 


§  1912.]  NEGLIGENCE— RAILROADS.  1229 

his  view  of  the  main  line  of  the  defendant's  road,  it  was  his  duty  to 
stop  and  listen  carefully  immediately  before  entering  upon  the  cross- 
ing of  the  defendant's  road;  and  if  he  had  failed  to  do  so,  and  that 
was  the  proximate  cause  of  the  injuiy,  the  answer  to  the  second  issue 
should  be,  "Yes." 

(e)  If  the  jury  believe  that  the  defendant  was  ringing  its  bell  as 
it  approached  the  crossing,  and  continued  to  ring  it  up  to  the  cross- 
ing, or  to  a  point  where  it  would  have  given  the  plaintiff  Avarning  of 
the  approach  of  the  train,  if  he  had  been  exercising  proper  care,  the 
answer  to  the  first  issue  should  be,  "No."* 

(d)  If  the  jury  believe  from  the  evidence  that  ordinary  care  on 
the  part  of  B.  for  his  own  safety  required  him,  before  driving  to  or 
upon  the  track  parallel  with  the  track  ujDon  which  he  had  been  driv- 
ing, at  the  time  and  place  in  question,  and  under  all  the  circum- 
stances in  evidence,  to  look  and  ascertain  whether  or  not  a  car  was 
approaching  along  the  north-bound  track,  and  not  to  drive  upon  said 
track  without  so  looking,  and  if  the  jury  believe,  from  the  evidence, 
that  B.  if  he  had  looked,  could,  by  the  exercise  of  ordinary  care,  have 
ascertained  whether  or  not  a  ear  was  approaching  along  the  said 
north-bound  track,  and  if  the  jury  further  believe,  from  the  evidence, 
that  B.  did  not  so  look  and  ascertain  whether  or  not  the  car  was  so 
approaching,  and  that  he  was  injured  in  consequence,  and  because  of, 
his  failure,  if  he  did  so  fail  to  look  and  ascertain,  then  the  court  in- 
structs the  jury  to  find  the  defendant  not  guilty.^ 

(e)  It  is  the  duty  of  a  person  approaching  a  railroad  crossing  to 
look  and  listen  for  approaching  trains.  This  duty  requires  him  to 
look  in  every  direction  from  which  he  knew  a  train  might  approach, 
and  continue  on  his  guard  until  the  danger  is  passed;  and  when,  by 
the  due  exercise  of  care  in  this  respect,  the  danger  could  have  been 
discovered  and  avoided,  no  recovery  can  be  had.  Therefore,  if  you 
find  from  the  evidence  in  this  case  that  the  plaintiff's  intestate,  T., 
started  and  went  on  to  the  crossing  without  looking  in  the  direction 
from  which  the  train  came,  after  he  started  to  go  across  the  track, 
when,  by  looking  he  could  have  seen  the  train  approaching  and 
avoided  the  injury,  then  he  was  guilty  of  contributoi-y  negligence 
which  bars  a  recovery,  and  your  verdict  must  be  for  the  defendant.' 

§  1912.  Failure  to  Select  the  Best  Place  to  Stop,  Look  and  Listen, 
(a)  There  is  evidence  that  plaintiif  stopped  at  the  first  track  of  the 
D.  and  N.  road  to  look  and  listen.  If  so,  and  he  did  not  exercise  such 
care  and  diligence  in  the  selection  of  the  proper  place  to  stop  and 
listen,  under  all  the  circumstances,  as  were  reasonable,  and  a  failure 
to  do  so  was  the  proximate  cause  of  his  injury,  then  you  answer  the 
second  issue,  "Yes." 

4— Norton  v.  N.  C.  R.  Co.,  122  N.  C.  &  E.  L  R.  R.  Co.  v.  Storment, 

C.   910,  29  S.   E.  886  (888).  190  111,  42,  60  N.   E.  104."       Chicago 

5— "Should  have  beea  submitted.  C.   R.  Co.  v.  O'Donnoll,  208  111.  267 

Mallen    v.    Waldowski,    203    111.    87,  (275),  70  N.  E.  294  (477). 
67  N.  E.  409;  C.  B.  &  Q.  R.  Co.  v.         6— Tiffin  v.  St.  L.  I.  M.  &  S.  Ry. 

Camper,  199  111.   569,   65  N.   E.  448;  Co.,  78  Ark.  55,  93  S.  W.  564  (566). 


1230  FORMS  OF  INSTRUCTIONS.  [§  1913. 

(b)  If,  however,  you  find  that  this  was  not  the  best  place  to  have 
stopped,  but  that  if  a  better  place  had  been  selected,  and  by  reason  of 
defendant's  failure  to  ring  the  bell  or  blow  the  whistle  and  the  ob- 
struction of  the  box  cars  plaintiff  could  not  have  seen  or  heard  from 
such  better  position,  and  such  negligence  of  the  defendants,  if  you 
find  that  there  was  such,  was  the  proximate  cause  oi  the  injury  to  the 
plaintiff,  you  should  answer  the  second  issue,  '^No.  "^ 

§  1913.  Evidence  of  Constant  Habit  to  Stop,  Look  and  Listen. 
Evidence  has  been  submitted  here  that  it  has  been  the  constant  habit 
of  C.  for  many  years  to  stop  or  check  his  horse  on  approaching  the  W. 
crossing,  and  look  and  listen  for  approaching  ti'ains.  The  reason  for  ad- 
mitting such  evidence  in  this  class  of  cases  is  that  a  man  is  apt  to 
do  by  force  of  habit  that  which  it  is  his  fixed  and  constant  practice  to 
do  under  the  same  circumstances.  You  are  to  consider  C. 's  habit  of 
looking  and  listening  at  this  crossing  only  as  having  some  tendency  to 
show  that  he  checked  his  horse,  looked  and  listened  on  the  night  of 
the  accident  as  usual.  Upon  all  the  evidence  whether  he  did  or  not 
act  that  night  according  to  his  habit  is  for  you  to  say.^ 

§  1914.  When  Duty  to  Look  and  Listen  is  Excused.  It  is  the  duty 
of  one  approaching  a  known  railway  crossing  to  look  along  the  line 
of  the  railroad  track,  and  see  if  any  train  is  approaching,  and  if  he 
fails  to  take  this  precaution,  and  goes  on  the  track,  this,  under  ordi- 
nary circumstances,  would  be  negligence.  If,  however,  in  this  case, 
you  shall  find  from  the  evidence  that  the  deceased  was  thrown  off  his 
guard  and  induced  to  refrain  from  taking  this  precaution,  by  seeing 
the  defendant's  engine  pass  the  crossing  immediately  before  he 
stepped  upon  the  railroad  track,  I  will  submit  to  you  the  question 
•whether  or  not,  under  all  the  circumstances  then  surrounding  the  de- 
ceased, he  was  guilty  of  negligence.^ 

"It  has  been  repeatedly  held  by  must  take  such  precaution  as  could 

this  court  that  it  is  negligence  for  reasonably  be  expected  of  an  ordi- 

one  approaching  a  railroad  crossing  narily    prudent   person    under    like 

to   fail   to   look   and   listen   for   the  circumstances.      It     is     upon     this 

approach  of  trains,   and  that  only  reason  that  the  requirement  to  look 

in    exceptional    cases    is    it    proper  and  listen  is  based.     So  far  as  the 

to  submit  to  the  jury  the  question  precaution   would   be    useless   it   is 

whether  or  not  the  failure  to  exer-  not   required.     Whether  reasonable 

cise  such  caution  is  negligence.  L.  caution   was   exercised   by   the   in- 

R.  &  Ft.  S.  Ry.  Co.  v.  Blewitt,  65  testate    in    approaching    depended 

Ark.  235,  45  S.  W.  548;  St.  L.   &  S.  upon  the  nature  and  extent  of  his 

F.    R.   R.   Co.   V.   Crabtree,   69   Ark.  knowledge    of    facts,    and    his    op- 

Vjo,  62  S.  W.  64;  St.  L.  I.  M.  &  S.  portunity  for  knowledge.     He  was 

Ry.   Co.  V.   Hitt,  76  Ark.  224,  88  S.  required   to   act   like   an   ordinarily 

W.   911."  prudent  man.    A  prudent  man's  at- 

7 — Norton  v.  N.  C.  R.  Co.,  122  N.  tcntion  may  be  diverted  so  that  he 

C.  910,  29  S.  E.  886  (890).  will  fail  to  look  and  listen,  and  the 

8 — Smith  V.   Boston  &   M.   R.  R.,  evidence  may  be  such  as  to  make 

70  N.  H.  53,  47  Atl.  290  (291),  85  Am.  it  proper  to   leave  to  the  jury  the 

St.  596.  question  whether  it  was  negligence 

9 — Chicago     &   K.    I.    R.     Co.    v.  for  him  to  so  fail.     There  may  be 

Hedges,  105  Ind.  398,  7    N.    E.    801  circumstances     w'hich     excuse     the 

(804).  taking     of    the    usually    necessary 

"A  person  thus  about  to  cross  a  precaution  of  looking  and  listening. 

railroad,  to  be  free  from  negligence,  See  Peuu.  Co.  v.  Rudel,  100  111.  603; 


§  1915.]  NEGLIGENCE— RAILROADS.  1231 

§  1915.  Crossing  Track  Swiftly  on  Bicycle  without  Looking  and 
Listening.  If  you  believe  from  the  evidence  that  the  said  engine  ajj- 
proached  said  crossing  without  blowing  a  whistle  for  said  crossing 
or  ringing  its  bell,  and  if  the  gong  at  said  crossing  failed  to  ring,  and 
that  such  conduct  was  negligence  on  the  part  of  the  railroad  com- 
pany, and  further  believe  that  the  said  F.  came  out  of  the  cut,  towards 
the  crossing,  at  a  fast  rate  of  speed,  on  a  bicycle,  that  he  did  not  look 
nor  listen,  and  that  the  said  bicycle  and  the  said  locomotive  came  into 
a  collision  at  said  crossing,  then  the  said  F.  was  guilty  of  such  con- 
tributory negligence  as  to  prevent  recovery,  and  a  verdict  must  be 
found  for  the  defendant  receivers,  unless  after  the  defendant  saw  or 
could,  by  the  use  of  ordinary  care,  have  seen  his  peril,  they  could 
afterwards,  by  the  use  of  ordinaiy  care  have  prevented  the  accident.^" 

§  1916.  Crossing  in  Covered  Milk  Wagon.  The  court  instructs  the 
jury  that  it  is  the  duty  of  a  person  approaching  a  railway  crossing 
to  look  along  the  line  of  the  railroad  to  see  if  a  train  is  coming,  or  to 
listen,  or  to  use  any  other  reasonable  means  of  informing  himself  of 
an  approaching  train,  before  going  on  such  crossing,  and  if  the  jury 
believe,  from  the  evidence  in  this  case,  that  the  deceased,  approached 
the  crossing  in  question  in  this  case  in  a  covered  milk  wagon,  which 
had  the  sides  thereof  closed,  and  that  he  did  not  look  or  listen  for  the 
approaching  train,  and  that  if  he  had  looked  or  listened  for  the  ap- 
proach of  said  train  he  might  have  seen  or  heard  said  train  before 
driving  or  going  on  said  crossing,  and  that  in  so  doing  he  failed  to 
exercise  ordinary  care  to  avoid  the  injury  which  he  received,  then  the 
plaintiff  cannot  recover,  even  though  the  jury  may  further  believe, 
from  the  evidence,  that  the  defendant's  servants  or  employes  failed  to 
ring  the  bell  or  sound  the  whistle  as  required  by  law,  and  were  running 
said  train  at  a  greater  rate  of  speed  than  ten  miles  an  hour.^^ 

§  1917.  Looking  Out  of  Glass  at  Back  of  Buggy  Only — Contribu- 
tory Negligence  Defined,  (a)  If  you  find  that  Mr.  P.  did  all  that 
the  ordinarily  careful  and  pi'udent  man  would  do  under  like  cir- 
cumstances, and  with  his  knowledge  of  this  crossing,  and  of  the 
trains  passing  over  it,  in  api^i'oaching  this  crossing,  to  ascertain  if 
any  train  was  coming  on  this  track,  then  and  in  that  ease  he  is  not 
guilty  of  contributory  negligence,  and  so  far  as  that  question  is  con- 
cerned, plaintiffs  would  be  entitled  to  recover. 

Laverenz  v.   Chicago,  etc.,   R.   Co.,  or  not.     See  Penn.  R.  Co.  v.  Ogier. 

6  Amer.  &  Eng.  R.  Cas.  274;  Phila-  35  Pa.  St.  60  (71). 
delphia,   etc.,   R.   Co.   v.  Troutman,         It  would   be  a  hard  rule  to  im- 

Id.  117;  Smedis  v.  Brooklyn,  etc.,  R.  pute   to   the  injured   person   as   his 

Co.,  88  N.  Y.  13.  negligence     a     want     of     vigilance 

In  Ind.,  etc.,  R.  Co.  v.  McLin,  82  which  could  be  said  to  have  been 

Ind.  435,  452,  it  was  said  that  while  produced  by  the  defendant's  negli- 

it  was   true   that   the  failure   of  a  gence.     Negligence   cannot   be   im- 

railroad  company  to  give  warning  puted    to    one   who    is    deceived    by 

does  not  relieve  a  person  about  to  appearances    calculated    to    deceive 

cross    the     track    from     exercising  an   ordinarily   prudent   man." 
care   to   avoid    injury,   yet   the   ab-         10 — Kimball    v.    Friend's    Adm'x, 

sence  of  such  warning  is  a  circum-  95  Va.  125,  27  S.  E.  901  (902). 
stance  to  be  taken  into  considera-         11— Terre  H.  &  I.  R.  Co.  v.  Voel- 

tion  in  determining  whether  he  did  ker,  129  III.  540  (550),  22  N.  E.  20. 
exercise  the  degree  of  care  required 


1232  FORMS  OF  INSTRUCTIONS.  [§  1917. 

(b)  Contributory  negligence  in  the  law  may  be  defined  as  an  act 
by  the  injured  person  which  an  ordinarily  prudent  man  would  not 
have  done  under  the  same  circumstances,  or  the  omission  to  do  that 
which  an  ordinarily  careful  and  prudent  man  would  have  done  under 
the  circumstances  and  which  act  or  acts  directly  aid  in  causing  or 
contributing  to  the  injury  received.  If  the  mind  of  an  ordinarily  pru- 
dent man  would  be  impressed  with  the  belief  of  danger,  under  the 
circumstances  existing  and  surrounding  him  at  the  time  of  the  in- 
jury, he  has  no  riglit  to  incur  the  danger.  But,  on  the  other  hand, 
if  the  mind  of  an  ordinarily  prudent  man  would  not  be  impressed  with 
the  belief  of  danger  by  the  circumstances  surrounding  and  existing  at 
the  time  of  the  injury,  he  is  not  guilty  of  contributory  negligence. 

(c)  Therefore  you  will  understand  that  it  is  a  very  important 
question  in  this  case  for  you  to  determine  whether  or  not  the  de- 
ceased, P.,  was  exercising  the  care  and  caution  which  he  should  have 
exercised  as  he  approached  this  track,  for  unless  it  be  shown  that  he 
gave  proper  attention — that  is  exercising  due  and  proper  care  in  the 
question  of  whether  there  was  an  approaching  train — then  he  can- 
not recover;  and  if  the  train  was  easily  to  be  seen,  had  he  stopped 
and  looked  for  it,  or  had  looked  attentively  enough  without  stopping, 
and  the  approaching  train  would  have  been  seen  by  him  if  he  had 
used  due  care  and  caution  and  given  proper  attention,  then  he  was 
guilty  of  such  a  degree  of  negligence  as  would  prevent  a  recovery  in 
this  case. 

(d)  There  is  no  particular  act  necessary  to  be  found  en  which  to 
base  contributory  negligence.  It  may  exist  in  a  variety  of  ways.  It 
may  be  inferred  from  the  failure  of  the  plaintiff  or  decedent  to  stop 
his  horse  or  to  look  in  the  direction  of  the  approaching  train,  or  a 
failure  to  hear  the  approaching  train  because  of  the  noise  of  the 
buggy,  or  any  other  noise,  if  you  find  there  was  any,  or  by  being 
occupied  in  conversation  with  his  companion,  and  various  other  things 
which  may  occur  may  be  considered  as  contributory  negligence.  Any- 
thing in  the  way  of  inattention  to  the  approaching  train,  which  in  the 
mind  of  the  jury  contributed  to  the  injury  of  the  deceased,  and  the 
injury  would  not  have  occurred,  had  it  not  been  for  such  inattention, 
is  contributory  negligence.  The  attention  which  is  required  of  Mr.  P. 
is  the  same  attention  and  observation  that  is  used  and  exorcised  by  an 
ordinarily  careful  and  prudent  man  under  the  same  circumstances. 

(e)  You  are  also  instructed  that  the  plaintiffs  are  not  entitled  to 
recover  in  this  case  simply  because  there  was  an  accident  which  re- 
sulted in  the  death  of  Mr.  P.  for  whom  the  plaintiffs  claim  to  act  as 
administrators.  The  fact  that  Mr.  P.  was  killed  at  this  crossing  is 
of  itself  no  evidence  whatever  of  any  negligence  on  the  part  of  de- 
fendant, or  of  any  liability  on  its  part  to  respond  in  damages.  While 
it  is  true  that  simply  because  an  accident  liad  occurred,  negligence  is 
not  to  be  presumed,  still  in  determining  the  question  of  negligence, 
the  fact  that  an  accident  has  occurred  may  and  should  be  taken  into 


§  1918.]  NEGLIGENCE— RAILROADS.  1233 

consideration  in  connection  with  all  the  other  facts  and  circumstances 
in  the  case  for  the  purpose  of  determining  whether  in  fact  there  was 
negligence;  and  if  you  find  fi'om  the  evidence  that  when  Mr.  P.  and 
his  companion  Mr.  W.  had  reached  a  point  in  the  highway  which  was 
somewhere  in  the  neighborhood  of  fifty  feet  or  six  or  seven  rods  from 
the  track,  as  estimated  by  various  witnesses,  he  stopped  his  horse  and 
looked  and  listened  for  the  train,  then  started  up  again,  and  as  he 
started,  Mr.  W.  looked  out  of  the  glass  at  the  back  of  the  buggy, 
where  he  could  only  see  a  few  rods  of  the  track  and  the  parties  then 
passed  onto  the  track  without  any  further  looking  in  the  direction  of 
the  approaching  train,  or  any  further  attempt  to  find  whether  there 
was  an  approaching  train,  then  such  acts  constituted  contributory  neg- 
ligence, and  plaintiffs  could  not  recover.^- 

§  1918.  When  Contributory  Negligence  Cannot  Be  Imputed  from 
Fact  That  Gates  Were  Down.  The  juiy  are  instructed  that  if  you 
believe  from  the  evidence  that  the  gates  at  the  crossing  where  the 
deceased  received  his  injury  were  generally  kept  down  at  night  from 
10:30  or  11  o'clock  until  the  early  morning,  without  regard  to  the  ap- 
proach or  presence  of  a  car,  a  train,  or  trains  or  locomotives,  and 
shall  further  conclude  from  all  the  facts  and  circumstances  of  the 
case  that  the  deceased  had  knowledge  of  that  fact,  then  the  circum- 
stance that  the  gates  at  the  intersection  of  S.  street  were  down  at  the 
time  of  the  accident  was  not  of  itself  a  warning  to  him  of  the  presence 
of  danger,  and  contributory  negligence  cannot  be  imputed  to  him  from 
that  fact  alone. ^^ 

§  1919.  Attempting  to  Drive  Upon  Track  Although  View  Ob- 
structed— Looking  and  Listening,  (a)  If  the  jury  believe,  from  the 
evidence,  that  as  the  plaintiff  drove  upon  the  railroad  of  the  defend- 
ant his  view  of  the  approaching  train  was  obsti'ucted,  that  he  had 
knowledge  of  such  obstruction  while  attempting  to  drive  upon  the 
railroad,  and  that  he  drove  upon  the  railroad  without  taking  all  rea- 
sonable precautions  to  ascertain  whether  or  not  a  train  was  approach- 
ing, and  if  the  jury  believe,  from  the  evidence,  that  in  the  manner  in 
which  he  approached  said  crossing  he  failed  to  exercise  ordinaiy  care 
and  prudence  for  his  own  safety,  then  the  law  is  that  the  plaintiff  can- 
not recover,  and  the  jury  must  find  the  defendant  not  guilty,  inde- 
pendently of  all  other  questions  in  the  case.^* 

(b)  Befoi'e  attempting  to  cross  the  track,  the  plaintiff  was  bound 
to  look  and  listen,  and  if  by  looking  and  listening  he  might  have 
seen  and  heard  the  train  in  time  to  avoid  being  struck  he  cannot  re- 
cover. 

12 — These    instructions    approved  14 — Wabash  R.  Co.  v.  Jenkins,  84 

in  Proper  v.  L.  S.  &  M.  S.  Ry.  Co.,  111.    App.    511    (513). 

136  Mich.  352,  99  N.  W.  283  (284).  "This     is     the     only     instruction 

13 — Baltimore     &     P.    R.     R.     v.  asked  upon  that  particular  view  of 

Landrigan,    191    U.    S.    461    (472),   24  the    case,   and    it     is     presented    in 

S.   Ct.   137.  none  other.     .     .     .     The  instruction 


is  considered  proper." 


78 


1234  FORMS  OF  INSTRUCTIONS.  [§  1919. 

(c)  That  if  the  east-bound  train  obstructed  his  view,  but  it  was 
moving  out  of  his  way  so  that  in  a  short  space  of  time  he  would  have 
had  a  clear  view  of  the  west-bound  train  approaching,  and  he,  with- 
out Avaiting,  and  as  soon  as  the  gate  was  open,  drove  across,  and  in 
consequence  was  injured,  he  was  guilty  of  contributory  negligence  and 
cannot  recover.^^ 

(d)  You  are  instructed  that  if  you  find  from  the  evidence  that  the 
deceased  or  his  son  stopped,  looked,  and  listened  before  driving  upon 
the  track,  and  further  believe  that  by  reason  of  the  obstructions  on 
the  side  track — the  arc  light  maintained  by  the  town  and  the  head- 
light of  the  freight  engine,  if  you  believe  these  lights  were  burning — 
could  not  see  the  headlight  of  the  passenger  train,  or  the  reflection 
thereof,  in  time  to  have  avoided  the  injury,  and  that  no  signals  were 
given  as  defined  in  these  instructions,  and  that  the  deceased  and  his 
son  took  such  precautions  as  would  have  enabled  them  to  have  seen 
or  heard  the  train  if  such  signals  had  been  given,  you  may  find  for 
the  plaintiff  as  to  the  issue  of  contributory  negligence. 

(e)  If  you  believe  from  the  evidence  that  the  death  of  the  de- 
ceased was  caused  by  the  negligence  of  the  defendant  company,  a  re- 
covery cannot  be  defeated  on  the  ground  of  contributory  negligence 
unless  it  appears  from  the  evidence  that  the  deceased  himself  failed  in 
the  exercise  of  ordinary  prudence,  and  that  such  failure  so  contributed 
to  the  injury  that  it  would  not  have  occurred  if  he  had  been  without 
fault.  Contributory  negligence  will  not  be  presumed,  but  must  be 
proven  by  a  preponderance  of  the  evidence. ^*^ 

15 — Kane  v.  N.  Y.  N.  H.  &  H.  R.  the  weight  of  the  evidence.     It  is 

R.  Co.,  132  N.  Y.  160,  30  N.  E.  256  further  urged  against  the  first  that 

(257).  it  has  singled  out  certain  parts  of 

"It  is  well  settled  that  a  traveler  the  evidence  in  favor  of  the  plain- 
approaching  a  crossing  guarded  by  tiff,  and  disregarded  every  item  of 
gates  is  not  required  to  exercise  contributory  negligence,  and,  with- 
the  same  vigilance  to  look  and  out  referring  to  the  same,  in  a 
listen  as  when  he  approaches  one  counter  statement,  has  said  the 
not  so  guarded.  Rodrian  v.  N.  Y.  weight  of  this  specific  evidence  is 
N.  II.  &  H.  R.  R.  Co.,  125  N.  Y.  sufficient  to  set  aside  all  the  evi- 
526,  26  N.  E.  741;  Oldenburg  v.  N.  Y.  dence  establishing  contributory 
C.  &  H.  R.  R.  Co.,  124  N.  Y.  414,  negligence.  If  there  is  evidence  to 
26  N.  E.  1021;  Palmer  v.  N.  Y.  C.  sustain  a  particular  theory  of  a 
&  H.  R.  Co.,  112  N.  Y.  234,  19  N.  E.  case,  the  court  should  properly  in- 
678.  Under  the  evidence  in  this  struct  the  jury  as  to  such  theory. 
case,  it  was  a  fair  question  of  fact  Smith  v.  State,  50  Ark.  545,  8  S.  W. 
for  the  jury  to  determine  whether  941.  Instructions  should  declare  the 
the  plaintiff,  by  his  own  negli-  law  as  applicable  to  any  view  of 
geiice,  contributed  to  the  accident  the  facts  which  upon  the  evidence 
which  ciiused  the  injury,  and  we  may  be  taken  by  either  of  the  par- 
do  not  think  the  defendant  is  in  a  ties  to  the  cause  on  trial.  Luckin- 
poBltlon  to  take  advantage  of  in-  bill  v.  State,  52  Ark.  45,  11  S.  W. 
fltructions  which  were  perhaps  too  963.  Every  instruction  should  be 
favorable  to  It."  hypothetical,  i.  e.,  predicated  upon 

16— St.   Louis.  I.   M.  &  S.  Ry.  Co.  the  supposition  that,  if  certain  evi- 

V.    Ilitt,  76   Ark.   227,   88   S.   W.   908  dence  be  true,  then  the  legal  conse- 

(509).  quence  resulting   therefrom   is   one 

"The    point    urged    agninst    these  way  or  the  other.     State  Bank  v. 

InHtruftions  Is  that   thoy  displayed  McCuire,    14     Ark.     530;     Collins   v. 

to  th»'  Jury  an  <:xprcsHion  of  opinion  Mack,  31  Ark.  684. 
Upon   the   part   of   the  court   upon        It   is  error  to    refuse   to   give  a 


§  1920.]  ■      NEGLIGENCE— RAILROADS.  1235 

§  1920.  Negligence  to  Go  Forward  When  There  is  a  Permanent 
Obstruction  and  a  Transient  Noise,  (a)  The  duty  of  a  iDerson  to 
look  and  listen  before  crossing  a  railroad  includes  the  duty  to  do  that 
which  will  make  looking  and  listening  reasonably  effective.  If  there 
is  a  permanent  obstruction  to  sight  that -will  make  danger  invisible, 
and  a  transient  noise  that  would  make  it  inaudible,  it  is  negligence  to 
go  forward  at  once  from  a  place  of  safety  to  a  possible  danger.  Pru- 
dence requires  delay  until  the  transient  noise  has  abated,  and  hear- 
ing again  becomes  efficient  for  protection.  You  are  instructed  that 
if  the  deceased  was  familiar  with  the  G.  street  railroad  crossing,  and 
drove  towards  it  at  a  rate  of  speed  such  as  he  was  unable  to  check 
and  stop  his  vehicle  in  time  to  escape  a  collision  with  a  passing  train, 
after  arriving  at  a  point  where  he  must  have  seen  it  if  he  had  looked, 
and  where  he  could  have  avoided  it,  he  was  guilty  of  contributory 
negligence,  and  the  plaintiff  cannot  recover.^^ 

(b)  You  are  instructed  that  the  care  which  is  required  of  persons 
driving  near  or  approaching  a  railroad  crossing  is  such  care  as  an 
ordinarily  prudent  person  would  use  under  the  circumstances;  and  if 
therefore  you  believe  from  the  evidence  that  the  plaintiff  knew  that 
his  view  of  defendant's  track  was  obstructed  by  houses,  trees,  and 
the  lay  of  the  ground,  and  that  he  further  knew  or  by  the  use  of  ordi- 
nary care  might  have  known,  that  the  team  which  he  was  driving 
would  or  might  become  frightened  at  the  appearance  or  ordinary  noise 
made  by  a  railroad  train ;  and  if  you  further  believe  from  the  evidence 
that  he  knew  or  by  the  use  of  ordinary  care  might  have  known,  that 
the  frightening  of  his  team  or  near  approaching  with  said  team  to  a 
railroad  crossing,  would  result  in  the  injury  or  fright  to  his  wife  in 
her  condition;  and  if  you  further  believe  from  the  evidence  that  the 
plaintiff  did  not  use  that  degree  of  care  which  an  ordinarily  prudent 
person  would  have  used  under  like  circumstances;  and  if  you  further 
believe  from  the  evidence  that  the  plaintiff's  failure  to  do  so  caused 
or  contributed  to  the  accident — then  you  will  find  for  the  defendant. ^^ 

§  1921.  Presumption  That  Party  Crossing  Track  Stopped,  Looked 
and  Listened.  In  the  absence  of  all  evidence  tending  to  show  whether 
the  plaintiff' 's  intestate  stopped,  looked  and  listened  before  attempting 
to  cross  the  south  track,  the  presumption  would  be  that  he  did.  But 
that  presumption  may  be  rebutted  by  circumstantial  evidence,  and 
it  is   a  question  for  the  juiy  whether  the   facts   and  circumstances 

specific    instruction    correctly    and  case    which    they    desired    drawn 

clearly    applying    the    law    to    the  sharply    to    the    attention    of    the 

facts  in  the  case,  even  though  the  jury.     The  court  fails  to  find  error 

law,    in   a  general   way,    is  covered  in  them,  and,  taken  together,  they 

by  the  charge  given.    Ry.  v.  Crab-  consistently  present  the  whole  case, 

tree.  69  Ark.  134,  62  S.  W.  64.  generally  and   specifically." 

Applying  these  settled  principles  17 — Schweinfurth   v.    C.    C.    C.    & 

to    the    instruction    in    question,    it  St.   L.   Ry.   Co.,   60   Ohio   St.   215,  54 

cannot  he  said  they  are  open  to  the  N.   E.  89  (92). 

objections  urged.  Each  side  prayed  18 — Texas    M.    R.    Co.    v.    Booth, 

and  was  granted  many  specific  in-  35  Tex.  Civ.  App.  322,  80  S.  W.  121 

structious,   covering   phases   of  the  (124). 


1236  FORMS  OF  INSTRUCTIONS.  [§  1922. 

proved  in  this  case  rebut  that  presumption,  and  if  they  find  that  they 
do,  they  should  find  that  he  did  not  stop,  and  look  and  listen,  but  if 
the  facts  and  circumstances  fail  to  rebut  such  presumption,  then  the 
jury  should  find  that  he  did  so  stop  and  look  and  listen.  In  order 
to  justify  them  in  finding  that  he  did  not,  all  the  evidence  tending  to 
show  that  should  be  weightier  in  the  minds  of  the  jury  than  that 
tending  to  show  the  contrary.^^ 

§  1922.  Failure  of  Driver  of  Vehicle  to  Turn  in  Seat  on  Sounding 
of  Whistle  or  Ringing  of  Bell,  (a)  If  the  jury  believe,  from  the 
evidence,  that  the  defendant's  employes  sounded  the  whistle,  or  rung 
the  bell  of  the  engine  for  (eighty)  rods  before  reaching  the  crossing, 
and  used  all  such  ordinaiy  care  and  diligence  as  is  generally  used 
by  careful  and  skillful  engineers,  brakemen,  and  employes  of  railroad 
companies  under  like  circumstances,  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  said  A.  B.  was  sitting  on  his  wagon,  with 
his  back  turned  in  the  direction  of  the  approaching  train,  so  as  to 
prevent  his  seeing  it,  and  that  he  could  have  seen  the  train  in  time  to 
avoid  the  injuiy  if  he  had  turned  and  looked  in  the  direction  of  the 
approaching  train,  then  the  jury  must  find  the  defendant  not  guilty. 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  it  was 
the  duty  of  the  deceased,  in  approaching  the  railroad  crossing,  to 
have  exercised  that  degree  of  care  and  prudence  for  his  personal 
safety,  which  an  ordinarily  prudent  man  would  do,  and  if  the  jury 
believe,  from  the  evidence,  that  the  deceased,  by  the  exercise  of  that 
degree  of  care  and  prudence,  could  have  discovered  the  approaching 
train  in  time  to  stop  his  team  and  avoid  the  collision,  then  the  plaintiff 
cannot  recover,  unless  the  jury  find,  from  the  evidence,  that  the  injury 
was  caused  by  the  willful  conduct  of  the  person  in  charge  of  the 
engine,  or  by  conduct  so  utterly  reckless  as  to  show  an  utter  disre- 
gard for  the  life  of  the  deceased.-** 

§  1923.  Discovery  of  Approaching  Train  in  Time  to  Avoid  Going 
on  Crossing.  If  one  sees  or  hears  an  approaching  train  in  ample 
time,  by  the  exercise  of  ordinary  care,  to  keep  from  going  on  the  rail- 
way track  just  in  front  of  such  train,  it  is  his  duty  to  stop  before 
entering  upon  such  track  just  in  front  of  the  engine;  and  if  he, 
knowing  of  its  approach,  and  of  the  dangers  attendant  upon  his  act, 
does  go  on  the  track,  and  by  reason  of  this  is  struck  and  injured,  and 
tlie  jury  believe  that  in  going  on  such  track  he  failed  to  exercise 
ordinary  care,  and  this  failure  contributed  as  a  pi-oximate  cause  to 
his  injury,  then  he  cannot  recover  damages  of  the  railroad  on  account 
thereof.-* 

8 1924.  Failure  to  Heed  Watchman's  Signal  to  Stop.  If  the  jury 
believe  from  tiie  evidence  that  Watchman  L ,  with  a  lighted  lan- 
tern in  Ills  hand,  was  standing  in  W.  street,  within  eight  or  ten  feet 

19— P.nltlmoro  &  P.  R.  R.  v.  20— C.  B.  &  Q.  R.  Co.  v.  Lee,  68 
LanrlilKan,    191    U.    S.    461    (471),    24     111.   r,7S. 

8.  Ct.   137.  21— Gosa  v.  So.  Ry.  Co.,  67  S.  0. 

347,  45  S.  E.  810  (813). 


§  1925.]  NEGLIGENCE— RAILROADS.  1237 

of  defendant's  main  track  when  plaintiff  passed  over  the  latter,  and 
said  watchman  either  signaled  to  plaintiff  or  to  train  crew  with  his 
lantern,  then  the  plaintiff  is  not  entitled  to  recover,  and  your  verdict 
must  be  for  the  defendant,  provided  you  further  find  that  plaintiff  saw 
such  signal,  or  by  the  exercise  of  ordinary  care  and  prudence  could 
have  seen  such  signal,  in  time  to  have  stopped  the  horse  and  buggy  in 
time  to  have  avoided  the  accident  or  collision. ^^ 

§  1925.  Right  of  Railroad  Company's  Servants  to  Assume  That 
Driver  of  Vehicle  Will  Remain  at  a  Safe  Distance,  (a)  The  de- 
fendant's servants  in  charge  of  the  engine  which  struck  the  deceased 
had  a  right  to  assume  that  he  was  rational,  and  would  exercise  rea- 
sonable care  and  caution  to  keep  himself  out  of  danger  until  they  saw 
something  in  his  conduct  which  was  inconsistent  with  such  assump- 
tion. And  if  the  jurj^  believe,  from  the  evidence,  that  when  the  per- 
sons in  charge  of  the  engine  first  came  in  sight  of  the  deceased,  he  was 
so  far  removed  from  the  track  as  to  be  free  from  danger  of  collision, 
then  they  had  a  right  to  assume  that  he  would  remain  at  such  safe 
distance,  unless  thei-e  was  something  in  the  circumstances  calculated 
to  rebut  such  presumption,  or  until  he  manifested  a  purpose  to  place 
himself  in  a  dangerous  position.-^ 

(b)  If  a  train  of  cars  hauled  by  a  locomotive  engine  upon  a  rail- 
road, and  a  citizen  traveling  in  a  wagon  upon  a  public  highway,  are 
both  api^roaehing  a  crossing  of  such  highway  w'ith  such  railroad, 
under  circumstances  indicating  that  a  collision  between  them  is  likely 
to  -occur,  if  they  both  proceed  on  their  way  without  stopping,  the 
engineer  in  charge  of  such  train,  if  he  has  sounded  the  required  sig- 
nals with  the  engine  whistle,  and  is  ringing  the  bell  of  the  engine,  has 
a  right  to  pi'esume  that  the  citizen  will  stop  before  he  drives  upon 
the  crossing,  and  has  a  right  to  proceed  on  his  way  with  his  engine 
and  train  until  he  discovers  that  the  citizen  does  not  stop,  when  it  is 
too  late  to  stojD  his  train  in  time  to  avoid  the  collision,  and  for  that 
reason  a  collision  occurs  and  injury  results  therefrom,  the  railroad 
company  would  not  be  liable  therefor.  But  if  the  engineer  makes  the 
discover}^  before  it  is  too  late  that  the  citizen  does  not  stop,  and  if, 
after  making  such  discoveiy,  the  engineer  could  have  stopped  his 
train,  and  did  not,  then,  in  that  view  of  the  ease,  the  railroad  com- 
pany would  be  liable  for  the  injui-y  inflicted  upon  the  citizen  by  such 
collision.-* 

(c)  Railway  companies  have  a  legal  right  to  run  their  trains  and 
engines  over  their  roads  and  over  public  crossings,  and  they  are  liable 
to  other  persons  for  such  damages  only  as  result  from  theii-  negli- 

22 — ^Montgomery  v.   Mo.  Pac.  Ry.  appellant  was  to  inform  the  jury  as 

Co.,  181  Mo.  508.  79  S.  W.  930  (933).  to  what  the  general  legal  rule  was. 

23— C,  R.  I.  &  P.  R.  Co.  V.  Austin,  in    the    opinion    of   the    trial    court, 

69  111.  426.  when  a  train  of  cars  and  a  person 

24 — B.  &  O.  S.  W.  Ry.  Co.  v.  Con-  in  a  wagon  were  both  approaching 

oyer.  149  Ind.  524,  48  N.  E.  352  (354).  a    public    crossing,    under    circum- 

"The   evident   purpose   or   theory  stances   indicating  that  a  collision 

Of  the  instruction  asked  for  by  the  would  result." 


1238  FORMS  OF  INSTRUCTIONS.  [§  1926. 

gence  or  disregard  of  the  rights  or  safety  of  such  other  persons.  If 
you  believe  from  the  evidence  that  at  the  time  plaintiff  drove  his  team 
over  defendant's  railroad  the  engine  was  sixty  or  more  feet  away 
from  said  public  crossing,  and  was  moving  at  a  moderate  rate  of 
speed,  so  that  plaintiff  had  ample  time  to  take  his  wagon  and  team 
over  the  said  railway  before  the  said  engine  would  reach  the  crossing, 
and  if  you  believe  defendant's  servants  operating  the  said  train  at 
the  time  acted  as  men  of  ordinary  prudence  would  have  acted  under 
the  circumstances,  then  in  that  event  plaintiff  cannot  recover  dam- 
ages in  this  suit,  and  you  Avill  find  for  the  defendant.^^ 

§  1926.     Driving  Over  Tracks  With  Lines  Hanging  Loose,    You  are 

further  instructed  that  if  you  believe  from  the  evidence  that  plaintiff 
drove  his  team  over  defendant's  railway  at  the  time  and  place  alleged 
in  the  petition;  and  further  believe  that  at  the  time,  and  after  cross- 
ing said  railway,  plaintiff  permitted  his  lines  to  hang  loose  in  such 
manner  that  he  had  no  control  of  his  team ;  and  if  you  further  believe 
from  the  evidence  that  the  act  of  plaintiff  in  so  driving  ^his  team 
over  the  said  railroad  at  that  time  and  place,  and  under  the  circum- 
stances surrounding  plaintiff,  caused  or  contributed  to  plaintiff's 
injuries;  and  if  you  further  believe  from  the  evidence  that  a  man  of 
ordinary  prudence  would  not,  under  the  circumstances  then  surround- 
ing plaintiff,  have  driven  his  team  over  said  railroad  with  the  lines 
hanging  loose, — then  in  that  event  plaintiff  is  not  entitled  to  recover 
in  this  suit,  and  you  will  find  for  the  defendant.'*^ 

§  1927.  Injury  Through  Team  Being  Unmanageable,  (a)  To  re- 
cover damages  from  the  defendant  for  the  killing  of  W.  by  the  defend- 
ant's train,  all  the  following  matters  must  appear  from  the  evidence: 
First,  that  the  defendant  was  negligent  in  some  one  or  more  of  the 
particulars  complained  of  in  plaintiff's  petition;  second,  that  such 
negligence  on  defendant 's  part  caused  the  death  of  W. ;  third,  that  W. 
was  not  guilty  of  negligence  on  his  part  that  contributed  to  the 
injury;  fourth,  that  the  estate  of  W.  suffered  injury  by  reason  of  his 
death.  The  burden  rests  with  plaintiff  to  show  all  of  said  matters  by 
the  greater  weight  or  preponderance  of  evidence.  If  all  of  said  mat- 
ters are  thus  shown,  the  i^laintiff  will  be  entitled  to  recover;  but,  if 
any  one  or  more  of  said  matters  are  not  thus  shown  by  the  evidence, 
then  your  verdict  must  be  for  the  defendant. 

(b)  Unless  it  appears  from  the  evidence  that  the  defendant  was 
negligent  in  the  running  and  management  of  its  train  in  one  or  more 
of  the  ways  complained  of,  as  before  explained,  then  the  plaintiff  can- 
not recover;  but,  if  such  negligence  is  shown  by  the  evidence,  then  it 
must  also  appear  from  the  evidence  that  such  negligence  on  the  part 
of  defendant  caused  the  death  of  W.  That  is,  it  must  appear  from 
tlie  evidence  that  but  for  such  negligence  tlie  accident  and  consequent 
death  of  W.  would  not  have  occurred.    If  it  appears  from  the  evidence 

25— St.  L.  S.  W.  Ry.  Co.  v.  Hall,  20— St.  L.  S.  W.  Ry.  Co.  v.  Hall, 
98  Tex.  480.  85  S.  W.  780  (789).  supra. 


§  1928.]  NEGLIGENCE— RAILROADS.  1239 

that  tlae  defendant  company  was  negligent  in  some  one  or  more  of  the 
particulars  complained  of,  as  in  failure  to  ring  the  bell  or  blow  the 
whistle  on  approaching  the  crossing,  still,  if  it  appears  from  the 
evidence  that,  by  reason  of  the  team  driven  by  W.  being  unmanage- 
able, the  giving  of  said  signals,  or  placing  of  a  flagman  at  the  said 
crossing,  would  not  have  prevented  the  injury,  then  it  cannot  be  said 
that  the  failure  of  the  defendant  to  give  said  signals,  or  to  station 
said  flagman  at  the  crossing,  caused  the  injury.-'^ 

§  1928.  Negligence  per  se  in  Traveler,  (a)  The  court  instructs 
the  jury,  as  a  matter  of  law,  that  it  is  not  the  exercise  of  ordinary 
care  and  prudence  for  a  pei'son  to  drive  with  a  team  directly  onto  a 
railroad  crossing,  wdthout  making  an  effort,  by  stopping  or  listening, 
or  otherwise,  to  ascertain  whether  a  train  is  approaching,  or  whether 
it  is  safe  to  drive  onto  the  track  with  his  team. 

(b)  The  jury  are  instructed,  that  ordinary  care  and  caution  is 
that  degree  of  care  and  caution  w^hich  persons  of  common  prudence 
are  accustomed  to  exercise  for  their  own  safety,  and  in  this  case  the 
driver  was  bound  to  use  that  degree  of  care  and  caution  to  avoid 
injuiy;  and  if  the  jury  believe,  from  the  evidence,  that  by  the  exercise 
of  that  degree  of  care  and  caution  on  his  part,  the  injury  complained 
of  might  have  been  avoided,  then  the  plaintiff  cannot  recover  in  this 
suit. 

(c)  If  the  jury  believe,  from  the  evidence,  that  the  driver  of  the 
wagon,  before  he  drove  onto  the  crossing,  knew  that  he  was  approach- 
ing and  about  to  cross  the  railroad  track  at  the  time  in  question,  and 
that  by  looking  and  listening  he  might  have  discovered  the  train  in 
time  to  have  avoided  the  injury,  and  he  did  not  make  any  effort  by 
looking,  listening  or  otherwise,  to  ascertain  whether  a  train  was  ap- 
proaching, but  drove  directly  onto  the  track  as  he  approached  it, 
then  this  was  such  negligence  on  his  part  as  will  prevent  a  recovery 
by  the  plaintiff  in  this  suit.-^ 

§  1929.  Conduct  in  Presence  of  Sudden  Danger,  (a)  The  jury 
are  instructed  that  in  the  face  of  sudden,  unexpected  and  deadly 
danger,  a  person  is  not  expected  or  required  to  be  cool  and  collected, 
and  to  act  with  perfect  prudence  and  deliberate  judgment;  in  such 
ease  he  is  only  required  to  use  such  degree  of  prudence  and  judgment 
as  ordinarily  careful  and  prudent  men  would  be  likely  to  exercise 
under  the  same  or  similar  circumstance.  And  if  the  juiy  believe, 
from  the  evidence,  that  the  deceased  used  ordinary  care  and  pi'udence 
to  avoid  accident  in  approaching  the  crossing,  and  that  when  he 
became  aware  of  his  danger,  he  used  such  care  as  men  of  ordinary 
prudence  under  like  circumstances  would  be  likely  to  use  to  avoid  or 
escape  injury,  then  his  negligence  did  not  contribute  to  the  injury.^^ 

27— Pratt  v.  C.  R.  I.  &  P.  Ry.  Co.,  v.  Elliott,  28  Ohio  St.  340,  Penn  Co. 

107   la.  287,   77   N.   W.   106-1   (1066).  v.  Rathgab,  32  Ohio  St.  66. 

"We   think  the  instructions  were  29— Ind.  &  St.  L.  R.  Co.  v.  Stout, 

sufficiently  full  and  explicit."  53  Ind.  143;   C.  &  N.  E.  Ry.  Co.  v. 

28— Cleveland,  C,  C.  &  I.  Ry.  Co.  Miller,  46  Mich.  532,  9  N.  W.  841. 


1240  FORMS  OF  INSTRUCTIONS.  [§  1930. 

(b)  If  the  juiy  believe,  from  the  evidence,  that  at  the  time  oi 
the  accident  in  question,  the  plaintiff  was  seated  in  his  wagon  near 
the  track  of  defendant's  road  (or  as  the  case  may  be)  and  that  the 
servants  or  agents  of  defendant  were  guilty  of  negligence  in,  etc.,  and 
that  the  plaintiff  was  thereby  put  in  great  danger  of  life  or  limb,  or 
had  reasonable  ground  to  believe,  and  did  believe,  that  he  was  thereby 
put  in  such  danger,  and  that  it  was  necessary  to  leap  from  his  wagon 
in  order  to  avoid  the  threatened  danger,  and  that  in  consequence  of 
such  belief  he  did  jump  from  his  wagon,  and  thereby  caused  the 
injury  complained  of,  when,  if  he  had  remained  in  the  wagon  he  would 
have  sustained  no  injury,  this  alone  would  not  deprive  him  of  the 
right  to  recover  in  this  suit,  provided  you  find  from  the  evidence, 
under  the  instruction  of  the  court,  that  the  defendant  is  otherwise 
guilty  and  the  plaintiff  otherwise  entitled  to  recover.^" 

§  1930.    Jury  May  Consider  Surrounding  Circumstances.     The  de- 
fendant in   its  answer  denies   the   allegations   of  the   complaint   and 
alleges  that  the  plaintiff  was  also  guilty  of  negligence  that  contributed 
to  the  injury,  and  it  is  for  the  gentlemen  of  the  jury,  in  the  light  of 
all  the  evidence,  after  carefully   considering  it,  to   determine,  first, 
whether  the  defendant  was  guilty  of  the  negligence  described  in  the 
complaint;  second,  if  you  should  find  that  defendant  was  guilty  of 
the  negligence  described  in  the  complaint,  it  is  then  your  duty  to  con- 
sider and  determine  whether  the  plaintiff'  himself  was  guilty  of  negli- 
gence that  contributed  to  fhe  injury.     In  determining  the  question  of 
negligence,  both  on  the  part  of  the  plaintiff  and  defendant,  you  should 
consider  all  the  circumstances  under  which  the  defendant  caused  the 
acts  to  be  performed,  as  alleged  in  the  complaint,  and  under  which 
its  agents  or  servants  failed  to  act,  if  you  find  they  did  fail  in  such 
respect.     You  have  a  right  to  take  into  consideration  the  conditions 
surrounding  the  injury,  the  situation  of  the  parties,   the  location  of 
both  the  railroad  tracks  and  the  wagon  road,  if  j'ou  believe  there  was 
a  wagon  road  from  the  evidence,  and  their  location  with  respect  to 
each  other,  and  the  fact  that  the  plaintiff  was  hauling  ore,  if  you 
believe  that  he  was  (as  to  that,  I  presume,  there  is  no  dispute).    You 
have  a  right  to  take  into  consideration  the  ears  of  the  defendant  and 
their  situation  and  location  upon  the  ore  track.    You  have  a  right  to 
take   into    consideration   the   crossing,   as   to   whether   the   defendant 
placed  the  crossing  there  for  the  plaintiff  and  others  to  travel  over 
and  upon  the  wagonway,  if  you  believe  there  was  a  wagonway  on 
which  persons  usually  travelled,  and  that  the  plaintiff  at  the  time  of 
the  injury  was  travelling  upon  the  wagonway.     You  have  a  right  to 
take  into  consideration  that  the  train  of  cars,  one  of  which  struck 
plaintiff's  wagon    (as  to  that,  I  presume,  there  is  no  dispute) — you 
have  a  right  to  take  into  consideration  the  fact   that  it  came  down 
grade  without  an  engine  attached  to  it,  and  then  passed  up  a  slight 
grade  at    the    time  it  struck  the    plaintiff's  wagon,    if  you    believe 

30— Dyer  v.  Erie  R.  Co.,  71  N.  T.     496;  Schultz  v.  Chicago,  etc.,  R.  Co., 
228;  Roll  v.  N.  Cent.  R.  Co.,  16  Hun     44   Wis.   638. 


§  1931.]  NEGLIGENCE— RAILROADS.  1211 

from  the  evidence  that  it  did  so  pass  down  and  up.  It  is  your  duty 
to  take  into  consideration  all  of  the  evidence  bearing  upon  the  ques- 
tion of  negligence,  and,  in  the  light  of  it  all,  you  must  determine 
whether  the  defendant  was  guilty  of  the  negligence  charged  or  whether 
the  plaintiff  was  guilty  of  negligence  contributing  to  the  injury.^^ 

§  1931.  Imputed  Negligence — Parent  and  Child,  (a)  The  court 
instructs  the  jury  that  it  was  the  duty  of  the  plaintiffs,  in  the  care 
and  custody  of  their  son,  to  have  exercised  such  degree  of  care  and 
prudence,  in  keeping  him  off  defendant's  railroad  track  and  out  of 
danger,  which  was  reasonable  and  prudent  under  like  circumstances, 
as  shown  by  the  evidence,  and  a  failure  to  exercise  such  a  degree  of 
care  and  prudence  would  render  plaintiffs  guilty  of  negligence. 

(b)  If,  therefore,  the  jui-y  believe  from  the  evidence  that  S.,  ou 

the  day  of  , ,  was  the  unmarried  son  of  plaintiffs, 

and  that  on  said  day  he  was  walking  eastwardly  on  defendant's  rail- 
road track  between  N.  and  L.  avenues,  in  the  city  of  St.  L.,  and  that 
while  so  walking  he  was  run  over  and  killed  by  defendant's  east- 
bound  engine  and  train  of  cars  in  charge  of  defendant's  servants, 
then  your  verdict  should  be  for  the  plaintiffs,  provided  you  further 
believe  from  the  evidence  that  the  injury  complained  of  occurred 
while  plaintiffs  were  exercising  that  degree  of  care  as  to  the  care  and 
custody  of  their  son,  as  that  term  is  explained  in  instruction  No.  4  (a) 
and  while  the  said  S.  was  himself  exercising  that  degree  of  care  and 
prudence  for  his  own  safety  that  an  ordinarily  careful  and  prudent 
person,  of  his  age  and  intelligence,  under  like  circumstances,  would 
have  exercised,  and  provided  that  you  further  believe  fi'om  the  evi- 
dence that  the  injuiy  was  caused  by  the  negligence  of  the  defendant's 
servants,  as  the  term  "negligence"  is  explained  in  either  the  first  or 
second  of  the  foregoing  instructions.^^ 

(c)  The  court  instructs  the  jury  that,  by  the  laws  of  this  state, 
eveiy  railroad  comjjany  is  required  to  have  a  bell  of  at  least  thirty 
pounds  weight  and  a  steam  whistle  placed  and  kept  on  each  locomo- 
tive engine,  and  to  cause  the  bell  to  be  rung  or  the  whistle  to  be 
sounded  by  the  engineer  or  fireman  at  the  distance  of  at  least  eighty 
rods  from  the  place  where  the  railroad  crosses  any  public  highway, 
and  shall  keep  the  same  ringing  or  whistling  until  such  highway  is 
reached.  And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  defendant's  servants  in  charge  of  the  engine  in  question  omitted 
to  ring  a  bell  or  to  sound  a  whistle  as  required  by  law  until  the 
highway  crossing  at  which  said  child  was  killed  was  reached  (if  the 
jury  believe,  from  the  evidence,  said  child  was  killed  at  a  highway 
crossing  as  alleged),  such  omission  constitutes  o.  prima  facie  case  of 
negligence  on  the  part  of  the  defendant.  And  if  the  jury  further 
believe,  from  the  evidence,  that  such  negligence  was  the  proximate 
cause  of  the  injuiy  complained  of,  and  that  the  parents  of  said  child 
were  at  the  time  exercising  such  care  and  foresight  over  his  person 

31— Rio    Grande   W.    R.    v.    Leak,         32— Schmitt  v.   Mo.   Pac.  Ry.  Co., 
163  U.  S.  280  (282),  16  S.  tt.  1020.  160  Mo.  43,  60  S.  W.  1043, 


1242  FORMS  OF  INSTRUCTIONS.  [§  1932. 

as  ordinarily  careful  and  judicious  persons  would  have  exercised 
under  like  circumstances,  and  that  said  child,  being  on  said  highway, 
was  run  over  and  killed,  as  charged  in  the  declaration,  in  consequence 
of  the  failure  to  so  ring  the  bell  or  sound  the  whistle,  then  the  jury 
should  find  for  the  plain  tiff. ^^ 

§  1932.  When  Negligence  of  Driver  of  Plaintiff's  Vehicle  in  Cross- 
ing Track  Will  Prevent  Recovery,  (a)  According  to  the  admitted 
facts  in  this  case,  the  plaintiff  (or  deceased),  at  the  time  of  the  acci- 
dent, was  being  driven  across  the  railroad  track  by  one  E.,  in  a  lumber 
wagon,  and  you  are  insti-ueted  by  the  court,  if  you  believe,  from  the 
evidence,  that  there  was  any  negligence  on  the  part  of  the  driver  of 
the  wagon,  which  contributed  to  the  injury  in  question,  then  that  neg- 
ligence has  the  same  effect  on  the  plaintiff's  right  to  recover  as  if  the 
negligence  had  been  that  of  the  plaintiff  (or  deceased)  himself.^* 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  driver  of  the 
wagon  was  employed  by  the  plaintiff  to  drive,  etc.,  and  that  there  was 
negligence  on  the  part  both  of  the  defendant  and  of  the  driver,  which 
contributed  directly  to  the  accident,  then  the  jury  have  no  right  to 
strike  a  balance  between  them,  so  as  to  find  a  verdict  for  the  plaintiff, 
but  in  such  case  the  jury  should  find  a  verdict  for  the  defendant. 

(c)  If  you  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  negligence  or  a  want  of  ordinary  care  and  skill  in  the  con- 
struction of  its  track  at  the  road  crossing  in  question,  and  that  the 
plaintiff  was  injured  thereby  in  attempting  to  cross  the  track,  and 
that  he  was  not  himself  guilty  of  any  negligence  that  contributed 
directly  to  such  injury,  and  that  such  injury  caused  his  death,  then 
your  verdict  should  be  for  the  plaintiff.^^ 

(d)  The  jury  are  instructed,  that  the  defendant  had  a  right  to 
build  its  road  across  the  highway  described  in  the  complaint,  but,  in 
doing  so,  it  was  required  to  restore  the  highway  to  its  former  state  of 
usefulness,  so  far  as  it  was  reasonably  practicable,  and  so  as  not  un- 
necessarily to  impair  the  usefulness  of  the  highway  or  render  it  un- 
necessarily dangerous  in  crossing.    But  whether,  in  this  case,  the  de- 

33— C.  &  A.   R.  R.  Co.  V.   Logue,  ticular    time    of     the     injury     and 

158   111.   621    (628),  aff'g   58  111.   App.  tended    to    call    their    attention    to 

142,  42  N.  E.  53.  the  approach  of  the  train.     It  is  not 

"The  child  in  this  case  was  about  alone  a  question  whether  the  child 
twenty-one  months  old.  The  con-  could  have  appreciated  or  known 
tention  is  that  a  child  of  tender  of  the  danger,  but  whether  by  giv- 
years,  as  in  this  case,  could  not  ex-  ing  the  signals  the  injury  might 
erclse  discretion  or  intelligence  in  have  been  avoided  by  increased 
caring  ffir  itself,  and  the  giving  of  vigilance  on  the  part  of  the  par- 
the  signals  could  not  have  affected  ents,  who  would  thereby  have  been 
the  question  of  the  injuries,  as  able  to  prevent  the  accident  by  res- 
doing  so  would  not  have  caused  cuing  the  child.  Under  the  particu- 
the  child  to  exercise  care  for  its  lar  facts  of  the  case,  we  are  of 
own  safety.  It  was  requisite  that  opinion  it  was  not  error  to  give  this 
parents  should  exercise  reasonable  instruction." 

care  and  c.iution  in  caring  for  the  34 — I^.  S.  &  M.  S.  Rd.  Co.  v.  Mil- 
child,  find  the  giving  of  the  signals  ler,  25  Mich.  274. 

requln-d  by  the  statute  might  have  35— Ind.  &  St.  L.  Rd.  Co.  v.  Stout, 

caused  a  greater  degree  of  watch-  53  lud.  143. 

fulness   on   their   part   at   th*^  oar-  ♦ 


§  1933.]  NEGLIGENCE— RAILROADS.  1243 

fendant  was  guilty  of  a  want  of  ordinary  care  and  skill,  etc.,  arc 
questions  of  fact  to  be  determined  by  the  jury  from  all  the  evidence  in 
the  case. 

(e)  If  3'ou  believe  from  the  evidence,  that  the  driver  of  the  team 
was  guilty  of  any  degi-ee  of  negligence,  which  contributed  directly 
to  the  injury,  then  the  jury  should  find  for  the  defendant,  even  though 
you  believe,  from  the  evidence,  that  the  negligence  of  the  defendant, 
in  some  measure,  caused  the  injury  complained  of. 

(f)  Although  the  jury  may  believe,  from  the  evidence,  that  at  the 
time  of  the  injury  complained  of,  the  plaintiff  was  riding  in  a  wagon 
driven  by  one  A.  B.,  and  that  the  said  A.  B.,  as  such  driver,  was 
guilty  of  negligence  which  contributed  directly  to  the  injury  com- 
plained of,  still,  if  the  jury  further  believe,  from  the  evidence,  that 
the  plaintiff  was  merely  riding  for  pleasure  with  the  said  A.  B.,  and 
upon  his  invitation,  and  that  the  plaintiff  had  no  right  nor  authority 
to  control  the  movements  of  the  said  horses  and  wagon  or  their  driver, 
and  did  not  exercise  any  such  control,  then  the  contributory  negli- 
gence of  the  driver  would  not  prevent  a  recovery  by  the  plaintiff  in 
this  suit,  provided  the  jury  further  believe,  from  the  evidence,  that 
the  defendant  was  guilty  of  negligence,  as  charged  in  the  declaration, 
and  that  the  plaintiff  was  injured  thereby,  and  also,  that  the  plaintiff 
was  not  himself  guilty  of  any  negligence  which  contributed  to  the 
injuiy.^^ 

§  1933.  Proof  of  Death  at  Crossing  Must  Correspond  with  Plain- 
tiff's Allegation  That  It  Occurred  There,  (a)  The  court  instructs 
the  juiy  that  it  is  your  duty  to  determine  from  the  evidence  where 
the  deceased  was  when  he  was  strack.  The  plaintiff  alleges  that  the 
deceased  was  struck  at  S.  street  while  he  was  passing  along  S.  street 
over  and  across  the  railroad  tracks,  and  this  is  denied  by  the  defend- 
ant company.  Unless  from  the  evidence  you  believe  that  deceased 
was  struck  by  the  engine  of  the  defendant  while  passing  along  S. 
street  over  and  across  the  railroad  ti"acks,  you  must  find  the  de- 
fendant not  guilty, — or,  in  other  words,  if  from  the  evidence  you  be- 
lieve that  the  deceased  was  struck  and  killed  by  an  engine  of  the 
defendant,  and  further  believe  from  the  evidence  that  deceased,  when 
he  was  struck  by  such  engine,  was  not  passing  along  S.  street  but  was 
on  the  railroad  track  several  hundred  feet  from  S.  street,  then  you 
must  find  that  the  evidence  does  not  support  the  allegation  of  plain- 
tiff that  deceased  was  struck  while  passing  along  S.  street,  and  that 
unless  you  find  that  that  allegation  has  been  proved,  you  must  find  the 
defendant  not  guilty.^'' 

36 — Dyer  v.  Erie  Rd.  Co.,  71  N.  Y.  clearly  the  law  applicable  to  such 

228.  theory,  and  directed  the  jury  in  a 

37 — B.  &  O.  R.  R.  Co.  v.  Stanley,  plain  strong  statement  of  the  law 

158   111.   396   (400),   aff' g  54   111.   App.  that  the  plaintiff  could  not  recover 

215,    41    N.    E.   1012.  at  all  unless  it  was  shown  that  it 

"The    instruction    given    by    the  was  at   the   public   crossing   where 

court    embodied    the    theory    upon  plaintiff's  intestate  was  struck  by 

which  the  plaintiff  claimed  a  right  defendant's  train." 
of   recovery,   and  announced   very 


1244  FORMS  OF  INSTRUCTIONS.  [§  1934. 

(b)  You  are  instructed  that  it  is  the  duty  of  the  defendant  com- 
pany to  exercise  ordinary  care  in  operating  its  cars  to  prevent  injury 
to  persons  at  places  used  as  crossings  by  the  public  over  its  tracks; 

and  if  you  believe  from  the  evidence  that  on  or  about  the day  of 

,  ,  the  plaintiff,  E.,  was  crossing  on  foot  the   track  of 

defendant  at  or  near  a  point  where  P.  avenue  intersects  S.  street,  in 
the  city  of  ,  Texas;  and  if  you  further  believe  from  the  evi- 
dence that  the  said  P.  street,  at  the  place  where  it  crosses  said  track, 
was  used  by  the  public  as  a  crossing;  and  if  you  further  believe  from 
the  evidence  that,  while  the  plaintiff  was  crossing  the  said  track  at 
said  point,  defendant's  employes  pushed  one  of  its  flat  cars  forward 
upon  its  track,  in  an  easterly  direction,  upon  and  over  a  part  of  the 
right  foot  of  the  plaintiff,  E.,  as  set  forth  in  plaintiff's  petition;  and 
if  you  find  from  the  evidence  that  the  plaintiff  received  the  injuries  as 
described  in  said  petition;  and  if  you  further  find  from  all  the  facts 
and  circumstances  in  evidence  that  the  collision,  if  any,  between  the 
plaintiff  and  the  said  car  was  caused  by  negligence  of  the  defendant, 
and  that  such  negligence,  if  any,  was  the  proximate  cause  of  the  said 
injuries,  if  any,  of  the  plaintiff, — then  you  are  instructed  to  find  for 
the  plaintiff,  unless  you  find  that  the  plaintiff  himself  was  guilty  of 
negligence  which  contributed  to  cause  his  injuries,  if  any.  On  the 
other  hand,  if  you  do  not  believe  that  the  defendant  was  guilty  of 
negligence  proximately  causing  plaintiff's  injuries,  if  any,  or  if  you 
believe  from  the  evidence  that  the  plaintiff  was  injured  on  defendant's 
track  in  its  private  yard,  at  a  place  other  than  the  crossing  at  P. 
street,  above  referred  to,  or  if  you  believe  the  plaintiff  was  guilty  of 
negligence  himself  that  contributed  to  or  caused  his  injuries,  then,  in 
either  of  these  events,  you  should  find  for  the  defendants.^* 


VIOLATION  OF  ORDINANCES. 

§  1934.    Negligence  May  Be  Inferred  From  Injury  at  Crossing.    It 

is  a  question  of  fact  for  you  to  say,  under  the  evidence  in  this  ease, 
whether  or  not  the  defendant  has  violated  the  provisions  of  the  ordi- 
nance giving  it  a  right  of  way  through  certain  streets  of  the  city  of 
C,  or  in  fact  of  any  of  the  ordinances  that  have  been  introduced  in 
evidence.  I  charge  you,  however,  that  if  you  find  from  the  evidence 
that  any  of  the  provisions  of  the  city  ordinances  have  been  violated, 
and  that  the  injury  complained  of  resulted  from  such  violation,  then 
such  violation  is  a  circumstance  from  which  negligence  may  be  in- 
ferred."'" 

§  1935.  Fact  That  Deceased  Was  Killed  by  Cars  of  Defendant  In- 
sufficient, Standing  Alone,  to  Justify  Verdict  for  Plaintiff.  The  court 
instructs  the  jury  that  it  is  not  enough  to  justify  the  jury  in  finding 

3«— O.  H.  &  S.  A.  Ry.  Co.  v.  Kief,  39— Brasington  v.  So.  B.  R.  Co.,  62 
—  Tex.  Civ.  App.  — ,  58  S.  W.  625  S.  C.  325,  40  S.  E.  665  (668),  89  Am. 
(626).  St.   905. 


§  1936.]  NEGLIGENCE— RAILROADS.  1245 

a  verdict  for  the  plaintiff  that  it  shall  appear  from  the  evidence  that 
deceased  was  killed  by  cars  of  the  defendant,  or  that,  looking  at  the 
facts  and  surroundings  in  evidence  after  the  accident,  it  can  now  be 
seen  that  something  not  done  by  the  defendant's  servants  at  the  time 
might  have  avoided  the  injury.  But  if  the  jury  believe  from  all  the 
evidence  in  the  case  that  defendant's  servants  at  the  time  of  the  acci- 
dent used  due  and  ordinary  care  in  the  operation  of  defendant's 
train  under  the  circumstances,  then  the  verdict  must  be  for  the  de- 
fendant.^o 

§  1936.  When  No  Eye  Witness  to  Killing  of  Person  by  Railroad 
Train  Presumption  of  Due  Care  by  Deceased  Usually  Exists.  You 
are  instructed  that,  where  there  are  no  eye-witnesses  to  the  accidental 
killing  of  a  person  by  a  railroad  train,  the  presumption  is,  in  the  ab- 
sence of  other  evidence  and  circumstances  to  the  contrary,  that  the 
deceased  was  exercising  due  care,  but  this  presumption  is  not  con- 
clusive, and  may  be  rebutted  by  evidence  to  the  contrary;  and  if  you 
then  find,  taking  into  consideration  the  location  of  the  highway  with 
reference  to  said  crossing,  and  the  distance  fi'om  said  crossing  on  said 
highway,  from  which  said  approaching  train  could  have  been  seen, 
and  taking  into  consideration  all  other  circumstances  surrounding  said 
injury,  as  disclosed  by  the  evidence  in  this  case,  you  should  find  that 
plaintiff's  intestate  could  not  have  been  at  or  immediately  prior  to 
said  accident  in  the  exercise  of  reasonable  care  on  his  part,  or  you 
find  that  by  the  exercise  and  use  of  his  senses  of  seeing  and  hearing 
he  could  have  discovered  the  approaching  train  in  time  to  have  avoided 
injury  thereby,  with  the  exercise  of  reasonable  care  on  his  part,  then 
said  presumption  as  to  due  care  is  not  to  be  given  any  weight  by  you, 
and,  unless  there  is  other  evidence  from  which  you  can  find  that 
plaintiff's  intestate  did  not  contribute  to  said  injury  by  his  own  negli- 
gence, then  your  verdict  should  be  for  the  defendant.*^ 

§  1937.  Railroad  Company's  Duty  in  Crossing  Tracks  of  Another 
Railroad.  A  railroad  corporation  must  exercise  ordinary  care  when 
approaching  a  crossing  of  another  railroad,  and,  when  means  are  not 
provided  by  which  a  collision  at  a  railroad  crossing  is  rendered  im- 
possible, the  rule  to  stop,  look  and  listen  is  not  less  imperative  on  a 
train  approaching  such  crossing  than  ujDon  a  traveler  about  to  ap- 
proach a  railroad  crossing,  who  must  stop,  look  and  listen  for  ap- 
proaching trains  before  entering  upon  such  crossing.*^ 

40— C.  &  A.  R.  R.  Co.  V.  Ander-  spies,  —  Ind.  App.  — ,  76  N.  E.  1015 

son,  67  111.  App.   386  (388),  aff* d  166  (1019). 

111.  572,   46  N.  E.  1125.  "The  objection  urged  to  this  in- 

41 — Rietveld    v.    Wabash    R.    Co.,  struction  is  that  it  told  the  jury  in 

129  la.  249,  105  N.  W.  515  (516).  substance,     that    a    railroad    com- 

"This,    or    something    conveying  pany,  in  backing  its  train  over  the 

the  same  thought,  should  have  been  crossing   of  another  railroad   com- 

given.  See  Amos  v.  Transit  Co.,  120  pany,  was  required  to  observe  the 

la.  640,  95  N.  W.  161;  Beem  v.  I.  &  same    care    that    a    traveler    about 

T.  El.  R.  R.  Co.,  104  la.  563,  73  N.  to    approach    a     railroad     crossing 

W.    1045."  must  before  crossing  over  the  road. 

42— B.  «&  O.  S.  W.  R.  Co.  V.  Klee-  As  applied  to  the  facts  in  this  case, 


1246  FORMS  OF  INSTRUCTIONS.  [§  1938. 

§  1938.  Liability  of  Railroad  and  Street  Car  Companies  for  Repair 
of  Tracks  at  Crossing.  (a)  If  the  jury  believe  from  the  evidence  that 
both  the  railroad  company  and  street  car  line  so  negligently  main- 
tained their  tracks  and  crossing,  as  charged  in  the  declaration,  that 
the  engine  upon  which  G.  was  riding  was  caused  to  rock  or  sway, 
and  thereby  to  project  the  foot-board  of  said  engine  against  some 
obstruction,  and  if  the  jury  further  believe  from  the  evidence  that  the 
said  negligence  of  said  defendants,  if  they  were  negligent,  was  the 
sole  proximate  cause  of  the  injury  to  G.,  and  that  said  G.  at  the  time 
of  the  accident  exercised  ordinary  care  for  his  own  safety,  then  the 
jury  should  find  the  defendant  street  ear  line  and  the  railroad  com- 
pany guilty  and  the  City  Railway  Company  not  guilty.  The  word 
"proximate"  used  in  this  instruction  means  closely  connected  with 
the  injury  in  the  order  of  events ">and  so  connected  with  the  injury  but 
that  for  the  negligence  of  street  ear  line  and  the  railroad  company,  if 
they  were  negligent,  the  injury  would  not  have  happened. 

(b)  The  court  instructs  the  jury  that  the  law  did  not  impose 
solely  upon  the  defendant  Chi.  C.  Ry.  Co.  the  duty  of  maintaining  the 
crossing  of  the  Chi.  C.  Ry.  Co.  and  the  Chi.  J.  R.  Co.,  but  the  law 
required  the  Chi.  J.  R.  R.  Co.,  as  well  as  the  Chi.  C.  Ry.  Co.,  to 
exercise  ordinary  care  to  see  that  said  crossing  was  reasonably  safe; 
and  if  the  jury  further  believe  from  the  evidence  that  the  City  Ry.  Co. 
did  exercise  ordinary  care  in  repairing  and  maintaining  the  said  cross- 
ing in  a  reasonably  safe  condition,  and  that  the  Chi.  J.  R.  R.  Co.  did 
not  exercise  ordinary  care  to  rej^air  or  maintain  in  a  reasonably  safe 
condition  its  tracks,  then  the  jury  must  find  the  defendant  Chi.  C.  Ry. 
Co.  not  guilty,  and  if  the  juiy  further  believe  from  the  evidence  that 
the  proximate  cause  of  the  injury  to  G.  was  said  failure  on  the  part 
of  the  Chi.  J.  R.  R.  Co.  to  repair  or  maintain  its  track,  if  there  was 
such  a  failure  on  its  part,  and  that  G.  exercised  ordinary  care  for  his 
own  safety,  then  the  jury  must  find  the  defendant  Chi.  J.  R.  R.  Co. 
guilty.  "3 

we  do  not  think  the  instruction  is  see  no  reason  why  those  who  put  it 
wrong.  If  it  is  subject  to  criticism,  in  jeopardy,  whether  it  be  a  rail- 
It  is  because  it  is  not  as  drastic  as  road  corporation  or  not,  should  not 
it  might  be.  In  it  the  court  told  the  be  charged  with  the  exercise  of  the 
jury  that  a  railroad  com.pany  'must  highest  degree  of  care,  so  as  to 
exercise  ordinary  care  when  ap-  avert  danger  to  life.  In  this  case 
proaching  the  crossing  of  another  where  the  signals  given  to  both 
railroad,"  etc.  We  think  the  court  companies  by  their  servant  gave 
would  have  been  justified  in  say-  to  the  Pennsylvania  Company  the 
Ing  to  the  jury  that  it  was  the  duty  right  to  pass  over  the  crossing,  it 
of  such  railroad  company  to  ex-  was  the  duty  of  the  appellant  in 
ercise  the  highest  degree  of  care  the  face  of  such  signal,  to  refrain 
under  the  circumstanees.  The  facts  from  undertaking  to  back  its  train 
here  show  thut  this  railroad  cross-  over  the  crossing  while  the  Penn- 
ing was  dangerous  and  unsafe,  sylvania  train  was  passing,  and 
The  evidence  does  not  show  that  the  degree  of  care  it  was  required 
an  Interlocking  switch  was  main-  to  exercise  was  not  too  strongly 
tained,  whereby  accidents  of  this  stated  in  the  instruction." 
character  might  have  been  averted.  43 — Brccher  v.  Cliicago  J.  R.  Co., 
Where  human  life  Is  at  stake,  we  119  111.  App.  555. 


§  1939.]  NEGLIGENCE— RAILROADSo  1247 


DUTY  TOWARD  SHIPPERS  AND  CONSIGNEES. 

§  1939.  Duty  Toward  Shipper  Loading  Cars,  (a)  If  you  believe, 
from  the  preponderance  of  the  evidence,  that  plaintiff  had  car  fur- 
nished him  by  defendant  to  be  loaded  with  hogs  for  shipment  over 
defendant 's  road,  and  at  time  of  alleged  injury  in  first  count,  plaintiff 
was  loading  or  fastening  said  car,  it  became  the  duty  of  defendant 
to  exercise  due  care  to  prevent  doing  personal  injury  to  plaintiff 
while  engaged  in  loading  car;  and  if  you  believe,  from  a  preponder- 
ance of  evidence,  at  time  of  injury,  plaintiff  was  rightfully  in  car,  in 
exercise  of  due  care  and  caution  for  his  safety,  such  as  a  reasonably 
prudent  man  would  exercise  under  like  circumstances,  and  that  de- 
fendant, by  its  employes,  negligently  or  willfully  ran  an  engine  against 
said  car  upon  which  plaintiff'  was,  thereby  knocking  him  off,  and  in- 
jured him,  then  your  verdict  should  be  for  plaintiff  in  such  sum  as, 
from  all  the  evidence,  you  believe  he  is  entitled  to  receive.** 

(b)  When  a  railroad  company  puts  unloaded  cars  upon  the  side 
track  for  the  purpose  of  being  loaded  by  the  owners  of  the  freight, 
and  such  owners,  their  agents  or  servants,  with  the  expi'ess  or  im- 
plied consent  of  the  company,  proceed  to  load  the  car,  the  company  in 
such  case  has  no  right,  without  reasonable  notice  or  warning,  to  run 
or  back  a  train  upon  the  side  track  while  the  cars  are  being  loaded. 
And  while  in  such  case  those  engaged  in  the  work  of  loading  are  not 
permitted  to  close  their  eyes  or  ears  to  what  comes  within  the  range  of 
their  senses,  yet  they  may  give  their  undivided  attention  to  their  work, 
and  they  are  justified  in  assuming  that  the  company  will  not  molest 
them  or  render  their  jDosition  hazardous  without  such  notice  or 
warning.*^ 

§  1940.    Liability  for  Injury  to  Consignee  While  Unloading  Car. 

(a)  If  an  agent  of  defendant  at  P.,  with  authority  to  direct  or  pro- 
vide for  the  unloading  of  the  car,  knew  in  time  to  notify  the  train- 
men before  the  engine  went  upon  the  side  ti'ack  that  plaintiff  was 
taking  the  corn  from  the  car  when  the  engine  was  run  upon  the  side 
track,  and  in  such  position  that  he  might  probably  be  injured  by  the 
running  of  the  engine  against  the  car,  it  became  the  duty  of  the  per- 
sons operating  the  engine  to  use  ordinary  care  to  so  operate  it  as  not 
to  thereby  cause  injury  to  plaintiff,  though  they  did  not  know  he  was 
there.'**' 

(b)  You  are  instructed  that  where  a  carrier  of  freight  on  its  ar- 
rival at  the  place  of  destination,  places  the  car  containing  such  freight 
upon  one  of  its  side  tracks,  and  notifies,  invites  or  requii'es  the  con- 
signee to  remove  such  freight  from  its  car,  that  the  owner,  who  in 
pursuance  of  such  notice,  invitation  or  request  proceeds  to  remove 
such  freight  from  such  car,  while  so  engaged  has  the  right  to  rely 

44—1.   C.   R.   R.   Co.  V.   Anderson,        45— Copley  v.  U.  Pac.  Ry.  Co.,  26 
184    111.   294    (296),   aff'g  81   111.   App.     Utah    361,    73    Pac.    517    (520). 
137,  56  N.  E.  331.  46— St.  L.  S.  W.  Ry.  Co.  v.  Kenne- 


1248  FORMS  OF  INSTRUCTIONS.  [§  1941. 

upon  the  carrier  to  exercise  reasonable  care  not  to  injure  him  while 
so  employed;  and  if  you  believe  from  the  evidence  in  this  case  that 
the  plaintiff  was  notified,  invited  or  requested  by  the  defendant  to 
remove  certain  freight  from  a  car  placed  by  it  upon  one  of  its  side 
tracks  for  the  purpose  of  enabling  the  plaintiff  to  remove  his  goods 
therefrom,  that  while  plaintiff  was  in  said  car  for  the  purpose  of  so 
removing  his  freight,  and  in  the  exercise  of  due  care  for  his  own 
safety,  the  defendant's  servants  in  charge  of  one  of  its  freight  trains 
either  knowing  of  plaintiff's  presence  in  said  car,  or  the  circum- 
stances being  such  that  they  ought  in  the  exercise  of  ordinary  care 
on  their  part  to  have  known  of  his  presence  therein,  thereafter  negli- 
gently ran  into  said  car  with  such  force  and  violence,  as  to  overturn  a 
safe  therein  contained  upon  the  plaintiff,  thereby  injuring  him,  then 
you  should  find  the  defendant  guilty.*^ 

§  1941.  Injury  While  Going  to  Car,  Although  Told  It  Could  Not 
Be  Unloaded  That  Day.  (a)  If  you  believe  from  the  evidence  that 
the  plaintiff  went  late  in  the  evening,  after  business  hours,  to  the 
yards  of  the  defendant,  and  after  he  had  been  told  by  the  person 
whose  duty  it  was  to  seal  or  open  the  cars,  that  he  could  not  get  into 
the  car  that  day,  then  he  would  be  a  trespasser,  and  the  railroad  com- 
pany owed  him  no  duty  until  his  presence  there  was  discovered  by 
the  persons  in  charge  of  the  train;  and  if  you  believe  from  the  evi- 
dence that  they  had  not  seen  him,  and  did  not  know  of  his  presence 
near  the  car,  until  after  the  injury,  your  verdict  must  be  for  the 
defendant. 

(b)  One  who  voluntarily  goes  into  the  yards  of  a  railroad  com- 
pany after  it  is  getting  dark,  crossing  one  or  two  tracks  to  get  there, 
and  after  he  knows  the  car  has  been  sealed  up  to  prevent  any  more 
unloading  that  day,  is  a  trespasser,  and  would  be  guilty  of  contribu- 
tory negligence,  and  cannot  recover  for  injuries  received  while  there. 

(c)  It  is  the  duty  of  all  persons  running  trains  in  this  state  upon 
any  railroad  to  keep  a  constant  lookout  for  persons  and  property 
upon  the  track  of  any  and  all  railroads,  and  if  any  persons  or  prop- 
erty shall  be  killed  or  injured  by  the  neglect  of  any  employes  of  any 
railroad  to  keep  such  lookout  the  company  owning  and  operating  any 
such  railroad  shall  be  liable  and  responsible  to  the  persons  injured  for 
all  damages  resulting  from  neglect  to  keep  such  lookout  and  the  bur- 
den shall  devolve  upon  such  railroad  to  establish  the  fact  that  his 
duty  has  been  performed.  But  you  are  further  instructed  that  the 
failure  to  keep  a  constant  lookout  would  not  render  the  railroad  liable 
if  the  ])lainlil"f  himself  was  a  trespasser  in  going  upon  said  track  or 

more,  —  Tex.  Civ.  App.  — ,  81  S.  W.  Court  .saying:     "Wc  have  carefully 

802  (803).  considered     the     propriety     of     the 

47 — C.  &  K.  I.  II.   R.  Co.  V.  Bur-  court's  action  In   passing  upon  in- 

rldge,    107    111.    App.    23    (27),    rev'd  structions,   and   are   of   the   opinion 

211   III.  9,  71  N.   E.   838,  for  the  re-  that  no  error  was  committed  except 

funal    of     two     other     instructions  in   refu:?ing   iippellant's  refused  in- 

UHked  by    appellant,    the    Supreme  structions  No.  6  aud  No.  7." 


§  1942.]  NEGLIGENCE— RAILROADS.  1249 

was  guilty  of  any  act  of  negligence  contributing  to  the  injury   of 
which  he  complains. 

(d)  If  you  find  that  the  employes  of  defendant  who  had  charge 
of  looking  after  the  unloading  of  cars  on  its  tracks  knew  that  plain- 
tiff was  engaged  in  unloading  a  car  and  that  he  was  upon  defendant's 
yards  for  that  purpose  after  business  hours  and  you  further  believe 
from  the  evidence  that  the  plaintiff  did  not  know  that  he  was  violat- 
ing any  rule  or  custom  of  the  company,  then  you  will  find  that  de- 
fendant owed  him  the  duty  not  to  injure  him  by  any  negligent  act  of 
its  employes  in  moving  cars  on  said  yard. 

(e)  You  are  instructed  that  if  from  the  evidence  that  the  plaintiff 
had  spoken  to  the  watchman  of  the  defendant,  that  he  was  going  to 
return  for  the  last  of  his  freight  in  a  car,  and  that  said  watchman 
knew  that  plaintiff  was  hauling  freight  from  said  car  and  that  said 
watchman  had  the  right  and  it  was  his  duty  to  close  said  car  and  that 
plaintiff  did  return  and  found  said  car  at  the  same  place  and  in  the 
same  condition  as  when  he  left  the  same  and  you  further  find  that 
the  plaintiff  believed  as  an  ordinary  prudent  man  that  he  had  a  right 
to  unload  his  freight  at  the  time,  then  he  would  not  be  a  trespasser 
and  if  he  was  injured  by  negligence  of  any  employe  in  charge  of  said 
train  you  will  find  for  the  plaintiff. 

(f )  The  burden  is  on  the  plaintiff  to  show,  by  a  preponderance  of 
the  evidence,  that  the  defendant  was  guilty  of  negligence,  and  that 
he  was  injured  by  such  negligence,  to  entitle  him  to  recover  in  this 
action;  and  if  you  find  from  the  evidence,  that  the  defendant  was 
negligent,  and  that  the  plaintiff  was  injured  therebj",  then,  in  order 
to  defeat  his  recovery  on  the  ground  that  he  was  guilty  of  contribu- 
tory negligence,  the  burden  is  on  the  defendant  to  show  such  contrib- 
utory negligence  by  a  preponderance  of  the  evidence.'** 

§  1942.  Assault  upon  Person  Getting  Freight  by  Company's  Agent 
or  Servant,  (a)  If  you  believe  from  the  preponderance  of  the  evidence 
that,  at  the  time  of  the  difficulty  between  plaintiff  and  the  said  M. 
and  R.,  it  was  a  part  of  the  duties  of  said  M.  and  R.,  as  such  em- 
ployes of  defendant,  to  cai'e  foi",  and  protect  from  injury,  interference 
or  rough  handling,  the  fi'eight  situated  in  defendant's  said  depot,  and 
if  you  further  believe  from  a  preponderance  of  the  evidence  that  the 
said  M.  and  R.  did  commit  an  assault  upon  the  plaintiff  as  alleged 
in  his  petition,  and  if  you  further  believe  from  a  preponderance  of 
the  evidence  that  the  said  M.  and  R.,  in  committing  such  assault,  if 
you  find  that  they  did  so,  committed  the  same  for  the  pui-pose  and 
with  the  intention  of  protecting  the  freight  situated  in  said  depot,  or 
any  of  it,  from  injury,  interference  or  rough  handling  by  plaintiff, 
then  you  will  return  a  verdict  for  the  plaintiff.  Unless  you  so  find  from 
a  preponderance  of  thj  evidence,  you  will  return  a  verdict  for  the  de- 
fendant. 

48 — This  series  of  six  instructions  S.  W.  R.  Co.  v.  McQueeney,  78  Ark. 
were  approved  in  Little  RoRk  &  H-     22.   92  S.   w.   1120 

79 


1250  FORMS  OF  INSTRUCTIONS.  [§  1943. 

(b)  If  3'ou  believe,  fi'om  a  preponderance  of  the  evidence,  that,  at 
the  time  of  the  difficulty  between  the  plaintiff  and  the  said  M.  and  R., 
it  was  a  part  of  the  duty  of  said  M.  and  R.,  as  employes  of  defendant 
at  its  said  depot,  to  care  for,  and  protect  against  injury,  interference 
or  rough  handling,  the  freight  situated  in  said  depot,  then  you  are 
instructed,  as  a  matter  of  law,  that  the  defendant  would  be  responsible 
for  the  wrongful  acts  if  any,  of  the  said  M.  and  R.,  or  either  of  them, 
committed  for  the  purpose  of  caring  for  or  protecting  such  freight 
against  injury,  interference  or  rough  handling,  although  such  wrong- 
ful acts,  if  any,  had  not  been  expressly  authorized  by  defendant,  and 
although  such  wrongful  acts,  if  any,  had  been  expressly  forbidden  by 
defendant.  The  defendant  would  not  be  responsible  for  the  wrongful 
acts,  if  any,  of  the  said  M.  or  said  R.,  committed  for  a  purpose  other 
than  discharge  of  some  duty  for  which  the  one  so  committing  such 
wrongful  act,  if  any,  was  employed.*^ 

RULES  AND  REGULATIONS. 

§  1943,    Right  to  Make  Reasonable  Rules  for  Management  of  Trains. 

A  railroad  compan^y  has  the  lawful  right  to  make  all  reasonably  neces- 
sary rules  for  the  conduct  of  its  employes,  and  also  of  its  passengers. 
And  whether  such  rules  are  adequate  to  secure  the  safety  of  others, 
and  the  safe  management  of  its  trains,  is  a  question  of  fact  for  the 
jury.s" 

§  1944.  Expelling  a  Person  from  the  Cars,  (a)  The  jury  are  in- 
structed, that  if  the  conductor",  or  other  person  in  charge  of  a  train  of 
cars,  attempts  to  expel  a  person,  who,  by  the  rules  of  the  company, 
has  no  right  to  ride  thereon,  he  must  use  no  more  force  than  is  neces- 
sary to  accomplish  that  purpose;  and  if  he  does  use  more  force  than 
is  necessary  and  the  person  so  put  off  is  thereby  injured,  the  com- 
pany will  be  liable. 

(b)  If  a  person  gets  on  a  railroad  car,  in  order  to  ri<le  without  pay- 
ment of  fare  and  without  the  consent  of  the  persons  in  charge  of  the 
train,  he  may  be  ejected  from  the  cars,  prudently,  and  in  such  a  man- 
ner as  not  unnecessarily  to  endanger  his  personal  safety;  but  if  rea- 
sonable care  and  prudence  are  not  exercised,  and  the  person  is  thereby 
injured,  the  company  will  be  liable,  and  it  cannot  excuse  itself  upon 
the  ground  that  the  wrong  was  mutual. ^^ 

CONTRIBUTORY  NEGLIGENCE. 

8 1945.  Plaintiff  Must  Exercise  Ordinary  Care,  (a)  The  court 
instructs  the  jury,  that  in  an  action  against  a  railroad  company  to 
recover  for  injuries  occasioned  by  the  alleged  negligence  of  the  com- 

49— H.  &  T.  C.  R.  Co.  V.  Bell,  —     len,  84  III.  109;  Stoue  v.  C.  etc.,  Rd. 
Tex.  Civ.  App.  — ,  73  S.  W.  56  (59).      Co.,  47  la.  82. 
60— C.  B.  &  Q.  R.  Co.  V.  McLal-         51— Breon   v.   Tex.  &  P.  Rd.   Co., 

50  Tex.  43. 


§  1946.]  NEGLIGENCE— RAILROADS.  1251 

pany,  in  running  its  train,  although  the  servants  of  the  company  may 
have  been  guilty  of  negligence,  contributing  to  the  injury  complained 
of,  still,  if  the  plaintiff  could,  by  the  exercise  of  ordinary  care  and 
prudence,  have  avowed  the  injury,  he  cannot  recover.^- 

(b)  One  who  is  injured  by  the  mere  negligence  of  another  cannot 
recover,  either  at  law  or  in  equity,  any  compensation  for  the  injury, 
if  he,  by  his  own  ordinary  negligence  contributed  to  produce  the  in- 
jury of  which  he  complains,  so  that  but  for  his  concurring  and  co- 
operating fault  the  injuiy  would  not  have  happened  to  him;  there- 
fore, if  you  find  from  the  evidence  in  this  case  that  the  plaintiff's 
own  negligence  or  fault  either  caused  or  contributed  to  the  injury  he 
cannot  recover. 

(c)  If  you  believe  from  the  evidence  that  the  servants  in  charge 
of  the  train  which  caused  the  injui'y  did  what  men  of  ordinary  pru- 
dence and  caution  would  have  done,  under  the  circumstances,  then 
defendant  was  not  guilty  of  negligence,  and  is  not  liable;  but  even 
if  you  should  believe  that  defendant  is  guilty  of  negligence,  still,  if 
plaintiff  by  his  own  negligence  or  fault,  contributed  to  the  injury, 
or  if  his  negligence  or  fault  co-operated  with  the  acts  of  the  defend- 
ant and  caused  the  injury,  your  verdict  must  be  for  the  defendant. ^^ 

§  1946.  Plaintiff  Not  Bound  to  Highest  Degree  of  Care  and  Pru- 
dence, (a)  The  court  instructs  you,  that  while  a  pei'son  walking  on 
a  public  highway  is  bound  to  use  all  reasonable  care  and  caution  to 
avoid  injuiy,  yet  he  is  not  held  to  the  highest  possible  degree  of  pre- 
caution and  prudence;  and  to  authorize  a  recover^^  for  injuries  negli- 
gently inflicted,  it  is  only  necessaiy  that  it  appear,  from  the  evidence, 
that  he  was  using  reasonable  cai'e  and  caution. 

(b)  The  court  instructs  you,  that  when  a  person  is  injured  by 
the  negligence  of  another,  he  must,  after  the  injury  is  received,  act 
as  an  ordinarily  reasonable  and  prudent  man  would  under  the  cir- 
cumstances, and  use  reasonable  diligence  to  know  whether  medical 
aid  is  required,  and  to  use  all  reasonable  efforts  to  have  himself 
cured;  and  if  he  does  not  do  so,  he  cannot  recover  of  the  defendant 
for  any  suffering,  injury  or  damage  which  results  from  his  failure  to 
exercise  such  care  and  diligence."* 

§  1947.    Plaintiff  Must   Exercise   Reasonable    Care   and  Prudence. 

The  jury  are  instructed,  that  the  phiintiff  was  bound  to  exercise 
ordinary  care  and  prudence  in  attempting  to  cross  the  street,  and 
though  the  jury  may  believe,  from  the  evidence,  that  the  crossing 
in  question  was  dangerous,  still,  if  they  further  believe,  from  the 
evidence,  that  the  accident  in  question  is  attributable  to  the  want  of 
ordinary  care  on  the  part  of  the  plaintiff,  then  she  cannot  recover  in 
this  suit,  unless  the  jury  further  believe,  from  the  evidence,  that  the 

52— Chi.  &  A.  Rd.  Co.  v.  Jacobs.  Co.  v.  McQueeney,  78  Ark.  22,  92 
63  111.  ITS.  S.  W.  1120. 

53— Little    Rock   &    H.    S.    W.    R.         54— Toledo,  W.   &   W.   Rd.   Co.  V. 

Eddy,  72  111.  138. 


1232  FORMS   OF   INSTRUCTIONS.  [§  1948. 

defendant  was  guilty  of  such  gross  negligence  as  implies  willful  or 
wanton  injury.^^ 

§  1948.  Contri'butory  Negligence  of  Children,  (a)  As  to  the  de- 
gree of  care  and  circumspection  required  of  A.  B.',  whose  age  is  al- 
leged to  have  been  eleven  years  when  the  accident  happened,  I  in- 
struct you  that  a  child  of  tender  years  is  not  held  in  the  same  degree 
of  accountability  as  an  adult  man,  but  the  question  of  his  intelligence 
and  mental  capacity  must  be  left  for  your  determin/ation  from  all 
the  facts  and  circumstances  in  evidence  before  you.^^ 

(b)  If  the  jury  shall  find  from  the  evidence  that  the  act  of  the 
child  itself  in  going  under  the  gates  and  onto  the  crossing  as  the  de- 
fendant's  engine  and  train  were  about  to  pass  over  said  crossing  was 
the  sole  cause  of  the  accident,  then  they  are  instructed  that  the  plain- 
tiff cannot  recover,  and  their  verdict  must  be  for  the  defendant.^'^ 

§  1949.  Eye-Witness  as  to  Care  and  Caution  of  Party  Injured  Not 
Essential.  The  court  insti-uets  the  jury  that  evidence  of  the  general 
habit  of  A.  &  B.  in  crossing  railroad  crossing  may  be  taken  into  con- 
sideration by  the  jury,  together  with  all  the  facts  and  circumstances 
in  evidence,  in  determining  the  degree  of  care  used  by  the  deceased 
while  attempting  to  cross  the  defendant's  railroad  at  the  time  they 
were  killed,  and  that  it  is  not  necessary  that  the  plaintiff  should  show 
by  an  eye-witness  as  to  said  A.  &  B.'s  care  and  caution  exercised  by 
tliem  at  the  crossing  at  the  time  they  were  killed,  in  order  for  the 
plaintiff  in  this  case  to  recover,  provided  you  believe,  from  the  evi- 
dence, and  all  the  facts  and  circumstances  in  evidence,  that  they  were 
exercising  ordinaiy  care  and  caution  for  their  own  safety  at  the  time 
they  attempted  to  cross  the  said  railroad  track.^^ 

§  1950.  Contributory  Negligence  of  Person  Injured  at  Crossing,  (a) 
The  plaintiff  cannot  recover  in  this  case  unless  it  is  proved,  by  a  pre- 
ponderance of  the  evidence,  not  only  that  the  defendants  were  guilty 
of  the  negligence  charged  against  them  in  the  plaintiif 's  declaration, 

55 — Indianapolis,    etc.,    R.    Co.    v.  general  habit  of  A  of  looking  and 

McClure,    26    Ind.     370;    Litchfield,  listening   and   of  care   and   caution 

etc.,     Co.     V.     Taylor,    81     111.     590;  when    approaching    or     attempting 

Brown  v.   Hannibal,   etc.,   Rd.   Co.,  to    cross    railroad    tracks    was    in 

50  Mo.  461;  Cooper  v.  Cent.  R.  Co.,  evidence.      The    instruction    called 

44  la.  134.  the  attention   of   the    jury    to   this 

56— Tex.    &    P.    Ry.    Co.    v.    Ball,  'general   habit'    of  A.   &   B.   and   in 

—  Tex.   Civ.  App.  — ,  85  S.  W.  456  connection  therewith  used  the  ex- 

(458).  pressions    'at    the    time    they    were 

57— C.   &  N.  W.  R  Co.  V.  Jamie-  killed'    and    'at    the   time   they   at- 

son,   112    111.    App.    69   (76).  tempted     to      cross     the      railroad 

58 — McNulta  v.  Lockridge,  137  111.  track.'    The  jury  could  not  reason- 

270   (275),   27   N.   E.   452,   31  Am.   St.  ably   have  understood   the   instruc- 

362.  tion  otherwise  than  as  referring  to 

"It  Is  urged  that  this  instruction  the    occasion    on    which    the    intes- 

was  erroneous,   that  it  limited   the  tates  attempted  to  cross  the  track 

inquiry   of   the  jury  as   to   the   ex-  and   were   killed.     As  was  said  by 

erc'l.se  of  ordinary  care  by  the  de-  this  court  in  L.  S.  &  M.  S.  Ry.  Co. 

cea.sod  to  the  moment  of  time  when  v.    Johnsen,    135    111.    641,    36   N.    E. 

they    were    killed,    and    to    the   im-  520:    'the    words    "at   the    time"    as 

mediate   timt.'  they  were  in  the  act  used  in  the  instruction  refer  to  the 

of  crossing  the  railroad  track.    The  whole   transaction.'  " 


S  1951.]  NEGLIGENCE— RAILROADS.  1253 

or  some  count  thereof,  but  that  C.  was  using  reasonable  care  for  his 
safety  at  the  time  of  the  accident;  and  if  the  jury  shall  find,  from 
the  evidence,  that  C.  did  not  use  reasonable  or  ordinary  care  for  his 
own  safety  immediately  befoi'e  and  at  the  time  of  the  accident  com- 
plained of,  then  the  plaintiff  cannot  recover,  and  their  verdict  should 
be  for  the  defendants.^'' 

(b)  You  are  instructed  that  the  law  did  not  require  of  the  de- 
ceased the  exercise  of  an  extraordinary  degree  of  care.  All  that  was 
required  of  him  was  the  exercise  of  oi'dinary  cai-e,  and  what  is  or- 
dinary care  depends  upon  the  circumstances  of  each  particular  case, 
and  is  such  care  as  a  person  of  ordinary  prudence  and  intelligence 
would  usually  exercise  under  the  same  or  similar  circumstances. '''' 

S 1951.  Person  Crossing  Track  Knowing  That  Cars  Were  Shifted 
at  That  Point.  If  the  i^laintiff  had  long  been  a  resident  of  D.,  and 
had  frequently  crossed  the  raih'oad  a^;  the  point,  and  knew  the  trains, 
both  passenger  and  freight,  were  frequently  passing  on  this  and 
other  parallel  roads,  and  that  cars  were  frequentlj^  being  shifted  on 
this  and  other  roads,  and  that  the  train  which  struck  him  was  due 
about  that  time,  and  attempted  to  cross  at  this  point  then,  and  to 
exercise  his  senses  of  sight  and  hearing  all  the  time  and  all  the  way 
across;  and,  when  he  saw  his  view  of  the  main  line  obstructed  by  the 
cars  on  the  side  track,  he  should  have  been  the  more  diligent;  and  if 
he  was  negligent  in  these  i^artieulars,  and  by  reason  thereof  he  was 
injured,  and  that  negligence  was  the  2^1'oximate  cause  of  the  injury, 
you  should  find  the  issues  for  the  defendant. ^^ 

§  1952.  Standing  on  Track — Duty  to  Look  and  Listen.  The  court 
insti'ucts  the  jury  that,  notwithstanding  the  negligence  of  the  defend- 
ant company,  the  plaintiff's  intestate  E,  had  no  right  to  stand  on 
said  track,  or  so  near  thereto  as  to  be  in  danger  from  passing  trains 
without  keeping  a  lookout  in  both  directions  for  their  appi'oaeh;  and 
that  if  in  consequence  of  his  position,  and  of  his  failure  to  look  and 
listen,  he  was  struck  and  killed,  there  can  be  no  recovery  in  this 
case.^^ 

§  1953.  Contributory  Negligence — Failure  of  Plaintiff  to  Discover 
Approaching    Train.     The   court   instructs   the  jury   that   if  you  be- 

59 — C.  &  E.  I.  R.  Co.  v.  Coggins,  ordinary  prudence  would  have  ex- 

212  111.  369,  72  N.  E.  376.  ercised   under  the  same   or  similar 

60 — C.  &  A.  R.  R.  Co.  v.  Pearson,  circumstances.     It  is  said  that  the 

184   111.    386   (393),   aff'g   82  111.    App.  question   involved  was  the  kind  of 

605,  56  N.  E.  633.  care  a  person  of  ordinary  prudence 

"It  is  objected  to  this  that  it  left  exercises    when    acting    prudently, 

the  way  open  for  the  jury  to  un-  and    that    the    care    an    ordinarily 

derstand  that,  if  the  plaintiff  usual-  prudent    person    usually    exercises 

ly  exercised  the  care  of  au  ordinar-  may    be    a    very    different    kind    of 

ily   prudent  person,   that   would  be  care  from  that  which  a  person  ex- 

sufflcient,    although    he    might    not  ercises  when  acting  prudently.  We 

have  done  so  in  the  particular  in-  do  not  think  it  was  subject  to  the 

stance  when  the  accident  occurred,  objection." 

We  do  not  think  it  would  admit  of         61— Norton   v.    N.    C.    R.    Co.,    122 

such  an   interpretation,   but  that  it  N.   C.   910.  29   S.  E.   886  (890). 
required    hiin    to    exercise    on    that         62 — Rangeley's  Adni'r  v.   So.   Ry. 

occasion  the  care  which  a  person  of  Co.,  95  Va.  715,  30  S.  E.  386  (387). 


1254  FORMS  OF  INSTRUCTIONS.  [§  1954. 

lieve,  from  the  evidence,  that  the  plaintiff  could  have  discovered  the 
approaching  train,  by  the  exercise  of  ordinary  care,  in  time  to  have 
enabled  her  to  avoid  the  accident  by  the  exercise  of  ordinary  cai^e 
on  her  part,  and  that  she  did  not  exercise  such  care,  you  will  find  the 
defendant  not  guilty.*'^ 

§  1954.  Knowledge  of  the  Deceased  of  the  Presence  of  One  Engine 
at  Crossing  and  the  Approach  of  Another  Engine.  AYhile  knowledge 
by  the  deceased  of  the  presence  of  the  F.  engine  on  the  north  track 
or  partly  upon  the  S.  C.  street  crossing  and  the  approach  of  No.  — 
upon  one  of  the  central  tracks  at  or  near  the  time  of  the  accident 
might  or  w'ould  indicate  the  presence  of  danger  on  or  near  those 
tracks,  it  is  for  the  jury  to  determine  upon  all  the  facts  of  this  case 
whether  it  was  a  want  of  ordinary  or  reasonable  care  and  prudence 
upon  his  part  to  be  upon  the  south  track,  at  the  point  upon  said  last- 
named  track  at  which  they  shall  find  from  the  evidence  the  accident 
occurred.^* 

§1955.  Contributory  Negligence — Driving  Across  Track  in  a  Care- 
less or  Indifferent  Manner,  (a)  If  you  find  from  the  evidence  that 
plaintiff'  at  said  time  and  place  passed  over  said  railway  in  a  care- 
less, indifferent  or  negligent  manner;  or  if  you  find  from  the  evidence 
that  at  said  time  plaintiff  did  not  have  his  team  under  control,  and 
made  no  effort  to  keep  or  hold  his  team  under  control,  but  at  the  time 
of  crossing  said  railway  permitted  the  lines  to  hang  loose,  or  swing 
loose  and  hang  down  almost  to  the  ground  and  that  the  lines  were  in 
such  position  when  jDlaintiff's  team  ran  away;  and  if  you  find  that 
the  plaintiff  was  thereby  guilty  of  negligence,  as  that  term  is  herein- 
before defined,  and  that  such  negligence,  if  any,  caused  or  contributed 
to  his  injury — you  will  find  for  the  defendant.  Railway  companies 
have  a  legal  right  to  run  their  trains  and  engines  over  their  roads 
and  over  public  crossings,  and  they  are  liable  to  other  persons  for 
such  damages  only  as  result  from  their  negligence  or  disregard  of 
the  rights  of  safety  of  such  other  persons.  If  you  believe  from  the 
evidence  that  at  the  time  plaintiff  drove  his  team  over  defendant's 
railroad  the  engine  was  sixtj'  or  more  feet  away  from  said  public 
crossing,  and  was  moving  at  a  moderate  rate  of  speed,  so  that  plain- 
tiff had  ample  time  to  take  his  wagon  and  team  over  the  said  rail- 
way before  the  said  engine  would  reach  the  crossing,  and  if  you  be- 
lieve defendant's  seiwants  operating  the  said  train  at  the  time  acted 
as  men  of  ordinary  prudence  would  have  acted  under  the  circum- 
stances, then  in  that  event  plaintiff'  cannot  recover  damages  in  this 
suit,  and  you  will  find  for  the  defendant."^ 

G^ — C.   &    R.    I.    R.    Co.    V.    Zapp,  "As  we  have  stated,  there  was  no 

209  111.  339  (343),  70  N.  E.  623.  instruction  given  affirmatively  oall- 

64 — lialtimore    &    P.     R.      R.     v.  Ing  to  the  attention  of  the  jury  any 

LarKlrixaii,    191    U.    S.    461    (472),   24  view    of    the     facts    which     would 

S.   Ct.   1.37.  acquit    the    defendant    of    liability, 

6.'> — Ht.  L.  S.  W.  Ry.  Co.  of  Texas  except    that    upon    the    subject    of 

V.    Hall,   98   Tex.   480,   85   S.   W.  789  contributory    negligence.      That    a 

(790).  party  is  entitled,  when  he  requests 


§  1956.]  NEGLIGENCE— RAILROADS.  1255 

(b)  You  are  further  instructed  that  if  you  believe  from  the  evi- 
dence that  plaintiff  drove  his  team  over  defendant's  railway  at  the 
time  and  place  alleged  in  the  petition ;  and  further  believe  that  at  the 
time,  and  after  crossing  said  railway,  plaintiff  permitted  his  lines  to 
hang  loose  in  such  a  manner  that  he  had  no  control  of  his  team;  and 
if  you  further  believe  from  the  evidence  that  the  act  of  plaintiff  in 
so  driving  his  team  over  the  said  railroad  at  that  time  and  place,  and 
under  the  circumstances  surrounding  plaintiff,  caused  or  contributed 
to  plaintiff's  injuries;  and  if  you  further  believe  from  the  evidence 
that  a  man  of  ordinary  prudence  would  not,  under  the  circumstances 
then  surrounding  plaintiff,  have  driven  his  team  over  said  railroad 
with  the  lines  hanging  loose — then  in  that  event  plaintiff  is  not  en- 
titled to  recover  in  this  suit,  and  you  will  find  for  the  defendant. ^^ 

§  1956.  Contributory  Negligence — Riding  upon  Locomotive.  The 
jury  are  instructed  that,  if  they  believe,  from  the  evidence,  that  a 
man  of  ordinary  care  and  prudence  would  not  ride  upon  a  locomotive 

engine  in  the  position  and  manner  that  said  was  shown  to  have 

been  riding  at  the  time  of  the  accident,  and  you  further  believe  from 
the  evidence  that  his  injury  was  caused  by  his  not  exercising  ordinary 
care  and  prudence,  then  the  plaintiff  cannot  recover.*''' 

§  1957.  Riding  on  Coal  Car  without  Consent  of  Defendant's  Em- 
ployes. If  the  jurj'  should  find  from  the  evidence  that  the  plaintiff, 
on  the  night  of  the  alleged  injury,  voluntarily,  and  in  order  to  get  a 
ride  on  the  defendant's  train  without  paying  for  it,  got  on  the  end  of 
a  coal  car  composing  a  part  of  the  defendant's  freight  train,  without 
the  knowledge  or  consent  of  the  engineer  or  fireman  or  other  em- 
ploye of  the  defendant,  and  was  on  said  coal  car  while  the  train  was 
running  over  defendant's  track,  and  if  thereby  the  plaintiff  volun- 
tarily placed  himself  in  a  dangerous  position  on  the  train,  and  on  ac- 
count thereof  fell  off  the  train  and  was  thereby  injured,  then  the  jury 
should  answer  the  first  issue,  "No."^® 

it  by  correct  instructions,  to  have  of  the    evidence    which     the    jury 

the  facts  establishing  his  cause  of  might  have  talien,  and  the  rule  on 

action   or   ground   of  defense,   with  the     subject     required     that    it     be 

the  law  applicable  to  them,  affirm-  given,    if    it    truly    stated    the    law. 

atively  stated   by  the  court  to  the  We  are  unable  to  see  wherein  it  is 

jury,  is  the  settled  rule  of  practice  incorrect.    It    refers,    it    is    true,    to 

established    by    many    decisions    of  particular    facts,    but    submits    to 

this    court.    Texas    T.    Ry.    Co.    v.  the  jury  whether  or  not  those  facts 

Ayres,    83    Tex.   269,    18    S.    W.    684;  existed,  and  constituted  negligence 

Mo.    K.   &   T.   Ry.   Co.  v.   McGlam-  on    the  part   of   the    defendant.     It 

mory,    89    Tex.    639,    35    S.    W.    1058.  has  no  reference  to  the  question  of 

It  is  no  answer  to  a  complaint  that  negligence  on  the  part  of  the  plain- 

this    was    not    done    that    the    jury  tiff,  and  lays  down  no  rule  on  that 

might  negatively  have  inferred  the  subject,    but   merely    seeks    an    ap- 

proposition    expressed    in     the    re-  propriate    instruction    in    the   ques- 

quest    from    the    instructions    stat-  tion   of  defendant's  negligence." 

ing  the  case  of  the  opposite  party.  66— St.   L.   S.   W.  Ry.  Co.   of  Tex. 

The  right  is,  upon  proper  request,  v.  Hall,  supra. 

to  have  the  law  plainly  and  affirm-  67 — L.    S.     &    M.    S.     Ry.     Co.    v. 

atively  stated  in  its  application  to  Brown,    123    111.   162    (183),   14  N.    E. 

facts  supported  by  evidence  under  197,  5  Am.  St.  510. 

which  the  party  would  be  entitled  68— Lewis   v.    Norfolk    &   W.    Ry. 

to  a  verdict.  The  instruction  in  Co.,  132  N.  C.  382,  43  S.  E.  919  (921). 
question  was  applicable  to  a  view 


1256  FORMS  OF  INSTRUCTIONS.  [§  1958. 

§  1958.  Contributory  Negligence  of  Plaintiff  No  Defense  If  De- 
fendant Could  Have  Avoided  Injury  after  Discovering  Plaintiff's 
Peril,  (a)  If  you  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  negligence,  as  charged  in  the  declaration,  and  that  the 
plaintiff  was  injured  thereby,  and  that  the  plaintiff  was  himself  guilty 
of  some  slight  degree  of  negligence,  this  would  not  alone  prevent  a 
recovery,  provided  the  jury  further  believe,  from  the  evidence,  that 
the  act  of  defendant  which  caused  the  injury  was  done  by  the  defend- 
ant after  discovering  the  plaintiff's  negligence  and  that  the  defendant 
could  have  avoided  the  injury  by  the  exercise  of  reasonable  care."* 

(b)  The  jury  are  instructed  that  if  they  believe  and  find  from  the 
evidence  that  defendant  approached  and  passed  the  depot  at  a  greater 
rate  of  speed  than  six  miles  an  hour,  then  such  rate  of  speed  was 
excessive,  and  negligence  on  the  part  of  the  defendant.  And  if  you 
further  believe  and  find  from  the  evidence  that  such  excessive  speed 
caused,  or  materially  contributed  to,  the  death  of  the  child;  or  if 
you  believe  and  find  from  the  evidence  that  defendant's  engineer  saw 
the  perilous  position  of  the  child  upon  the  track,  or  about  to  place 
itself  in  a  perilous  position  upon  the  track,  or  that  he  could  have 
seen  and  known  it  by  the  exercise  of  ordinary  care;  or  if  you 
believe  and  find  from  the  evidence  that  such  omissions  of  duty  and 
acts  of  negligence,  if  proven,  contributing  together,  caused  or  ma- 
terially and  directly  contributed  to  the  death  of  the  child, — then  your 
verdict  should  be  for  the  plaintiff. 

(c)  Although  you  may  believe  from  the  evidence  that  the  engineer 
had  the  danger  signal  for  D.  and  others  on  or  near  the  track,  and 
exhausted  a  part  of  his  air  to  slow  his  train  to  avoid  injury  to  them, 
and  that  it  was  a  matter  of  prudence  for  him  to  do  so,  yet,  so  soon 
as  the  engineer  discovered  that  said  parties  were  off  the  track  and  in 
a  position  of  safety,  then  it  was  his  duty  to  be  on  the  lookout  for 
the  safety  of  persons  on  the  depot  platform;  and  if  you  believe  from 
the  evidence  that  said  engineer  negligently  failed  to  do  so,  and 
thereby  failed  to  see  the  child,  and  in  consequence  thereof  the  child 
was  struck  and  killed  in  consequence  of  his  negligence, — then  your 
finding  should  be  for  the  plaintiff. 

(d)  You  are  further  instructed  that  it  is  conceded  in  this  case  that 
the  engineer  did  not  see  the  child  before  she  was  struck  and  killed. 
Now,  if  you  believe  from  the  evidence  that  he  could  have  seen  her,  by 
the  exercise  of  ordinary  care,  in  time  to  stop  his  engine  before  he 
struck  her,  or  in  time  to  slow  his  train  for  the  child  to  cross  over 
the  track  before  being  struck,  but  negligently  failed  to  do  so,  then 
your  finding  should  be  for  the  plaintiff. 

(e)  You  are  further  instructed  that  in  coming  into  a  station, 
such  as  that  at  M.,  the  law  required  the  employes  of  the  train  to  be 
watchful,  and  on  the  lookout,  to  avoid  accidents  and  injury  to  those 

69_Morrl3  v.  Tho  C.  B.  &  Q.  R.     Hannibal  &  St.  J.  Rd.  Co.,  50  Mo. 
Co..  45  la.  29;  I.«iboll  v.  N.  Y.  &  N.     464. 
H.  Rd.  Co.,  27  Conn.  393;  Brown  v. 


§  1959.]  NEGLIGENCE— RAILROADS.  1257 

on  or  about  the  platform.  And  if  you  believe  from  the  evidence  that 
in  cominf?  into  the  station  at  M.  the  defendant's  engineer  or  other 
servants  of  the  defendant  saw  the  child  in  a  perilous  position,  or  saw 
it  about  to  place  itself  in  a  perilous  position  by  running  upon  the 
track,  or  could  have  seen  the  same,  by  the  exercise  of  ordinary  care, 
in  time  to  have  avoided  the  injury  and  saved  the  life  of  the  child, 
but  negligently  failed  to  do  so,  then  the  defendant  is  liable,  and  the 
finding  must  be  for  the  plaintiff. 

(f)  If  you  believe  from  the  evidence  that  the  child  took  fright 
and  ran  across  the  depot  platform  in  a  northwestei'ly  direction  to- 
wards the  railroad  track,  while  the  engine  and  cars  were  approaching, 
in  a  manner  to  indicate  to  a  person  of  ordinary  prudence  and  caution 
that  she  intended  to  and  would  run  upon  the  track,  and  that  defend- 
ant's engineer  or  other  employes  saw  her,  or  could  have  seen  and 
known  of  her  design  and  peril,  by  the  exercise  of  ordinary  care,  in 
time  to  have  avoided  the  injury  and  saved  her  life,  but  negligently 
failed  to  do  so,  then  the  defendant  is  liable,  and  the  verdict  must  be 
for  the  plaintiffs,  although  j'ou  may  further  believe  from  the  evidence 
that  the  engineer  did  not  have  time  to  stop  the  train  and  avoid  strik- 
ing her  after  she  got  upon  the  track."" 

§  1959.  Attendant  Circumstances  Determine  Whether  Unconscious 
Person  Is  Guilty  of  Contributory  Negligence,  (a)  The  court  in- 
structs the  jury  that  if  he,  the  plaintiff,  was  hit  in  the  side  by  a  piece 
of  iron,  and  the  force  of  the  blow  caused  him  to  step  back  upon  track 
5,  or  if  he  through  a  natural  impulse,  caused  by  the  blow  in  front, 
threw  himself  backwards  upon  the  track  in  a  moment  of  mental  per- 
turbation or  excitement,  why  then  his  stepping  upon  the  track 
couldn't  be  said  to  be  a  voluntary  act  on  his  part,  but  would  be  an 
incident  to  his  attention  to  his  business;  and  if  he  then  fell  faint 
upon  the  track,  not  having  the  time  or  ability  to  get  off  of  it,  such 
conduct  on  his  part  would  not  be  contributory  negligence. 

(b)  If  he  voluntarily  stepped  upon  the  track  for  any  reason  what- 
soever, except  that  he  was  caused  to  be  there  by  the  blow  that  he 
received,  then  his  stepping  upon  that  track  would  be  contributory 
negligence  which  would  prevent  his  recovery. 

(c)  If  he  was  struck  a  blow  by  the  link,  but  through  inadvertence, 
through  forgetfulness,  or  through  anything  of  that  sort,  he  steijped 
back  upon  track  number  five,  and  then  was  hurt,  and  there  fainted 
upon  the  track,  and  then  was  run  over,  then  he  was  guilty  of 
contributory  negligence  in  being  on  that  track,  and  would  not  be  en- 
titled to  recover.  A  man  may  be  unconscious  upon  a  track  and  be 
guilty  of  contributory  negligence  in  being  there.  It  is  not  lying  on 
the  track  in  an  unconscious  condition  that  determines  whether  a  per- 
son is  guilty  of  contributoiy  negligence  in  being  there,  but  the  cir- 
cumstances attendant  upon  going  upon  the  track,  before   he  became 

70 — Above    instructions    approved   in   Living^ston   v.    Wabash    R.    Co., 
170  Mo.  452,  71  S.  W.  136  (139). 


]25S  FORMS  OF  INSTRUCTIONS.  [§1960. 

unconscious,  determine  whether  or  not  he  is  guilty  of  contributory 
negligence.''^ 

§  1960.  Failure  of  Law  to  Regulate  Speed  Does  Not  Authorize 
Wanton,  Reckless  and  Dangerous  Rate  of  Speed — ^What  Will  Not 
Amount  to  Wanton  Misconduct,  (a)  The  general  statutes  of  our 
State  do  not  regulate  the  rate  of  speed  that  a  railroad  company  shall 
run  its  cars,  yet  the  failure  of  the  law  to  regulate  the  rate  of  speed, 
does  not  authorize  a  railroad  company  to  run  its  trains  at  a  wanton, 
reckless  and  dangerous  rate  of  speed  over  a  public  crossing  in  an 
incorporated  town  or  village,  a  point  where  the  people  cross  and  re- 
cross  the  public  crossing  in  numbers,  and  frequently.''^ 

(b)  Neither  the  placing  of  cars  on  the  sidetrack  as  shown  by 
the  evidence  nor  the  failure  to  ring  the  bell  of  the  engine,  or  blow- 
ing the  whistle,  nor  the  speed  of  the  train,  before  the  peril  of  Mrs. 
M.  became  manifest,  under  the  evidence,  is  evidence  of  wanton,  reck- 
less or  intentional  misconduct  on  the  part  of  defendant's  servants. 

(c)  If  the  jury  believe  from  the  evidence  that  the  manifestation  of 
the  peril  of  Mrs.  M.  and  her  being  struck  by  the  engine  was  so  close, 
in  point  of  time,  that  the  train  could  not  have  been  stopped  in  time 
to  have  avoided  the  injury  to  her,  then  the  defendant's  agents  in 
charge  of  the  train  cannot  be  deemed  guilty  of  wanton,  reckless  or  in- 
tentional misconduct.''^ 

§  1961.  Rule  That  Burden  of  Proof  as  to  Contributory  Negligence 
Is  on  Defendant.  The  court  insti'ucts  the  juiy  that  the  plaintiff  need 
not  affirmatively  prove  that  his  decedent  stopped,  looked  and  listened. 
The  presumption  is  that  he  did  so,  and  the  burden  of  proof  that  he 
did  not  stop,  look  and  listen  is  on  the  defendant  railway  company, 
and  must  be  proved  by  a  preponderance  of  the  testimony  on  its 
part."* 

71 — Louisville    &    N.    R.    Co.    v.  sldered,  assert  correct  propositions 

Thorntou,   117   Ala.   274,    23   So.   778  of  law.    The  injury  there  was  at  a 

(781).  public  road  crossing,   but  not  in  a 

"These  charges  contain  no  error,  town     or     populous     district,     and 

certainly   of   which   defendant   can  there   was   no   question    of   wanton 

complain.    Helton  v.  Ala.  M.  R.  R.  Injury   arising   from   the   character 

Co.,  97  Ala.  275,  284,  12  So.  276."  of  the  public  crossing.  The  charges 

72 — Memphis  &  C.  R.  Co.  v.  Mar-  requested  were  calculated  to  mis- 
tin,    117   Ala.    367,   23   So.    231.  lead  a  jury  in  the  present  case  and 

"This   charge   given   for   plaintiff  the  court  committed   no  reversible 

asserts     a    correct     proposition     of  error  in  refusing  them." 

law.     We  refer  to  this  charge  spe-  74— Pittsburg   C.    C.   &   St.   L.   R. 

daily,  because  this  conclusion  dis-  Co.  v.   Reed.  36  Ind.  App.  67,  75  N. 

poses    of    chiirge    six    requested    by  E.  51. 

the    defendant,    and    others    which  "In    the    absence    of   evidence    to 

asserted     that     there     can     be    no  the    contrary,    the    presumption    is 

wanton   negligence,  in   the  absence  that  a  person  injured  or  killed  by 

of   an    ordinance   or   statute    regu-  collision  with  a  train  at  a  railroad 

lating    the    speed    of    trains."  crossing,  through  the  negligence  of 

73 — Memphis     &     C.     R.     Co.     V.  the  railrod  company,  exercised  or- 

M;irllri,  supra.  dinary   care;   and   where,   to   do  so, 

"These  charges  requested  by  the  he  would  stop,  look  and  listen,  the 

f]cf«rii(];int    were    approvod     in     the  presumption,     where     there     is     no 

cnse  of  Ga.  Pac.  R.  R.  Co.  v.  Lee,  evidence  on  the  subject,  in  an  ac- 

92  Ala.  2*',l-272,  and  abstractly  con-  tion  to  recover  for  his  injury  or  his 


1962.]  NEGLIGENCE— RAILROADS.  1259 


FENCING  TRACK  (LIVE  STOCK). 

Note. — The  obligation  of  railroad  companies  to  fence  the  track  of 
their  roads,  to  give  warning  at  highway  crossings,  and  their  liability 
for  damages  occasioned  by  fire  escaping  from  their  locomotives,  are 
mainly  imposed  or  regulated  by  the  statutes  of  the  several  States ;  and 
these  statutes  differ  somewhat  in  their  details.  The  following  in- 
structions can  readily  be  adopted  to  the  statutes  of  the  different 
States,  by  making  the  changes  necessaiy  for  that  purpose. 

§  1962.  Failure  to  Comply  with  the  Law,  Negligence  Per  Se.  (a) 
The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  railroad  com- 
pany, or  its  servants,  fail  to  perform  a  duty  prescribed  by  statute  or 
ordinance,  such  failure  is  negligence  of  itself;  provided,  it  is  the 
proximate  cause  of  an  injuiy  to  the  person  or  property  of  another.'^ 

(b)  The  first  paragraph  of  the  complaint  is  based  upon  a  statute 
of  the  State  which  requires  railroad  eomi^anies  operating  roads  in 
the  State  to  securely  fence  in  the  tracks  of  their  roads.  A  railroad 
company  operating  a  railroad  in  this  State  is  required  to  securely 
fence  in  its  track,  and  where  this  is  not  done,  the  railroad  company 
so  operating  the  road  is  liable  for  all  damages  done  to  stock  by  its 
locomotives  and  cars  while  being  operated  upon  its  road,  without  re- 
gard to  the  question  whether  such  injury  was  the  result  of  willful 
misconduct  or  negligence  or  the  result  of  unavoidable  accident.'^® 

§  1963.  Company  Must  Exercise  Reasonable  Care,  (a)  The  court 
instructs  the  jury,  as  a  matter  of  law,  that  when,  by  the  use  of  or- 
dinary- care  and  diligence,  on  the  part  of  the  servants  of  a  railroad 
company,  animals  straying  upon  its  tracks  can  be  saved  from  injury, 

death,  is  that  he  stopped,  looked,  R.  Co.,  32  Ind.  App.  600,  70  N.  E. 
and  listened.  The  care  to  be  exer-  407;  Chi.  &  E.  R.  R.  Co.  v.  La 
cised  by  a  traveler  on  a  highway  Porte,  33  Ind.  App.  691,  71  N.  E. 
approaching-  a  railroad  crossing  is  166;  Continental  Imp.  Co.  v.  Stead, 
not  diminished  by  reason  of  the  95  U.  S.  161,  24  L.  Ed.  403;  Texas  & 
enactment  of  1899,  relating  to  P.  R.  R.  Co.  v.  Gentry,  163  U.  S. 
pleading  and  evidence  in  such  353,  16  Sup.  Ct.  1104,  41  L.  Ed.  186; 
cases  (section  359a,  Burns'  Ann.  St.  So.  Ind.  Ry.  Co.  v.  Peyton,  157  Ind. 
1901);  but  the  presumption  in  the  690,  61  N.  E.  722.  If  the  contribu- 
absence  of  evidence  on  the  subject  tory  negligence  constituting  a  de- 
is  that  he  did  exercise  such  requi-  fense  appears  from  the  evidence,  it 
site  care,  his  contributory  negli-  is  not  material  whether  it  appears 
gence  being  by  that  statute  made  from  the  evidence  of  the  defendant 
matter  of  defense.  The  burden  of  or  that  of  the  plaintiff.  Cleveland 
establishing  such  evidence  is  upon  C.  C.  &  St.  L.  R.  R.  Co.  v.  Coff- 
defendant  and  so  continues  man,  30  Ind.  App.  462,  469,  64  N.  E. 
throughout  the  case.  It  must  be  233,  66  N.  E.  179;  Evansville  v. 
presumed  in  such  case  that  the  Christy,  29  Ind.  App.  44,  63  N.  E. 
person  killed  or  injured  was  free  867;  Howard  v.  Indianapolis  St.  L. 
from  contributory  negligence  in  all  R.  Co.,  29  Ind.  App.  514,  518,  64  N. 
respects   until   the   defense   of  con-  E.  890." 

tributory  negligence  has  been  suf-         75— Penn.    Co.    v.   Hensil,   70   Ind. 

ficently    proved.      See      Nichols    v.  569. 

Baltimore,  etc..  R.  Co..  33  Ind.  App.         76— Louisville    N.     A.     &    C.    Ry. 

229,  71  N.  E.  170;  Chi.  I.  &  L.  R.  R.  Co.  v.  Grantham,  104  Ind.  353,  4  N. 

Co.  v.  Turner,   33  Ind.   App.   264.  69  E.   49   (51). 
N.  E.  484;  Harris  v.  Pittsburg,  etc.. 


1260  FORMS  OF  INSTRUCTIONS.  [§  1964. 

then  it  is  the  duty  of  such  servants  to  exercise  that  degree  of  care, 
and  a  failure  to  do  so,  if  proved,  renders  the  company  liable  for  any 
damages  thereby  sustainedJ^ 

(b)  The  court  further  instructs  you,  that  when  a  railroad  com- 
pany fails  to  fence  its  track,  as  required  by  statute,  it  must  see  that 
its  servants  so  conduct  its  trains  that  injuries  shall  not  result  to 
stock  that  may  get  upon  its  track,  if  it  can  be  done  by  care  and  cau- 
tion. If  the  company  fails  to  fence  its  track,  it  takes  upon  itself 
the  hazard,  and  when  injuiy  results  therefrom  it  must  respond  in 
damage/^ 

§  1964.  Company  Only  Held  to  Reasonable  Care — Casual  Breach 
in  Fence.  (a)  The  court  instructs  the  jury,  that  while  railroad 
companies  are  not  required  to  keep  such  a  guard  on  their  roads  as 
to  see  a  breach  in  the  fence  and  repair  it  the  instant  it  occurs,  still 
the  law  does  require  them  to  keep  such  a  force  as  will  discover 
breaches  and  openings  in  their  fences,  and  to  close  them  within  a 
reasonable  time;  and  if  they  neglect  to  do  so  within  a  reasonable 
time,  it  is  a  neglect  of  duty  that  will  render  them  liable  for  an  injury 
to  stock  escaping  onto  the  road  through  such  openings;  provided,  the 
owner  or  the  person  having  the  stock  in  charge  is  guilty  of  no  negli- 
gence which  contributed  to  the  injury. ''''* 

(b)  If  you  believe,  from  the  evidence,  that  the  defendant  had 
erected  a  fence  suitable  and  sufficient  to  prevent  horses  and  cattle, 
sheep  and  other  stock  from  getting  upon  the  railroad  at  the  point 
where  the  animals  in  question  got  upon  the  track,  and  had  maintained 
the  fence  in  good  repair  up  to  (the  evening  before  the  accident),  and 
that  the  injury  was  occasioned  by  the  fence  being  broken  down  at  the 
time  of  the  accident,  then  negligence  on  the  part  of  the  defendant 
ought  not  to  be  inferred,  unless  you  further  find,  from  the  evidence, 
that  the  servants  of  the  company  knew  of  the  fence  being  down,  or 
else  that  it  had  been  down  for  such  a  length  of  time  that,  in  the  exer- 
cise of  reasonable  care  and  watchfulness,  they  ought  to  have  known 
of  its  being  down,  and  failed  to  repair  it  within  a  reasonable  time 
thereafter."" 

(c)  The  court  further  insti'uets  you,  as  a  matter  of  law,  that  when 
a  railroad  is  inclosed  by  a  suitable  and  sufficient  fence,  and  a  casual 
breach  occurs  therein,  without  the  knowledge  or  fault  of  the  com- 
pany, and  through  such  breach  stock  get  upon  the  track  and  are  in- 
jured, the  company  is  not  liable,  unless  it  has  had  a  reasonable  time 
to  discover  such  breach,  or  has  been  notified  and  fails  to  repair  within 
a  reasonable  time,  and  before  the  injury  occurred.^^ 

77— T.,  P.  &  W.  R.  Co.  v.  Ingra-  80— C.  &  A.  R.  Co.  v.  Umphenour, 

ham,  58  111.  120;  Parker  v.  Rd.  Co.,  69  111.  198. 

34   la.   :599,   Cinciniiiiti   &   Z.    R.   Co.  81— Robinson  v.  Grand  Trunk  R. 

V.  Sinith,  22  Ohio  St.  227.  Co.,  .32  Mich.  322;  Davis  v.  Chicago, 

78— Toledo,    P.    &    W.    R.    Co.    v.  R.   I.   &  P.   Rd.   Co.,  40  la.  292;   In- 

Lnvery.  71  111.  522;  Toledo,  W.  &  W.  diannpolis,  P.  &  C.  Rd.  Co.  v.  Truitt, 

R.  Co.  v.   MfGlnnia,  71  111.  346.  24  Ind.  162;  Ind.  &  St.  L.  R.  Co.  v. 

79— C.  &  N.  W.  R.  Co.  v.  Harris,  Hall,  88  111.  368. 
F,4    111.    528. 


§  1965.]  NEGLIGENCE— RAILROADS.  1261 

(d)  If  you  believe,  from  the  evidence,  that  on  (the  day  before 
the  injury)  the  defendant  had  a  good  and  sufficient  fence  to  prevent 
horses,  cattle,  sheep,  hogs  and  other  stock  from  getting  onto  the 
track,  at  the  point  in  question,  and  that  after  that  it  was  blown  down, 
or  broken  down  by  trespassers  or  otherwise,  without  the  fault  of  the 
defendant,  and  that  while  the  fence  was  so  down,  the  plaintiff's 
stock  got  through  the  broken  fence  and  was  injured,  before  the  de- 
fendant had  a  reasonable  time  in  which  to  repair  it,  then  the  de- 
fendant would  not  be  liable  for  injuries  resulting  from  the  fence  be- 
ing out  of  repair. 

(e)  If  5'ou  believe,  from  the  e\ndence,  that  defendant  had  a  good 
and  sufficient  fence  on  the  side  of  its  road,  through  plaintiff's  farm 
or  pasture,  until  shortly  before  the  accident,  and  that  it  was  broken 
down  by  trespassers,  or  by  unruly  stock,  or  blown  down  by  wind,  and 
that  plaintiff's  horses  got  through  the  fence  before  defendant  had 
reasonable  time  to  repair  it,  then  you  should  find  for  the  defendant. 

(f )  The  court  further  instmets  you,  that  when  a  railroad  company 
builds  and  maintains  a  good  and  sufficient  fence  through  a  farm,  and 
it. is  blown  down,  burnt  down,  or  thrown  down  by  trespassers,  and 
without  the  fault  of  the  railroad  company-,  then  the  company  has  a 
reasonable  time  in  which  to  repair  the  fence,  and  it  is  not  responsi- 
ble for  any  damages  which  may  ensue  solely  from  the  insufficiency 
of  the  fence  until  such  reasonable  time  has  elapsed. ^^ 

§  1965.  Stock  Unlawfully  Running  at  Large,  (a)  The  court  in- 
stracts  the  jury,  that  at  the  time  in  question  it  was  unlawful  to  per- 
mit cattle  or  horses  to  run  at  large,  at  and  within,  etc.,  and  if  the 
juiy  believe,  from  the  evidence,  that  the  plaintiff  voluntarily  permit- 
ted the  horse  in  question  to  run  at  large  at  and  within,  etc.,  and  un- 
der such  circumstances  that  it  might  reasonably  have  been  foreseen  or 
anticipated  that  the  horse  might  get  upon  the  defendant's  track,  then 
the  plaintiff  cannot  recover  of  the  defendant  for  the  killing  of  the 
horse  by  one  of  its  trains,  upon  the  ground  alone  that  the  company 
had  failed  to  fence  its  track  at  the  place  where  the  animal  was 
killed.83 

(b)  The  fact  that  the  owner  of  stock  permits  it  to  iim  at  large,  in 
violation  of  the  act  prohibiting  domestic  animals  from  running  at 
large,  does  not  relieve  railroad  companies  from  their  duty  to  fence 
their  roads,  nor  from  their  liability  for  stock  injured  in  consequence 
of  their  failure  to  do  so;  and  the  question  whether  the  owner  of  the 
stock  has  been  guilty  of  contributory  negligence  in  permitting  them 
to  run  at  large,  is  one  of  fact  to  be  determined  by  the  jury  from  all 
the  circumstances  of  the  ease.  And  to  render  the  owner  of  the  stock 
guilty  of  contributory  negligence,  in  permitting  his  stock  to  run   at 

82—1.    C.    R.  R.  Co.  v.  Swearingen,  75  111.  577;  Indiana  R.  Co.  v.  Shimer, 

47  111.  206;  Gill  v.  Rd.   Co.,  27  Ohio  17   Ind.    295;    Jef.,    etc.,    Rd.    Co.    v. 

St.    240.  Adams,    43    Ind.     402;     Pearson    V. 

83~P.  P.,  &  J.  R.  Co.  V.  Champ,  Milwaukee,    etc.,    45    la.    496. 


1262  FORMS  OF  INSTRUCTIONS.  [§  1965. 

large,  it  must  appear,  from  the  evidence,  that  he  did  so  under  such 
circumstances  that  the  natural  and  probable  consequences  of  so  doing 
was  that  the  stock  would  go  upon  the  railroad  track  and  be  injured.®* 

(c)  A  railroad  company  owes  no  duty  to  the  owner  of  stock  which 
strays  upon  its  track,  except  to  keep  a  constant  and  careful  lookout 
upon  the  track,  and  to  use  reasonable  and  ordinary  care  at  the  time  to 
avoid  striking  it.  So,  if  you  believe  from  the  evidence  in  this  case 
that  the  engineer  in  charge  of  the  train  was  keeping  such  a  lookout, 
and  did  use  such  care  to  avoid  striking  the  animals  in  controversy  as 
an  ordinarily  prudent  man  would  have  used  under  the  circumstances, 
but,  on  account  of  the  close  proximity  of  the  animals  to  the  moving 
train  when  the  engineer  discovered  them  on  the  track,  he  was  unable 
to  stop  the  train  in  time  to  avoid  striking  them,  then  the  company 
was  not  guilty  of  such  negligence  as  will  entitle  the  plaintiff  to  re- 
cover, and  your  verdict  will  be  for  the  defendant.®^ 

(d)  The  court  instructs  you,  that  the  fact,  if  proved,  that  the 
plaintiff  peraiitted  his  stock  to  run  "at  large,  in  violation  of  the  law 
prohibiting  domestic  animals  from  running  at  large,  does  not  re- 
lieve the  defendant  from  its  duty  to  maintain  a  suitable  and  sufficient 
fence  along  the  line  of  its  road,  if  you  find,  from  the  evidence,  under 
the  instructions  of  the  court,  that  the  defendant  was  otherwise  bound 
to  do  so;  nor  from  liability  for  stock  injured  in  consequence  of  its 
failure  to  do  so,  if  you  find,  from  the  evidence,  under  the  instructions 
of  the  court,  that  the  defendant  is  otherwise  liable  therefor.^^ 

(e)  The  question  whether  the  plaintiff  was  guilty  of  contributory 
negligence  in  permitting  his  cattle  to  run  at  large,  is  one  of  fact  to 
be  determined  by  the  jury  from  all  the  circumstances  of  the  case. 
And  to  render  him  guilty  of  contributory  negligence,  in  permitting  his 
stock  to  run  at  large,  the  jury  must  believe,  from  the  evidence,  that 
he  did  so  under  such  circumstances  that  the  natural  and  probable  con- 
sequence of  so  doing  was,  that  the  stock  would  go  upon  the  railroad 
track  and  be  injured. 

(f)  In  the  absence  of  an  order  of  the  county  commissioners  (or 
a  vote  of  the  inhabitants,  etc.,)  permitting  stock  to  run  at  large,  the 
plaintiff  was  in  duty  bound  to  keep  his  stock  on  his  own  premises,  or 
to  use  all  ordinary  and  reasonable  means  and  appliances  for  that  pur- 
pose, and  if  he  knowingly  and  voluntarily  suffered  his  stock  to  run 
at  large,  in  the  immediate  vicinity  of  that  part  of  defendant's  road 
where  it  was  not  bound  by  law  to  fence,  as  explained  in  these  instruc- 
tions, and  if  you  further  believe,  from  the  evidence,  that  the  (colts), 
while  so  suffered  to  run  at  large,  got  upon  the  track  of  defend- 
ant's road  at  a  point  where  it  was  not  bound  by  law  to  fence  as 
explained,  etc.,  and  were  then  killed,  the  plaintiff  cannot  recover  un- 
less such  killing  was  willful  or  wantonly  reckless.**^ 

84— Ewlng  V.   C.   &  A.   R.  Co.,  72  28  Mich.  510;  L.  N.  A.  &  C.  R.  Co. 

III.  2.1.  V.   Whitesell,  68  Ind.   297;   White  v. 

85— St.    L.    I.    M.    &    S.    R.    Co.    v.  TTtioa,    etc.,    Rd.    Co.,    15    Hun    333: 

Norton.  71    Ark.   314,  73  S.   W.  109.5.  Cairo  Rd.  Co.  v.  Murray,  82  111.  76. 

8ft-Fllnt  &  P.  M.  R.  Co.  v.  Lull,  87— Ind.    &   C.    &   L.     R.     Co.    v. 


§  1966.]  NEGLIGENCE— RAILROADS.  1263 

§  1966,  Obligation  to  Fence  Not  Limited  to  Adjoining  Owner, 
(a)  The  obligation  to  construct  and  maintain  fences  upon  both  sides 
of  their  roads,  imposed  by  the  laws  of  this  State  upon  railroad  com- 
panies, is  not  limited  to  owners  and  occupiers  of  adjoining  lands,  but 
extends  to  the  public  generally. 

(b)  Where  cattle  running  at  large  without  the  fault  of  the  owner, 
enter  the  inclosed  field  of  another  person  through  which  a  railroad 
passes,  and  thence  go  upon  the  track  of  the  road  by  reason  of  a 
want  of  sufficient  fence,  and  are  injured,  the  railroad  company  will 
be  liable,  provided  they  have  not  built  a  good  and  sufficient  fence 
(according  to  the  statute)  or  bad  allowed  the  fence  to  become  out 
of  repair  after  notice  thereof,  and  a  reasonable  time  for  its  repair.** 

§1967.  Cattle  Guards,  (a)  In  order  to  keep  its  road  securely 
fenced,  the  statute  of  this  State  requires  a  railroad  company  to  con- 
struct and  keep  in  repair  cattle  guards  on  each  side  of  its  track  at  all 
highway  crossings.*^ 

(b)  It  is  however  provided  in  this  same  statute  that  a  cattle  guard 
that  has  been  approved  by  the  railroad  commissioner  of  the  State 
shall  be  deemed  a  reasonable  and  sufficient  cattle  guard;  and  if  this 
cattle  guard  had  been  kept  as  it  was  originally  placed,  and  if  there 
was  no  question  about  the  space  between  the  cattle  guard  and  the 
fence,  then  there  would  not  be  any  case  here,  and  the  plaintiff  could 
not  recover. 

(c)  If  the  cattle  passed  the  cattle  guard,  if  they  crossed  it  be- 
cause it  was  out  of  repair,  or  if  they  passed  beside  the  cattle  guard 
and  between  it  and  the  fence,  and  were  killed  by  the  cars  of  the  de- 
fendant, then  the  plaintiif  is  entitled  to  recover  the  value  of  the 
cattle — the  full  market  value  of  the  cattle  at  that  time. 

(d)  The  defendant  has  offered  evidence  to  show  that  some  of  the 
cattle  at  least  passed  over  that  portion  of  the  guard  which  it  is  not 
alleged  was  defective,  and  for  at  least  so  many  of  such  cattle  as 
passed  over  the  guard  where  it  was  not  defective  no  recovery  what- 
ever can  be  had;  and  unless  you  find  that  some  of  the  cattle  passed 
over  said  guard  by  reason  of  its  defective  condition  no  recovery  can 
be  had.9o 

§  1968.  Plaintiff's  Contributory  Negligence.  The  jury  are  in- 
structed, that  when  a  railway  company  fences  its  track,  as  required 
by  statute,  and  the  fence  aftenvards  becomes  defective,  an  action 
against  the  comjDany  for  injuries  to  horses  or  cattle  straying  upon  the 
track,  through  such  defective  fence,  cannot  be  maintained,  if  it  ap- 
pears that  the  owner  of  the  animals  was  guilty  of  negligence,  which 
naturally  and  directly  contributed  to  such  injury.^^ 

Harter,  38  Ind.  557;  Eames  v.  S.  &  90— Johnson   v.    Detroit   &   M.    R. 

L.   R.  Co.,  98  Mass.   560.  Co.,  135  Mich.  353.  97  N.  W.  760  (761). 

88— Rd.  Co.  V.  Stephenson,  24  Ohio  91— Jones  v.   Sheboygan  &  F.   du 

St.  48.  L.  R.   Co.,  42  Wis.  306. 

89— Pittsburg.  C.  &  St.  L,  R.  Co. 
V.    Eby,    55   Ind.    567. 


1264  FORMS  OF  INSTRUCTIONS.  [§  1969. 

§  1969.  Stock  Escaping  and  Running  at  Large.  If  the  jury  be- 
lieve, from  the  evidence,  that  the  horse  in  question  broke  out  of  the 
pasture  and  went  upon  the  railroad  track,  without  any  fault  or  negli- 
gence on  the  part  of  the  plaintiff,  and  was  there  killed,  and  that  such 
killing  was  the  result  of  negligence,  and  of  a  want  of  ordinary  care 
and  reasonable  caution  on  the  part  of  defendant's  servants,  then  the 
plaintiff  was  not  guilty  of  such  contributory  negligence  as  will  prevent 
a  recovery  in  this  case.''^ 


FENCING  TRACK  (CHILDREN). 

§  1970.  Duty  of  Railroad  to  Fence  Track  Is  Also  for  Benefit  of 
Children.  If  you  are  satisfied  from  the  evidence  that  by  reason  of 
or  on  account  of  its  failure  to  so  erect  and  maintain  such  fence  at 
the  point  where  you  may  conclude  it  is  reasonable  to  infer  that  the 
child  went  ujDon  the  track,  and  if  you  are  convinced  from  the  evi- 
dence that  the  plaintiff  got  upon  the  track  at  the  time  he  was  hurt 
on  account  of  the  fence  not  being  there, — in  other  words,  that  he 
would  not  have  done  so  if  such  fence  had  existed  to  impede  his  prog- 
ress; and,  furthermore,  if  you  believe  that  he  got  upon  the  track 
without  fault  on  the  part  of  those  who  should  be  held  accountable 
for  his  care  and  custody,  in  consequence  of  the  neglect  of  the  rail- 
road company,  as  above  stated,  to  erect  and  maintain  the  requisite 
fence,  you  would  be  warranted  in  finding  that  there  was  such  negli- 
gence on  the  part  of  the  defendant  in  this  particular  as  would  afford 
the  plaintiff  a  remedy  for  the  injuries  received  by  him.^^ 

92— T.  P.  &  W.  Rd.  Co.  V.  John-  roads   this  barrier  against  danger 

son,  74  111.  83.  of  injury   to   'his   cattle  and   other 

93 — Key.ser  v.  C.  &  G.  T.  Ry.  Co.,  animals,'  and  deny  it  to  his  infaut 

66  Mich.  390,   33  N.  W.  867  (871).  children     who     are      not     yet     old 

"I  think  this  is  a  correct  state-  enough  to  enable  them  to  compre- 
ment  of  the  law  as  heretofore  held  hend  such  perils  and  dangers.  The 
by  this  court.  See  this  case  in  56  legislature  never  intended  any  such 
Mich.  559,  23  N.  W.  311;  Marcott  v.  limitation  upon  the  protection  to 
Marquette,  H.  &  O.  R.  Co.,  47  be  furnished  by  the  fencing  re- 
Mich.  9,  10  N.  W.  53  and  49  Mich,  quired  by  the  statute,  and  no  de- 
99,  13  N.  W.  374.  cision    of    any    court     giving     the 

"The  statute  requires  the  defend-  statute  such  construction  can  re- 
ant  to  fence  its  road  with  a  fence  ceive  my  approval.  I  know  it  is 
'sufficient  to  prevent  cattle  or  other  said  it  is  the  duty  of  the  parent  or 
animals  from  getting  on  such  rail-  guaidian  of  such  children  to  re- 
road."  This  clause  quoted  is  only  strain  them  from  going  into  such 
descriptive  of  the  sufficiency  of  the  dangers,  but  the  experience  of  any 
structure  to  furnish  the  required  man  acquainted  with  the  large 
protection.  The  duty  of  the  com-  families  of  the  poor  in  this  country 
pany  in  this  resi:)ect  is  a  positive  is  that  at  best  this  duty  can  be 
one;.  The  public,  as  well  as  the  only  imperfectly  performed  by  the 
company,  are  entitled  to  the  bene-  parents,  and  that  it  is  not  infre- 
flt  and  protection  it  affords  against  quently  the  case  that  these  little 
the  perils  and  dangers  incident  to  ones  are  seen  wandering  from  the 
the  use  made  of  the  road,  and  it  Immediate  care  of  the  mother, 
would  be  stranpe  reasoning,  in-  whose  domestic  affairs  absolutely 
deed,  thr-t  would  give  to  the  citi-  preclude  her  at  times  from  being 
zen  living  along  the  line  of  these  with  her  children;  and  the  present 


§  1971.]  NEGLIGENCE— RAILROADS.  1265 


ACTIONS  FOR  KILLING  LIVE  STOCK. 

§  1971.  Actions  for  Killing  Live  Stock — Care  Due  in  Operation  of 
Trains,  (a)  The  court  instructs  the  jury  that  if  the  railroad  em- 
ployes used  ordinary  and  proper  precaution  to  ascertain  as  to  whether 
its  path  was  obstructed,  and,  if  it  was  obstructed,  it  used  proper  and 
ordinary  care  such  as  a  prudent  and  cautious  engineer  would  use 
under  the  same  circumstances,  then  the  railroad  company  could  not 
be  said  to  be  negligent  in  the  operation  of  its  railroad. 

(b)  It  was  his  duty  in  the  first  instance  to  avoid  a  collision  if  he 
could  by  the  use  of  ordinaiy  care,  such  care  as  a  prudent  ordinary 
engineer  would  have  used  under  the  circumstances.^* 

§  1972.  Highest  Duty  of  Engineer  of  Passenger  Train  Is  to  His 
Passengers — Series,  (a)  The  negligence  for  which  it  would  be  liable 
is  the  failure  of  its  engineers  or  employes  operating  its  engines  and 
trains  to  exercise  reasonable  care  to  discover  animals  on  the  track, 
and  to  avoid  striking  them  after  they  have  discovered  them.  Reason- 
able care  is  the  care  which  a  prudent  person  would  use  in  like  agen- 
cies and  under  like  circumstances.  If  you  believe  from  the  evidence 
that  the  defendant's  employes  operating  its  engines  were  guilty  of 
lack  of  reasonable  care  in  endeavoring  to  discover  animals  upon  its 
track  and  to  avoid  striking  them,  and  by  reason  of  said  lack  of  care 
injury  was  inflicted  upon  the  animals  (in  this  case  a  horse),  and 
that  such  injury  would  not  have  occurred  but  for  the  failure  on  the 
part  of  the  defendant's  engineer  or  employes  operating  its  engines  to 
exercise  reasonable  care  to  discover  the  horse  upon  the  track  and 
avoid  striking  him,  then  you  should  find  for  the  plaintiff. 

(b)  If  you  find  that  the  defendant's  engine  and  train  did  actually 
kill  the  stock,  but  that  there  was  not  a  failure  upon  the  part  of  its 
employes  operating  its  engines  to  exercise  reasonable  care,  that  is,  the 
care  which  a  reasonable,  prudent  man  with  like  agencies  and  under 
like  circumstances  would  exercise  to  discover  animals  upon  the  track 
and  avoid  striking  them  or  inflicting  injuries  upon  them,  the  defend- 
ant would  not  be  liable,  and  as  to  such  horse,  where  you  find  there 
was  not  a  failure  to  exercise  such  care,  your  verdict  should  be  for 
defendant. 

(e)  The  court  instructs  you  that  it  does  not  necessarily  follow 
that  when  an  engineer  discovers  an  animal  upon  the  track  that  he  is 
negligent  if  he  does  not  stop  his  train.  Regard  must  be  had  for  his 
own  safety  and  for  the  safety  of  his  fellow  employes  and  passengers, 
and  if  a  reasonable,  prudent  man,  under  circumstances  in  which  an 

would   seem    to    be    one    of  those  gives  her.     The  testimony  received 

rases;    and.     if     accidental     injury  showing    the    defendant    had    omit- 

overt-^kes  them,  it  is  a  misfortune,  ted  to  fence  its  road  was  properly 

but    not    negligence    on    her    part,  admitted." 

Npgligence    assumes    ability    to    do  94 — Long  v.    S.   Ry.   Co.,   50  S.   C. 

otherwise,    and    better.      She    is    at  49,  27  S.  E.  531  (532). 
least   entitled   to   the   aid   the   law 
80 


1266  FORMS  OF  INSTRUCTIONS.  [§  1972. 

engineer  may  be  shown  to  have  been  by  the  evidence  when  the  ani- 
mal was  discovered,  would  not  have  checked  the  train  in  the  exercise 
of  reasonable  prudence  and  caution,  then  he  would  not  be  guilty  of 
negligence,  and  the  company  would  not  be  liable  in  that  case.  If, 
however,  in  the  exercise  of  such  care  after  discovery  of  the  animal, 
having  due  regard  to  his  own  safety  and  the  safety  of  his  fellow 
employes  and  passengers,  he  could  have  stopped  the  train  or  slackened 
its  speed  or  avoided  striking  the  animal,  and  the  evidence  failed  to 
show  that  he  exercised  reasonable  care  in  that  particular,  then  the 
defendant  would  be  liable  for  such  injury. 

(d)  The  degree  of  care  to  be  exercised  is  to  be  determined  by 
the  exigencies  of  the  situation,  having  regard  not  only  to  the  killing 
or  avoiding  injury  to  the  animal,  but  also  to  the  safety  of  the  engi- 
neer and  his  fellow  employes.  If  in  the  exercise  of  ordinary  care  he 
could  have  stopped  or  slackened  his  speed  or  avoided  the  injury  as 
I  have  told  you,  and  he  failed  to  do  so,  it  would  be  negligence  for 
which  the  company  would  be  liable.  If  he  could  not  do  these  things, 
having  regard  to  the  safety  of  himself  and  fellow  emploj'es  and  pas- 
sengers, he  would  not  be  negligent.  Of  this  matter  you  are  the  judges 
under  the  evidence. 

(e)  The  burden  is  upon  the  plaintiff  to  show  negligence  on  the  part 
of  the  company's  employes  operating  its  engines,  and,  if  he  has  failed 
to  show  a  failure  upon  the  part  of  the  company's  employes  to  exercise 
ordinary  care  as  thus  defined  to  you,  then  your  verdict  will  be  for 
the   defendant. 

(f)  If  it  is  shown  that  such  failure  to  exercise  that  degree  of  care 
resulted  in  the  injury  to  the  stock  in  question,  then  your  verdict  will 
be  for  the  plaintiff. 

(g)  If  you  find  for  the  plaintiff,  you  must  find  a  reasonable  mar- 
ket value  for  the  animal  so  killed  because  of  the  negligence  of  its 
employes  under  the  instructions  that  I  have  given  you.  Gentlemen, 
you  are  the  sole  judges  of  the  credibility  of  the  witnesses,  and  weight 
to  be  given  to  their  testimony.  You  will  take  into  consideration  all 
the  testimony  in  the  case,  and  if  you  find  by  a  preponderance  of  the 
evidence  that  the  plaintiff  has  made  out  his  case  according  to  the 
instructions  I  have  read  you,  then  your  verdict  should  be  for  the 
plaintiff'  in  such  sum  as  the  evidence  shows  the  horse  was  worth; 
and  if  you  fail  to  so  find  by  a  preponderance  of  the  testimony,  then 
your  verdict  should  be  for  the  defendant. 

(h)  If,  however,  in  the  exercise  of  such  care  after  the  discovery 
of  the  animal,  having  due  regard  to  his  own  safety,  that  of  his  fel- 
low employes,  and,  in  this  case  I  would  say  to  the  passengers  on  the 
train  lie  could  have  stopped  the  train  or  slackened  its  speed  or  avoided 
striking  the  animal,  and  the  evidence  showed  that  he  failed  to  exer- 
cise reasonable  care  in  that  particular,  resulting  in  the  injury  to  the 
animal,  tlien  the  defendant  would  be  liable  for  such  injury. 

(i)  Of  course,  gentlemen  of  the  jury,  the  servants  of  the  train, 
in  charge  of  the  train,  the  highest  duty  of  the  servants  and  engineers. 


§  1973.]  NEGLIGENCE— RAILROADS.  1267 

would  be  to  the  passengers  upon  the  train,  if  the  proof  shows  that  it 
was  a  passenger  train,  and  the  engineer  and  servants  of  the  defend- 
ant would  not  be  required,  it  would  not  be  their  duty,  to  injure  their 
passengers  in  an  attempt  to  save  a  horse. '^^ 

§  1973.  Duty  to  Avoid  Injury  After  Discovering  Dangerous  Posi- 
tion of  Live  Stock,  (a)  Although  you  may  believe,  from  the  evi- 
dence, that  the  stock  in  question  got  upon  the  railroad  track  of  the 
defendant,  without  any  negligence  upon  the  part  of  the  company, 
still,  if  you  further  believe,  from  the  evidence,  that  the  person  in 
charge  of  the  engine  by  the  exercise  of  reasonable  and  ordinary'  care, 
and  without  danger  to  his  engine  and  train,  could  nave  avoided  the 
injury,  and  did  not  do  so,  then  the  company  would  be  liable  for  such 
injury;  provided,  that  you  further  believe,  from  the  evidence,  that 
the  owner  of  the  stock,  or  the  persons  having  it  in  charge  were  guilty 
of  no  negligence  which  contributed  to  such  injury.'*® 

(b)  The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  persons  in  charge  of  the  engine  and  train  of  cars 
in  question,  by  ordinary  care,  skill  and  prudence,  could  have  seen 
the  animals,  or  that  they  did  see  them  in  season,  so'  that  by  the  use  of 
ordinary  care  and  skill  and  without  danger  to  the  train,  they  might 
have  stopped  the  train  before  striking  the  animals,  and  thus  avoided 
the  injury,  and  did  not  do  so,  this  would  be  such  negligence  as  would 
render  the  defendant  liable  for  the  injury  and  damage  sustained  by 
the  plaintiff;  provided,  the  jury  believe,  from  the  evidence,  that  the 
animals  were  injured,  and  that  plaintiff  thereby  sustained  damage, 
in  manner  and  fonn  as  charged  in  the  declaration;  and  also  that 
plaintiff's  own  fault  or  negligence  did  not  contribute  to  the  injury.^^ 

§  1974.  Injury  to  Stock  at  Crossing,  (a)  The  jury  are  instructed, 
as  a  matter  of  law,  that  it  would  be  gross  negligence,  in  persons  in 
charge  of  an  engine,  net  to  see  and  observe  stock  if  they  are  on  or 
near  a  railroad  crossing,  at  least  (forty)  rods  before  reaching  that 
point,  if  there  was  nothing  in  the  way  to  prevent  them  seeing,  if  they 
had  looked. 

(b)  And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  plaintiff's  horse  was  injured  by  the  defendant's  engine,  while  the 
horse  was  on  a  highway  crossing,  and  that  the  persons  in  charge  of 
the  engine  could  have  seen  the  horse  on  the  track,  or  in  dangerous 
proximity  to  it,  in  season  to  have  stopped  the  cars  and  prevented  the 
injuiy,  and  did  not  see  him,  or  seeing  him,  in  season  to  have  avoided 
the  injuiy,  did  not  do  so,  this  would  be  gross  negligence,  for  which 
the  company  would  be  liable  unless  the  jury  believe,  from  the  evi- 
dence, that  the  plaintiff  was  himself  guilty  of  negligence,  which  con- 
tributed directly  and  materially  to  the  injury.^^ 

95 — These    instructions   approved.  Railroad,   37  Cal.  409;  Shephard  v. 

Mo.   K.   &  T.   Ry.   Co.   v.   Webb.  —  Railroad.  35  N.  Y.  641. 

Ind.  Ter.  — .  97  S.  W.  1010.  97— T.    P.   &   W.   R.   Co.   v.   Bray, 

96— Chi.  &  N.  W.  R.  Co.  v.  Barrie,  57  111.  514. 

55  111.  226;  Eames  v.  S.  &  L,.  R.  Co.,  98— C.    B.   &   Q.   R.    Co.  v.    Cauff- 

98    Mass.    560;    Locke   v.    St.    Paul,  man.  38  111.  424;  Parker  v.  Railroad 

etc.,    15    Minn.     350;     Needham     v.  Co.,  34  la.  399. 


1268  FORMS  OF  INSTRUCTIONS.  [§  1975. 

§  1975.  Elements  of  Liability  for  Killing  of  Heifer.  The  court  in- 
structs the  jury  that  in  deciding  whether  a  heifer  belonging  to  the 
plaintiff  was  injured  by  defendant's  train,  you  will  take  into  consid- 
eration the  testimony  tending  to  show  where  the  heifer  was  before 
and  at  the  time  of  the  alleged  injury ;  when  and  where  she  was  found ; 
the  nature  of  the  injury;  the  presence  or  absence  of  other  causes  to 
account  for  such  injury;  what  trains,  if  any,  had  passed  after  the 
heifer  was  seen  before  the  injury  and  the  time  she  was  found  to  be 
injured ;  and  all  facts  as  you  find  them  to  be  proven,  fairly  tending  to 
show  whether  the  heifer,  if  injured,  was  injured  by  defendant's  train 
of  cars.'*^ 

§  1976.  Failure  to  Keep  a  Proper  Lookout  for  Horses  on  Track 
Negligence,  (a)  The  court  charges  the  jury  that  if  they  believe 
from  the  evidence  that  the  horse  sued  for  was  killed  on  account  of 
negligence  on  the  part  of  the  engineer,  then  they  must  find  for  the 
plaintiff. 

(b)  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence that  the  engineer  in  charge  of  the  train  that  killed  the  horse 
sued  for  could  by  keeping  a  proper  lookout,  have  seen  the  horse  be- 
fore he  got  on  the  track,  in  time  to  check  or  stop  the  train  and  thereby 
save  the  life  of  the  horse,  and  that  he  failed  to  keep  such  proper 
lookout,  then  the  defendant  is  liable  for  the  value  of  the  horse.^**" 

§  1977.  Railroad  Company  Not  Liable  for  Injury  to  Horse  on 
Track  Where  Reasonable  Care  Used,  (a)  If  the  jury  believe  from 
the  evidence  that  the  train  which  it  is  alleged  struck  the  mare  in 
question  was  running  at  a  lawful  rate,  and  had  the  customary  appli- 
ances and  force  of  trainmen,  and  the  mare,  when  seen  by  the  en- 
gineer, or  might,  with  due  care,  have  been  seen,  was  so  close  that  the 
train  could  not  be  stopped,  with  ordinary  care  and  diligence,  in  time 
to  avoid  striking  it  then  the  plaintiff  cannot  recover. 

(b)  If  you  find  from  the  evidence  that  plaintiff's  mare,  or  the 
mare  in  question,  was  grazing  near  the  railroad  track,  and,  becoming 
frightened  at  an  approaching  train,  ran  a  short  distance,  and  then 
jumped  upon  the  track,  and  was  struck  and  killed,  and  that  ordinary 
oare  was  used  by  the  engineer  after  the  animal  was  in  danger  of 
being  struck,  then  your  verdict  must  be  for  the  railroad  company.^ 

§  1978.  Animals  Coming  on  Track  So  Suddenly  That  Accident 
Cannot  Be  Prevented.  If  the  jury  believe  from  the  evidence  tliat  the 
animals  came  suddenly  from  the  left-hand  side  of  the'  track,  and  so 
close  to  the  train  that  the  engineer  could  not  stop  in  time  to  prevent 
the  accident,  then  they  must  find  for  the  defendant.^ 

99— Taylor  v.  Chi.,  St.  P.  &  K.  C.  and  the  giving-  of  them  free  from 
Ry.  Co.,  76  la.  753,  40  N.  W.  84  (85).      error.     Chattanooga  So.  Ry.  Co.  v. 

100— Central    of    Ga.    Ry.    Co.    v.      Wilson,  124  Ala.   444,  27   So.  486." 
Edmondson,  135  Ala.  336,  33  So.  480         1— Sims  v.   So.   Ry.   Co.,  59   S.   C. 
(482).  246,  37  S.   p].   836. 

"Written  charges  1  and  2  (a.  b.) 
given  at  the  request  of  tho  plaintiff 
on  a  case  wlmilar  in  its  facts  to  the 
present  case  were  pronounced  good, 


2— Louisville    &     N. 

R.     Co.     V. 

Brinckerhoff,    119    Ala. 

606,    24    So. 

892  (894). 

§  1979.]  NEGLIGENCE— RAILROADS.  1269 

§  1979.  Failure  of  Engineer  to  See  Animals  on  Track  When  He 
Should,  under  the  Circumstances.  Although  the  jury  may  believe 
from  the  evidence  that  the  engineer  did  not  see  the  animals  till  they 
were  falling  from  the  pilot,  still,  if  they  believe  that,  under  the  cir- 
cumstances, the  engineer  should  have  seen  them  in  time  to  avoid  the 
injury,  then  the  jury  should  find  for  the  plaintiff.^ 

§  1980,  Horse  Injured  in  Flangeway — Duty  of  Railroad  in  Con- 
structing Road  Across  Street — Series,  (a)  If  you  find  from  the  evi- 
dence that  the  space  necessary  for  flangeway  in  said  crossing  should 
be  only  three  inches,  and  if  you  further  find  that  plaintiff's  horse 
was  injured,  as  alleged,  by  getting  his  foot  fast  in  such  flangeway  in 
said  crossing,  and  that  said  space  thereon  where  he  got  his  foot  in 
and  was  injured  was  at  the  time  more  than  three  inches  wide,  and 
wider  than  was  necessary  for  proper  flangeway  of  the  cars  of  defend- 
ant passing  over  their  road,  you  are  authoi'ized  from  these  facts  to 
find  that  said  crossing  was  not  in  proper  condition  for  the  safe  pas- 
sage of  horses  ridden  or  driven  across  the  same,  and  that  the  defend- 
ant was  negligent  in  so  permitting  the  same  to  remain  in  that  con- 
dition, before  and  at  the  time  the  plaintiff's  horse  was  injured. 

(b)  The  court  instructs  the  jury  that  if  you  find  from  the  evi- 
dence that  defendant  did  so  leave  said  space  between  the  plant  and 
iron  wider  than  was  so  necessary,  and  that  in  consequence  thereof 
plaintiff's  horse  got  his  foot  fast  therein,  and  was  injured  without 
any  fault  or  negligence  of  plaintiff  or  his  employe  B.,  your  verdict 
should  be  for  the  plaintiff  for  the  injury  so  sustained  by  him. 

(c)  That  if  the  plaintiff  or  his  employe  B.,  by  any  negligence  or 
want  of  care  on  their  part  contributed  to  produce  the  injury  to 
plaintiff's  horse,  it  would  prevent  the  plaintiff  from  recovering.  If, 
however,  you  find  from  the  evidence  that  said  B.  at  the  time  the 
horse  was  injured  was  riding  it  in  a  walk  over  said  crossing,  at  a 
place  thereon  where  horses  ridden  or  driven  usually  passed  on  crossing 
the  same,  and  was  so  riding  said  horse  across  the  same  in  such  way 
and  manner  as  a  prudent  and  careful  person  should  do  under  the  same 
circumstances  in  view  of  the  known  danger,  if  any,  you  are  from 
■these  facts  authorized  to  find  that  said  B.  was  not  in  fault  in  pro- 
ducing said  injury  to  said  horse. 

(d)  It  w^as  the  duty  of  the  defendant  to  construct  its  road  over 
said  street  so  as  to  not  interfere  with  the  free  use  of  the  same,  in 
such  manner  as  to  afford  security  for  life  and  property,  and  in  a  man- 
ner not  to  necessarily  impair  its  usefulness  or  injure  its  franchises, 
and  a  part  of  its  duty  in  so  constructing  the  same  is  to  leave  space 
for  flangeway  between  the  iron  rail  and  plant  on  the  inside  of  track 
over  the  crossing  no  larger  than  is  necessary  for  the  safe  and  proper 
passage  of  its  cars;  and  if  you  find  that  such  space  for  flangeway  on 
its  track  over  said  crossing  was  left  wider  than  was  necessary,  then 
as  to  that  matter,  you  are  authorized  to  find  that  defendant  was  neg- 

3— Louisville     &    N.     R.     Co.     v.     Brinckerhoff,   supra. 


1270  FORMS  OF  INSTRUCTIONS.  [§  1981. 

ligeiit  and  careless;  and  if  you  further  find  that,  in  consequence 
thereof,  plaintiff's  horse  was  injured  thereby,  without  eontributoiy 
negligence  on  the  part  of  plaintiff,  or  said  B.,  your  verdict  should  be 
for  the  plaintiff. 

(e)  If  you  find  from  the  evidence  that  in  May,  1889,  plaintiff's 
horse  was  injured,  as  alleged,  on  said  crossing  by  getting  his  foot  fast 
in  the  space  for  flangeway  between  the  rail  and  plank  of  the  cross- 
ing, and  if  3'ou  further  find  that  said  crossing  had  been  in  that  con- 
dition for  a  long  time  previously  without  being  repaired,  these  are 
facts  that  you  should  consider  in  determining  whether  said  crossing, 
at  the  time  of  the  alleged  injury,  was  in  a  safe  condition,  for  the 
travel  of  horses  across  it,  and  whether  the  defendant  was  not  care- 
less and  negligent  in  permitting  it  to  remain  in  that  condition. 

(f)  And  if  you  further  find  that,  some  three  or  four  months  be- 
fore said  alleged  injury  to  plaintiff's  horse,  a  horse  driven  by  X.  got 
his  foot  in  the  space  left  for  flangeway  on  said  crossing,  and  that  one 
of  Y. 's  horses,  driven  by  Z.,  got  its  foot  fast  in  said  space  left  for 
flangeway  while  passing  over  said  crossing  near  a  year  prior  to  said 
alleged  injury  to  plaintiff's  horse,  these  are  facts  you  are  authorized 
to  consider  as  to  whether  defendant  had  notice  of  the  condition  of 
said  crossing  prior  to  said  alleged  injury  of  plaintiff's  horse.* 

§  1981.  Injury  to  Animal  on  Track — Burden  of  Proof  as  to  Negli- 
gence. The  question  for  the  jury  to  decide  in  this  case  is  not  alone 
whether  or  not  the  plaintiff's  cow  was  killed  by  the  defendant's  com- 
pany, but  before  you  can  find  for  the  plaintiff  you  must  be  reasonably 
satisfied  from  the  evidence  that  the  killing  was  caused  by  the  negli- 
gence of  the  defendant  or  its  employes,  and  the  burden  of  proving 
such  negligence  rests  in  this  case  upon  the  plaintiff,  and  the  negli- 
gence is  not  presumed  against  the  defendant  from  the  mere  proof 
of  striking  the  cow.^ 

§  1982.  Running  Extra  Train,  or  Train  Not  on  Schedule  Time,  Not 
Negligence  as  to  Live  Stock.  The  court  instructs  the  jury  that  the 
defendant  had  the  right  to  run  trains  over  its  road  at  any  hour  of 
the  day  or  night,  and  the  fact  that  the  train  in  question  was  an  extra 
train,  or  not  running  on  schedule  time,  could  not  constitute  negli- 
gence." 

§  1983.  Burden  of  Proof  as  to  Place  of  Injury  of  Live  Stock  Is  on 
Plaintiff.  Your  verdict  must  not  be  founded  on  mere  guesses,  specula- 
tions or  far-fetched  inferences.    You  must  confine  yourselves  to  facts 

4— Toledo,  St.  I>.   &  K.  C.  R.  Co.  5— Kansas  C.   M.   &  B.   R.   Co.  v. 

v.   Milllgan,  2  Ind.   App.  578,  28  N.  Henson,    132    Ala.    528,    31    So.    590 

E.  1019  (1020).  (592). 

"The     ln.structions     objected     to,  "This    charge    should    have    been 

and    those    not    objected    to,    when  g-iven.     The  latter  is  an  exact  copy 

foiisldered    together,    embraced    all  of  the  one  in  Ala.  Gr.  So.  R.  Co.  v. 

the    Issues    in    the    case,    and    con-  Boyd,  124  Ala.  525,  27  So.  408,  which 

talned   a   statement   of   the  law   of  this    court   said   should    have   been 

the  case  that  certainly  should  fur-  given." 

nlsh    appellant    no   good   cause    for  6— Craybill  v.  C.   M.   &  St.   P.   R. 

Domplaint."  Co.,  112  la.  738,  84  N.  W.  946  (948). 


§  1984.]  NEGLIGENCE— RAILROADS.  1271 

directly  proven,  and  the  inferences  that  fairlj'  arise  therefrom.  It  is 
not  for  the  defendant  to  prove  that  the  colt  was  struck  in  the  high- 
way, but  it  is  for  the  plaintiff  to  prove  it  was  not  struck  in  the  high- 
way, but  was  struck  on  the  right  of  way.  That  is,  if  the  evidence 
fails  to  show  where  the  colt  was  struck,  then  your  verdict  should  be 
for  the  defendant,  as  well  as  if  it  shows  that  it  was  struck  on  the 
highway;  but  if  the  facts  directly  proven,  and  the  fair  and  natural 
inferences  arising  thei'efrom,  fairly  prove  that  the  colt  was  struck  on 
defendant's  right  of  way,  then  your  verdict  may  be  for  the  plaintiff.'^ 

§  1984.  Neglect  to  Ring  the  Bell,  etc.,  Prima  Facie  Evidence  of 
Negligence.  The  jury  are  instructed  that  in  a  suit  against  a  railroad 
company  for  killing  stock  at  a  road  crossing,  an  omission,  on  the  part 
of  the  company,  to  ring  a  bell  or  sound  a  whistle  continuously  for  a 
distance  of  at  least  (eighty)  rods  before  reaching  the  crossing,  if 
proved,  constitutes  a  prima  facie  ease  of  negligence  against  the  com- 
pany.® 

§  1985.  Burden  of  Proof  as  to  Ringing  Bell.  The  court  instructs 
the  jury,  that  it  is  not  for  the  defendant  to  prove  that  the  bell  was 
rung  and  kept  ringing  for  eighty  rods  before  the  engine  reached  the 
highway  crossing.  It  is  incumbent  upon  the  plaintiff  to  prove,  by  a 
preponderance  of  the  evidence,  that  said  bell  was  not  rung  and  kept 
ringing  for  eighty  rods  before  the  engine  reached  said  crossing.^ 

§  1986.  Must  Exercise  Reasonable  Care  and  Watchfulness  to  Avoid 
Injuring  Stock,  (a)  If  the  jury  believe,  from  the  evidence,  that  the 
(cow)  in  question  was  killed  by  a  passing  train  of  cars  on  the  de- 
fendant's road,  and  that  before  she  was  killed  she  was  in  plain  view 
of  the  engine  driver  and  fireman  in  charge  of  the  engine,  and  that 
she  was  seen,  or  could  have  been  seen,  by  them  by  the  use  of  ordinary 
care  and  attention,  in  time  to  have  slackened  the  speed  of  the  train, 
and  avoided  the  accident,  and  that  no  efforts  were  made  by  them  in 
that  direction,  this  was  such  negligence  as  renders  the  company  lia- 
ble; provided,  the  jury  find,  from  the  evidence,  that  plaintiff's  own 
negligence  did  not  contribute  to  the  injury. 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  a  rail- 
road company  is  liable  for  stock  killed  upon  its  track,  where  such 
killing  results  from  the  want  of  ordinaiy  care  and  caution  in  the  run- 
ning of  its  trains,  and  the  plaintiff's  own  negligence  does  not  ma- 
terially contribute  to  the  injury.  To  render  the  company  liable  in 
such  cases,  it  is  not  necessary  that  the  killing  should  be  wantonly  or 
willfully  done  by  its  servants  or  employes.^" 

§  1987.  Speed  Through  Cities  and  Villages — ^Limited  by  Ordinance, 
(a)  The  jury  are  instructed,  that  when  a  railroad  company  runs  its 
trains  through  a  city,  incorporated  town  or  village,  at  a  greater  rate 
of  speed  than  is  permitted  by  the  ordinance  of  the  city,  town  or  vil- 

7— Croddy  v.  C.  R.  I.  &  P.  R.  Co.,  9— P.  D.  &  E.  R.  Co.  v.  Foltz,  13 
91  la.  598,  60  N.  W.  214   (216).  111.    App.    535. 

8—1.  C.  R.  Co.  v.  Gillis,  68  111.  317.         10— Rockford,    R.    I.    &   St.    L.   R. 

Co.  v.  Rafferty,  73  111.  58. 


1272  FORMS  OF  INSTRUCTIONS.  [§  1987. 

lage,  and  stock  is  killed  by  such  train  while  so  running,  the  killing 
will  be  presumed  to  have  been  done  through  the  negligence  of  the 
company.^^ 

(b)  The  court  instructs  the  jury  that  it  is  negligence  on  the  part 
of  a  railroad  company  to  run  its  trains  through  a  city,  ineoriDorated 
town  or  village,  at  a  rate  of  speed  prohibited  by  law;  and  if  a  rail- 
road company  does  so  run  its  trains,  and  thereby  injures  or  destroys 
the  property  of  a  person  who  is  himself  in  the  exercise  of  reasonable 
care  and  caution  to  avoid  injury  to  such  property,  the  company  will 
be  liable.^2 

(e)  The  court  instructs  the  jury,  that  it  is  gross  negligence  on 
the  part  of  a  railroad  company  to  run  its  trains  through  a  city,  in- 
corporated town  or  village,  at  a  rate  of  speed  prohibited  by  law;  and 
if  a  railroad  company  does  so  run  its  trains,  and  thereby  causes  the 
death  of  a  person,  who  is  himself  in  the  exercise  of  reasonable  care 
and  caution  to  avoid  injury,  the  company  will  be  liable. ^^ 

(d)  It  is  the  duty  of  a  railroad  company,  whose  road  runs  through 
a  city  or  village,  to  run  its  trains  while  in  the  city  or  village  at  such 
a  rate  of  speed  as  to  have  them  under  control,  so  as  to  be  able  to 
avoid  injury  to  persons  or  property,  though  there  is  no  ordinance  of 
such  city  or  village  on  the  subject;  and  if  it  fail  to  do  so,  it  will  be 
guilty  of  negligence.^* 

(e)  The  court  instructs  the  jury  that  although  the  law  presumes 
that  where  a  train  is  running  at  a  rate  of  speed  in  excess  of  that 
fixed  by  the  ordinance  of  a  village,  and  property  is  struck  and  in- 
jured by  the  train,  that  the  injury  was  the  result  of  negligence  on 
the  part  of  the  railroad  company,  yet  such  presumption  of  negligence 
may  be  rebutted  by  the  evidence;  and  in  this  case,  if  you  believe  from 
the  evidence  that  the  injury  in  question  was  not  caused  by  reason  of 
the  north-bound  train  running  at  a  rate  of  speed  in  violation  of  the 
ordinance  of  the  village  of  M.,  but  that  it  was  caused  by  the  de- 
fendant's horses  becoming  frightened  at  the  train,  and  that  the  horses 
were  not  frightened  by  reason  of  the  speed  of  the  train,  but  because 
they  were  afraid  of  a  locomotive,  then  you  are  instructed  that  the 
plaintiff  cannot  recover  upon  the  ground  alone  that  the  train  was 
running  at  a  greater  rate  of  speed  than  that  fixed  by  the  ordinance  of 
the  village  of  M.^° 

11— T.  P.  &  W.  R.  Co.  V.  Deacon,  111.  App.  558,  aff'd  214  111.  602,  73  N. 

63  III.  91;  Monahan  v.  Keokuk,  etc.,  E.  865. 

R.  Co.,  44  la.  523;  Brusberg-  v.  Mil-         "This   instruction   fully  and   cor- 

waukee.  etc.,  R.  Co.,  50  Wis.  231,  6  rectly  stated  the  law  on  this  sub- 

N.  W.  821.  ject,     and     supplied     the     omission 

12— C.  &  v..  T.  R.  Co.  V.  Crose,  113  from  appellee's  instruction.  It  is  in- 
Ill.  App.  547  (555),  aff'd  214  111.  602,  slsted  that  appellee's  instruction  is 
73  N.  K.  865.  a    positive    statement    that    a    rail- 

13 — O.  &  A.  R.  Co.  V.  Becker,  84  road  company  is  liable  for  all  dam- 
Ill.  4S3;  C.  &  E.  I.  R.  Co.  v.  Cross,  ape  done  by  its  trains  v/hile  run- 
113  111.  App.  547  (555),  aff'd  214  111.  ninj?  through  an  incorporated  city 
C02.  73  N.  E.  865.  or  village   at  a  prohibited  rate  of 

14 — Chi.  &  A.  R.  Co.  V.  Engle,  84  speed  if  the  injured  party  wns  ex- 
Ill.  3n7.  orcisinp:    reasonable   rare   and    cau- 

15 — C.  &  E.  I.  R.  Co.  V.  Crose,  113  tion,  and  is  irreconcilable  with,  and 


§  1988.] 


NEGLIGENCE— RAILROADS. 


1273 


INJURIES  BY  FIRE. 

§  1988.  Prima  Facie  Negligence,  (a)  The  court  instructs  the 
jury,  that  if  they  believe,  from  the  evidence,  that  the  plaintiff's  prop- 
erty was  injured  by  fire,  caused  by  fire  or  sparks  escaping  from  de- 
fendant's locomotive,  while  passing  along  the  railroad,  in  manner  and 
form  as  charged  in  the  plaintiff's  declaration,  then,  under  the  laws 
of  this  state,  these  facts  make  a  prima  facie  case  of  negligence  against 
the  defendant;  and  the  burden  of  proof  is  then  upon  the  defendant  to 
rebut  this  prima  facie  ease,  by  showing  affirmatively  that  at  the  time 
in  question  the  engine  was  properly  constructed  and  equipped  with 
the  best  approved  appliances  for  preventing  the  escape  of  fire;  that 
these  appliances  were  all  in  good  repair  and  condition,  as  regards  the 
escape  of  fire,  or  that  all  reasonable  care  and  caution  had  been  taken 
to  keep  them  in  such  repair  and  condition,  and  that  the  engine  was 
carefully  and  skillfully  handled,  as  regards  the  escape  of  fire  there- 


could  not  be  cured  by  appellant's 
instruction  above  quoted.  In  C.  B. 
&  Q.  R.  Co.  v.  Haggerty.  67  111.  113, 
the  Supreme  Court  say  immediate- 
ly following-  the  quotation  we  have 
above  given:  'Had  defendant's 
counsel  been  apprehensive  that  the 
jury  might  be  misled  by  the  in- 
struction as  to  the  character  of  the 
presumption,  he  might  have  asked, 
on  his  part,  an  explanatory  in- 
struction to  the  effect  that  the  pre- 
sumption was  not  a  conclusive  but 
only  a  prima  facie  one.  And  such, 
in  effect,  may  be  considered  the 
fourth  instruction  which  was  given 
on  behalf  of  the  defendant.'  That 
instruction  was  to  the  effect  that  if 
plaintiff's  cow  was  on  the  track 
she  was  wrongfully  there,  and  if 
the  jury  believed,  from  the  evi- 
dence, that  she  was  injured  with- 
out the  fault  of  the  defendant  and 
while  its  employees  in  charge  of 
the  train  were  exercising  proper 
care  and  diligence  to  avoid  injury, 
then  it  would  not  be  liable.  If  the 
Instruction  complained  of  in  that 
case  could  be  cured  by  the  one 
given,  it  appears  to  us  that  there 
is  equally  as  strong  or  stronger 
ground  for  holding  that  appellee's 
fourth  in.=!truction  in  this  case  was 
cured  by  the  one  we  have  quoted 
given  for  appellant.  But  if  the  jury 
were  told  in  plain  and  explicit 
terms  that  while  the  law  presumes 
an  injury  inflicted  by  a  train  run- 
ning at  a  prohibited  rate  of  speed 
was  the  result  of  negligence  of  the 
company,  still  such  presumption  is 


subject  to  be  rebutted  by  proof, 
and  that  if  the  jury  believe  that 
appellee's  injury  was  not  caused  by 
the  train  running  at  a  rate  of  speed 
prohibited  by  the  ordinance  but 
was  caused  by  the  horses  becom- 
ing frightened  at  the  train  because 
they  were  afraid  of  the  locomotive 
and  not  because  of  its  speed,  then 
no  recovery  could  be  had  on  the 
ground  that  the  train  was  running 
at    a    prohibited    rate    of    speed." 

"In  I.  C.  R.  R.  Co.  v.  Ashline.  171 
111.  313,  49  N.  E.  521,  an  instruction 
was  given  for  plaintiff  telling  the 
jury  that  running  a  train  at  a  pro- 
hibited rate  of  speed  within  the 
city  limits  'would  be  negligence  in 
and  of  itself.'  The  giving  of  this 
instruction  was  assigned  for  error 
in  the  Supreme  Court,  and  that 
court  said:  'The  writer  of  the  in- 
struction no  doubt  supposed  that  it 
was  authorized  by  the  foregoing 
section  of  the  statute.  It  is,  how- 
ever, manifest,  that  the  instruction 
goes  somewhat  further  than  the 
statute.  Under  the  statute,  negli- 
gence is  presumed  from  a  violation 
of  its  provisions,  while  under  the 
instruction  the  running  of  trains  at 
a  rate  of  speed  in  violation  of  the 
ordinance  is  of  itself  negligence. 
We  think  the  instruction  was  er- 
roneous, but  the  error  was  so  slight 
we  do  not  think  the  jury  could 
have  been  misled,  and  if  they  were 
not  misled  the  error  was  harmless.' 
In  that  case  no  other  instruction 
appears  to  have  been  given  upon 
this  question." 


1274  FORMS  OF  INSTRUCTIONS.  [§  1988. 

from;  provided,  the  plaintiff  was  guilty  of  no  fault  or  negligence  con- 
tributing to  the  injury.^*' 

(b)  If  the  jury  are  reasonably  satisfied  fi'om  the  evidence  that 
plaintiff's  cotton  was  burned  or  damaged  as  the  result  of  the  negli- 
gence on  the  part  of  defendant,  either  in  the  construction  and  equip- 
ment of  its  engine,  or  in  the  operation  and  management  of  the  engine 
at  the  time,  then  the  jury  should  find  a  verdict  for  the  plaintiff.^'^ 

(c)  If  the  jury  believe,  from  the  evidence,  that  plaintiff's  prop- 
erty was  injured  by  fire  escaping  from  defendant 's  engine,  while  pass- 
ing along  the  railroad,  as  charged  in  plaintiff's  declaration,  then  this 
makes  a  prima  facie  case  of  negligence  against  the  defendant;  and  it 
is  not  enough  to  rebut  this  prima  facie  case  to  show  that  the  engine 
was  originally  constructed  with  the  best  and  most  approved  appli- 
ances and  improvements  to  prevent  the  escape  of  fire.  The  law  im- 
poses upon  the  company  and  its  employes  the  duty  of  keeping  a 
vigilant,  careful  watch  to  see  that  the  engine  is  kept  in  proper  repair, 
so  as  not  to  be  unnecessarily  dangerous  to  property  in  the  vicinity 
of  the  road ;  and  unless  the  defendant  has  shown,  by  a  preponder- 
ance of  evidence,  that  the  engine  in  question  was  in  such  good 
repair  and  condition  at  the  time  of  the  injury  complained  of,  or  that 
all  reasonable  precautions  had  been  taken  to  have  it  in  such  repair 
and  condition,  then  the  defendant  has  not  rebutted  such  prima  facie 
case  made  against  it;  provided  the  jury  believe,  from  the  evidence, 
that  the  plaintiff's  own  fault  or  negligence  did  not  contribute  to  the 
injury.!'* 

(d)  If  3'ou  find  from  the  evidence  that  the  fire  mentioned  in  plain- 
tiff's petition  escaped  from  defendant's  engine  at  the  time  and  place 
charged  by  plaintiff,  and  that  the  fire  spread  to  plaintiff's  pasture, 
and  injured  his  property,  then  such  facts  constitute  a  prima  facie  ease 
of  negligence  on  the  part  of  defendant  and  in  the  absence  of  rebut- 
ting evidence  sufficient  to  overcome  such  prima  facie  ease  of  negli- 
gence, will  render  the  defendant  liable  for  the  injury,  if  any,  caused 
thereby. 

(e)  But  if  you  believe  from  the  evidence  that  sparks  of  fire 
escaped  from  the  engine  of  the  defendant  mentioned  in  plaintiff's  pe- 
tition, whejeby  fire  was  communicated  to  defendant's  pasture,  and 
burned  his  grass  and  posts  thereon,  and  destroyed  the  turf  thereon, 
whereby  the  land  was  injured,  yet  if  you  believe  from  the  evidence 
that  defendant's  engine  from  which  the  sparks  escaped  was  equipped 
with  the  most  improved  spark  arresters  in  use,  and  that  the  agent 
and  employes  of  the  defendant  in  chai'ge  of  said  engine  used  ordinary 
care  in  operating  said  engine  to  prevent  the  escape  of  sparks,  then 
you  are  instructed  to  find  for  the  defendant  on  this  issue. ^^ 

16— P.  C.  «&  St.  L.  R.  Co.  V.  Camp-  18— C.  «fe  A.  R.  Co.  v.  Quaintance, 

hfll.  86  111.  44;?;  Kfillogf?  v.  C.  &  N.  58  111.  389. 

W.    R.    Co.,    26   Wis.    223;    Kesee   v.  19— San   An.    &    A.    P.   Ry.    Co.  v. 

C.  &  N.  W.  R.  Co.,  30  Ta.  78.  Tl.se,  —  Tex.  Civ.  App.  — ,  59  S.  W. 

17— So.  Ry.  Co.  V.  Wilson.  138  Ala.  564  (565). 

379,  35  So.  561  (564).  "That    this   charge   is    a   correct 


§  1989.]  NEGLIGENCE— RAILROADS.  1275 

§  1989.  But  Not  Conclusive  Evidence  of  Negligence.  The  jury  are 
instructed  that  the  mere  fact  that  fire  from  the  defendant's  locomo- 
tive caused  the  plaintiff's  damages  is  only  prima  facie  evidence  and 
not  conclusive.-" 

8 1990.  No  Recovery  Against  Railroad  When  Origin  of  Fire  Left  to 
Guess  or  Conjecture.  If  the  evidence,  fairly  considered,  leaves  this 
matter  in  doubt,  so  that  you  are  left  to  guess  or  conjecture  as  to 
whether  the  fire  from  defendant's  right  of  way  or  some  other  fire 
caused  the  damage  complained  of,  there  can  be  no  recovery  for  the 
plaintiffs  by  reason  thereof,  and  your  verdict  upon  that  issue  must 
be  for  the  defendant.-^ 

S 1991.  Rule  That  Burden  of  Proof  Is  on  Plaintiff  to  Show  Negli- 
gence on  Defendant  in  Starting  Fire.  The  jury  are  instructed  that 
the  burden  of  proof  is  on  the  plaintiff  to  show  conclusively  that  the 
fire  that  burned  his  barn  or  granary  was  negligently  and  carelessly 
set  out  by  the  defendant ;  and  unless  he  should  so  show  you  must  find 
for  the  defendant.  In  considering  this  you  will  bear  in  mind  that, 
though  the  plaintiff  shows  that  the  defendant's  engine  did  set  out  the 
fire,  this  of  itself  is  not  negligence,  for  if  the  defendant  shows  that 
the  engine  alleged  to  have  set  the  fire  was  provided  with  all  the  ap- 
pliances commonly  used  in  preventing  fire  from  escaping  it  will  not 
be  liable,  for  such  a  precaution  will  not  allow  the  plaintiff  to  recover. 
The  jury  will  bear  in  mind  that,  if  the  plaintiff  does  show  that  the 
fire  was  caused  by  the  defendant,  it  is  competent  for  the  defendant 
to  show  that  the  engine  or  engines  alleged  to  have  caused  the  fire 
were  provided  with  the  best  known  appliances  for  preventing  fire 
from  escaping  from  the  smokestack  or  ashpan ;  and  if  the  defendant 
does  prove  that  it  has  used  all  due  care  and  caution  to  prevent  fire  by 

statement  of  the  law  applicable  to  &  A.   R.  R.   Co.  v.  Clampit,  63  111. 

the  facts  in  this  case  has  been  ex-  95;   C.   &   A.   R.    R.   Co.   v.    Quaint- 

pressly    decided     by    our    supreme  ance,  58  111.   389;   T.   W.   «&  W.   Ry. 

court  in  a  number  of  cases.     Int.  «&  Co.   v.   Larmon,   67  111.   68;  P.   C.  & 

G.    N.    R.    Co.    V.    Timmerman,    61  St.  L.   Ry.   Co.  v.   Campbell,  86  111. 

Tex.  660;   Ryan  v.  Railway  Co.,  65  443.)" 

Tex.  20,  57  Am.  Rep.  289;  F.  W.  &  21— Clifford     v.     Minneapolis,     St. 

D.    C.    R.    Co.    V.    Hogsett,   67   Tex.  P.  &  S.  S.  M.  R.  Co.,  105  Wis.  618, 

685,  4  S.  W.  365;  Gal.  H.  &  S.  A.  R.  81   N.    W.    143    (145). 

Co.   V.   Home,   69  Tex.  643,  9  S.  W.  "This    was    the    whole    gist    and 

440."  substance    of    the    instruction    re- 

20— C.  &  E.  I.  R.  Co.  V.  Goyette,  quested,     namely,     that     the     jury 

133  111.  21  (29),  24  N.  E.  549.  must   find   from   the   evidence   that 

"To  overcome  the  prima  facie  the  damage  was  caused  by  a  .fire 
inference  of  negligence  which  for  which  the  defendant  was  re- 
arises  by  force  of  the  statute  from  sponsible,  and,  if  their  conclusion 
the  mere  fact  that  damages  had  to  that  effect  could  be  only  the  re- 
been  caused  by  fire  communicated  suit  of  conjecture  or  guess,  they 
from  a  locomotive  engine,  it  must  could  not  allow  the  damages.  It 
appear  not  only  that  the  engine  was  not  necessary  for  the  courtto 
was  provided  not  only  with  the  indulge  in  repetition  of  this  in- 
best  and  most  approved  appliances,  struction  by  applying  it  to  the 
but  also  that  they  were  at  the  several  places  where  damage  was 
time  in  suitable  order  and  repair,  claimed  to  have  occurred,  or  to 
and  that  there  was  no  negligence  any  of  them." 
in  their  use  and  management.    (C. 


1276 


FORMS  OF  INSTRUCTIONS. 


[§  1992. 


equipping-  the  engine  with  such  appliances,  and  that  its  engine  or 
engines  were  handled  by  competent  and  careful  men,  and  in  a  safe 
manner,  you  must  find  for  the  defendant,  even  though  you  may  be- 
lieve the  fire  was  caused  by  the  defendant's  engine.  That  is,  if  the 
defendant  has  used  care  to  prevent  fire,  it  has  done  all  that  is  required 
of  it,  and  will  then  not  be  liable.-^ 

§  1992.  Rule  in  Texas  as  to  Instruction  of  Juries  in  Actions  for 
Injuries  by  Fire,  (a)  But  if  you  further  believe  from  the  evidence  that 
the  engine  from  which  such  sparks  escaped  was  equipped  with  the 
most  approved  spark  aiTester  in  use,  and  that  such  engine  was  oper- 
ated at  the  time  in  a  skillful  manner,  so  as  to  avoid  the  escape  of  fire, 
as  nearly  as  could  be  by  the  use  of  reasonable  care,  then  you  are  in- 
sti-ucted  that  the  prima  facie  case  arising  from  the  mere  fact  of  set- 
ting out  the  fire  by  sparks  from  said  engine  is  rebutted,  and  if  you 
so  find  you  will  find  for  defendant.  If,  from  a  consideration  of  all 
the  evidence,  the  defendant  has  failed  to  show  that  the  engine  was 
at  the  time  of  the  fire  equipped  with  the  most  approved  spark  ar- 
resters in  use,  and  was  in  good  i-epair  and  skillfully  handled  in  refer- 
ence to  preventing  the  escape  of  fire,  then  the  prima  facie  case  made 
out  by  proof  of  sparks  escaping  and  causing  the  fire  (if  so  proved) 
has  not  been  rebutted.-^ 

(b)   The  jui-y  are  instructed  that  if,  from  the  evidence,  they  believe 


22— Union  Pac.  Hy.  Co.  v.  Keller, 
36  Neb.  189,  54  N.  W.  420  (422). 

"When,  however,  the  evidence 
shows  that  a  fire  originated  from 
an  engine  running  over  the  de- 
fendant's railway,  it  is  unneces- 
sary for  the  plaintiff  to  show  af- 
firmatively any  defect  in  the  con- 
struction or  condition  of  the  en- 
gine, or  any  negligence  in  its  man- 
agement. Burlington  &  Mo.  R. 
Co.  v.  Westover,  4  Neb.  268.  In 
the  case  cited  it  is  said:  'There  is 
a  direct  conflict  of  authorities  in 
fhis  country  on  this  question;  in 
many  of  the  cases,  particularly 
the  early  ones,  it  being  held  that 
it  devolved  on  the  plaintiff  to 
prove  negligence  on  the  part  of 
the  defendant.  The  better  rule  ap- 
pears to  be,  where  it  is  shown  that 
a  fire  has  originated  from  sparks 
thrown  out  by  an  engine,  to  re- 
quire the  company  to  show  that 
their  engine  was  properly  con- 
structed, equipped,  and  operated. 
The  reason  for  the  rule,  as  stated 
In  a  ]i)J.c  case  in  Wisconsin,  being, 
'that  the  agents  and  employes  of 
the  road  know,  or  are,  at  least, 
bound  to  know,  that  the  engine  is 
properly  eqiilpped  to  prevent  fire 
from  escaping,  and  that  they 
know  whether  any  mechanical  con- 
trivances  were  employed   for  that 


purpose,  and,  if  so,  what  was  their 
character;  while,  on  the  other 
hand,  persons  not  connected  with 
the  road,  and  who  only  see  trains 
passing  at  a  high  rate  of  speed, 
have  no  such  means  of  informa- 
tion. Spaulding  v.  Railroad  Co.,  30 
Wis.  122,  11  Am.  Rep.  550,  8  Am.  & 
Eng.  Enc.  Law  9,  10,  and  cases 
cited.'  " 

23— Texas  &  P.  Ry.  Co.  v.  Rice, 
24  Tex.  Civ.  App.  374,  59  S.  W.  833 
(834). 

"Appellant  assigns  error  to  this 
charge  upon  the  ground  that  it  is 
upon  the  weight  of  the  evidence. 
We  can  answer  the  objection  made 
no  better  than  to  quote  the  coun- 
ter proposition  of  the  learned 
counsel  for  the  appellee:  'As  a  gen- 
eral rule  of  practice,  it  is  not  per- 
missible for  the  court  to  instruct 
the  jury  that  proof  of  certain  facts 
will  establish  the  fact  of  negli- 
gence upon  which  the  action  may 
be  maintained,  but  in  this  class  of 
actions  a  different  rule  has  been 
established  by  the  supreme  court 
of  this  state,  and  the  charge  above 
given,  in  substance,  is  not  subject 
to  the  objection  that  it  is  upon 
the  weight  of  the  evidence.'  Gulf 
C.  &  S.  F.  R.  Co.  V.  Johnson,  92 
Tex.   591,  50  S.   W.   563." 


§  1993.]  NEGLIGENCE— RAILROADS.  1277 

that  sparks  of  fire  escaped  from  the  defendant's  engine,  and  set  fire 
to  the  bed  and  clothing  of  the  plaintiff  0.  J.,  and  that  said  fire  was 
communicated  to  said  plaintiff,  and  injured  her,  then  such  facts  con- 
stitute a  prima  facie  case  of  negligence  on  the  part  of  the  defend- 
ant, and,  in  the  absence  of  rebutting  evidence  sufficient  to  overcome 
such  prima  facie  case  of  negligence,  will  render  the  defendant  liable 
for  the  injury  occasioned  thereby.  If,  from  the  evidence,  they  be- 
lieve that  sparks  of  fire  escaped  from  the  defendant's  engine,  and 
set  the  fire  which  caused  the  plaintiff's  injuries,  but  if,  from  the  evi- 
dence, they  believe  that  the  engine  from  which  the  sparks  escaped 
was  equipped  with  the  most  approved  spark  arresters  in  use,  and 
that  the  agents  and  employes  of  the  defendant  in  charge  of  said 
engine  used  ordinary  care  in  operating  said  engine  to  prevent  the 
escape  of  sparks,  then  they  are  instructed  that  the  prima  facie 
ease  made  out  by  proof  of  escape  of  sparks  and  fire  resulting  there- 
from is  rebutted,  and  if  they  so  believe  they  will  find  for  the  de- 
fendant ;  but  if,  from  the  evidence,  they  believe  that  the  defendant 
failed  to  equip  its  engine  from  which  the  sparks  escaped  that  caused 
the  fire  with  the  most  approved  spark  arrester  in  use,  or  that  the 
agents  and  employes  of  the  defendant  engaged  in  operating  said 
engine  failed  to  use  ordinary  care  to  prevent  the  escape  of  sparks, 
then  they  are  instructed  that  the  prima  facie  case  made  out  by  proof 
of  sparks  escaping  and  causing  the  fire  has  not  been  rebutted.-* 

§  1993.  Statutory  Rule  in  South  Carolina.  If  you  come  to  the 
conclusion  that  this  land  was  burnt,  as  charged  in  the  complaint,  then 
your  next  inquiry  will  be  whether  or  not  it  was  injured  by  the  fire 
communicated  by  a  locomotive  engine  of  the  defendant  company,  or 
a  fire  originating  within  the  limits  of  the  right  of  way  of  the  road. 
If  it  did,  the  plaintiff  is  entitled  to  receive  whatever  damages  you 
think  he  is  entitled  under  the  evidence. ^^ 

24 — Gulf    C.    &    S.    F.    Ry.    Co.    v.  which  it   may  be   held   responsible, 

Johnson,   —   Tex.    Civ.   App.   — ,   51  and  may  procure  insurance  there- 

S.   W.   531   (532).  on    in    its    own    behalf.'      This    sec- 

25— Wilson   v.    So.    Ry.   Co.,   65   S.  tion   of  our   statutory  law   has   al- 

C.  421,  43  S.  E.  964  (966).  ready  been   construed  by  this  court. 

"The  circuit  judge  read  to  the  See  Thompson  v.  R.  R.  Co.,  24  S. 
jury  the  exact  language  of  the  C.  370;  McCandless  v.  R.  R.  Co.,  38 
statute.  This  section  is  as  fol-  S.  C.  103,  16  S.  E.  429,  18  L.  R.  A. 
lows:  'Every  railroad  corporation  440;  Rogers  v.  R.  R.  Co.,  31  S.  C. 
shall  be  responsible  in  damages  to  378,  9  S.  E.  1059;  Hunter  v.  R.  R. 
any  person  or  corporation  whose  Co.,  41  S.  C.  91.  19  S.  E.  197.  Now, 
buildings  or  other  property  may  the  circuit  judge  had  read  the  en- 
be  injured  by  fire  communicated  tire  section  to  the  jury,  but  he 
by  its  locomotive  engines,  or  orig-  was  very  careful  to  tell  them  that 
inating  within  the  limits  of  the  they  could  find  damages  for  the 
right  of  way  of  said  road,  in  con-  fire  set  out  by  the  sparks  from  the 
sequence  of  the  act  of  any  of  its  engine,  as  the  complaint  only  cov- 
authorized  agents  or  employes,  ex-  ered  injuries  from  that  source. 
cept  in  any  case  where  property  The  testimony  was  confined  to  this 
shall  have  been  placed  on  the  right  issue.  No  harm  could  result  to  the 
of  way  of  such  corporation  unlaw-  railroad  company  from  any  other 
fully  or  without  its  consent,  and  source.  This  is  what  governed  the 
shall  have  an  insurable  interest  in  jury." 
the    property    upon    its    route    for 


1278  FORMS  OF  INSTRUCTIONS.  [§  1994. 

§  1994.    Elements    Constituting    Negligence    in   Injuries   by    Fire. 

(a)  It  is  not  necessary  that  any  specific  act  of  negligence  be  pointed 
out,  if  the  circumstances  established  are  such  as  a  jury  may  infer 
negligence  from,  such  as  running  at  a  high  rate  of  speed,  working  the 
engine  hard,  overloading  it,  and  other  acts  indicating  an  unusual 
course  in  operating  the  engine — are  things  the  jury  may  consider  in 
determining  whether  or  not  the  defendant  was  guilty  of  negligence. 

(b)  You  have  a  right  to  take  into  consideration  every  fact  and 
circumstance  which  tends  to  demonstrate,  subject  to  the  explanation 
of  the  defendant,  the  kind  of  care  and  caution  usually  exercised  by 
defendant's  employes  in  charge  of  the  engine  which  alleged  to  have 
set  the  fire,  and  also  the  sufficiency  of  the  equipments  for  preventing 
the  escape  of  fire  used  by  the  defendant  on  this  train  in  operating  the 
same,  and  to  judge  as  to  the  probable  state  of  repair  in  which  the 
engines  which  hauled  this  train  were.-*' 

(c)  To  warrant  the  jury  in  finding  for  the  plaintiff,  you  must  first 
determine  from  the  evidence  whether  fire  which  occasioned  the  dam- 
age complained  of  originated  from  the  engine  of  defendant,  as  averred 
in  plaintiff's  petition;  and,  in  addition  thereto,  you  must  find  that 
the  fire  originated  from  the  negligence  of  defendant's  servants  by 
means  of  their  carelessness,  or  by  means  of  defective  engines  or  ma- 
chinery, and  the  plaintiff  did  not  directly  by  his  own  negligence  eon- 
tribute  towards  the  destruction  of  the  house  and  oats  sued  for  herein. 

(d)  If  the  evidence  fails  to  satisfy  you  that  the  fire  which  caused 
the  injury  originated  from  the  defendant's  engine,  you  will  inquire 
no  further,  and  at  once  render  a  vei'dict  for  the  defendant;  and  you 
will  bear  in  mind  that  it  is  incumbent  upon  the  plaintiff,  by  a  pre- 
ponderance of  the  evidence,  to  satisfy  you  that  the  fire  which  did  the 
injury  originated  from  the  defendant's  engine. 

(e)  If  3^ou  are  satisfied  that  the  fire  did  originate  from  the  de- 
fendant's engine,  as  claimed,  then  the  burden  is  upon  the  defendant 
to  remove  a  presumption,  though  small,  indeed,  of  negligence ;  to  show 
you  that  the  engine  of  the  defendant  from  which  the  fire  escaped  was 
in  good  order,  properly  constructed  and  provided  with  the  usual  ap- 
pliances and  spark  arrester  to  prevent  the  escape  of  fire;  and  if  you 
so  find,  then  it  is  your  duty  to  find  for  the  defendant,  as  the  defendant 
would  not  be  liable  if  it  used  the  most  approved  appliances,  engine 
and  machinery,  and  it  was  carefully  handled  and  managed  by  the 
servants  of  the  defendant,  unless  the  jury  believe  the  defendant  or 
its  employes  were  guilty  of  actual  negligence. 

(f)  Though  the  jury  believe  from  the  evidence  that  the  engine 
of  defendant  was  supplied  with  a  ** spark  arrester"  and  other  con- 
trivances to  prevent  the  escape  of  fire  from  the  engine,  of  the  most 
approved  style  and  pattern,  yet,  if  the  jury  believe  from  the  evidence 
that  the  employes  or  servants  of  defendant  operating  its  locomotives 
at  the  time  of  the  fire  mentioned  in  the  petition  failed  or  neglected 

26— Norwich   Ins.   Soc.   v.   Oregon      R.    Co.,    46    Ore.    123,    78    Pac.    1025 

(1026). 


§  1995.]  NEGLIGENCE— RAILROADS.  1279 

to  exercise  due  care  and  caution  in  so  operating  and  running  said  lo- 
comotives, and  that  for  want  of  such  due  care  and  caution  the  said 
fire  was  communicated  by  said  locomotives  or  engines  to  the  house  of 
plaintiff,  described  in  the  petition,  then  they  will  find  for  the  plain- 
tiff. 

(g)  You  are  the  sole  judges  of  the  credit  that  ought  to  be  given 
to  the  testimony  of  the  different  witnesses,  and  you  are  not  bound  to 
believe  anything  to  be  a  fact  because  a  witness  has  stated  it  to  be, 
provided  the  jui-y  believe  from  all  the  evidence  that  such  witness  is 
mistaken  or  has  knowingly  testified  falsely.  Take  this  case,  and  from 
all  the  facts  and  circumstances  of  the  ease  return  such  a  verdict  as 
you  believe  to  be  just.^'^ 

§  1995.  Heavy  Grade  Requiring  Engines  to  Be  Worked  Hard  and 
to  Emit  Sparks.  I  instruct  you  that  it  is  the  duty  of  the  railroad 
company  to  see  to  it  that  its  engines  and  trains  are  skillfully  and 
carefully  managed.  And  in  this  connection  I  instruct  you  that  if  you 
should  find  from  the  evidence  that  there  was  a  heavy  grade  at  the 
point  where  the  alleged  fire  occurred,  and  that  a  train  passing  said 
point  just  prior  to  the  discovery  of  the  fire  was  so  heavily  loaded  as 
to  require  the  engines  to  be  worked  hard,  and  to  cause  them  to  emit 
an  unusual  quantity  of  sparks,  these  are  circumstances  which  you 
have  a  right  to  consider  in  determining  whether  or  not  the  engines 
attached  to  said  train  were  skillfull}'  and  carefully  managed.-^ 

§  1996.  Running  Engine  Past  Cotton  Compress  or  Yard — Series, 
(a)  Even  if  the  jury  should  believe  from  the  evidence  that  the  spark 
which  started  the  fire  originated  from  a  locomotive  of  the  defendant, 
the  statute  only  makes  it  prima  facie  evidence  of  the  want  of  reasona- 
ble skill  and  care  on  the  part  of  the  serv^ants  of  the  company  in  refer- 
ence to  the  fire,  liable  to  be  rebutted  by  proof  of  such  reasonable  care 
and  skill;  and  if  the  jury  should  further  believe  from  the  evidence 
that  the  fire  was  set  out  from  a  locomotive  of  the  defendant,  never- 
theless, if  they  should  further  believe  from  the  evidence  that  the  lo- 
comotive was  properly  constructed  and  in  good  order  with  a  reason- 
ably safe  and  proper  spark  arrester,  and  that  the  locomotive  was  han- 
dled with  due  care,  and  that  the  spark  arrester  was  in  good  condi- 

27 — Union  Pac.  Ry.  Co.  v.  Keller,  dence  may  be  wholly  circumstan- 

36  Neb.  189,   54  N.  W.  420  (421).  tial,--as,  first,  that  it  was  possible 

"These  five  instructions,  taken  for  lire  to  reach  the  plaintiff's 
together,  submit  the  questions  in-  property  from  the  defendant's  en- 
volved  fairly,  as  shown  by  the  gines;  and,  second,  facts  tending 
testimony,  to  the  jury.  It  devolves  to  show  that  it  probably  origin- 
on  the  plaintiff  to  prove  by  a  pre-  ated  from  that  cause,  and  no 
ponderance  of  the  evidence  that  other.  Field  v.  Railroad  Co.,  32 
the  fire  was  communicated  by  N.  Y.  339;  Karsen  v.  Railroad  Co., 
sparks  or  cinders  from  the  railway  29  Minn.  12,  11  N.  W.  122;  Longa- 
engines.  It  need  not  be  shown  baugh  v.  Railway  Co.,  9  Nev.  271; 
that  any  particular  engine  was  at  Grand  Trunk  R.  Co.  v.  Richard- 
fault,  but  it  will  be  sufficient  if  son,  91  U.  S.  454,  8  Am.  &  Eng. 
the  fire  is  proved  to  have  been  set  Enc.  of  Law  7,  8,  and  cases  cited." 
by  any  engine  passing  over  the  28 — Anderson  v.  Oregon  R.  Co., 
defendant's   railway;   and   the  evi-  45  Ore.  211,  77  Pac.  119  (121). 


1280  FORMS  OF  INSTRUCTIONS.  [§  1996. 

tion,  but  on  account  of  a  high  wind  prevailing  at  the  time,  or  other 
causes  over  which  defendant  had  no  control,  a  spark  was  accidentally 
blown  or  carried  onto  the  cotton,  and  that  it  was  accidentally  set  on 
fire,  without  any  negligence  or  fault  on  the  part  of  defendant  or  those 
in  charge  of  the  locomotive  and  train,  then  the  jury  will  find  for  the 
defendant. 

(b)  If  the  jury  believe  from  the  evidence  that,  after  the  M.  &  O. 
railroad  was  built,  the  compress  or  yard  at  which  the  cotton  was 
burned  was  established  along  side  its  right  of  way  and  close  to  the 
railroad  track,  then  those  in  charge  of  the  compress  and  yard  and 
those  who  stored  cotton  there,  are  presumed  to  know  that  trains  are 
expected  to  be  run  with  regularity,  and  if  there  are  any  special  risks 
arising  from  no  want  of  care  in  the  proper  equipment  and  manage- 
ment of  the  engines  and  trains  those  risks  are  not  chargeable  to  the 
railroad,  but  are  incident  of  the  situation,  and  the  extra  risk  from 
accident  must  devolve  on  the  owners  and  insurers  of  the  cotton.  There 
was  no  obligation  on  those  in  charge  of  the  locomotive  to  shut  off 
steam,  and  while  they  must  act  in  reference  to  circumstances,  so  as 
not  to  create  an  unusual  or  unnecessary  danger,  still  they  are  enti- 
tled to  transact  the  business  in  the  usual  and  necessary  manner;  and 
if  the  jury  further  believe  from  the  evidence  that  those  in  charge  of 
the  locomotive  from  which  the  fire  is  claimed  to  have  originated,  were 
operating  it  at  the  time  in  the  usual  and  necessary  manner,  and  there 
was  no  want  of  care  in  the  proper  equijiment  and  management  of  the 
locomotive,  they  will  find  for  the  defendant. 

(c)  If  the  jury  believe  from  the  evidence  that  the  locomotive  by 
which  the  fire  is  claimed  to  have  been  set  was  properly  constructed 
and  supplied  with  the  approved  appliances  to  prevent  the  escape  of 
fire,  which  were  in  good  repair  at  the  time,  and  that  the  engineer  and 
firemen  were  competent,  and  ran  the  locomotive  under  a  light  head  of 
steam,  and  were  not  running  over  six  miles  an  hour,  and  were  not 
guilty  of  negligence,  then  the  defendant  had  discharged  his  whole 
duty  to  the  owners  and  insurers  of  the  cotton,  and  no  recovery  can 
be  had,  even  though  the  fire  was  set  out  by  the  locomotive. 

(d)  If  the  jury  believe  from  the  evidence  that  the  fire  in  contro- 
versy was  actually  set  out  by  a  locomotive  of  the  defendant  and  that 
it  was  at  the  time  within  the  corporate  limits  of  the  city  of  W.  and 
was  running  more  than  six  miles  an  hour,  and  while,  if  nothing  more 
appeared,  the  plaintiff  under  the  law  would  be  entitled  to  recover, 
yet,  if  more  does  appear  from  the  evidence,  and  all  the  facts  and 
circumstances  in  evidence  before  the  juiy,  then  they  should  take  into 
consideration,  in  arriving  at  their  verdict,  all  such  facts  and  circum- 
stances, and  if  from  all  these  they  believe  that  there  was  proper 
care  in  the  proper  and  reasonable  equipment  and  management  of  the 
locomotive,  and  that  such  excess  of  speed  had  nothing  to  do  with  the 
fire,  and  that  the  fire  was  in  no  way  caused  or  contributed  to  by  such 
excess  of  speed,  they  will  find  for  the  defendant  on  that  issue. 

(e)  If  the  jury  believe  from  the  evidence  that  the  cotton  in  con- 


§  1997.]  NEGLIGENCE— RAILROADS.  1281 

troversy  was  set  on  fire  by  the  locomotive  of  the  defendant  which 
was  at  the  time  running  more  than  six  miles  an  hour  within  the  cor- 
porate limits  of  the  city  of  W.,  but  if  they  further  believe  from  the 
evidence  that  the  faster  a  locomotive  drawing  a  train  runs,  the  less 
liable  it  is  to  emit  sparks  or  to  set  fire  to  contiguous  objects,  and  that 
the  locomotive  in  controversy  was  in  fact  less  liable  to  throw  out  fire 
or  sparks  by  reason  of  the  fact  that  it  was  running  more  than  six 
miles  an  hour,  then  they  are  authorized  to  disregard  the  rate  of  speed; 
and  if  they  further  believe  from  the  evidence  that  otherwise  there 
was  no  want  of  care  in  the  proper  usual  and  reasonable  equipment 
or  management  of  the  locomotive,  they  are  entitled  to  find  for  the 
defendant. 

(f )  The  court  instructs  the  jury  for  the  defendant,  that  although 
you  may  believe  from  the  evidence  that  the  defendant  ran  its  engine 
and  trains  past  the  property  of  the  plaintiff  at  the  time  the  fire  oc- 
curred at  a  rate  of  speed  exceeding  six  miles  an  hour,  yet  unless  you 
are  satisfied  from  the  evidence  that  the  fire  was  caused  by  sparks  from 
one  of  their  engines  or  trains,  you  must  return  a  verdict  for  defend- 
ant railroad. ^^ 

§  1997.  Reasonable  Care  Rectuired  to  Prevent  Spread  of  Fire,  (a) 
It  is  the  duty  of  a  railroad  company  to  take  all  reasonable  precau- 
tions to  prevent  the  spread  of  fire  from  its  locomotives.  And  while 
property  owners  adjoining  take  the  risk  of  injuries  unavoidably  pro- 
duced by  fire  used  for  generating  steam,  yet,  for  any  negligence  in 
the  use  of  it,  the  company  will  be  liable. 

(b)  Proof  of  the  destruction  of  property,  by  fire  escaping  from  a 
locomotive,  raises  a  prima  facie  case  of  negligence,  which  the  defend- 
ant must  rebut  by  showing  the  absence  of  negligence,  by  •  a  prepon- 
derance of  evidence,  or  that  the  plaintiff's  own  fault  or  negligence 
eonti'ibuted  to  the  injuiy."*' 

§  1998.  Must  Provide  Most  Improved  Apparatus  to  Prevent  Escape 
of  Fire,  (a)  The  jury  are  instructed,  that  railroad  companies  are 
required  by  law  to  keep  constantly  in  use  the  most  approved  ma- 
chinery and  apparatus  to  prevent  the  escape  of  fire  from  their  en- 
gines, to  the  injury  of  property  along  their  lines,  so  far  as  this  can 
be  done  by  the  exercise  of  all  reasonable  care,  skill  and  vigilance. ^^ 

(b)  If  you  find  by  a  preponderance  of  the  evidence  that  the  fire 
was  started  by  sparks  emitted  and'  thrown  from  one  of  the  defend- 
ant's engines  while  being  operated  on  defendant's  railroad,  the  de- 
fendant will  be  liable,  unless  you  further  find  that  at  that  time  it  had 
in  use  on  said  engine  the  best  appliances  for  the  preventing  of  the  set- 
ting out  of  fires,  and  that  the  said  engine  was  at  the  time  properly 
handled.^2 

29— Clisby  v.  Mobile  &  O.  R.  Co.,  nell,   94  111.  449;  C.  &  A.  R.  Co.  v. 

78  Miss.   937,  29  So.  913   (915).  Quaintance,    58    III.    389. 

30— Coale    v.    Hannibal,    etc.,    R.  32— German    Ins.    Co.   v.    C.    &   N. 

Co..  60  Mo.   227.  W.   Ry.   Co.,  128  la.  386,  104  N.  W. 

31— T.  P.  &  W.  R.  Co.  v.  Pindar,  361   (363). 
53  111.  447;  C.  &  A.  R.   Co.  v.  Pen- 
81 


1282  FORMS  OP  INSTRUCTIONS.  [§1998 

(c)  The  law  does  not  require  a  railroad  company  to  provide  and 
use  the  veiy  best  known  appliances  that  mechanical  skill  and  inge- 
nuity have  been  able  to  devise  and  construct  to  prevent  the  escape 
of  sparks  from  its  locomotives,  but  they  are  required  to  use  all  rea 
sonable  means  to  that  end,  and  where  a  new  improvement  of  such  ap- 
pliances has  been  made,  or  a  new  invention  introduced,  which  has 
been  tested  and  generally  approved  as  better  than  that  it  is  using,  it 
is  required  to  adopt  and  use  the  better  appliances.^^ 

(d)  The  court  instructs  you,  that  the  defendant  was  not  bound 
to  furnish  the  very  best  or  most  improved  kind  of  machinery  or  ap- 
paratus to  prevent  the  escape  of  fire  from  its  engine;  and  if  you  be- 
lieve, from  the  evidence,  that  the  engine,  etc.,  connected  with  the  same 
were  reasonably  safe,  and  such  as  are  ordinarily  used  for  the  purpose 
for  which  these  were  intended,  and  that  the  defendant  was  not  other- 
wise guilty  of  negligence,  then  the  defendant  would  not  be  liable  in 
this  case. 

(e)  Although  you  may  believe,  from  the  evidence,  that  an  improve- 
ment has  been  made  and  patented  upon  engines  similar  to  the  one  in 
question,  or  upon  the  apparatus  used  in  connection  therewith,  for  pre- 
venting the  escape  of  fire,  yet  the  defendant  was  not,  on  that  account, 
bound  to  purchase  or  use  such  improvement;  the  defendant  was  only 
under  obligation  to  use  reasonable  and  ordinary  care  in  providing 
suitable  and  safe  machinery,  and  to  provide  such  as  was  reasonably 
safe.3* 

(f)  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence that  one  of  the  defendant's  engines  threw  sparks  upon  plain- 
tiff's shed,  or  directly  against  it,  and  that  the  sparks  so  thrown 
themselves  set  fire  to  the  shed,  and  that  the  burning  shed  communi- 
cated the  fire  to  the  plaintiff's  other  property;  and,  further,  that 
such  engine  was  furnished  with  a  spark  arrester  and  other  appliances 
of  approved  character  to  prevent,  so  far  as  possible,  throwing  sparks, 
and  was  properly  handled  by  the  engineer,  and  that  such  spark  ar- 
rester and  other  appliances  were  in  good  condition,  then  they  ought 
to  find  a  verdict  for  the  defendant. ^^ 

(g)  If  you  believe  from  the  evidence  that  fire  was  communicated 
from  a  locomotive  or  locomotives  of  the  defendant  to  the  premises  of 
plaintiffs  and  interveners  at  a  point  or  points  without  defendant's 
right  of  way,  as  alleged  in  their  petition  and  plea,  and  that  said  fire 
or  fires  burned  over  the  premises  of  plaintiffs  and  interveners,  or 
part  or  parts  thereof  and  destroyed  any  grass,  cane,  or  wood  thereon, 
or  destroyed  or  injured  any  grass  turf,  or  destroyed  or  injured  any  tim- 
ber thereon,  as  alleged  in  plaintiff's  petition  and  interveners'  plea,  and 
if  you  further  believe  from  the  evidence  that  the  defendant  had  used 
ordinary  care  to  have  its  locomotives  equipped  with  the  best  appli- 

33— Toledo,  W.  &  W.  Rd.  Co.  v.  35— Louisville  &  N.  R.  Co.  v. 
Corn,   71    111.   493.  Sullivan  T.  Co.,  138  Ala.  379,  35  So. 

34— Camp      Point      Mfg.      Co.  v.      327    (Xn.). 
Ballou,  71  111.  417. 


§  1998.]  NEGLIGENCE— RAILROADS.  1283 

ances  in  general  use  by  railway  companies  for  preventing  the  escape 
of  fire  and  sparks,  and  that  defendant  had  used  ordinary  care  to  keep 
such  appliances  in  repair  and  serviceable  condition,  and  that  defend- 
ant's employes  in  charge  of  its  locomotives  used  ordinary  care  to  op- 
erate the  said  locomotives,  so  as  to  prevent  the  escape  of  fire  and 
sparks,  then  ujDon  all  claims  made  by  plaintiffs  and  interveners  in 
their  pleadings  for  damages,  if  any,  resulting  from  fires  so  communi- 
cated at  points  without  defendant's  right  of  way,  you  will  find  for  de- 
fendant.^*' 

(h)  You  are  instructed  that  if  you  find  from  the  evidence  that  the 
plaintiff's  lands  were  burned  over  by  fire  at  or  about  the  time,  as 
alleged  in  his  petition,  and  that  said  fires  w'ere  set  out  by  sparks  emit- 
ted fi'om  the  engines  of  the  defendant  company,  and  you  further  find 
that  the  engines  of  the  defendant  company  were  properly  equipped 
with  the  most  approved  spark  arresters  and  api^liances  determined 
by  practical  railroad  men  to  be  among  the  best  in  use  on  railroads 
for  the  prevention  of  the  escape  of  sparks,  fire,  and  cinders  from  lo- 
comotives, and  that  such  apparatus  and  appliances  were  in  good  or- 
der and  repair  and  that  the  engines  were  carefully  and  properly  han- 
dled by  competent  employes  of  the  defendant  company  at  the  time 
of  the  alleged  setting  out  of  the  fires  complained  of  by  said  plaintiff, 
then  you  are  instrucis.  .;at  although  you  may  believe  that  the  fires 
were  set  out  by  the  defendant's  engines  the  burden  of  proof  is  upon 
the  plaintiff  to  show  that  the  damages  complained  of  was  the  result 
of  the  negligent  act  or  omission  of  the  defendant  or  its  employes; 
and  if  you  find  from  the  evidence  that  the  said  fires  (if  any)  were 
so  caused  by  the  negligence  of  said  defendant  or  its  employes,  then 
you  will  find  for  the  plaintiff  such  an  amount  as  damages  as  you 
find  from  the  evidence  he  has  sustained ;  but  if  you  find  from  the 
evidence  that  said  fires  (if  any)  were  caused  or  originated  from  some 
other  source  than  from  the  defendant  or  its  employes  or  its  engines, 
and  was  not  set  out  by  defendant's  engines  or  by  it  or  its  employes,  or 

36 — St.  L.  S.  W.  Ry.  Co.  v.  Con-  it  has  used  ordinary  care  to  have 

nally,  —  Tex.  Civ.  App.  — ,  93  S.  W.  its   locomotives   equipped   with   the 

206  (208).  best   appliances   in   general   use   by 

"It    is    contended    that    a    charge  railway    companies    for    preventing 

that  requires  a  railroad  company  to  the  escape  of  fire  and  sparks,  and 

have  its  locomotives  equipped  with  that   it   has  used    ordinary   care  to 

the  best   appliances  in  general  use  keep  such  appliances  in  repair,  and 

by  railway  companies  for  prevent-  that       defendant's       employes       in 

ing  the  escape  of  fire  and  sparks,  charge  of  its  locomotives  used  or- 

and      that      requires      such      com-  dinary    care    in    operating    the  said 

pany  to  use  ordinary  care  to  keep  locomotives  to   prevent   the  escape 

said   appliances   in  repair  and  ser-  of  fire  and  sparks.    Biering  v.  Rail- 

viceable  condition,   imposes  a  bur-  way,    79    Tex.    586,    15    S.    W.    576; 

den    on    such    company    not    war-  Dillingham    v.    Whittaker,   —  Tex. 

ranted    by    law.      We    understand.  Civ.  App.  — ,  25  S.  W.  723;  Gulf  C. 

where  fire  is  communicated  by  the  &  S.  F.  R.  Co.  v.  Reagan,  —  Tex. 

locomotives     of    the    defendant    to  Civ.  App.  — ,  32  S.  W.  846;  St.  L.  S. 

the  premises  of  the   plaintiff  lying  W.   R.   Co.  v.  Gentry,  —  Tex.   Civ. 

outside    of    the    right    of   way,    the  App.  — ,  74  S.  W.  607.     The  charge 

law  is  that  the  defendant,  to  make  was   in   accord   with   this  principle 

out    its    defense,    must    show    that  and  is  correct." 


1284  FORMS  OF  INSTRUCTIONS.  [§  1999. 

if  you  find  that  said  fires  (if  any)  were  set  out  by  the  defendant  or 
its  employes  or  engines,  but  that  neither  said  defendant  nor  em- 
ployes were  guilty  of  negligence  in  so  setting  out  said  fires  (if  any) 
then  the  plaintiff  should  not  recover,  and  you  will  find  for  the  de- 
fendant.^'^ 

8 1999.  Effect  of  Failure  to  Use  Most  Approved  Apparatus  to  Pre- 
vent Escape  of  Fire  or  to  Use  Ordinary  Care  in  Preventing  Escape 
of  Sparks,  (a)  The  court  instructs  the  jury  that  if,  from  the  evi- 
dence, they  believed  that  sparks  of  fire  escaped  from  the  defendant's 
engine,  and  set  fire  to  the  bed  and  clothing  of  the  plaintiff,  J.,  and 
that  said  fire  was  communicated  to  said  plaintiff,  and  injured  her, 
then  such  facts  constitute  a  prima  facie  case  of  negligence  on  the  part 
of  the  defendant,  and,  in  the  absence  of  rebutting  evidence  sufficient 
to  overcome  such  prima  facie  case  of  negligence,  will  render  the  de- 
fendant liable  for  the  injury  occasioned  thereby.  If,  from  the  evi- 
dence, they  believe  that  sparks  of  fire  escaped  from  the  defendant's 
engine,  and  set  the  fire  which  caused  the  plaintiff's  injuries,  but  if, 
from  the  evidence,  they  believe  that  the  engine  from  which  the  sparks 
escaped  was  equipped  with  the  most  improved  spark  arresters  in  use, 
and  that  the  agents  and  employes  of  the  defendant  in  charge  of  said 
engine  used  ordinary  care  in  operating  said  engine  to  prevent  the 
escape  of  sparks,  then  they  are  instructea  i  :•..  uhe  prima  facie  ease 
made  ont  by  proof  of  escape  of  sparks,  and  fire  resulting  therefrom, 
is  rebutted,  and,  if  they  so  believe,  they  will  find  for  the  defendant; 
but  if,  from  the  evidence,  they  believe  that  the  defendant  failed  to 
equip  its  engine  from  which  the  sparks  escaped  that  caused  the  fire, 
with  the  most  improved  spark  arresters  in  use,  or  that  the  agents 
and  employes  of  the  defendant  engaged  in  operating  said  engine 
failed  to  use  ordinary  care  to  prevent  the  escape  of  sparks,  then  they 
are  instructed  that  the  prima  facie  case  made  out  by  proof  of  sparks 
escaping  and  causing  the  fire  has  not  been  rebutted. ^^ 

(b)     If  you  believe  from  the  evidence  that  sparks  escaped  from 

37— St.  Li.  S.  W.  Ry.  Co.  v.  Con-  tablish  the  fact  of  negligence  upon 

nally,  —  Tex.  Civ.  App.  — ,  93  S.  W.  which    the    action    may    be    miiin- 

206  (208).  tained;  but  in  this  class  of  actions 

"This  special  charge  applied  the  a    different    rule    has    been    estab- 

law  to  the  facts,  and  affirmatively  lished   by  the  decisions  of  the  su- 

submitted   the   defenses    which    the  preme   court   of  this  state,   and  the 

evidence  in  any  way  tended  to  sup-  charge  before  copied  is  not  subject 

port."  to  the  objection  that  it  is  upon  the 

38— Gulf    C.    &    S.    F.    Ry.    Co.    v.  weight  of  the  evidence.     Int.  &  G. 

Johnson,  92  Texas  591,  50  S.  W.  563.  N.  R.  Co.  v.  Timmermann,  61  Tex. 

"The  charge  in  this  case  did  not  6C0;  Ryan  v.  M.  K.  &  T.  R.  Co.,  65 

shift  the  burden  of  proof  from  the  Tex.  13;  Mo.  Pac.   R.   Co.  v.   Bart- 

plalntlff    to    the    defendant,    as    is  lett,  69  Tex.   79,   6  S.   W.   549;  Gulf 

claimed,    but,    as    in    every    other  C.   &    S.    F.    R.    Co.    v.    Benson,    69 

case  where  a   prima   facie   right   is  Tex.  407,  5  S.  W.  822,  5  Am.  St.  74; 

established,  it  called  upon  the  de-  Gal.   H.  &   S.   A.   R.   Co.  v.   Home, 

fendant  to  meet   the  case  made  in  69  Tex.   643,   9   S.   W.  440;   Campbell 

order  to  defeat  the  plaintiffs  right  v.   Goodwin.   87  Tex.   273,   28   S.   W. 

of  recovery.     As  a  general   rule  of  273;  Tex.  &  P.  R.  Co.  v.  Levine,  87 

practice,    it    is    not   permissiljle    for  Tex.  4.37,  29  S.  W.  466;  Railroad  Co. 

the  court  to  Instruct  the  jury  that  v.  McDonough,  1  White  &  W.  Civ. 

the   proof  of  certain  facts  will  es-  Cas.   Ct.  App.  354." 


§  2000.]  NEGLIGENCE— RAILROADS.  1285 

one  of  defendant's  engines  and  set  out  a  fire  which  destroyed  plain- 
tiffs' property,  and  if  you  further  believe  from  the  evidence  that  the 
plaintiffs  did  not  contribute  to  the  starting  of  said  jfire,  then  you 
will  find  for  plaintiffs  the  market  value  of  all  their  property  so  de- 
stroyed at  the  date  of  its  destruction,  with  interest  thereon  at  the 
rate  of  six  per  cent,  per  annum  from  the  25th  day  of  August, ,  un- 
less you  find  from  the  evidence  that  said  engine  was  equipped  with 
the  most  approved  spark  arresters  in  use,  in  good  order,  and  that  the 
agents  and  employes  of  defendant  in  charge  of  said  engine  used  or- 
dinary care  in  operating  said  engine  to  prevent  the  escape  of  sparks 
therefrom.^^ 

§  2000.  Dry  Weeds  and  Grass,  (a)  If  the  jury  believe,  from  the 
evidence,  that  the  defendant,  negligently  and  carelessly,  allowed  dry 
gi-ass,  weeds,  and  other  combustible  material,  to  accumulate  on  its 
right  of  way  adjoining  plaintiff's  premises  so  as  to  unnecessarily  in- 
crease the  hazard  from  fire,  and  that  by  reason  of  such  accumulation 
of  combustible  material,  the  fire  was  kindled,  and  communicated  to 
the  fence  and  field  of  the  plaintiff,  and  further,  that  the  plaintiff's 
own  negligence  in  no  manner  conti'ibuted  to  the  kindling  or  the 
spreading  of  the  fire,  then  the  jury  should  find  for  the  plaintiff  the 
amount  of  damages,  if  any,  which  are  proved  to  have  resulted  from 
said  fire.  And  in  such  case  it  makes  no  difference  whether  the  best 
appliances  to  prevent  the  escape  of  fire  were  or  were  not  used  on  the 
engine  from  which  the  fire  escaped,  if  the  jury  believe,  from  the  evi- 
dence, that  the  fire  did  escape  from  defendant's  engine.**' 

(b)  That  if  the  jury  find  from  the  evidence  that  the  defendant 
company  permitted  dead  grass  and  straw,  dried-up  leaves,  and  an 
accumulation  of  combustible  matter  to  exist  on  its  right  of  way,  so 
near  the  track  as  to  catch  fii'e  from  the  engine,  and  it  did  catch  from 
the  engine,  and  the  firie  spread  across  the  lands  of  another  person  to 
plaintiff's  lands,  defendant  company  would  be  liable  to  plaintiff  for 
damages  sustained.  There  is  no  evidence  of  contributory  negligence 
upon  the  part  of  plaintiff.*^ 

(c)  The  jury  are  instructed,  that  in  determining  the  question, 
whether  or  not  the  defendant  was  guilty  of  negligence,  which  con- 
tributed to  the  fire  in  question,  in  permitting  grass,  dry  weeds  or 
leaves  to  accumulate  within  its  right  of  way  at  the  point  where  the 
fire  in  question  occurred,  the  jury  should  consider  and  determine 
from  the  evidence,  whether  the  defendant  permitted  such  an  accumu- 
lation of  diy  grass,  weeds  and  leaves  or  other  combustible  material 
upon  its  right  of  way  at  the  point  in  question,  as  would  not  have  been 

39— Tex.    &    P.    R.    Co.    v.    Wool-  etc.,    R.    Co.,   8   Allen   438;   I.    C.    R. 

dridge.  —  Tex.   Civ.  App.  — ,  63  S.  Co.  v.   Nunn,  51  111.  78;  Poepper  v. 

W.   905   (907).  M.,    etc.,    R.,    67    Mo.    715;    Jones   v. 

40— Flvnn    v.    San    Francisco    R.  M.  C.  R.  Co.,  59  Mich.  437,  26  N.  W. 

Co.,  40  Cal.  14;  Martin  v.  W.  U.  R.  622. 

Co.,  23  Wis.  437;  I-Iewey  v.  Noui'se,  41 — Blue  v.  Aberdeen  &  W.  E.  R. 

54  Me.  256;  IngersoU  v.  Stockridge,  Co.,  116  N.  C.  955,  21  S.  E.  299  (300). 


1286  FORMS  OF  INSTRUCTIONS.  [§  2000. 

likely  to  be  permitted  by  an  ordinarily  careful  and  prudent  man  upon 
his  own  premises,  if  his  property  were  exposed  to  the  same  hazard.*^ 

(d)  If  you  find  from  the  evidence  that  the  defendant  negligently 
and  carelessly  permitted  dry  grass,  weeds  and  other  combustible  ma- 
terials to  accumulate  on  its  right  of  way  adjoining  the  plaintiff's 
premises,  so  as  to  unnecessarily  increase  the  hazard  from  fire,  and 
that  by  reason  of  such  accumulation  of  combustible  materials,  fire 
escaping  from  the  defendant's  engine  was  kindled  therein,  and  thence 
communicated  to  plaintiff's  property,  which  was  thereby  destroyed, 
without  the  negligence  of  the  plaintiff  in  any  manner  contributing 
thereto,  you  should  find  for  the  plaintiff,  even  though  the  escape  of  the 
fire  from  such  engine  was  without  any  fault  on  defendant's  part.*^ 

(e)  If  you  believe  from  the  evidence  that  the  defendant  negli- 
gently permitted  grass  and  weeds  to  accumulate  and  become  dry  on 
its  right  of  way,  and  that  fire  was  communicated  from  locomotives  of 
defendant  to  such  grass  and  weeds  and  spread  therefrom  to  premises 
of  plaintiffs  and  interveners  or  any  of  them,  and  burned  over  part  or 
parts  of  said  premises,  and  destroyed  grass  and  cane  thereon,  and 
destroyed  any  cord  wood  thereon  and  damaged  and  injured  or  de- 
stroyed grass,  turf  or  trees  thereon,  as  alleged  in  their  petition  and 
plea,  then  you  will  find  for  the  plaintiffs  and  intei'veners  for  all  such 
damages,  if  any,  so  caused. 

(f)  If  you  believe  from  the  evidence  that  the  fire  was  communi- 
cated from  defendant's  locomotive  or  locomotives  to  the  premises  of 
plaintiffs  and  interveners,  or  either  of  them,  at  a  point  or  points  with- 
out defendant's  right  of  way,  and  that  such  fire  burned  over  the 
premises  of  plaintiffs  and  interveners,  or  a  part  or  parts  thereof,  and 
destroyed  any  cane  or  grass  growing  thereon,  and  destroyed  any  cord 
wood,  corded  thereon,  or  damaged  and  injured  plaintiffs'  or  inter- 
veners' land  by  destroying  or  injuring  the  grass  turf  thereon,  or  de- 
stroying and  injuring  any  forest  trees  thereon,  as  alleged  in  their  peti- 
tion and  plea,  then  you  will  find  for  plaintiffs  and  interveners  all 
such  damages,  if  any,  as  were  caused  by  fire  communicated,  unless 
you  find  for  the  defendant  under  other  instructions  hereinafter 
given.** 

(g)  If,  at  the  time  the  property  in  question  was  destroyed,  the  de- 
fendant's right  of  way  at  the  place  where  the  fire  started,  if  it  started 
on  the  right  of  way,  was  free  and  clear  from  dry  grass,  weeds  and 
other  combustible  materials,  then  in  that  case  the  defendant  would 
not  be  liable  in  this  action  on  the  second  ground  above  mentioned.'"' 

(h)     Although  a  railroad  company  has  the  right  to  use  fire  in  gen- 

42 — Snyder  v.   Pittsburg-,   etc.,   R.  again    recognized   in    Omalia    F.    & 

Co..  11   W.   Va.  14.  Ex.    Ass'n   v.    Mo.    Pac.    R.    Co.,   42 

43— Union   Pac.  R.  Co.  v.  Ray,  46  Neb.  105,  60  N.  W.  3.30." 

Neb.   750,  65  N.  W.  773.  44— St.   L.    S.   W.    R.    Co.    v.   Con- 

"The   correctness   of   the   general  nally,   —  Tex.    Civ.   App.   — ,   93   S. 

principle  stated  in  this  instruction  W.   206. 

1h   established    by   Railroad    Co.    v.  4.5— Union  Pac.  R.   Co.  v.  Ray,  46 

Westover,    4    Nob.     268,     and    was  Neb.  750,  65  N.  W.  773  (774). 


§  2001.]  NEGLIGENCE— RAILROADS.  1287 

erating  steam,  yet  if,  by  negligence  in  the  condition  of  its  property, 
which  contributed  to  the  damage  by  reason  of  such  fire,  such  rail- 
road is  liable  for  any  damage  that  may  so  result. 

(i)  A  railroad  has  a  right  to  use  its  property  in  the  running 
of  its  trains.  It  has  also  the  right  to  use  fire  to  generate  steam 
for  the  purpose  of  running  its  trains.  But,  while  this  is  true,  I 
charge  you  that  the  railroad  must  so  use  its  property  and  the  fire 
necessary  for  the  generating  of  steam,  in  such  manner,  as  to  prevent 
injury  to  adjoining  property,  if  it  can  reasonably  do  so. 

(j)  If  the  jury  should  believe  from  the  evidence  that  this  fire 
was  caused  by  sparks  from  the  engine  of  the  railroad  company, 
then,  though  they  should  further  find  that  the  engine  was  pj'operly 
equipped  with  improved  spark  arresters,  and  was  in  all  respects 
properly  managed,  should  the  proof  satisfy  the  jury  that  the  railroad 
company  failed  to  keep  its  track  and  right  of  way  clean  of  grass, 
likely  to  be  ignited  by  sparks,  this  fact,  if  it  be  a  fact,  will  make 
the  defendant  liable  for  the  damage  resulting  from  the  fire. 

(k)  It  is  a  matter  of  common  knowledge  that,  in  the  month  of 
February,  Bermuda  grass,  in  this  latitude,  is  not  in  a  green  or  grow- 
ing state. 

(1)  If  it  be  a  fact  shown  in  this  case  that  the  railroad  company 
permitted  dry  grass  to  be  and  remain  on  its  right  of  way,  liable  to 
be  ignited  by  sjDarks  from  its  engine,  then  I  charge  you  that  this  fact 
may  be  overlooked  by  the  jury  to  determine  whether  the  railroad 
company  was  guilty  of  negligence. 

(m)  If  the  jury  find  from  the  evidence  that  the  fire  was  discov- 
ered immediately  after  the  passing  of  the  engine  along  where  the 
fire  was,  then  the  burden  of  proof  is  cast  upon  defendant  to  show 
that  the  fire  did  not  originate  from  its  engine,  or  that  its  engine  and 
property  were  in  good  order  and  properly  managed. 

(n)  If  it  be  a  fact  shown  in  this  case  that  the  railroad  company 
permitted  dry  grass  to  be  and  remain  on  its  right  of  way,  liable  to  be 
ignited  by  sparks  from  its  engine,  then  I  charge  j^ou  that  this  was 
negligence  on  the  railroad  company.'*^ 

§  2001.  Damages  to  Turf  from  Which  Grass  Is  Burned.  If  you  find 
that  the  turf,  from  which  the  grass  was  burned,  was  injured  by  said 
fire,  you  will  find  for  the  plaintiffs  such  additional  damages,  if  any, 
as  the  evidence  may  show  will  compensate  plaintiffs  for  such  injury 
to  the  turf.*^ 

46 — Louisville  &  N.  R.  Co.  v.  Mil-  market   value   of   the   land    imme- 

ler,  109  Ala.  500,  19  So.  989  (990).  diately  before   the  injury  and  im- 

47— Texas  &  P.  R.  Co.  v.  Rice,  24  mediately    thereafter.     This   is  the 

Tex.    Civ.    App.    374,    59    S.    W.    833  general     rule,     but     in     this     case, 

(834).  where    the    allegations    and    proofs 

"The   objection    assigned    to   this  were  as  to  damages  resulting  from 

charge  is  that  the  proper  measure  the   diminished   power   of   the   turf 

of  damages  is  not  given;  that,  in-  to    produce    grass    for    pasturage 

jury    to    the    turf    being    injury    to  purposes    the    succeeding   year,    we 

the    land    itself,    the   true    measure  think  the   court's  charge  was  cor- 

of  damages  is  the  difference  in  the  rect,  and  the  rule  as  given  therein 


1288  FORMS  OF  INSTRUCTIONS.  [§  2002. 

§  2002.  Degree  of  Care  Required  of  Land  Owner,  (a)  The  court 
instructs  the  jury,  that  the  owner  of  land  adjoining  a  railroad  track 
is  as  much  bound  to  keep  his  land  free  from  unusual  and  dangerous 
accumulations  of  combustible  matter  as  a  railroad  company  is  its  right 
of  way.  And  if  the  owner  or  occupant  permits  an  unusual  and  dan- 
gerous accumulation  of  dead  grass,  dry  leaves,  or  other  combustible 
material  to  accumulate  on  his  land  next  to  the  company's  right  of 
way,  and  a  fire  is  ignited  on  the  right  of  way,  and  is  thence  communi- 
cated to  the  fields  adjoining,  by  means  of  such  unusual  and  dangerous 
accumulations  of  combustible  material,  then  the  negligence  of  the 
owner  will  be  held  to  have  contributed  to  the  loss  and  injury,  and  in 
such  a  case  the  owner  of  the  property  injured  cannot  recover  for 
such  injury,  unless  the  jui'y  believe,  from  the  evidence,  that  his  negli- 
gence was  but  slight,  and  the  negligence  of  the  railroad  company  was 
gross,  as  explained  in  these  instructions.*^ 

(b)  While  the  owner  of  property  in  danger  of  loss  is  charged  with 
the  duty  of  saving  it  from  destruction  if  he  can  do  so  with  the  exer- 
cise of  reasonable  care  and  precaution,  yet  he  is  not  bound  to  use 
unusual  care  and  caution  in  anticipation  that  it  may  be  negligently 
destroyed  by  another,  so  that  if  in  this  case  the  plaintiff's  property 
was  negligently  set  on  fire  by  sparks  from  one  of  the  locomotives  of 
the  defendant,  while  it  was  the  duty  of  appellant  to  save  it  from 
destruction  if  he  could  do  so  by  the  exercise  of  reasonable  care  and 
caution,  yet  it  was  not  bound  to  use  the  care  and  precaution  of  pro- 
viding waterworks  and  appliances  as  means  of  extinguishing  the 
fire,  and  its  failui-e  to  do  so  would  not  constitute  contributory  negli- 
gence.*^ 

(e)  The  court  instructs  you,  as  a  matter  of  law,  that  it  is  not 
negligence  on  the  part  of  the  owner,  or  occupant,  of  property  in- 
jured by  fire  escaping  from  an  engine  passing  along  a  railroad,  that 
he  has  used  the  property  in  the  manner,  or  permitted  the  same  to 
be  used,  or  remain  in  the  condition  in  which  it  would  have  been  used 
or  remained,  had  no  railroad  passed  through  or  near  it.^" 

(d)  If  you  believe  fi'om  the  evidence  that  jalaintiff,  knowing  that 
the  straw  in  question  was  .easily  set  on  fire,  placed  same,  in  an  un- 
protected condition,  nearer  defendant's  railroad  tracks,  where  he 
knew  it  was  daily  operating  trains,  than  a  man  of  ordinai'y  prudence 
and  caution  would  do,  then  plaintiff  would  be  guilty  of  contributory 
negligence,  and  would  not  be  entitled  to  recover  in  this  case.^^ 

(e)  But  if  you  believe  from   the  evidence  that  the  said  engine 

more   appropriate   to   the    case   al-  monson,  25  111.   504;   Ohio  &  M.   R. 

leged    and    proved    than    the    rule  Co.   v.    Shanefect,  47   111.   497. 

contended    for    would    have    been.  49 — Indiana  Clay   Co.  v.   B.   &  O. 

Gulf  C.  &  S.  F.  R.  Co.  V.  Jagoe,  —  S.   W.   R.   Co.,  31  Ind.  App.   2'^8,  67 

Tex.  Civ.  App.  — .  32  S.  W.  717;  Ft.  N.  E.  704. 

W.  &  N.   O.  R.  Co.   v.  Wallace.  74  50— Flynn  v.  S.  F.  &  S.  J.  R.  Co., 

Tex.   581,   12   S.   W.    227;    Gulf   C.   &  40  Cal.   14;  Kellogg  v.    C.  &  N.   W. 

S.   F.    R.   Co.   V.   Jones,  1  Tex.   Civ.  R.   Co.,   26  Wis.   223;   Del.    L.   &  W. 

App.   372,  21   S.   W.  145."  R.   Co.   v.    Salmon.   39   N.   J.    L.   299. 

48— C.    &    N.    W.    R.    Co.    v.    Si-  51— Ft.  Worth  &  R.  G.  R.  Co.  v. 


§  2003.]  NE'GLIG-ENCE— RAILROADS.  1289 

was  equipped  with  the  most  approved  spark  arresters  in  use,  in 
good  order,  and  that  the  agents  of  the  defendant  in  charge  of  said 
engine  used  ordinary  care  in  operating  said  engine  to  prevent  the 
escape  of  sparks,  then  you  are  instructed  that  lohvintiffs  cannot  re- 
cover unless  you  believe  from  the  evidence  that  the  defendant  com- 
pany, by  failing  to  use  ordinary  care,  had  permitted  combustible 
material  to  be  and  accumulate  on  its  right  of  way,  and  that  sparks 
escaping  from  said  engine  set  fire  to  the  combustible  material  on 
said  right  of  way,  and  communicated  to  and  destroyed  the  plaintiffs' 
property.  If  you  find  from  the  evidence  that  the  plaintiffs  or  their 
emplo3'es,  through  want  of  proper  care,  as  above  defined,  negligently 
caused  or  permitted  shucks  or  other  combustible  material  to  be  on 
or  about  their  premises  in  close  proximity  to  their  buildings,  or  to 
accumulate  on  defendant's  right  of  way,  and  if  you  believe  that  such 
negligence  on  the  part  of  plaintiffs  or  their  employes,  if  it  was  negli- 
gence, aided  or  contributed  in  starting  the  fire,  then  you  will  find 
for  the  defendant,  even  though  you  may  find  that  the  defendant 
company  was  guilty  of  all  the  negligence  charged  against  it.°- 

§  2003.  Effect  of  Plaintiff's  Building  Being  on  Defendant's  Right 
of  Way.  (a)  If  you  should  find  that  the  plaintiff's  building  which 
was  burned  was  on  the  defendant's  right  of  way,  and  was  not  used 
as  a  warehouse  for  storing  goods  awaiting  shipment,  and  that  plain- 
tiff, or  the  one  of  whom  he  purchased  the  building,  was  ordered  by 
the  defendant  to  remove  the  building  from  the  ground,  and  neglected 
and  refused  to  comply  with  such  order,  he  cannot  recover,  and  you 
must  find  for  the  defendant,  for,  after  being  warned  to  remove  from 
the  right  of  way,  the  law  presumes  he  took  all  the  risk  upon  himself 
of  loss  in  not  complying  with  the  demand,  and,  remaining  there,  did 
so  at  his  own  risk.  You  cannot  presume  that  he  was  ignorant  of  the 
danger  and  exposure  to  fire. 

(b)  If  you  find  that  the  plaintiff  was  on  the  defendant's  right  of 
way  by  vii-tue  of  a  lease,  either  verbal  or  written,  made  with  the 
defendant,  or  from  any  one  as  a  sublessee,  to  whom  it  had  rented 
the  ground,  and  that  one  of  the  conditions  of  the  lease  was  that  the 
lessee  assumed  all  risks  of  damage  by  fire  caused  by  defendant  as  a 
part  of  the  consideration,  he  cannot  recover  and  you  must  find  for 
the  defendant.  Such  a  release  from  damages  would  be  valid,  and 
constitute  a  bar  to  plaintiff's  recovering.^^ 

§  2004.  Reasonable  Care  and  Diligence  Only  Required  by  the  Com- 
pany. Although  the  jury  may  believe,  from  the  evidence,  that  the 
injury  complained  of  was  caused  by  sparks  escaping  from  defend- 
ant's locomotive,  this  alone  is  not  sufficient  to  prove  negligence  on 
the  part  of  defendant.  In  order  to  warrant  a  verdict  in  this  case, 
the  jury  must  believe,  from  the  evidence,  not  only  that  the  injury 

Dial,  —  Tex.  Civ.  App.  — ,  85  S.  W.      dridge,   —Tex.    Civ.   App.   — ,    63    S. 
22  (24).  W.  905  (907). 

52— Texas  &  P.  R.  Co.  v.  Wool-         53— Union  Pac.   R.   Co.  v.   Keller, 

36  Neb.  189,  5i  N.  W.  420. 


1290  FORMS  OP  INSTRUCTIONS.  [§2005. 

was  caused  by  sparks  escaping  from  defendant's  engine,  but  it  must 
further  appear  from  a  preponderance  of  the  evidence,  that  the  de- 
fendant was  guilty  of  negligence  in  permitting  such  sparks  to  escape, 
or  in  permitting   (as  alleged  in  the  declaration).^* 


OBSTRUCTING   HIGHWAYS. 

§  2005.    Obstructing  Highway  by  Leaving  Cars  Standing  on  Track. 

You  are  instructed  that  if  you  believe  from  the  evidence  that  the  ser- 
vants and  employes  of  the  defendant  railroad  company  obstructed 
said  public  highway  by  leaving  cars  or  a  car  standing  on  its  tracks, 
w^iere  the  track  intersects  or  crosses  said  H.  street,  at  the  times 
mentioned  in  the  declaration,  and  that  the  ears  were  not  standing 
there  for  the  purpose  of  receiving  or  discharging  passengers,  or  to 
receive  necessary  fuel  and  water,  then  the  railroad  company  is  liable 
and  you  will  find  for  the  plaintiff  for  each  offense  proven  by  the  evi- 
dence, such  a  sum  as  you  may  think  proper,  not  to  exceed  one  hundred 
dollars,  nor  less  than  ten  dollars  for  each  offense  so  proven.^^ 


DEDICATION  OF  LANDS. 

§  2006.  Dedication  of  Lands  for  Use  by  Railroads,  (a)  The  court 
instructs  the  jury  that  a  railroad  corporation  is  a  public  corpora- 
tion, and  is  an  ever  existing  grantee,  capable  of  taking  lands  by 
conveyance  or  by  dedication  by  plat  by  the  owner  for  railroad 
purposes. 

(b)  The  court  instructs  the  jury  that  the  word  ''dedication"  used 
in  these  instructions  means  an  appropriation  or  division  or  setting 
apart  by  the  former  owners  of  the  land  in  question  for  railroad  pur- 
poses by  a  plat.  The  dedication  may  be  made  by  plat  and  survey 
alone,  without  any  declaration,  either  oral  or  on  the  plat,  when  it 
is  noted  on  the  face  of  the  plat  that  it  was  intended  to  set  apart 
certain  grounds  for  the  use  of  the  public  or  for  the  use  of  a  certain 
corporation.''" 

SWITCHES  AND  FARM  CROSSINGS. 

§  2007.  When  Switch  Presumed  to  be  Permanent — Measure  of 
Damages  for  Removal.  If  you  find  from  the  evidence  that  plaintiff 
made  an  agreement  with  the  defendant  to  place  a  switch  track  on 
its  right  of  way  near  his  farm,  and  that  in  pursuance  of  such  an 
agreement  plaintiff  did,  with  defendant's  consent,  and  by  the  terms 
of  said  agreement,  furnish  ties  and  did  grading  for  said  switch,  then, 

54— Ruffner  v.  C,  etc.,  R.  Co.,  34  56— L,.   E.   &  W.   R.   Co.  v.  Whit- 

Ohlo  St.   96.  man,  155  111.  514  (526),  40  N.  E.  1014, 

55—1.  C.   R.   Co.  V.  People.  59  111.  28  L>.  R.  A.  612. 
App.  256  (258). 


§  2008.]  NEGLIGENCE— RAILROADS.  1291 

in  the  absence  of  evidence  to  the  contrary,  you  are  to  presume  that 
said  switch  was  to  be  permanent;  and  if  defendant  removed  the  same 
without  ijlaintiff's  consent,  plaintiff  is  entitled  to  recover  the  amount 
expended  by  him  in  obtaining  said  switch,  not  to  exceed  sixty  dol- 
lars."^ 

§2008.  Establishment  of  "Necessary"  Plantation  Roads  Under 
Terms  of  Statute,  (a)  While  the  crossing  must  be  over  a  necessary 
plantation  road,  the  word  "necessary"  is  not  to  be  construed  in  the 
sense  that  the  road  must  be  absolutely  essential  to  the  use  of  the  plan- 
tation. The  jury  will  take  into  consideration  the  size  and  location 
of  the  plantation,  the  uses  to  which  it  is  devoted,  the  location  of  the 
railroad,  and  all  the  other  facts  in  evidence,  in  determining  whether 
the  road  was  a  necessary  one  for  the  plaintiff  in  the  reasonable  use 
of  her  plantation. 

(b)  Under  the  second  count  in  her  declaration,  the  plaintiff  sues  for 
the  penalty  prescribed  by  section  3561  of  the  Code  of  1892,  which 
requires  railroad  companies  to  make  and  maintain  convenient  and 
suitable  crossings  over  its  tracks  for  necessary  plantation  roads.  This 
statute  does  not  require  the  defendant  to  make  an  indefinite  number 
of  crossings  for  any  particular  person,  nor  that  the  number  of  cross- 
ings shall  be  increased  to  suit  the  caprice  or  promote  the  convenience 
of  any  single  proprietor.  The  crossing  must  be  for  a  necessary  plan- 
tation road ;  and  the  plaintiff,  to  recover,  must  show  an  actual  neces- 
sity for  the  plantation  road;  mei'e  convenience  to  her  is  not  sufficient 
to  sustain  a  claim  to  the  penalty  prescribed  by  the  law,  which  is  to 
be  strictly  construed. ^^ 

57— Scholten    v.    St.    L.    &    S.    F.  with   it,   certainly   put   the  law   on 

R.   Co.,  101  Mo.  App.  516,  73  S.  W.  this  point,   to   the  jury,  as  favora- 

915  (916).  bly    to    appellant   as   could   reason- 

"If  it  be  conceded  that  by  impli-  ably  be  asked.  Dubbs  v.  Railroad 
cation  the  railroad  was  accorded  Co.,  148  Pa.  St.  66,  23  Atl.  883,  is  a 
the  right  to  remove  the  switch,  case  strikingly  in  point,  and  in 
when  its  operation  had  ceased  to  support  of  our  view.  There,  as 
be  profitable  and  plaintiff  had  here,  it  was  urged  that,  by  making 
ceased  to  furnish  shipments  of  a  detour  of  half  a  mile,  the  cross- 
freight  sufficient  to  warrant  its  ing  already  established  could  be 
further  maintenance,  yet  it  is  but  reached,  and  would  thus  be  made 
just  that  the  railroad  make  resti-  to  serve  all  necessary  uses.  But 
tution  to  plaintiff  of  that  portion  the  court  said:  'Thus  by  making 
of  the  cost  of  its  construction  con-  a  detour  of  half  a  mile,  he  can 
tributed  by  him,  and  this  is  at-  reach  the  southern  side  of  his 
tained  by  the  verdict  of  the  jury  farm.  If  it  were  a  detour  of  five 
for  plaintiff  in  the  amount  of  the  miles,  the  principle  would  be  the 
value  of  the  cross-ties  furnished  same.  The  plain  object  of  the  act 
by  him  (which  the  testimony  shows  of  1849  was  to  compel  railroad  com- 
the  defendant  removed  and  con-  panics  to  give  the  owners  of  farms 
verted)  together  with  the  cost  of  a  convenient  mode  of  access  from 
the  grading  paid   by  him."  one    part    to    the    other,    when    di- 

58— Ala.  &  v.  R.  Co.  v.   Odeneal,  vided  by  a  railroad,     "^liile  it  may 

73  Miss.  34,  19  So.  202   (203).  not  be  impossible  for  a  farmer,  in 

"The  second  instruction  for  gathering  his  crops,  to  make  a  de- 
plaintiff  is  a  very  clear  and  accu-  tour  of  half  a  mile  in  getting  from 
rate  expression  of  the  law  upon  one  field  to  an  adjoining  field,  It 
this  subject;  and  the  appellant's  would  manifestly  be  intolerably  iU; 
fourth    instruction,    in     connection  convenient.'  " 


1292  FORMS  OF  INSTRUCTIONS.  [§  2009. 

§  2009.  Less  Degree  of  Care  Required  at  Farm  Crossings  than  at 
Public  Crossings,  (a)  The  court  instructs  the  jury  that  railroad 
companies  are  not  required  to  make  and  maintain  in  repair  farm 
crossings  or  private  crossings  in  the  State  of  Illinois  for  the  con- 
venience of  adjoining-  land  owners  so  that  the  same  will  be  safe  for 
persons  on  foot  at  all  times,  but  such  farm  crossings  or  private  cross- 
ings for  the  convenience  of  adjoining  land  owners  are  erected  and 
maintained  to  facilitate  the  business  of  fai'ming,  and  the  law  does 
not  require  that  such  crossings  shall  be  kept  in  repair  for  the  benefit 
of  foot  passengers  to  the  same  extent  and  in  the  manner  as  public 
crossings,  the  duty  of  the  railroad  company  in  such  case  being  only 
to  use  ordinary  care  in  the  construction  and  maintenance  of  the  same 
with  respect  to  the  uses  and  purposes  for  which  such  crossings  are 
maintained,  namely  for  farm  purposes. 

(b)  The  court  instructs  the  jury  that  the  law  requires  of  persons 
using  a  farm  crossing  over  a  railroad  the  exercise  of  a  higher  degree 
of  care  and  caution  in  the  use  of  such  farm  crossing  to  avoid  injury 
from  trains  being  operated  along  such  railroad  than  it  requires  of 
persons  using  a  public  crossing  at  a  public  highway,  and  the  jury  are 
instructed  that  the  law  imposes  upon  the  railroad  company  a  corre- 
spondingly less  degree  of  care  in  the  operation  of  its  trains  over  a 
farm  crossing  than  if  the  place  was  a  public  crossing.^^ 

§  2010.  Injuries  to  Stock  at  Farm  Crossings.  The  court  instructs 
the  jury  that  it  was  the  duty  of  the  defendant,  prior  to  and  at  the 
time  of  the  accident  referred  to  in  evidence  in  this  case,  to  erect  and 
maintain  lawful  fences  on  the  sides  of  its  railroad  where  the  same 
passed  through,  or  along,  or  adjoining,  inclosed  or  cultivated  lands, 
or  uninclosed  lands,  with  openings  and  gates  therein  to  be  hung  and 
having  hooks  or  latches  so  that  they  could  be  easily  opened  and  shut, 
at  all  necessary  farm  crossings  on  its  road;  and  if  you  believe  from 

the  evidence   that   the  plaintiff's  mare  on  or  about  ,  19 — , 

while  lawfully  upon  inclosed  lands  through  which  defendant's  road 
ran  in  B.  township,  P.  county,  Missouri,  entered  upon  the  defendant's 
railroad  track,  through  an  open  gate  in  defendant's  fence  along  its 
railroad,  at  a  necessary  farm  ci'ossing  where  the  defendant,  if  such 
is  the  fact,  had  failed  or  neglected  to  erect  and  maintain  a  gate 
having  a  latch  or  hook  thereon,  and  that  the  same  was  not  inside  the 
limits  of  any  city,  town,  or  village,  nor  at  the  crossing  of  any  public 
road  and  that  said  mare,  while  on  said  railroad  track,  was  struck  by 
defendant's  passing  locomotive  or  cars,  and  was  thereby  so  crippled 
and  mangled  as  to  become  entirely  worthless.  And  if  you  further 
believe  that  said  mare  got  upon  said  track  and  was  crippled  as  above 
stated  by  reason  of  the  failure  and  neglect,  if  any,  of  the  defendant 
to  provide  and  maintain  a  gate  having  a  latch  or  hook  as  aforesaid, 
then  your  verdict  must  be  for  the  jDlaintitf  for  the  value  of  the 
mare  at  the  time  of  the  injury."" 

59— -R.     &     O.     S.    W.     R.    Co.    V.         60— Roberts  v.  C.  &  A.  R.  Co.,  119 
Keck,    84    111.    App.    1.^,9    (168),    aff'd      Mo.  App.  372,  94  S.  W.  838  (839). 
185  111.  400,  57  N.  E.  197. 


§  2011.]  NEGLIGENCE— RAILROADS.  1293 

§  2011.  Defective  Bridge  Over  Farm  Crossing — Duty  of  Railroad 
Company  to  Repair  It.  If  the  crossing  was  reasonably  well  con- 
structed, the  next  question  will  be  this:  Was  it  permitted  to  become 
unsafe  throug-h  the  negligence  of  the  railway  company?  Negligence, 
gentlemen,  is  the  omission  to  do  something  which  a  reasonable  per- 
son, guided  by  these  considerations  which  ordinarily  regulate  human 
conduct,  would  do,  or  the  doing  of  something  which  a  reasonably 
prudent  person  would  not  do.  In  other  words,  one  who  fails  to  use 
the  care  and  caution  ordinarily  used  in  like  occasion  by  reasonably 
careful  and  prudent  persons  is  negligent.  In  this  case,  was  the 
defendant  reasonably  careful  and  prudent  in  caring  for  the  crossing 
in  question  after  its  construction?  So  long  as  the  bridge  remains 
standing,  and  so  long  as  the  gates  were  not  nailed  up  or  otherwise 
permanently  closed,  or  no  notice  given  of  imperfection  in  the  bridge, 
it  was  the  duty  of  the  railway  company  to  have  kept  it  in  reasonably 
good  repair,  considering  the  place  at  which  it  was  situated,  and  the 
use  to  which  it  might  naturally  and  reasonably  be  put.  It  is  not 
necessary  as  suggested  by  counsel  for  the  railway  company,  to  keep 
men  in  constant  attendance  upon  or  any  watch  over  a  bridge,  nor  to 
take  extraordinary  care  of  one.  It  is,  however,  required  to  be  reason- 
ably careful.  Now,  then,  considering  the  age  of  the  bridge,  its  man- 
ner of  construction,  the  character  of  the  stringers  and  sills,  the  or- 
dinary life  of  similar  kinds  of  timber,  the  use  to  which  it  has  been 
subjected,  and  any  other  facts  in  evidence  pertinent  to  the  question, 
it  is  for  you  to  find  whether  the  railway  company  was  or  was  not 
reasonably  vigilant  or  careful  in  the  premises,  and  whether  it  did  or 
did  not  act  as  a  reasonably  prudent  person  would  have  acted  under 
like  circumstances.®^ 

61— Stewart  v.  C.  W.  &  M.  R.  Co.,     89  Mich.  315,  50  N.  W.  852  (856). 


CHAPTER  LXX. 

NEGLIGENCE— STREET  RAILROADS. 

See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


IN  GENERAL. 

§2012.  Street  railroad  companies 
not  liable  for  injuries  due 
to  mere   accident. 

§  2013.  Negligence  complained  of 
must  be  proximate  cause 
of  injurj"— Effect  of  prior 
disability  of  person  in- 
jured. 

§  2014.  Effect  of  change  of  juris- 
diction over  highway  from 
county    to   city. 

§  2015.  No  duty  rests  on  plaintiff  to 
inform  defendant  of  injury. 

§  2016.  But  a  failure  to  inform  de- 
fendant of  injury  may  be 
considered    by   jury. 

§  2017.  No  prejudice  should  exist 
against  street  railway  cor- 
porations as  such — Reading 
of  instruction  by  the  law- 
yers. 

§  2018.  When  fact  of  injury  ad- 
mitted and  assumed  on 
both   sides. 

§  2019.  Withdrawing  portions  of  or- 
dinance from  consideration 
of   jury   by   agreement. 

LIABILITY     FOR     NEGLIGENCE     AS 
CARRIERS   OP  PASSENGERS. 

§  2020.  Degree  of  care  due  passen- 
gers— Varying  statements 
of  different  courts — Negli- 
gence  defined. 

§  2021.  Although  not  insurers  of 
safety  of  passengers,  street 
railroads  must  exercise 
highest  degree  of  care  rea- 
sonably consistent  with 
practical  operation  of  ve- 
hicle. 

5  2022.  When  burden  of  proof  as  to 
degree  of  care  used  shifts 
to   defendant. 

S  2023.  Street  railroad  company  not 
liable  when  passenger  is 
injured  by  his  own  mis- 
conduct. 


§  2024. 

§  2025. 
§  2026. 

§  2027. 
§  2028. 

§  2029. 


§  2030, 
§  2031. 


2032, 


2033. 


§  2034, 


§  2035. 


2036. 


§  2037. 


2038. 


2039 


2040, 


Injury  to  passenger  through 
negligent  equipment,  man- 
agement or  operation  of 
vehicle. 

High  rate  of  speed — Attend- 
ing   circumstances. 

High  rate  of  speed — Jump- 
ing from  car  to  avoid 
danger  —  Overcrowding  — 
Thrown   from    platform. 

Collision  between  cars  of 
same    company. 

Collision  between  cars  of 
street  car  company  and 
other  vehicles — Fire  de- 
partment engines  and  wag- 
ons. 

Injuries  to  passengers 
through  defective  condition 
of   vehicles. 

Inspection    of   vehicle. 

Presumptive  liability  when 
car   derailed. 

Presumptive  liability  when 
passenger  injured  thi'ough 
collision. 

Injury  through  panic  of 
passenger  produced  by  ex- 
plosion  on  car. 

Slowing  down  car  for  pas- 
senger to  board — Car  sud- 
denly   started. 

Burden  of  proof  on  plaintiff 
to  show  slowing  down  of 
car  could  be  construed  as 
invitation  to  board. 

Negligently  starting  car 
while  plaintiff  is  in  act  of 
boarding  it — Taking  hold 
of   hand   rail. 

Motorman  must  act  under 
directions  of  conductor- 
Knowledge  of  either  mo- 
torman or  conductor  that 
plaintiff  is  boarding  car 
sufficient. 

Effect  of  failure  of  conduc- 
tor to  see  intending  pas- 
senger. 

Effect  of  stranger  ringing 
bell    and    starting   car. 

Negligently  starting  car 
while  passenger  is  alight- 
ing. 


1294 


NEGLIGENCE— STREET   RAILROADS. 


1295 


9  2041.  Slowing    car     up     and     then 
starting      suddenly      when 
passenger     is     in     act     of 
alighting. 
§  2042.  Movement    of    car    must    be 
attributable  to  act  of  men 
in   charge. 
5  2043.  Conductor  must  see  that  no 
passenger     is     in     act     of 
alighting. 
§  2044.  Ringing     bell     to    go     ahead 
while   passenger   is   alight- 
ing. 

§  2045.  Failure  of  conductor  to  warn 
passenger  of  danger  known 
to  conductor,  but  unknown 
to   passenger. 

§  2046.  Passenger  alighting  near 
parallel  track. 

§  2047.  Alighting  passenger  struck 
by  car  coming  from  oppo- 
site   direction. 

§  2048.  Duty  of  motorman  on  ap- 
proaching cars. 

§  2049.  Failure  to  check  reckless 
rate  of  speed  of  approach- 
ing   car. 

§  2050.  Passenger  raising  umbrella 
while    alighting. 

§  2051.  When  relation  of  passenger 
and  carrier  ceases — Injury 
through  backward  move- 
ment  after   alighting. 

§  2052.  Carrying  passenger  past 
destination. 

§  2053.  Injury  through  over-crowd- 
ing  of  car. 

§  2054.  Assaults  on  passenger  by 
company's   servants. 

§  2055.  Wrongful  ejection  of  pas- 
senger from  car — Presump- 
tion that  natural  and  prob- 
able consequences  of 
wrongful  act  are  intended. 

§  2056.  Use  of  more  force  than 
necessary  in   ejectment. 

§  2057.  Posted   warnings   in    cars. 

§  2058.  Separation  of  white  and 
colored   passengers — Series. 

§  2059.  Regulations   as   to   transfers. 

§  2060.  Giving    wrong    transfer. 

§  2061.  Entering  car  without  trans- 
fer— Negligence  of  first 
conductor. 

S  2062.  Contributory  negligence  of 
passengers — In    general. 

S  2063.  States  holding  burden  of 
proof  is  on  plaintiff  to 
prove  freedom  from  con- 
tributory  negligence. 

S  2064.  States  holding  burden  of 
proof  is  on  defendant  to 
show  contributory  negli- 
gence of  plaintiff. 

5  2065.  Deafness   of  passenger. 

8  2066.  Standing  on  platform  when 
car  is  overcrowded. 


§  2067.  Leaving  seat  and  standing 
on  platform  to  accommo- 
date  lady  passengers. 

§  2068.  Standing  on  platform  by  di- 
rection of  employes  in 
charge  of  car. 

§  2069.  Riding  on  running  board. 

§  2070.  Obeying  instructions  to 
move  to  another  part  of 
the   car. 

§  2071.  Getting  on  car  while  in  mo- 
tion. 

§  2072.  Getting  off  car  while  in  mo- 
tion. 

§  2073.  Jumping  from  moving  car 
at   command   of   conductor. 

§  2074.  Failure  to  move  away  after 
alighting — Injury  by  trail- 
er. 

§  2075.  Injury  to  passenger  while 
trying  to  escape  from  ap- 
parently  imminent   danger. 

§  2076.  Payment  of  fare  in  genuine 
coin. 

LIABILITY    FOR    INJURIES   TO    PER- 
SONS  OTHER  THAN   PASSEN- 
GERS OR  e:mployes. 

§  2077.  Degree  of  care  due  pedes- 
trians. 

§  2078.  Not  liable  for  mere  accident 
or   misadventure. 

§  2079.  Degree  of  care  due  persons 
riding  in  wagons  or  other 
vehicles   along   tracks. 

§  2080.  Degree  of  care  due  infant 
trespasser. 

§  2081.  Statutory,  municipal  and 
other  regulations  of  the 
public    authority. 

§  2082.  Joint  liability  with  other  in- 
dividuals   or    corporations. 

§  2083.  Care  of  roadbeds  and  tracks. 

§  2084.  Cars    and    appliances. 

§  2085.  Sounding    bells    and    gongs. 

§  2086.  Use   of  proper  brakes. 

§  2087.  Allowing  running  board  to 
extend    over    sidewalk. 

§  2088.  Rate   of   speed. 

§  2089.  As    to    infant    trespassers. 

§  2090.  Frightening  animals  —  Car 
operated  in  ordinary  man- 
ner. 

§  2091.  Car  not  operated  in  ordi- 
nary   manner. 

§  2092.  Right  of  way  of  street  cars 
over  other  vehicles  along 
track — Collision  with  same. 

§  2093.  Street  crossings  —  Pedestri- 
ans. 

§  2094.  Street  crossings  —  Vehicles 
crossing  track. 

§  2095.  Street  crossings  —  Fire  en- 
gines  crossing   track. 

§  2096.  Collision  with  other  street 
cars. 


1296 


FORMS  OF  INSTRUCTIONS. 


[§  2012. 


§  2097.  Collision  with  persons  on  or 
near   track. 

§  2098.  Child  run  over  by  car — 
Series. 

§  2099.  Failure  to  check  speed  of 
car  when  danger  imminent 
to   person   on   track. 

§  2100.  Contributory  negligence  of 
persons  other  than  passen- 
gers or  employes — In  gen- 
eral. 

§  2101.  Rule  that  burden  of  proof 
is  on  defendant  to  prove 
contributory   negligence. 

§  2102.  Rule  as  to  children. 

§  2103.  Rule  as  to  intoxicated  per- 
sons. 

§  2104.  Rule  to  stop,  look  and  listen. 

§  2105.  Bicyclist — Collision  with  car. 


§  2106.  Failure  of  driver  of  vehicle 
passing  along  or  near  track 
to    use    reasonable    care. 

§  2107.  Care  due  by  driver  of  ve- 
hicle crossing  track — Ordi- 
nary care  defined. 

§  2108.  Pedestrian  suddenly  going 
upon  track  without  warn- 
ing to  motorman. 

§  2109.  Injury  avoidable  notwith- 
standing contributory  neg- 
ligence  of   plaintiff. 

§  2110.  Negligence  of  driver  of  ve- 
hicle. 

§  2111.  Imputable  negligence — Rule 
in  Illinois. 

§  2112.  Imputable  negligence — Rule 
in   Wisconsin. 

§  2113.  Imputable  negligence — Par- 
ent  and   child. 


This  chapter  does  not  include  instructions  relative  to  railroads  as 
carriers  of  passengers.  For  such  instructions  see  Chapter  on  NEG- 
LIGENCE—RAILROADS —  PASSENGER    CARRIERS. 


IN  GENERAL. 

§  2012.  Street  Railroad  Companies  Not  Liable  for  Injuries  Due 
to  Mere  Accident,  (a)  The  court  instructs  the  jury  that  the  plain- 
tiff can  in  no  event  recover  in  this  case  unless  you  believe  from  the 
evidence  that  she  was  injured,  and  that  her  injuries  were  directly 
due  to  negligence  on  the  part  of  defendant's  servants;  and  if  you 
believe  from  the  evidence  that  the  injuries  sustained  by  plaintiff 
were  not  due  to  negligence  on  the  part  of  defendant's  servants,  but 
were  due  to  mere  accident  or  misadventure,  then  and  in  that  case 
your  verdict  must  be  for  the  defendant.^ 

(b)  The  court  instructs  the  jury  that  the  mere  happening  of  the 
accident  together  with  proof  of  the  exercise  of  ordinaxy  care  by  the 
plaintiff  does  not  raise  a  presumption  of  negligence  on  the  part  of 
the  defendant. 

(c)  The  court  further  instructs  the  jury  that  the  bv;rden  of  proof 
is  not  upon  the  defendant  to  show  that  it  is  not  guilty  of  the  specific 
negligence  charged  in  the  declaration  or  some  count  thereof,  but 
the  burden  is  upon  the  plaintiff  to  prove  that  the  said  defendant 
was  guilty  of  such  negligence,  and  this  rule,  as  to  the  burden  of 
proof,  is  binding  in  law  and  must  govern  the  jury  in  deciding  this 
case.  The  jury  have  no  right  to  disregard  said  rule  or  to  adopt  any 
other  in  lieu  thereof,  but  in  weighing  the  evidence  and  coming  to  a 
verdict  the  jury  should  apply  said  rule  and  adhere  strictly  to  it.  No 
presumption  that  the  defendant  was  negligent  arises  from  the  mere 
fact  that  the  accident  happened.^ 

(d)  The  court  instructs  the  jury  that,  if  they  believe  from  the 
evidence  that  the  injury  to  the  plaintiff  was  the  result  of  an  acci- 


1— Johnson    v.    St.    L.    &    S.    Ry.        2— Wolf  v.   Chi.   U.   Traction  Co., 
Co.,  173  Mo.  307,  73  S.  W.  173  (176).     119  111.  Appi.  481  (482). 


§2013.]  NEGLIGENCE— STREET   RAILROADS.  1297 

dent  which  occurred  without  the  negligence  of  the  defendant,  as 
charged  in  the  declaration,  they  should  return  a  verdict  of  not 
guilty.'' 

(e)  If  you  believe  from  the  evidence  that  the  injury  to  the  plain- 
tiff in  this  suit  happened  to  him  by  mere  accident,  and  without  any 
fault  on  the  part  of  defendant  or  its  employes,  then  the  plaintiff 
cannot  recover  in  this  action.  The  defendant  is  not  an  insurer  of 
safety  of  its  passengers,  and  it  is  only  liable  when  injuries  are  in- 
curred without  fault  on  the  part  of  the  person  injured,  and  because 
of  negligence  on  the  i^art  of  the  defendant.'^ 

(f)  If  the  jury  believe,  from  the  evidence,  that  the  injuries  sus- 
tained by  the  plaintiff  were  merely  the  result  of  accident,  then  your 
verdict  must  be  for  defendant.^ 

§  2013.  Negligence  Complained  of  Must  Be  Proximate  Cause  of 
Injury — Effect  of  Prior  Disability  of  Person  Injured,  (a)  The  jury 
are  instructed  that  even  though  the  defendant  was  liable  for  the  ac- 
cident in  question,  still  you  are  instructed  that  she  could  not  re- 
cover in  this  case  for  any  damage  which  was  not  the  natural  and 
necessai'y  result  of  the  accident  and  injury  then  sustained,  if  you 
find,  from  the  evidence,  she  sustained  injury  at  the  time  of  the  acci- 
dent; and  if  you  find,  from  the  evidence,  that  the  plaintiff  has  now, 
or  has  had,  any  other  disability  resulting  from  conditions  which 
existed  in  the  plaintiff  prior  to  said  accident  and  of  which  the  acci- 
dent in  question  was  not  the  proximate  cause,  then  you  are  not  per- 
mitted, by  law,  to  allow  her  anything  for  such  disability,  and  should 
not  do  so  from  motives  of  sympathy  or  any  other  motive.® 

(b)  Before  the  plaintiff  can  have  a  verdict  in  this  case,  the  law 
requires  him  to  prove  to  your  satisfaction,  by  a  preponderance  or 
greater  weight  of  the  evidence,  negligence  (of  the  kind  submitted  to 
you)  on  the  part  of  defendant,  and  also  that  such  negligence  (if  any 
is  proved)  was  a  proximate  cause  of  the  accident  and  hurt  received 
by  plaintiff';  and  if  the  plaintiff  has  not  so  proved  negligence  of  the 
kind  submitted  to  you  on  the  part  of  defendant,  or  its  motorman  in 
charge  of  the  mail  car,  and  that  such  negligence  was  a  proximate 
cause  of  the  accident,  then  your  verdict  must  be  for  the  defendant.'' 

§  2014.  Effect  of  Change  of  Jurisdiction  Over  Highway  from 
County  to  City.  If  you  find  that  at  the  time  said  track  was  placed 
in  said  highway  the  territory  at  the  point  in  controversy  was  not  in 
said  city,  and  that  said  ti'ack  was  so  placed  by  consent  of  and  con- 
tract with  the  board  of  county  commissioners,  but  that  thereafter 
said  territoiy  was  annexed  to  and  became  part  of  said  city,  and  the 

3— N.   C.   St.  R.   R.   Co.  v.   Smad-  Met.    St.    Ry.    Co.,    183    Mo.    582,    82 

raff,   89    111.    App.    411    (416),    189    111.  S.  W.  126. 

155,   59   N.    E.  527.  6— C.  C.  Ry.  Co.  v.  Saxby,  213  111. 

4— Fitch   v.    Mason   City   &   C.    L.  274  (280),  72  N.   E.   755.  104  Am.   St. 

T.  Co..  124  Iowa  665,  100  N.  W.  618  218. 

(622).  7— Deschner  v.  R.  R.  Co.,  200  Mo. 

5— Feary  v.  Met.  St.  Ry.   Co.,  162  310,   98   S.   W.   737   (743). 
Mo.  75,  62  S.  W.  452  (458);  Logan  v. 
82 


1298  FORMS  OF  INSTRUCTIONS.  [§  2015. 

city  undertook,  by  ordinance,  to  name  terms  and  conditions  for  the 
maintenance  of  said  track  for  the  purpose  of  preserving  the  public 
highway  at  that  point  in  a  reasonably  safe  condition  for  public  use 
and  travel,  and  said  street  railroad  company  accepted  the  terms  of 
said  ordinance,  then  the  ordinance  terms  would  be  binding  on  said 
company,  and  any  violation  of  the  terms  of  said  ordinance  render- 
ing said  highway  dangerous  to  travelers  would  be  negligence;  and 
if  said  condition  proximately  caused  the  death  of  B.,  and  he  was  at 
the  time  using  due  care,  the  defendant  company  would  be  liable 
therefor.^ 

§  2015.  No  Duty  Rests  on  Plaintiff  to  Inform  Defendant  of  In- 
jury. Plaintiff  owed  defendant  no  duty  to  inform  defendant  that 
plaintiff  had  been  hurt  before  the  filing  of  the  suit.  Neither  plain- 
tiff nor  his  counsel  owed  defendant  any  duty  to  give  defendant  any 
information  before  the  filing  of  this  suit,  to  enable  defendant  to  get 
witnesses  or  gather  information.^ 

§  2016.  But  a  Failure  to  Inform  Defendant  of  Injury  May  Be 
Considered  by  Jury,  (a)  In  arriving  at  your  verdict  in  this  cause, 
I  charge  you,  gentlemen  of  the  jury,  that,  in  connection  with  all  the 
other  evidence  in  this  case,  you  have  the  right  to  consider  that  the 
plaintiff  did  not  inform  the  defendant  that  he  had  been  hurt,  before 
the  filing  of  the  complaint,  if  from  the  evidence  you  believe  that 
the  plaintiff  did  not  give  the  defendant  such  information  before  the 
commencement  of  this  suit. 

(b)  In  arriving  at  your  verdict  in  this  ease,  I  charge  you  that,  in 
connection  with  all  the  other  evidence  in  this  ease,  you  have  the 
right  to  consider  that  the  plaintiff's  counsel  did  not  inform  the  de- 
fendant that  the  plaintiff  had  been  hurt,  before  the  filing  of  the 
plaintiff's  complaint,  if  from  the  evidence  you  believe  that  the  plain- 
tiff's counsel  did  not  give  the  defendant  such  information  before  the 
commencement  of  this  suit.^° 

8— Citizens'  St.  R.  Co.  v.  Ballard,  highway   remained   a  public   high- 

22  Ind.  App.  151,  52  N.  E.  729  (731).  way,  no  matter  within  what  juris- 

"We   fail  to  see  wherein  this  in-  diction    it   might   be.     The   iiistruc- 

struction     is     objectionable.       Even  tion  is  directed  simply  to  the  duty 

if  the  street  railway  was  built  un-  of  the  company  to  keep  the  track 

der    a    contract    with    the    county  in  such  condition  as  not  to  render 

commissioners,   when   the   highway  the    street    unsafe    for    public    use 

became  a  part  of  the  city,  it  was  and   travel." 

the  duty  of  the  company  to  main-  9 — Birmingham   Ry.   &  E.   Co.   v. 

tain  its  track  so  as  to  preserve  the  Wildman,    119    Ala.    547,    24    So.    548 

I'ublic    highway    in    a    reasonably  (549). 

safe   condition   for  public   use   and  10— Birmingham  Ry.   &  E.  Co.  v. 

travel;   and   it   was   its  duty   to   do  .Vildman,    119   Ala.    547,   24   So.    548 

this   whether   there   was   any   ordi-  (549,    550). 

nance    requiring   it    to   be    done    or  "At    the   request   of   the    plaintiff 

not.     It  was  the  duty  of  the  com-  the   court    properly    instructed    the 

pany    to    keep    its    tracks    in    such  jury  that  neither  the  plaintiff  nor 

condition  as  not  to  render  the  high-  his    counsel    owed     defendant    any 

W!iy  unsafe  for  the  public,  regard-  duty  to  inform  it  that  plaintiff  had 

less    of    any    privilege    granted    or  been   injured,   but,    when   requested 

attempted    to    be    granted    by    the  by    defendant,    refused    to    charge, 

board    of   commissioners;    and   this  that    in    connection    with    all    the 

duty    continued    as    long    as    the  other    evidence    in    the    case,    the 


§2017.]  NEGLIGENCE— STREET   RAILROADS.  1299 

§  2017.  No  Prejudice  Should  Exist  Against  Street  Railway  Cor- 
porations, as  Such — Reading  of  Instructions  by  the  Lawyers.  This 
case  should  be  considered  by  the  jury  the  same  as  if  it  were  a  con- 
test between  two  persons  of  equal  standing  in  the  community.  The 
fact  that  one  of  the  parties  is  a  corporation  should  not  affect  your 
minds  in  any  way;  but  the  rights  of  the  parties  should  and  must 
be  determined  upon  the  evidence  introduced  in  the  ease,  and  the 
instructions  given  to  the  jury,  which  is  the  law,  and  only  law  to  guide 
you  in  your  deliberation.  These  instructions,  although  read  to  you 
by  the  lawyers,  are  the  court's  instructions,  and  must  be  taken  and 
considered  by  the  jury  as  if  they  had  been  read  by  the  judge  from 
the  bench.^^ 

§  2018.  When  Fact  of  Injury  Admitted  and  Assumed  on  Both 
Sides.  The  court  instructs  the  jury  that,  if  you  believe,  from  the 
weight  of  the  evidence,  that  the  injuries  comj^lained  of  by  the  plain- 
tiff in  his  declaration  were  caused  by  the  negligence  or  carelessness 
of  the  servants  or  employes  of  the  defendant  or  any  of  them,  in  the 
course  of  their  employment  as  such  servants  or  employes,  in  manner 
and  form  as  charged  in  the  declaration,  and  without  any  fault  on 
the  part  of  the  plaintiff,  which  contributed  to  the  injury  complained 
of,  then  the  defendant  is  liable  in  this  case.^- 

§  2019.  Withdrawing  Portions  of  Ordinance  from  Consideration  of 
Jury  by  Agreement.  The  jury  are  instructed  that  the  plaintiff's  in 
this  case  make  no  claim  that  the  car  which  ran  over  the  child  was 
not  stopped  within  the  shortest  time  and  space  possible  after  any 
of  the  defendant's  employes  became  aware  of  the  presence  of  danger, 
and  that  plaintiffs  do  not  base  any  charge  of  negligence  upon  the 
failure  of  the  gripman  in  charge  of  the  car  to  stop  the  car  in  the 
shortest  time  and  space  possible  after  he  first  became  aware  of  any 
danger  to  the  child,  A. ;  and  you  are  therefore  instructed  that  that 
portion  of  the  ordinance  of  the  city  of  S.  read  in  evidence  which 
provides  that  on  the  first  appearance  of  danger  to  persons,  either  on 
the  track  or  moving  towards  it,  the  car  should  be  stopped  in  the  short- 
jury  had  a  right  to  consider  that  tiff  suffered  the  injuries  complained 
plaintiff  did  not  inform  defendant  of  in  his  declaration.  That  he  was 
that  he  had  been  injured.  As  injured  to  some  extent  is  admit- 
stated  above,  the  fact  that  no  no-  ted  and  assumed  on  both  sides. 
tice  or  information  concerning  the  The  law  is  that  where  a  fact  is 
accident  had  been  given  defendant  admitted  or  assumed  by  each 
being  in  evidence,  the  jury  had  a  party  to  the  trial,  the  court,  in 
right  to  consider  this  fact.  The  giving  an  instruction  may  assume 
latter  charge  should  therefore  such  fact  as  proven.  It  is  further 
have  been  given,  as,  in  a,  sense,  ex-  objected  that  the  instruction  reads 
planatory   of  the  former."  without  any  'fault'   on  the  part  of 

11— Logan  v.  Met.  St.  Ry.  Co.,  the  plaintiff,  instead  of  without 
183  Mo.  582,  82  S.  W.  126  (129);  any  'negligence'  upon  his  part.  The 
Feary  v.  Met.  St.  Ry.  Co.,  162  Mo.  substitution  of  the  word  'negli- 
75,   62   S.   W.   452   (458).  gence'    for   the   word    'fault'    would 

12 — North  C.  St.  R.  R.  Co.  v.  not  materially  change  the  sense 
Rodert,  105  111.  App.  314  (315),  aff'd  or  the  meaning  of  the  instruction. 
203   111.    413.    67   N.    E.    812.  Chicago  &  N.  W.  Ry,  Co.  v.  Ryan, 

"The  objections  are:  That  the  in-     70   111.    215." 
struction   assumes   that   the   plain- 


1300  FORMS  OF  INSTRUCTIONS.  [§2020 

est  time  and  space  possible,  has  no  application  to  the  facts  of  this 
case,  and  the  jury  are  instructed  to  disregard  that  portion  of  the 
said  ordinance,  and  that  portion  of  said  ordinance  is  withdrawn  from 
j'our  consideration  at  the  request  of  plaintiffs.^^ 


LIABILITY  FOR  NEGLIGENCE  AS  CARRIERS  OF  PAS- 
SENGERS. 

§  2020.  Degree  of  Care  Due  Passengers — Varying  Statements  of 
Different  Courts — Negligence  Defined,  (a)  The  court  instructs  the 
jury,  as  matter  of  law,  that  it  is  the  duty  of  a  railroad  company  to 
use  the  highest  degree  of  care  and  caution,  reasonably  consistent 
with  the  practical  operation  of  the  road,  to  provide  for  the  safety  and 
security  of  passengers  while  being  transported.^* 

(b)  The  court  instructs  the  jury  that  if  the  defendant's  servants 
and  employes  exercised  all  the  care  and  foresight  that  was  reason- 
ably practicable,  then  there  was  no  negligence,  and  in  determining 
any  issue  as  to  negligence  on  defendant's  part,  submitted  to  you  in 
these  insti'uetions,  you  are  instructed  that,  if  there  was  exercised  all 
the  care  that  was  reasonably  practicable,  then  there  was  no  negli- 
gence.^^ 

(c)  The  court  instructs  the  jury  that  the  defendant  is  required 
to  use  all  reasonable  means,  care,  vigilance  and  foresight,  in  view 
of  the  character  and  modes  of  conveyance  adopted  by  it,  to  prevent 
injuiy  to  passengers,  and  while  said  company  is  not  an  insurer  of 
absolutely  safe  carriage  of  its  passengers,  yet  it  is  held  to  the  exer- 
cise of  the  highest  degree  of  care,  skill  and  diligence  practically  con- 
sistent with  the  operation  of  its  road.^*' 


13 — Schmidt  v.   St.   Louis  R.   Co.,  and     foresight'       The     instruction 

163    Mo.    645,    63    S.    W.    834    (835).  under    consideration     requires     'all 

14 — W.  C.   St.   R.   R.   Co.  v.   John-  the    care    and    foresight    that    was 

son,  180  111.  285   (286),   54  N.   E.   334,  reasonably    practicable.'      The    law 

aff'g  77   111.   App.   142.  requires  nothing  that  is  unreason- 

"This    instruction    states   an    ab-  able.      If    a    carrier    exercises    the 

stract  proposition  of  law  correctly,  care   so  required,   there  will   be  no 

The  principle  announced  in  this  in-  injuries,    except    in    cases    of   inevi- 

struction   has  been   held   to   be   the  table    or    unavoidable    accident    or 

law   in   I.   C.   R.   R.    Co.   v.   O'Con-  casualty.      The     instruction     is     as 

noil,   160  111.   641,   43  N.   E.   704,   and  broad  as  the  liability  of  the  carrier 

N.   C.   St.   R.   R.   Co.  v.   Cotton,  140  should   be    made." 

111.    486,    29   N.    E.    899."  This    same    instruction    was    also 

Practically   the   same   instruction  upheld    in    Logan    v.    Met.    St.    Ry. 

was  given  in  the  case  of  W.  C.  St.  Co.,  183  Mo.  582,  82  S.  W.  126  (129). 

R.    R.    Co.    v.    Kromshinsky,   86   111.  In    Abbitt    v.    St.    L.    T.    Co.,    106 

App.  17   (19).  Mo.    App.    640,    81    S.    W.    484,    the 

15 — Feary    v.    Met.    St.    Ry.    Co.,  court  uphold  an  instruction  requir- 

162  Mo.  75,  62  S.  W.  452   (460).  ing    "the    highest    practical    degree 

"This    instruction    is    claimed    to  of   care   of  a    very   prudent   person 

be     erroneous,     because     the     care  engaged    in    that    business,    in    the 

and     foresight    required    by    it     is  same  circumstances  as  those  shown 

.such  as  is  'reii.sonably  practicable,'  in     evidence     at     and     immediately 

and    It    is    Insisted    it    should    have  preceding    the    time   of   the    alleged 

exacted    of    defendant    the    'utmost  injury    to    said    plaintiff." 

practicable   human   skill,   diligence,  16— N.     Chi.     St.     R.     R.     Co.     v. 


§  2020. 


NEGLIGENCE— STREET  RAILROADS. 


1301 


(d)  The  law  requires  of  carriers  of  passengers  that  they  exercise 
not  only  ordinary  care  but  that  they  exercise  the  highest  practicable 
degree  and  kind  of  care  for  the  safety  of  their  passengers,  and  any 
failure  in  this  respect  constitutes  negligence. ^^ 

(e)  It  was  the  duty  of  the  B.  Company  and  its  employes  in  charge 
of  the  car  to  use  the  utmost  cai'e  to  pi'event  injury  to  plaintiff's 
wife,  if  she  were,  as  alleged,  a  passenger  on  said  car  at  the  time  she 
is  alleged  to  have  been  injured;  and  if,  through  lack  of  care, 
she  was  injured,  defendant  is  liable  in  this  case  for  damages  arising 
from  such  injuries.^^ 

(f)  By  the  term  ''negligence,"  as  used  with  i-eference  to  said 
motorman,  is  meant  a  failure  to  use  that  high  degree  of  care  that 
a  very  prudent  person  would  have  used  under  like  circumstances.^'-' 

(g)  Negligence,  when  applied  herein  to  the  defendant's  servants, 
means  the  failure  to  exercise  that  high  degree  of  care  that  a  vei-y 
cautious  and  prudent  person  would  have  exercised  under  the  same  or 
similar  circumstances.-" 

(h)  The  court  instructs  you  that  a  common  carrier  of  persons, 
such  as  a  street  car  corjwration,  is  bound  to  use  the  highest  degree  of 
care  for  the  safety  of  its  passengers.-^ 


Schwartz,  82  111.  App.  493  (496); 
C.  U.  T.  Co.  V.  O'Brien,  117  111. 
App.  184;  C.  U.  T.  Co.  v.  Kalberg, 
107  111.  App.  90. 

17 — Crump  v.  Davis,  33  Ind.  App. 
88,  70  N.  E.  Rep.  8S6  (Ss7),  the 
court  upheld  the  above  instruction, 
citing-  Citizens'  St.  Ry.  Co.  v.  Hoff- 
bauer,  23  Ind.  App.  614  (620),  56  N. 
E.  54;  Louisville  N.  A.  &  C.  Ry. 
Co.  V.  Snyder,  20  N.  E.  284,  3  L. 
R.  A.  434,  10  Am.  St.  Rep.  60; 
Terre  Haute  &  T.  Ry.  Co.  v. 
Sheeks,  155  Ind.  74,  56  N.  E.  434; 
4   Elliott   on    Ry.    15S5. 

1&— Knauff  V.  San  Ant.  T.  Co.,  — 
Tex.    Civ.    App    — ,    70    S.    W.    1011. 

"The  requested  charge  of  appel- 
lant embodies  the  law  as  applica- 
ble to  carrier  and  passenger.  It 
has  been  held  a  number  of  times 
in  Texas  that  common  carriers  are 
required  to  exercise  the  'utmost 
care'  for  the  safety  of  their  pas- 
sengers. Gallagher  v.  Bowie,  66 
Tex.  266,  17  S.  W.  407;  Int.  &  G. 
N.  Railway  Co.  v.  Welch,  86  Tex. 
203,  24  S.  W.  390,  40  Am.  St.  829; 
Ft.  Worth  &  D.  C.  Railway  Co.  v. 
Kennedy,  12  Tex.  Civ.  App.  654,  35 
S.  W.  335;  Gulf  C.  &  S.  F.  Railway 
Co.  v.  Brown,  16  Tex.  Civ.  App. 
93,  40  S.  W.  608.  In  the  case  of 
Int.  &  G.  N.  Railroad  Co.  v.  Hal- 
loren,  53  Tex.  53,  37  Am.  Rep.  744, 
the  rule  is  announced  as  follows: 
'Railroad  companies,  however,  are 
not  insurers  of  the  safety  of  their 
passengers   further  than  could   be 


required  by  the  exercise  of  such 
high  degree  of  foresight  as  to  pos- 
sible dangers,  and  such  a  high  de- 
gree of  prudence  in  guarding 
against  them,  as  would  be  used  by 
very  cautious,  prudent  and  compe- 
tent persons  under  similar  circum- 
stances.' This  rule  was  commended 
in  Railway  Co.  v.  Welch,  above 
cited,  and  it  seems  to  have  been 
the  intention  in  that  case  to  hold 
that  the  rule  in  the  Halloren  case 
was  the  same  as  the  rule  an- 
nounced in  Gallagher  v.  Bowie. 
The  court  quoted  approvingly  the 
following  from  Hutchinson  on  Car.: 
'Although  the  form  of  expression 
is  sometimes  varied,  and  the  rule 
is  stated  as  requiring  "the  great- 
est possible  care  and  diligence," 
"the  utmost  care  and  diligence  of 
very  cautious  persons,"  "the  most 
perfect  care  of  a  cautious  and 
prudent  man,"  and  other  similar 
phrases,  the  real  meaning  intended 
by  them  all  is  that  the  care  and 
circumspection  to  be  required  is 
the  utmost  which  can  be  exercised 
under  all  the  circumstances  short 
of  a  warranty  of  the  safety  of  the 
passengers.'  " 

19— San  Ant.  T.  Co.  v.  Warren, 
—  Tex.   Civ.    App.   — ,   85   S.   W.   26. 

20— Denison  &  S.  Ry.  Co.  v.  Free- 
man. —  Tex.  Civ.  App.  — ,  85  S. 
W.   55  (56). 

21— Ilges  v.  St.  L.  T.  Co.,  102 
Mo.    App.    529,    77    S.    W.    93    (91). 

"Defendant     contends,     not     that 


1302 


FORMS  OF  INSTRUCTIONS. 


[§2020. 


(i)  Defendant  was  not  an  insurer  of  the  safety  of  plaintiff,  L,,  nor 
was  it  required  to  exercise  any  degree  of  care  of  foresight  that  was 
not  reasonably  practicable.  Therefore  you  are  instructed  that  the 
mere  fact  that  an  accident  occurred  and  plaintiff  was  injured,  if  you 


the  instruction  erroneously  de- 
clares the  law  in  the  abstract,  but 
that  the  term  'the  highest  degree 
of  care'  should  have  been  defined, 
or  the  instruction  modified,  and 
cites  Dougherty  v.  Missouri  R.  Co., 
97  Mo.  647,  8  S.  W.  900,  11  S.  W. 
251;  Smith  v.  C.  &  A.  Ry.  Co.,  108 
Mo.  243,  18  S.  W.  971;  Jackson  v. 
Grand  Ave.  Ry.  Co.,  118  Mo.  199, 
24  S.  W.  192;  and  Freeman  v.  Rail- 
way, 95  Mo.  App.  94,  68  S.  W. 
1057,  in  support  of  its  contention. 
Dougherty  v.  Mo.  R.  Co.,  supra, 
was  a  suit  by  a  passenger  for 
damages  caused  by  a  sudden,  vio- 
lent start  of  the  defendant's  horse 
car.  Instruction  No.  3  given  for 
the  plaintiff  told  the  jury  that, 
under  the  circumstances  of  the 
case,  it  was  the  duty  of  the  man- 
ager or  driver  of  the  car  to  exer- 
cise the  'utmost  human  foresight, 
knowledge,  skill  and  care.'  The  in- 
structirn  was  approved,  but  on  a 
rehearing  the  majority  of  the  Su- 
preme Court  were  of  the  opinion 
that  the  instruction  stated  the  ab- 
stract proposition  too  broadly  as 
to  the  degree  of  care  incumbent  on 
the  defendant.  In  Smith  v.  C.  & 
A.  Ry.  Co.,  supra,  it  is  said  an 
instruction  that  'the  law  imposes 
on  a  common  carrier  of  passengers 
the  utmost  care  in  carrying  them 
safely  is  not  erroneous,  where  an 
instruction  is  also  given  that  the 
carrier  is  not  an  insurer  of  the 
safety  of  passengers,  and  that  neg- 
ligence on  the  part  of  its  servants 
must  be  shown.'  In  Jackson  v. 
Railroad,  118  Mo.  loc.  cit.  225,  24 
S.  W.  192,  the  Dougherty  and 
Smith  cases  are  approvingly  cited. 
In  Freeman  v.  Met.  St.  Ry.  Co., 
95  Mo.  App.  94,  68  S.  W.  1057,  an 
instruction  which  declared  the  de- 
fendant (a  passenger  carrier)  'guil- 
ty of  negligence,  unless  he  exer- 
cised the  utmost  human  skill,  dili- 
gence and  foresight  to  prevent  the 
accident'  to  the  passenger,  was 
held  erroneous.  Leslie  v.  St.  L. 
&  P.  Ry.  Co.,  88  Mo.  50,  was  a 
.suit  by  a  passenger  for  damages 
occasioned  by  the  negligence  of 
the  carrier.  In  respect  to  the  duty 
of  the  carrier  to  the  pass^enger,  the 
ronrt  Instructed  the  jury  that  the 
dcffndant  was  lirjuiid  to  use  the 
highest  degree  of  care.     The  court 


held  that,  as  a  general  statement 
of  the  liability  of  the  carrier,  the 
instruction  was  not  objectionable, 
and  that  the  fact  that  the  instruc- 
tion proceeded  to  state  hypothetic- 
ally  the  facts  upon  which  the 
plaintiff  might  recover,  sufficiently 
qualified  the  general  proposition. 
The  instruction  under  consideration 
is  not  qualified  in  any  manner,  nor 
is  there  any  other  instruction  given 
in  the  case  which  hypothetically 
sets  out  facts  upon  which  the 
plaintiff  might  recover.  The  sec- 
ond instruction,  in  general  terms, 
tells  the  jury  that  if  the  motor- 
man  was  negligent,  and  his  neg- 
ligence caused  the  car  to  lurch, 
etc.,  the  plaintiff  could  recover. 
The  two  instructions,  when  consid- 
ered together,  in  effect,  told  the 
jury  that  it  was  the  duty  of  the 
motorman  to  exercise  the  highest 
degree  of  care,  and  if  he  failed 
to  exercise  such  high  degree  of 
care,  and  the  car  lurched,  and 
plaintiff  was  thrown  into  the 
street,  she  could  recover.  In  Fur- 
nish V.  Railroad.  102  Mo.  438,  13 
S.  W.  1044,  22  Am.  St.  781.  an  in- 
struction defining  the  skill,  dili- 
gence and  foresight  required  of  a 
passenger  car  driver  was  defined 
as  'such  skill,  diligence  and  fore- 
sight as  is  exercised  by  a  very  cau- 
tious person  under  like  circum- 
stances.' In  Feary  v.  Railroad, 
162  Mo.  75,  62  S.  M?",  452,  an  in- 
struction telling  the  jury  'if  de- 
fendant's servants  and  employes 
exercised  all  the  care  and  fore- 
sight that  was  reasonably  practi- 
cable, then  there  is  no  negligence,' 
was  approved.  The  court,  through 
Marshall,  J.,  said:  'The  instruc- 
tion under  consideration  requires 
all  the  care  and  foresight  that  was 
reasonably  practicable.  The  law 
requires  nothing  that  is  unreason- 
able.' The  highest  degree  of  care 
signifies  nothing  short  of  the  ex- 
ercise of  the  utmost  human  skill 
and  care.  There  can  be  no  degree 
of  care  higher  than  the  highest. 
'Carriers  of  prissengcrs.'  says  Story 
(Story  on  Bailments  (2d  ed.),  par. 
600),  'bind  themselves  to  carry 
safely  those  whom  they  take  into 
their  coaches,  ;is  far  as  human 
care  and  foresight  will  go;  that  is, 
with  the  utmost  care  and  diligence 


2021.] 


NEGLIGENCE— STREET  RAILROADS. 


1303 


believe  he  was,  does  not  of  itself  entitle  plaintiff  to  recover  in  this 
case;  and  if  you  find  that  defendant  had  used  all  the  care  and  fore- 
sight that  were  reasonably  practicable  under  all  the  circumstances, 
and  that  the  accident  hai>pened  without  negligence  on  the  part  of 
defendant,  then  the  plaintiff  cannot  recover  under  any  circumstances, 
but  your  verdict  must  be  for  defendant. ^- 

§  2021.  Although  Not  Insurers  of  Safety  of  Passengers,  Street 
Railroads  Must  Exercise  Highest  Degree  of  Care  Reasonably  Consist- 
ent With  Practical  Operation  of  Vehicle.  The  court  instructs  the 
jury  that  the  fact  that  the  law  does  not  make  a  common  carrier  an 
insurer  of  the  safety  of  its  passengers  does  not  even  to  the  slightest 
extent  relieve  such  common  carriers  of  its  legal  duty  to  exercise  the 
highest  degree  of  care  for  the  safety  of  its  passengers,  reasonably 
consistent  with  the  practical  operation  of  its  vehicle.  In  this  case, 
if  the  jury  find  from  the  evidence,  by  a  preponderance  thereof,  that 
the  plaintiff  became  a  passenger  of  the  defendant  and  was  injured 
because  of  the  negligence  of  the  defendant,  while  he  w-as  in  the  exer- 
cise of  ordinary  and  reasonable  care  for  his  own  safety,  as  alleged 
in  his  declaration,  then  you  should  find  the  defendant  guilty .^^ 


of  very  cautious  persons.'  la  Gil- 
son  v.  Railway  Co.,  76  Mo.  282, 
the  court  said:  'The  care  required 
is  that  care,  prudence  and  cau- 
tion which  a  very  coinpetent  and 
prudent  person  would  use  and 
exercise  in  a  like  business  and  un- 
der like  circumstances.'  In  Shear- 
man &  Redfield  Neg.  (4th  ed.),  par. 
405,  it  is  said:"  'The  obligation  of  a 
common  carrier  is  said  to  be  the 
utmost  care  and  skill  which  pru- 
dent men  are  accustomed  to  use 
under  similar  circumstances.'  In 
Dodge  V.  Steamship  Co.,  148  Mass. 
207,  19  N.  E.  373,  2  L.  R.  A.  83, 
12  Am.  St.  541,  the  words  'utmost 
care  and  skill'  were  held  not  to 
mean  the  utmost  care  and  dili- 
gence which  men  are  capable  of 
exercising,  but  to  mean  the  ut- 
most care,  consistent  with  the 
carrier's  undertaking,  and  with 
due  regard  for  all  the  other 
matters  which  ought  to  be  con- 
sidered in  conducting  the  business. 
In  Libby  v.  Railroad  Co.,  85  Me. 
34,  26  Atl.  943,  20  L.  R.  A.  812,  it 
is  said:  'A  common  carrier  of 
passengers,  although  not  an  in- 
surer, must  do  all  that  human 
care,  vigilance  and  foresight  can 
do,  under  the  circumstances,  con- 
sidering the  character  and  mode 
of  conveyance  ,to  prevent  accident 
to  passengers.'  While,  as  an  ab- 
stract proposition,  common  carriers 
of  passengers  are  bound  to  use  the 
utmost   care  and   skill   to   prevent 


injuries  to  their  passengers,  yet 
the  rule  should  be  applied  in  a 
practical  manner.  That  it  may  be 
so  applied,  the  text-books  and 
many  of  the  cases  have  set  up 
some  standard  (usually  the  stand- 
ard of  care,  skill  and  foresight 
which  a  very  competent  and  pru- 
dent person  would  be  expected  to 
use  and  exercise  under  like  or  sim- 
ilar circumstances)  by  which  the 
jury  may  measure  the  degree  of 
care  required.  And  it  seems  to  us 
that  some  such  standard  should 
somewhere  be  incorporated  in  the 
instructions  to  the  jury  in  this 
class  of  cases,  so  that  they  may 
not  be  left  to  set  up  a  standard  of 
their  own,  and  to  run  it  up  as  high 
as  their  imaginations  will  allow 
them.  But  if  it  is  not  done,  the 
omission  has  never,  so  far  as  we 
are  informed,  been  held  to  be  re- 
versible error.  This  very  question 
has,  at  the  present  term  of  this 
court,  in  the  case  of  Fillingham  v. 
St.  Louis  Transit  Company,  102 
Mo.  App.  573,  77  S.  W.  314,  been 
so  fully  and  exhaustively  treated 
in  an  opinion  by  Goode,  J.,  that 
nothing  remains  to  be  said." 

22— Logan  v.  Met.  St.  Ry.  Co., 
183  Mo.  582,  82  S.  W.  126  (129). 

23— Chi.  IT.  T.  Co.  v.  O'Brien,  117 
111.    App.   184   (189,   190). 

"It  is  objected  to  above  instruc- 
•tion  that  it  assuines  that  defend- 
ant was  negligent,  and  that  it  per- 
mits the  jury  to  find  the  defendant 


1304  FORMS  OF  INSTRUCTIONS.  [§  2022. 

§  2022.  "When  Burden  of  Proof  as  to  Degree  of  Care  Used  Shifts 
to  Defendant.  The  court  instructs  the  jury  that  while  the  burden 
of  proof  is  upon  the  plaintiff  to  show  the  negligence  of  defendant, 
yet  if  you  find  from  the  evidence  introduced  upon  the  trial  that 
plaintiff  was  not  guilty  of  contributory  negligence,  as  explained  in 
these  instructions,  and  that  plaintiff  was  thrown  from  the  car  sub- 
stantially as  claimed  by  him,  and  that  such  accident  would  have 
happened  under  ordinary  circumstances,  had  the  defendant,  its 
officers  and  employes,  exercised  the  utmost  care  and  foresight,  as 
explained  in  another  paragraph  hereof,  a  presumption  of  negligence 
against  the  defendant  is  raised,  and  the  burden  is  then  cast  on  the 
defendant  to  rebut  this  presumption.  To  this  end,  the  defendant 
must  prove  that,  as  the  matter  which  the  circumstances  indicate 
were  the  cause  of  said  incident,  its  officers  and  emploj^es  exercised 
that  high  degree  of  care  which  the  law  requires  of  them.-'* 

§  2023.  Street  Railroad  Company  Not  Liable  When  Passenger  Is 
Injured  by  His  Own  Misconduct.  If  the  railroad  company  on  its  part 
is  properly  discharging  with  due  diligence  and  in  a  suitable  manner 
its  duties,  and  a  passenger  is  hurt  from  a  cause  disconnected,  over 
which  the  railroad  has  no  control,  or  if  the  passenger  is  hurt  by 
reason  of  his  own  conduct  or  misconduct,  and  the  act  or  doing  of 
the  railroad  company  in  no  way  contributed  towards  it,  or  if  the 
passenger's  conduct  was  the  primary  or  real  reason  of  his  or  her 
injury,  the  railroad  company  would  not  be  responsible.-^ 

S  2024.  Injury  to  Passenger  Through  Negligent  Equipment,  Man- 
agement or  Operation  of  Vehicle.  The  jury  are  instructed  that  it  is 
the  duty  of  defendant  not  to  expose  its  passengers  to  any  danger 
which  human  care  and  foresight  could  reasonably  anticipate  and  pro- 
vide against,  and  to  exercise  the  highest  degree  of  care  and  diligence 
reasonably  consistent  with  the  practical  operation  of  its  railroad  and 
the  conducting  of  its  business.  And,  if  from  the  evidence  introduced 
upon  the  trial,  you  believe  that  the  plaintiff,  while  a  passenger  on 
the  car  of  defendant,  received  an  injury,  resulting  from  the  careless- 
guilty,  if  they  find  certain  facts  whether  the  defendant  was  guilty 
from  the  evidence,  without  requir-  of  negligence.  The  words,  'if  the 
ing  them  to  find  such  facts  under  jury  find  from  the  evidence,  by  a 
the  instructions  of  the  court,  preponderance  thereof,'  apply  to 
Neither  of  these  objections  is  ten-  the  'negligence  of  the  defendant' 
able.  The  instruction  concludes  equally  as  to  the  words  'that  the 
with  the  following  sentence:  'In  plaintiff  became  a  passenger  of 
this  case,  if  the  jury  find  from  the  the  defendant.'  It  is  not  neces- 
evldence,  by  a  preponderance  sary  for  the  court  to  state  in  ev- 
thereof,  that  the  plaintiff  became  ery  instruction  that  the  jury,  in 
a  passenger  of  the  defendant,  and  passing  on  the  facts,  must  be  gov- 
was  injured  because  of  the  negli  erned  by  the  instructions  of  the 
gence  of  the  defendant,  while  he  court."  But  see  S  3966. 
was  in  the  exercise  of  reasonable  24 — Fitch  v.  Mason  C.  &  C.  L. 
care  for  his  own  safety,  as  alleged  T.  Co..  124  Iowa  665,  100  N.  W. 
in  the  declaration,  then  you  should     618   (620). 

find  the  defendant  guilty.'  Mani-  25— Wade  v.  Columbia  Kl.  St. 
festly,  the  Instruction  submitted  R.  L.  &  P.  Co.,  51  S.  C.  296,  29 
to  the  Jury,  as  a  question  of  fact,     S.   E.   233   (235),   64  Am.   St.   676. 


§  2025.]  NEGLIGENCE— STREET  RAILROADS.  1305 

ness  or  negligence  of  the  defendant  or  its  employes  in  providing  a 
seat  without  any  guards,  substantially  as  alleged,  or  in  running, 
managing,  and  operating  said  car,  or  in  constructing  or  maintaining 
its  track  at  the  place  alleged,  you  should  find  for  the  j^laintiff,  pro- 
vided you  further  believe  from  the  evidence  that  plaintiff's  own  neg- 
ligence did  not  contribute  to  such  injury.'*^ 

§  2025.  High  Rate  of  Speed — Attending  Circumstances,  (a)  The 
court  instructs  the  jury  that  high  rate  of  speed  of  a  railway  train 
will  not  of  itself  establish  or  prove  negligence  of  the  railway  companj'. 
Railway  companies  may  run  their  cars  at  such  speed  as,  under  all 
the  circumstances,  shall  comport  with  the  rule  of  law  which  requires 
them  to  exercise  the  utmost  care  and  foresight  for  the  safety  of  their 
passengers  reasonably  consistent  with  the  practical  operation  of  their 
roads  and  the  conducting  of  their  business.  And  whether  a  given 
rate  of  speed  comports  with  the  rule  depends  on  the  circumstances, 
such  as  the  condition  and  curvature  of  the  track,  the  danger,  if  any, 
to  passengers  occupying  any  and  all  seats  where  passengers  are  ac- 
customed and  permitted  to  ride,  of  being  thrown  from  the  car  by 
the  movement  thereof,  and  all  the  facts  and  circumstances  surround- 
ing the  particular  time  and  place  in  question,  as  you  find  same  to  be 
shown  by  the  evidence  introduced  upon  the  trial.-' 

(b)  The  court  instructs  the  jury  that  the  defendant  owed  the 
plaintiff  the  duty  to  exercise  the  utmost  care  and  skill  which  prudent 
persons  exercise  under  similar  circumstances  to  prevent  said  car 
from  running  at  a  rate  of  speed  which  was  dangerous,  and  that  their 
failure  to  exercise  such  care  is,  in  law,  negligence.-^ 

§  2026.  High  Rate  of  Speed — Jumping  from  Car  to  Avoid  Danger 
— Overcrowding — Thrown  from  Platform,  (a)  If  you  believe  from 
the  evidence  that  the  defendant  at  or  about  the  time  and  place  men- 
tioned in  the  plaintiff's  petition  was  operating  one  of  its  electric 
cars  on  which  the  plaintiff  was  riding  as  a  passenger  at  a  high  and 
dangerous  rate  of  speed,  and  that  at  said  time  the  trolley  wires  and 
guy  wires  stretched  over  the  line  of  its  track  at  said  point  broke 
and  fell  upon  the  car  or  ground,  and  the  trolley  poles  Avere  thrown 
down  and  fell  along  the  side  of  the  car,  and  that  the  speed  at  which 
said  car  was  being  propelled,  in  connection  with  the  breaking  and 
falling  of  the  trolley  w'ires  and  guy  wires  and  poles,  caused  said  car 
to  pitch  and  jump  with  such  force  and  violence  upon  the  track  as 
to  throw  the  plaintiff  from  the  car  upon  the  ground,  or  if  you  believe 
that  the  breaking  of  said  wires  and  said  poles  appeared  to  the 
plaintiff  to  render  his  position  in  the  car  dangerous,  and  that  plain- 

26— Fitch  V.  Mason  C.  «&  C.  L.  T.  tion  was  said  to  state  the  law  cor- 

Co.,    124    Iowa    665,    100    N.    W.    618  rectly,     although     it     might     have 

(621).  been  couched  in  language  less  sub- 

27— Fitch  V.  Mason  C.  &  C.  L.  T.  ject    to    criticism. 

Co.,    124    Iowa    665,    100    N.    W.    618  See  also  in  this  connection  Alton 

(621).  L.    &   T.    Co.    V.    Oiler.   119    111.    App. 

£8— In    South    Cov.    &    C.    St.    Ry.  181    (189,    190).    affd    217    111.    15,    75 

Co.    V.    Constans.   25   Ky.   L.   155.   74  N.    E.   419. 
S.   W.   705  (706),  the  above  instruc- 


1306  FORMS  OF  INSTRUCTIONS.  [j  2027. 

tiff,  acting  upon  apprehension  of  immediate  danger  of  injury  to 
himself,  and  in  order  to  avoid  danger  attempted  to  escape  therefrom, 
in  so  doing  then  and  there  jumped  from  said  car  and  fall  upon  the 
ground,  or  in  such  attempt  to  escape  did  then  and  there  fall  from 
the  same  on  or  against  the  ground,  and  that  as  a  proximate  cause 
of  said  fall,  was  thereby  injured  in  one  or  more  particulars,  sub- 
stantially as  alleged  in  his  petition,  you  will  find  for  plaintiff,  and 
assess  his  damages,  if  any,  as  hereinbefore  directed,  unless  you  should 
find  for  the  defendant  under  other  portions  of  this  charge.^^ 

(b)  You  are  instructed  that  if  you  believe  from  a  preponderance 
of  the  evidence  that  the  deceased,  N.  P.  H.,  was  permitted  to  ride 
by  the  defendant  upon  the  platform  of  defendant's  car;  that  the  de- 
fendant carelessly  and  negligently  failed  and  neglected  to  provide 
and  have  on  said  car  a  gate,  railing  or  other  protection  around  the 
platform  thereof,  and  that  thereby  said  car  was  rendered  an  unsafe 
and  dangerous  conveyance,  in  that  passengers  on  said  platform  were 
unprotected  and  liable  to  be  thrown  therefrom;  and  you  further 
believe  that  defendant  permitted  said  car  to  become  overcrowded  with 
passengers,  and  failed  to  provide  said  H.  with  a  seat  on  said  ear, 
but  i^ermitted  him  to  be  crowded  and  jostled  by  other  passengers  like- 
wise upon  said  platform;  and  if  you  further  believe  that  said  car 
ran  into  said  curve  at  a  high  rate  of  speed,  without  warning  or  notice 
to  said  H. ;  that  thereby  said  car  was  caused  to  lurch  and  jerk  as  it 
went  around  said  curve,  causing  said  H.  to  be  thrown  therefrom,  and 
to  receive  injuries  of  which  he  died,  then  your  verdict  will  be  for 
plaintiff,  etc.^° 

§  2027.  Collision  Between  Cars  of  Same  Company.  The  court  in- 
structs the  jury  that  if  you  believe  from  the  evidence  'that  a  collision 
occurred  between  the  car  on  which  plaintiff  was  riding  and  another 
car,  and  that  plaintiff  by  said  collision  had  his  wrist  sprained  or 
dislocated,  and  that  said  collision  and  injury  would  not  have  occurred 
if  the  motorman  of  defendant  company  had  been  in  the  exercise  of 
the  care  and  skill  hereinbefore  defined,  and  that  the  collision  was 
the  result  of  the  motonnan's  negligence,  if  he  was  guilty  of  negli- 
gence, your  verdict  will  be  for  the  plainiiff.^^ 

§  2028.  Collision  Between  Cars  of  Street  Car  Company  and  Other 
Vehicles — Fire  Department  Engines  and  Wagons,  (a)  Although 
the  jury  should  find  from  the  evidence  in  this  case  that  the  em- 
ployes of  the  city  fire  department  did  not  exercise  ordinary  care  in 
driving  the  hook  and  ladder  wagon,  and  although  the  jury  should 
find  from  the  evidence  that  such  want  of  care,  if  there  was  such 
want  of  care,  directly  contributed  to  cause  the  collision  by  which 
the  plaintiff  was  injured,  yet  if  the  jury  find  from  the  evidence  that 
defendant's   servants   in    charge   of   its    car   in   which    the    plaintiff 

29— Hou.ston    El.    St.    Ry.    Co.    v.  35  Wa.sh.  600.  77  Pac.   1058  (1062). 

Elvis.   31   Tex.   Civ.   App.   280,   72   S.  31— Galveston      C.      Ry.      Co.      v. 

W.  216.  Chapman,  35  Tex.  Civ.  App.  551,  80 

30— Halverson  v.   Seattle  El.   Co.,  S.    W.    856. 


§  2028.]  NEGLIGENCE— STREET   RAILROADS.  1307 

ivas  such  passenger,  if  they  had  exercised  a  high  degree  of  care,  such 
as  would  have  been  exercised  by  very  prudent,  careful  and  skillful 
railroad  men  under  the  same  or  similar  circumstances,  would  have 
averted  said  collision  and  injury,  then  plaintiff  is  entitled  to  re- 
cover. 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  gripman,  as  the  train  was  approaching  N.  street, 
was  exercising  that  high  degree  of  care  described  in  another  instruc- 
tion, and  was  looking  ahead  and  attending  to  his  duties,  as  defined 
in  the  instructions,  and  before  he  reached  it  he  did  not  see  or  hear 
any  persons  signaling  to  him  to  stop,  and  did  not  hear  the  gong  of 
the  hook  and  ladder  wagon,  and  did  not  know  that  the  hook  and 
ladder  wagon  was  approaching,  and  that  as  soon  as  he  got  to  N. 
sti'eet  he  saw  the  hook  and  ladder  wagon  coming,  and  he  then,  while 
exercising  that  high  degree  of  care  described  in  other  instructions 
(if  the  jury  believe  from  the  evidence  he  was  exercising  such  care), 
had  good  reason  to  believe,  under  all  the  circumstances,  and  did 
believe,  that  from  the  speed  at  which  the  hook  and  ladder  was  com- 
ing, and  the  train  was  going,  if  he  stopped  the  train,  or  tried  to 
stop  it,  it  would  place  the  train  in  N.  street,  and  in  front  of  the 
approaching  hook  and  ladder  wagon,  and  there  would  be  a  collision 
between  it  and  the  hook  and  ladder  wagon,  and  that  if  he  went  ahead 
at  full  speed  he  might  avoid  a  collision;  then  the  court  instructs 
the  juiy  that  it  was  his  duty  to  go  ahead,  and  the  juiy  will  find  their 
verdict  for  the  defendant,  notwithstanding  the  hook  and  ladder 
wagon  ran  into  the  trailer  car,  and  the  plaintiff  was  injured  thereby. 

(c)  The  court  instructs  the  jury  that  the  defendant  by  its  servants 
in  charge  of  its  cars,  in  one  of  which  the  plaintiff  wr  a  passenger, 
was  bound,  in  law,  to  exercise  a  high  degree  of  care,  as  defined  in 
the  instruction,  to  watch  and  listen  for  any  appi'oaching  vehicle 
at  the  crossing  of  N.  street,  where  defendant's  car  crossed  such 
street,  and  was  bound,  also,  to  use  such  care  to  avoid  collision  with 
any  such  vehicle.  And  if  the  defendant's  servants  in  charge  of  the 
said  cars  failed,  even  in  a  slight  degree,  to  use  such  care,  and  thereby 
directly  contributed  to  cause  plaintiff's  injury,  then  defendant  is 
liable,  although  the  juiy  should  find  from  the  evidence  that  the 
employes  of  the  citj'  fire  department  also  failed  to  exercise  ordinary 
care,  and   thereby  contributed  to  cause  said  collision. ^2 

(d)  If  the  jury  believe  from  the  evidence  that  C.  R.  while  riding 
on  the  footboard  of  the  defendant's,  C.  C.  Ry. 's,  car  in  question,  was 
injured  by  reason  of  a  wagon  coming  in  contact  with  the  side  of 
the  said  ear,  and  if  the  juiy  further  believe  from  the  evidence  that 
the  servants  in  charge  of  said  car,  under  all  the  circumstances  shown 
by  the  evidence,  could  not  have  avoided  the  collision  between  the  said 
wagon  and  the  said  car  by  the  exercise  of  the  highest  degree  of 
care  and  caution  reasonably  consistent  with  the  practical  operation 

32— Olsen    v.     Citizens'     Ry.    Co.,     152  Mo.  426,  54  S.  W.  470  (471). 


1308  FORMS  OF  INSTRUCTIONS.  [§  2028. 

of  said  car,  and  if  the  jury  further  believe  from  the  evidence  that 
the  said  collision  was  caused  by  the  swinging  or  turning  of  said 
wagon  after  the  front  of  the  ear  had  passed  it,  so  that  some  part 
of  said  wagon  swung  into  or  struck  against  the  side  of  the  said 
car  and  caused  the  injury  complained  of,  then  the  jury  should  find 
the  defendant,  C.  C.  R,  Co.,  not  guilty.^^ 

(e)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  while 
in  the  exercise  of  ordinary  care,  if  you  believe  from  the  evidence 
he  was  in  the  exercise  of  ordinary  care,  was  injured  by  or  in  conse- 
quence of  the  negligence  of  the  defendants,  if  you  believe  from  the 
evidence  defendants  w^ere  negligent,  as  charged  in  the  declaration, 
then  you  should  find  the  defendants  guilty.^^ 

(f)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  grip  ear  in  question  was  suddenly  and  without 
negligence  on  the  part  of  the  defendant's  servants,  placed  in  a  posi- 
tion of  danger,  then  in  order  to  charge  the  defendant  with  a  duty 
to  avoid  injuring  the  persons  on  the  said  grip  ear  the  plaintiff  must 
show  by  the  greater  weight  of  the  evidence  that  the  circumstances 
were  such  that  the  gTipman  had  time  and  opportunity,  by  the  exer- 
cise of  the  highest  degree  of  practicable  care  on  his  part,  to  become 
conscious  of  the  facts  giving  rise  to  such  duty,  and  further  that  he 
had  a  reasonable  opportunity  to  perform  said  duty.  And  if  the 
jury  further  believe  from  the  evidence  that  the  circumstances  as 
shown  by  the  evidence  did  not  charge  the  defendant  with  a  duty  as 
thus  defined,  or  if  the  jury  believe  from  the  evidence  that  said  grip- 
man  did  not  have  a  reasonable  opportunity  to  jDerform,  by  the  exer- 
cise of  the  highest  degree  of  practicable  care  on  his  part,  such  duty 
as  thus  defined,  then  they  should  find  the  defendant  not  guilty.^^ 

33 — C.    C.    Ry.    Co.    v.    Math,    114  sumption    is    caused    by    agencies 

III.    App.    350    (352).      The    plaintiff  wholly    under    the    control    of    the 

was    injured    by   a   collision   of   the  carrier.      Under    such    conditions   a 

car   with    a    wagon    while    plaintiff  prima  facie  case  of  negligence  may 

was  riding  on  the  footboard  of  the  be   made   by   showing   the   happen- 

car.  ing    of   the   accident    and   a   conse- 

34 — C.    U.    T.    Co.    v.    Mee,   119   111.  quent     injury     to     the     passenger, 

App.    332,    336,    aff'd    218    111.    9,    75  himself  in  the  exercise  of  ordinary 

N.    E.   800.     Passenger  was   injured  care.     The  duty  would  then  be  im- 

by    a    collision   of    the    car   with   a  posed   upon   the   carrier   to   explain 

hay  wagon.  or    account    for    the    accident    and 

35— Wolf  v.   C.   U.   T.   Co.,  119  111.  to  show  in  defense  that  it  resulted 

App.   4S1   (483).     A  chemical  engine  from  a  cause  for  which  the  carrier 

of  the  fire  department  struck  a  car.  was    not    responsible.      But    where 

Commenting    on    the    instruction  the  plaintiff's  own  evidence  shows 

as  given,   the  appellate  court  said:  the  accident    to   have   been   due   to 

"It  is  insisted  by  the  attorneys  a  cause  beyond  the  control  of  the 
for  plaintiff  in  error  that  the  mere  carrier,  as  vis  major  or  the  tort 
fact  of  the  collision  causing  an  of  a  stranger,  the  reason  for  pre- 
iiijury  to  plaintiff  while  he  was  sumirig  it  to  have  been  caused  by 
riding  as  a  passenger  on  defend-  negligence  on  the  part  of  the  car- 
ant's  car,  and  himself  in  the  exer-  rier  is  entirely  wanting.  Where  a 
else  of  ordinary  care,  raises  a  pre-  collision  occurs  between  cars  of 
sumption  of  negligence;  and  that  the  same  company,  such  presump- 
hfnce  the  instructions  above  set  tion  may  be  indulged.  But  where 
forth  were  erroneous  and  should  some  vehicle  unconnected  with  and 
not    have    been    given.     Such    pre-  beyond    the    control    of    a    railroad 


§  2029. 


NEGLIGENCE— STREET   RAILROADS. 


1309 


§  2029.  Injuries  to  Passengers  Through  Defective  Condition  of 
Vehicles,  (a)  The  court  instructs  the  jury  that  the  defendant  owed 
to  its  passengers  the  duty  of  exercising  great  care  and  caution  to 
keep  the  machinery  and  appliances  of  its  cars  in  a  reasonably  safe 
condition  and  repair,  and  to  exercise  like  caution  in  the  operation 
of  its  cars.^*' 


company  has  collided  with  one 
of  the  latter's  cars  on  its  own 
track  no  such  prima  facie  case  is 
ordinarily  made  out  as  suffices  to 
throw  the  burden  upon  the  carrier 
to  prove  itself  not  guilty  of  negli- 
gence. In  Chi.  C.  Ry.  Co.  v.  Rood, 
163  111.  477-483,  45  N.  E.  238,  it  is 
said:  'It  is  reasonable  that  a  pre- 
sumption of  negligence  should 
arise  against  the  carrier  in  cases 
where  the  cause  of  the  accident  is 
under  its  control,  because  it  has 
in  its  possession  the  almost  exclu- 
sive means  of  knowing  what  oc- 
casioned the  injury,  and  of  ex- 
plaining how  it  occurred,  while  the 
injured  party  is  generally  ignorant 
of  the  facts.  But  where  the  cause 
of  the  accident  is  outside  of  and 
beyond  any  of  the  instrumentali- 
ties under  the  control  of  the  car- 
rier, its  means  of  knowledge  may 
not  be  and  is  not  necessarily  bet- 
ter than  those  of  the  passenger.' 
To  the  same  effect  are  Federal  St. 
&  P.  V.  Ry.  Co.  V.  Gibson,  96  Pa. 
St.  83;  Potts  V.  Chicago  C.  Ry. 
Co.,  33  Fed.  610  (611);  C.  City  Ry. 
Co.  V.  Catlin,  70  111.  App.  98-99; 
Elwood  V.  C.  C.  Ry.  Co.,  90  111. 
App.  398  (399);  N.  C.  St.  R.  R.  v. 
O'Donnell,  115  111.  App.  110.  The 
question  as  to  when  the  presump- 
tion against  the  defendant  carrier 
arises  and  when  the  burden  is 
upon  the  plaintiff  to  prove  the  de- 
fendant guilty  of  the  negligence 
charged,  seems  to  have  depended 
in  some  cases  on  the  facts  of  the 
particular  case.  Thus  in  L.  &  N. 
R.  R.  Co.  V.  Kuhn,  86  Ky.  578,  6 
S.  W.  441,  cited  in  W.  C.  St.  R.  R. 
Co.  V.  Martin,  154  111.  523-529,  39 
N.  E.  140,  the  plaintiff  was  a  pas- 
senger on  a  street  car  which  was 
run  into  by  a  train  while  passing 
a  railroad  crossing  at  night.  It 
was  held  the  burden  of  proof  was 
on  the  street  car  company  to  show, 
if  such  was  the  case,  that  the  in- 
jury did  not  result  from  its  own 
want  of  diligence,  but  from  the 
negligence  of  the  railroad  com- 
pany. See  also  Osgood  v.  Los  An- 
geles T.  Co.,  137  Cal.  280  (283),  70 
Pac.    169." 


36— Dallas  C.  Elec.  St.  Ry.  Co.  v. 
Broadhui-st,  28  Tex.  Civ.  App.  630, 
68   S.    W.    315    (318). 

"The  objection  made  to  the 
above  chai-ge  is  that  it  imposes 
upon  the  defendant  a  higher  de- 
gree of  care  than  is  required  by 
law.  In  the  case  of  Levy  v.  Camp- 
bell, —  Tex.  — ,  19  S.  W.  438,  the 
court  charged  that  the  defendant 
was  required  to  use  the  'utmost 
care.'  This  charge  was  held  to  be 
correct.  In  the  case  of  Gallagher 
V.  Bowie,  66  Tex.  265,  17  S.  W.  407, 
the  same  expression,  'the  utmost 
care,'  was  used  by  the  trial  judge 
in  the  charge  to  the  jury,  and  the 
charge  was  sustained  as  correct 
by  our  supreme  court.  In  the 
latter  case.  Justice  Robertson  says 
that  'the  degree  of  care  required 
of  carriers  is  generally  described 
by  the  authorities  as  the  utmost, 
and  the  use  of  this  expression  in 
the  charge  was  not  objectionable.' 
In  the  case  of  Gulf  C.  &  S.  F. 
Railway  Co.  v.  Smith,  87  Tex.  352, 
353,  28  S.  W.  522,  it  was  held  that 
the  expression  'great  care  and  pru- 
dence' was  too  high  a  degree  of 
care  in  the  case  of  an  employe 
suing  his  master;  that  in  such  case 
the  defendant  is  only  required  to 
use  ordinary  care.  In  discussing 
that  expression  used  in  the  charge, 
the  court  said,  speaking  through 
Justice  Brown:  'This  imposed  the 
highest  degree  of  care  known  to 
the  law,  which  is  that  degree  of 
care  prescribed  for  the  government 
of  railroad  companies  toward  their 
passengers;'  citing  Shear.  &  R. 
Neg.  par.  51.  Houston  &  Tex.  C. 
R.   Co.  V.   Gorbett,  49  Tex.  573. 

In  the  Gorbett  case,  the  language 
used  in  the  charge  was  'greatest 
care  and  prudence.'  As  to  this 
charge  Justice  Gould  said:  'The 
charge  required  the  greatest  de- 
gree of  care  and  prudence  of  de- 
fendant as  being  a  carrier  of  pas- 
sengers, and  at  the  same  time  held 
defendant  not  responsible  if  the 
injury  was  the  result  of  a  mere  ac- 
cident or  casualty,  there  being  no 


1310  FORMS   OF  INSTRUCTIONS.  [§2029. 

(b)  If  the  jury  believe  and  find  from  the  evidence  in  this  ease 

that   on   or   about   the   day   of  ,   ,   plaintiff 

was  a  passenger  on  a  west-bound  car  of  defendant ;  that  on  said  date, 
while  rounding  a  curve  between  C.  avenue  and  R.  place  in  a  north- 
Avesterly  direction,  the  car  on  which  plaintiff  was  a  passenger  was 
being  run  at  a  high  rate  of  speed,  and  that  the  said  car  left  or 
jumped  the  track,  and  ran  across  the  ties  and  along  the  ground  for 
a  space  of  about  fifty  feet,  and  against  a  large  pole  with  great  force 
and  violence,  causing  plaintiff's  injuries  described  in  the  testimony; 
and  that  the  said  car  left  or  jumped  the  track  by  reason  of  the 
flange  on  one  of  the  wheels  of  said  car  being  in  a  worn  or  broken 
condition,  which  rendered  it  unsafe  and  dangerous  as  a  vehicle  for 
the  transportation  of  passengei's;  and  that  that  condition,  if  you 
believe  and  find  from  the  evidence  it  was  in  such  condition,  was 
known  to  the  defendant,  or  its  agents,  servants  and  officers  in  charge 
of  said  car  and  railroad,  or  could  by  the  exercise  of  reasonable 
care  and  diligence  have  been  known  to  them  a  sufficient  length  of 
time  prior  to  said  car's  leaving  the  track  to  have  prevented  it  so 
doing — if  you  believe  and  find  these  facts,  then  and  in  that  event 
your  verdict  should  be  for  plaintiff. 

(c)  The  court  instructs  the  jury  that  plaintiff  is  not  entitled  to 
recover  in  this  case  merely  because  one  of  defendant's  cars  was 
derailed  by  the  breaking  of  the  flange  of  a  wheel.  That  if  you 
believe  from  the  evidence  that  the  derailment  of  the  car  in  question 
at  the  curve  near  F.  avenue  was  due  solely  to  the  breaking  off 
of  pieces  to  have  flange  immediately  in  said  curve,  and  that  said  break- 
ing could  not  be  foreseen  or  anticipated  upon  close  examination  by 
a  competent  inspector,  then  and  in  that  case  the  defendant  was 
guilty  of  no  negligence  in  connection  with  the  breaking  of  such 
flange,  and  you  will  find  your  verdict  for  the  defendant. 

(d)  The   court  instructs  the  jury  that  if  you   believe   from  the 

want   of  care   or  skill   on   the  part  103,  the  degree  of  care  due  to  a  pas- 

pf  the  company  or  its  ag-euts.'  The  senger  by  a  carrier  is  stated  to  be 

charge     was     sustained,     and      the  'the     utmost     care     and     foresight 

judgment    of   the   court    below    af-  reasonably     compatible     with     the 

firmed.      In    the    case    of    Levy    v.  prosecution  of  its  business.'  In  the 

Campbell,    supra,   it   was   held   that  case    at    bar,    the    charge    required 

the   use   of  the   term   'utmost  care'  the  exercise  by  the  carrier  of  'great 

in  the  charge,  without  defining  the  care    and    caution'    in    keeping    its 

same,   was  not  error.     It  was  also  machinery    in    repair    and    in    the 

held    that,    if    any    explanation    of  operation   of   its   cars.     We   are   of 

such  expression  was  deemed  neces-  the   opinion    that   the    charge   does 

sary,  a  special  charge  should  have  not  impose  a  higher  degree  of  care 

been   asked   to   that   effect.     In  the  upon   the   carrier   than   is   required 

case  of  Gallagher  v.  Brown,  above  by   law. 

cited,  wherein  the  same  expression  Again,  complaint  is  made  of  the 

'utmost     care'      was     used,     Judge  court's  failure  to  define   the  words 

Robertson   said:     'If    it   needed   ex-  'great  care  and  caution'  as  used  in 

phuiation    or    qualification,    appel-  the  charge.     If   there   was   any  er- 

lant  should   have  requested   a  spe-  ror   in   tiiis   respect,   it   was   one   of 

rial  charge.'  In  the  language  quot-  omission,  and  the  plaintiff  in  error 

ed  above  from  the  Lauricclla  case,  cannot  be  heard  to  complain  in  the 

Mf'x.   rV'nt.   R.  Co.  V.   Lauricella,  si  absence    of    a    speci;il    (■hatg(>    de- 

Tex.  278,   28  S.   W.  278,   27  Am.   St.  signed    to   correct    such    omission." 


§2030.]  NEGLIGENCE— STREET   RAILROADS.  1311 

evidence  that,  when  defendant's  ear  reached  S.  street,  it  was  ex- 
amined by  an  inspector,  who  found  that  a  small  piece  of  flange  of 
one  wheel  had  chipped  out;  and  if  you  further  believe  from  the 
evidence  that  there  was  no  danger  of  derailing  on  account  of  such 
portion  of  the  flange  being  out  of  said  wheel ;  and  that  it  was  im- 
possible for  defendant's  said  inspector  to  discover  by  examining 
said  wheel,  any  defect  that  would  lead  a  competent  inspector  to  sus- 
pect or  infer  that  other  pieces  of  said  flange  would  break  out  during 
the  running  of  said  car  in  its  ordinary  course  to  D. ;  and  if  you 
further  believe  from  the  evidence  that,  after  examining  said  car, 
the  inspector  told  the  motorman  to  proceed  with  said  car,  and 
that  thereafter  when  said  car  was  going  round  a  curve  at  C.  avenue, 
other  and  larger  pieces  of  such  flange  broke  out,  and  that  thereby 
said  car  was  derailed,  then  and  in  that  case  the  defendant  was  guilty 
of  no  negligence,  and  your  verdict  must  be  for  the  defendant.^^ 

§  2030.  Inspection  of  Vehicle.  If  the  jury  find  from  the  evidence 
that  prior  to  the  accident  in  question  here  defendant  had  employed 
competent  inspectors  to  inspect  the  controller  and  motors,  and  other 
electrical  appliances  in  use  on  defendant's  cars,  and  that  such  in- 
spector had  used  a  very  high  degree  of  care  in  making  reasonable 
inspection  of  the  ear  upon  which  plaintiff  was  injured  a  short  time 
prior  to  the  time  of  her  injury,  and  that  such  inspection  failed  to 
disclose  any  defect  in  the  said  controller,  motors  or  electrical  appli- 
ances, and  that  said  car  and  its  appliances  were  apparently  in  a 
reasonably  safe  condition  for  the  purposes  for  which  it  was  being 
used  by  defendant,  and  that  the  accident  in  question  here  could  not 
have  been  reasonably  anticijjated,  foreseen,  or  prevented  by  de- 
fendant by  the  exercise  of  a  verj^  high  degree  of  care  in  inspecting 
said  car,  and  its  appliances,  then  plaintiff  cannot  recover  in  this 
action  and  your  verdict  must  be  for  the  defendant.^^ 

§  2031.  Presumptive  Liability  When  Car  Derailed,  (a)  •  The  jui-y 
are  instructed  that  if  you  believe,  and  find  from  the  evidence,  that 
on  or  about  the  —  day  of  — ,  defendant  Avas  operating  a  street 
railway,  and  engaged  in  the  business  of  carrying  ijassengers  thereon 
for  hire ;  that  plaintiff  was  a  passenger,  having  taken  passage  upon 
one  of  defendant's  cars  on  said  road,  and  that  while  he  was  so  a 
passenger,  being  carried  thereon  upon  defendant's  road,  the  said 
ear  was  thrown  from  or  left  the  track  upon  which  it  was  running, 
and  suddenly  stopped,  at  or  near  the  intersection  of  N.  and  M. 
streets,  in  K.  C,  Mo.,  and  that  plaintiff  was  then  himself  exercising 
ordinary  care,  and  that  he  was  by  such  stopping  and  derailment  of 
the  car  thrown  from  said  car  and  injured  thereby — then  the  law  pre- 
sumes that  such  injury  to  plaintiff  was  caused  by  defendant's  negli- 
gence, and  such  facts,  if  proved  by  a  prei^onderance  of  the  evidence, 

37— Johnson  v.  St.  Louis  &  S.  Ry.     for  the   plaintiff  and   the   two   last 
Co.,   173  Mo.   307,  73   S.   W.   173,   176,     for  the  defendant. 
177.  The  first  instruction  was  given        38— Bred  v.   St.   Louis  T.   Co.,  115 

Mo.   App.   202,   91   S.   W.   993   (996). 


1312 


FORMS  OF  INSTRUCTIONS. 


[§  2031. 


make  out  a  presumptive  ease  for  the  plaintiff,  and  you  should  find 
a  verdict  for  the  plaintiff,  unless  you  further  believe  from  the  evi- 
dence that,  notwithstanding  this  presumption,  the  defendant  at  the 
time  of  the  hai3pening  of  the  injury  in  fact  had  then  fully  performed, 
or  was  then  fully  performing,  its  duty  as  defined  and  stated  in  other 
instructions  herein  towards  plaintiff  as  such  passenger,  or  that  such 
injury  to  plaintiff,  if  any,  did  not  occur  because  of  any  failure  of 
the  defendant  in  such  respect.^^ 

(b)  Defendant  is  not  required  to  prove  what  caused  the  train  to 
leave  the  tracks  or  come  to  a  standstill,  and  even  if  the  jury  cannot 
find  from  the  evidence  the  exact  cause,  or  if  such  is  unknown  and 
has  not  been  shown,  still  if,  after  considering  all  the  testimony  in 
the  case,   not   only  that   offered   by   defendant,   but    that   offered   by 


39— Logan  v.  Met.  St.  Ry.  Co., 
183    Mo.    583,    83   S.    W.    127. 

"If  there  is  anything  well  set- 
tled by  the  courts  of  this  state,  it 
is  that,  where  a  passenger  for  hire 
upon  a  train  of  cars  is  injured,  the 
fact  of  the  derailment  of  the  cars 
and  his  injury  makes  out  a  prima 
facie  case  of  defendant's  negli- 
gence, which,  unless  explained,  en- 
titles him  to  a  recovery;  and  in  or- 
der to  overcome  this  prima  facie 
case  and  right  to  recover,  it  de- 
volves upon  the  carrier  to  explain 
how  these  things  occurred,  in  some 
way  not  inconsistent  with  its  du- 
ties to  the  plaintiff  as  such  car- 
rier. In  other  words,  when  a  pas- 
senger for  hire  shows  the  derail- 
ment of  the  train  upon  which  he  is 
traveling,  and  as  a  result  thereof 
he  is  injured,  he  makes  out  a  prima 
facie  case,  and  the  burden  then 
rests  upon  the  carrier  to  explain 
how  these  things  occurred,  and  in 
a  way  not  inconsistent  with  its 
duty  to  the  plaintiff  as  a  passenger. 

In  the  case  of  Furnish  v.  Mo. 
Pac.  Ry.  Co.,  102  Mo.  438,  13  S.  W. 
1044,  22  Am.  St.  Rep.  781,  it  is  said: 
'Regarding  the  instruction  (marked 
"D")  placing  the  burden  of  proof 
upon  defendant  to  show  that  the 
injury  did  not  occur  through  any 
omission  to  discharge  its  legal 
duty  in  the  premises,  it  should  be 
remarked  that  the  same  instruc- 
tion first  required  plaintiff  to  es- 
tablish that  the  car  in  which  she 
was  a  passenger  "ran  off  the  track 
of  defendant's  railroad  and  fell 
down  the  embankment  thereof," 
and  that  she  was  thereby  injured. 
Thus  framed,  the  instruction  cor- 
rectly expressed  the  law  on  the 
subjer-t.  The  mere  injui-y  of  plain- 
tiff while  a  passenger  did  not  call 
for  explanation  or  proof  from  de- 


fendant. It  first  devolved  on  plain- 
tiff to  show  some  fact  with  ref- 
erence to  it  from  which  negligence 
on  defendant's  part  as  a  carrier 
might  be  fairly  inferred.  Here  it 
was  shown  that  the  car  ran  off 
the  track  and  over  the  embank- 
ment. The  condition  of  the  road- 
way at  that  point  warranted  the 
inference  that  the  injury  was  oc- 
casioned thereby.  In  that  state  of 
the  case,  if  the  jury  found  that 
plaintiff  had  been  injured  by  the 
derailment  of  the  car  and  her  fall 
down  the  embankment,  it  then  de- 
volved on  defendant  to  explain 
how  these  things  occurred  without 
breach  of  its  duty  to  plaintiff  as 
a  carrier.  This  is  what  the  court 
said  in  effect,  and  it  committed  no 
error  in  so  doing.  Hipsley  v.  Rail- 
road, 27  Am.  &  Eng.  R.  Cas.  287, 
88  Mo.  348;  Breen  v.  Railroad,  109 
N.  Y.  297,  16  N.  E.  60,  4  Am.  St. 
450;  Seybolt  v.  Railroad,  95  N.  Y. 
562,  47  Am.  Rep.  75.'  It  may  not  be 
entirely  in  accord  with  technical 
nicety  to  instruct  that  the  burden 
of  proof  shifts  to  defendant  in  the 
course  of  such  a  trial.  It  might 
be  more  accurate  to  say  (in  proper 
form  for  the  purposes  of  a  jury 
trial)  that  the  facts  of  the  derail- 
ment of  the  cars  and  of  plaintiff's 
injury  thereby  make  out  a  prima 
facie  case  of  defendan,t's  negli- 
gence, which,  unexplained,  would 
justify  a  recovery;  but,  in  the  or- 
dinary course  of  administering 
law,  it  has  become  usual  to  de- 
clare that  on  a  certain  showing 
by  plaintiff  in  such  cases  the  bur- 
den of  proof  then  rests  on  de- 
fendant to  prove  that  it  has  not 
been  negligent.  Olscn  v.  Citizens' 
Ry.  Co.,  152  Mo.  426,  54  S.  W.  470; 
Clark  V.  Railway  Co.,  127  Mo.  197, 
29   S.   W.   1013." 


§2031.]  NEGLIGENCE— STREET  RAILROADS.  1313 

plaintiff,  you  find  there  was  not  any  negligence  on  the  part  of  the 
defendant  of  the  character  submitted  for  your  consideration,  then 
defendant  must  have  the  verdict,  even  though  L.  was  its  passenger, 
and  received  his  injury,  if  any,  without  any  fault  upon  his  part. 

(c)  Even  though  the  plaintiff,  L.,  was  hurt  without  any  fault  upon 
his  part,  still  under  no  circumstances  can  a  verdict  be  rendered 
against  the  defendant  unless  the  jury  find  that  the  train  left  the 
track  or  came  to  a  sudden  stop  by  reason  of  the  negligence  of  de- 
fendant's agents,  servants,  or  employes.  If  the  train  by  reason  of 
an  unavoidable  casualty  or  accident  got  off  the  tracks  or  came  to  a 
sudden  standstill,  in  that  way  causing  plaintiff's  injury,  if  any,  then 
there  was  no  negligence,  and  your  verdict  must  be  for  defendant.*** 

(d)  The  court  instructs  the  jury  that  the  defendant  in  this  case 
was,  at  the  time  of  the  injuiy  complained  of,  a  can-ier  of  passengers 

for  hire  in  ,  and   as  such  it  was  bound  to  provide  reasonably 

safe  track,  roadbed,  and  roadworthy  cars,  and  careful  employes  to 
manage  the  same,  so  far  as  practicable  human  skill,  diligence,  and 
foresight  could  provide;  and  it  is  responsible  for  all  injuries  to 
passengers  resulting  from  negligence  on  the  part  of  its  agents  or 
servants.  If  therefore,  the  jury  believe  from  the  evidence  that  on 
or  about  the  —  day  of  — ,  the  plaintiff,  ,  boarded  one  of  de- 
fendant's cai-s  on  its  line  of  road,  and  paid  his  fare  to  be  trans- 
ported to  defendant's  depot  at  avenue,  in  said  ;    and  you 

further  find  that  there  is  a  descent  in  defendant's  track  or  roadbed 

from  a  point  near  street,  down  to   defendant's  depot  at  • 

avenue ;  and  you  further  find  and  believe  from  the  evidence  that 
said  train  (by  the  carelessness  and  negligence  of  defendant 's  servants, 
agents,  and  employes)  got  beyond  the  control  of  the  servants  of 
defendants,  and  ran  rapidly  down  said  descent,  and  the  car  upon 
which  the  plaintiff  was  a  passenger  left  the  track  and  was  over- 
turned, and  plaintiff  was  thereby  injured  without  fault  or  negligence 
on  his  part, — then  it  devolves  upon  defendant  to  prove  to  your  satis- 
faction that  the  accident  was  caused  by  inevitable  accident,  that 
could  not  have  been  detected  or  known  to  its  agents  or  servants  by 
the  exercise  of  the  utmost  practicable  human  skill,  diligence,  and 
foresight,  and  unless  it  is  so  shown  you  should  find  for  plaintiff. 

(e)  If  the  jury  find  and  believe  from  the  evidence  that  the  plain- 
tiff boarded  one  of  the  cars  of  defendant  in  K.  City,  to  be  carried 
by   it   as   a   passenger  from   W.    street   to   its    depot   at   U.    avenue, 

on  or  about  the  27th  day  of  ,  and  that  said  ear  and  train  was 

carelessly  and  negligently  permitted  to  rapidly  run  down  a  descent 
on  defendant's  road  with  unusual  speed  and  force,  that  the  car  was 
derailed  and  turned  over,  and  that  plaintiff  received  injuries  by  rea- 
son thereof,  without  fault  on  his  part,  then  the  burden  of  proof  is 
shifted  upon  the  defendant  to  show  to  the  satisfaction  of  the  jury  that 
the  accident  occurred  through  no  fault,  negligence,  license,  or  care- 

40 — Logan     v.     Metropolitan     St.    Ry,   Co.,   supra. 
83 


1314  FORMS  OF  INSTRUCTIONS.  [§  2032. 

lessness  of  defendant's  agents  or  servants,  and  unless  it  is  so  shown 
the  jury  should  find  a  verdict  for  plaintiff. 

(f)  By  the  utmost  practicable  human  skill,  diligence,  and  fore- 
sight used  in  these  instructions  is  meant  such  skill,  diligence,  and 
foresight  as  is  exercised  by  reasonably  cautious  persons  under  like 
circumstances. 

(g)  What  the  court  says  in  the  instructions  read  by  plaintiff's 
counsel  as  to  the  burden  being  on  defendant  does  not  mean  that  you 
are  confined  to  the  testimony  offered  by  defendant  in  determining 
whether  the  burden  has  been  established.  You  are  to  consider  all 
the  facts  and  circumstances  in  evidence,  whether  developed  in  the 
examination  of  plaintiff' 's  or  defendant's  witnesses,  and,  if  you  find 
therefrom  that  there  was  no  negligence  of  the  character  submitted, 
then  the  burden  has  been  sustained  by  the  defendant,  and  it  is  en- 
titled to  the  verdict,  even  though  you  find  that  F.  was  a  passenger, 
and  was  injured  without  fault  on  his  part. 

(h)  Defendant  is  not  required  to  prove  what  caused  the  train  to 
get  beyond  the  control  of  the  trainmen;  and  even  if  the  jury  can  not 
find  from  the  evidence  the  exact  cause,  or  if  such  cause  is  unknown 
and  has  not  been  shown,  still  if,  after  considering  all  the  testimony 
in  the  case,  not  only  that  offered  by  defendant,  but  also  that  offered 
by  plaintiff,  you  find  that  there  was  not  any  negligence  on  the  part 
of  defendant  of  the  character  submitted  to  your  consideration,  then 
the  defendant  must  have  the  verdict,  even  though  F.  was  its  passen- 
ger, and  received  his  injury  without  any  fault  upon  his  part. 

(i)     Even  though  the  plaintiff, ,  was  hurt  without  fault  on 

his  part,  still  under  no  circumstances  can  a  verdict  be  rendered 
against  the  defendant,  unless  the  jury  find  that  the  train  went  down 
the  incline  by  reason  of  the  negligence  of  defendant's  agents, 
servants,  and  employes.  If  the  car,  by  reason  of  an  unavoidable 
casualty,  got  from  the  control  of  the  gripman,  then  there  was  no 
negligence,  and  ,your  verdict  must  be  for  the  defendant. ^^ 

§  2032.  Presumptive  Liability  When  Passenger  Injured  Through 
Collision,  (a)  If  the  jury  find  from  the  evidence  in  that  case  that  the 
defendant,  on  the  day  of  was  operating  the  cars  men- 
tioned in  the  evidence  for  the  purpose  of  carrying  passengers  for 
hire  as  a  street  railway;  and  if  the  jury  further  find  from  the  evir 
denee  that  the  defendant,  by  its  servant  in  charge  of  one  of  said 
cars,  received  plaintiff  as  a  passenger  thereon  at  or  near  W. 
Station,  to  be  carried  as  such  passenger  upon  said  car  to  a  point 

on  defendant's  railroad  at  or  near  race  track  in  St.  L.,  Mo., 

and  that  the  plaintiff  paid  his  fare  as  such  passenger;  and  if  the 
jury  further  find  from  the  evidence  in  this  ease  that  whilst  the  plain- 
tiff was  such  passenger  on  said  ear,  being  so  carried  to  his  point 
of  destination  aforesaid,  and  before  he  reached  his  said  point  of 
destination,   the   car   in   which   he   was   such   passenger  was   collided 

41— The  above  six  instructions  Ry.  Co.,  162  Mo.  75,  62  S.  W.  452- 
were  upheld   in   Feary  v.   Met.   St.     460. 


§2033.]  NEGLIGENCE— STREET   RAILROADS.  1315 

with  by  another  of  defendant's  cars  going  the  opposite  direction  on 
the  same  track,  and  that  thereby  plaintiff  was  injured — ^^then  the 
defendant  is  liable  in  this  case,  if  the  defendant's  servants  in  charge 
of  its  said  ear  could  have  prevented  said  collision  by  the  exercise  of 
a  high  degree  of  care,  such  as  would  have  been  exercised  by  careful, 
skillful  road  employes  under  the  same  and  similaj*  circumstances. 

(b)  The  jury  are  instructed  that  if  the  jury  believe  from  the 
evidence  that  plaintiff  was  a  passenger  lawfully  on  board  of  the 
defendant's  street  ear  at  the  time  of  the  collision  appearing  in  evi- 
dence, and  received  injuries  therein,  then  the  burden  of  proof  is 
shifted  u2>on  the  defendant  to  show  to  the  satisfaction  of  the  jui'y 
that  said  collision  was  caused  through  no  negligence  or  carelessness 
of  defendant's  agents,  and  unless  it  is  so  shown  the  jury  should  find 
a  verdict  for  plaintiff. ■*- 

§  2033.  Injury  through  Panic  of  Passengers  Produced  by  Explosion 
on  Car.  The  court  instructs  the  jury  that  if  you  believe  and  find 
from  the  evidence  that  the  plaintiff  was  a  passenger  on  one  of  the 
defendant's  ears,  and  while  such  passenger,  as  she  was  in  the  exer- 
cise of  ordinaiy  care  for  her  own  safety,  an  explosion  occurred  on 
said  car  by  reason  of  which  a  panic  was  caused  among  the  passengers 
on  said  car,  in  consequence  of  which  the  plaintiff,  without  fault  on 
her  part,  was  pushed  from  said  car  and  thereby  injured,  then  the 
plaintiff  has  made  out  a  prima  facie  case  of  negligence  against  the 
defendant,  and  this  places  ujDon  the  defendant  the  burden  of  re- 
butting that  presumption  by  proving  that  the  explosion  could  not 
have  been  prevented  by  all  that  human  care,  vigilance  and  foresight 
could  reasonably  do  consistent  with  the  mode  of  conveyance  and  the 
practical  ojjeration  of  the  road.*^ 

§  2034.  Slowing  Down  Car  for  Passenger  to  Board — Car  Suddenly 
Started,      (a)     The   court  instructs   the  jury   that   if  they  find  from 

42 — Robinson    v.    St.    Louis    &    S.  in  allowing  the  explosion,  is  taken 

Ry.  Co.,  103  Mo.  App.  110,  77  S.  W.  from    the  jury,   and   the   mere   fact 

493    (495).  of    the    explosion    itself    is    treated 

"In  what  particular  the  above  as  sufficient  evidence  of  negli- 
instructions  are  erroneous  is  not  gence.'  Conceding  that  the  in- 
specifically  pointed  out  by  defend-  struction,  technically  considered, 
ant.  That  they  properly  declared  should  have  contained  the  element 
the  law  of  the  case  we  have  no  that  the  controller  was  in  the  con- 
doubt.  The  collision  of  the  cars  trol  of  the  appellant,  as  by  the 
running  in  opposite  directions  on  use  of  the  words,  in  the  controller 
the  same  track  was  prima  facie  of  the  car,  or  in  the  appliances  of 
evidence  of  defendant's  negligence,  the  car,  immediately  next  after  the 
When  shown,  the  burden  was  shift-  words,  'explosion  occurred  on  said 
ed  on  defendants  to  show  by  a  pre-  car,'  this  cannot  prejudice  appel- 
ponderance  of  the  evidence  that  lant,  because  it  is  an  uncontested 
the  collision  was  not  due  to  its  fact,  and  is  admitted  in  the  argu- 
fault.  Malloy  v.  Railway,  173  Mo.  ment  of  appellant's  counsel,  thev 
75,  73  S.  W.  159;  Clark  v.  Railroad  saying:  'Suddenly  th..re  was  a 
Co.,   127   Mo.    197,   29    S.   W.   1013."  flash    and    a   report    from   the    con- 

43— Chi.    U.    T.    Co,  v.   Newmiller,  troller,  on  the  front  platform  of  the 

116   App.   111.   625   (629),  aff'd  215  111.  car.'     It  is  not  error  for  the  court, 

383,   74   N.   E.    410.  in  instructing  the  jury,   to  assume 

"The    objection    urged    to    above  the  existence  of  an  uiicontroverted 

Instruction  is   that   'the  element  of  and  admitted  fact." 
the  defendant's  alleged   negligence, 


1316  FORMS  OF  INSTRUCTIONS.  [§2034. 

the  evidence  in  this  ease  that  on  the  day  of ,  the  defendant 

was  operating  the  car  mentioned  in  the  evidence  for  the  purpose 
of  carrying  passengers  for  hire;  and  if  the  jury  further  find  from 
the  evidence  that  on  said   day  the  plaintiff,  at   the   crossing  of  D, 

street  and  G.   avenue,  in  the   city  of  ,   signaled   the  motorman 

of  said  car  of  his  intention  to  become  a  passenger  on  said  ear  at 
said  place;  and  if  the  jury  further  find  from  the  evidence  that  said 
place  was  where  the  defendant  received  passengers  on  its  eastbound 
car;  and  if  the  jury  further  believe  from  the  evidence  that  defend- 
ant's said  motorman  on  said  ear,  in  obedience  to  said  signal,  slowed 
said  car  down,  approaching  and  at  said  place,  to  enable  the  plaintiff 
to  get  upon  said  ear  as  a  passenger,  and  that  the  plaintiff,  whilst 
said  car  was  so  slowed  down  for  said  purpose,  attempted  to  get  upon 
said  ear  as  a  passenger — then  it  was  the  duty  of  defendant's  motor- 
man  in  charge  of  said  car  to  use  a  high  degree  of  care,  such  as  would 
be  exercised  by  a  skillful  and  careful  motorman  under  like  circum- 
stances, to  so  control  and  manage  said  car  as  to  enable  the  plaintiff 
to  safely  get  upon  said  ear,  and  reach  a  place  of  safety  as  a  passenger, 
(b)     If  the  jury  believe  from  the  evidence  in  this  case  that  on  the 

day  of ,   the   defendant  was   opei'ating  the  ear  mentioned 

in  the  evidence  for  the  purpose  of  carrying  passengers  for  hire  from 
one  point  to  another  in  the  city  of  St.  L.  by  street  railway; 
and  if  the  jury  further  find  from  the  evidence  in  this  case  that  on 

the  day  of  ,   the  plaintiff  was  on  the  east  crossing  of  G. 

avenue  and  D.  street,  in  the  city  of  ,  intending  to  become   a 

passenger  upon  defendant's  eastbound  car  at  said  place,  and  said 
place  was  where  the  defendant  received  passengers  on  its  eastbound 
car;  and  if  the  jury  further  find  from  the  evidence  that  whilst  so 
at  said  crossing  the  plaintiff  signaled  defendant's  motorman  in  charge 
of  its  eastbound  car,  approaching  said  point,  of  his  intention  to  be- 
come a  passenger  upon  said  ear  at  said  place;  and  if  the  jury  further 
find  from  tlie  evidence  that  said  motonnan,  in  obedience  to  said  signal 
slowed  said  ear  down  as  it  approached  said  crossing  for  the  purpose 
of  receiving  the  i^laintiff  as  a  passenger  on  said  car  while  it  was  so 
slowed  down  and  moving  slowly  at  said  crossing;  and  if  you  further 
find  from  the  evidence  in  this  ease  that,  after  said  ear  was  so  slowed 
down,  it  was  so  moving  slowly  at  said  crossing,  and  while  so  moving 
slowly  the  plaintiff  stepped  upon  the  step  of  the  rear  platform  of 
said  ear  for  the  purpose  of  becoming  a  passenger  on  said  ear,  and 
that  whilst  the  plaintiff  was  so  getting  upon  said  ear,  and  before  he 
had  a  reasonable  time  or  opportunity  to  get  upon  said  car  as  a  pas- 
.sengei*,  defendant's  motorman  in  charge  of  said  car  caused  or  suf- 
fered said  car  to  suddenly  go  forward  with  increased  speed  and 
shock,  and  that  thereby  the  plaintiff  was  caused  to  be  thrown  and 
fall  from  said  car  and  sustain  injuries;  and  if  the  jury  believe  from 
[he  evidence  that  the  defendant's  motorman  so  in  charge  of  said  car, 
while  plaintiff  was  in  the  act  of  getting  on  the  car,  failed  to  exercise 
such  high  degree  of  care  as  would  be  exercised  by  a  skillful  and 


§2035.]  NEGLIGENCES-STREET   RAILROADS.  1317 

careful  motorman  under  the  same  or  similar  circumstances,  and 
thereby  directly  caused  said  movement  of  said  car,  and  plaintiff's 
injuries;  and  if  the  jury  find  from  the  evidence  that  the  plaintiff 
was  exercising  ordinary  care  at  the  time  in  so  getting  upon  said  car, 
and  whilst  on  said  car — then  the  plaintiff  is  entitled  to  recover. 

(c)  If  the  jury  find  from  the  evidence  that  the  car  was  slowed 
down  while  passing  around  the  curve  leading  from  G.  avenue  to 
D.  street  for  the  purpose  of  making  it  safe  in  getting  around 
said  curve,  and  that  such  slowing  down  was  not  done  for  the  purpose 
of  enabling  the  plaintiff  to  get  upon  the  car,  then  such  slowing  down 
of  the  car  was  not  an  invitation  to  plaintiff  to  attempt  to  get  upon 
the  same,  and  if  the  motorman  did  not  know,  and  had  no  reasonable 
cause  to  think,  that  the  plaintiff  was  attempting  to  get  on  said  car 
while  it  was  in  motion,  then  it  was  not  negligent  or  improper  in 
the  motorman  to  accelerate  the  motion  of  said  car  when  leaving  said 
curve,  and  such  facts,  if  j'ou  find  them  to  be  true  from  the  evidence, 
do  not  authorize  the  jDlaintiff  to  recover.** 

§  2035.  Burden  of  Proof  on  Plaintiff  to  Show  Slowing  Down  of 
Car  Could  Be  Construed  as  Invitation  to  Board.  The  court  instructs 
the  jury  that  the  charge  of  negligence  made  against  the  defendant 
in  the  plaintiff's  petition  is  that  the  motorman  of  defendant's  car 
slowed  down  the  said  car  to  a  stopping  point,  inducing  plaintiff  to 
believe  that  said  ear  had  stopi^ed  to  receive  him  as  a  passenger,  and 
that  while  plaintiff  was  in  the  act  of  boarding  said  ear  the  same  was 

suddenly,   and   in   violation   of   the   ordinances   of  the   city   of  , 

started,  throwing  plaintiff  to  the  ground  and  injuring  him.  With 
respect  to  the  foregoing  charge  of  negligence,  j^ou  are  instructed  that 
the  burden  is  upon  the  plaintiff  throughout  the  whole  case  of  estab- 
lishing to  your  satisfaction,  by  the  pi-eponderance  or  greater  weight 
of  testimony,  that  the  defendant's  car  did  slow  down,  either  for  the 
purpose  of  receiving  plaintiff  as  a  passenger,  or  to  so  slow  a  speed 
as  to  cause  the  plaintiff  to  believe  that  it  was  slowing  down  for  the 
purpose  of  receiving  him  as  a  passenger,  and  that  the  same  was  so 
suddenly  started  while  plaintiff  was  in  the  act  of  boarding  the  same 
as  to  cause  him  to  be  injured;  and  unless  the  plaintiff  has  so  proven 
he  is  not  entitled  to  recover,  and  your  verdict  must  be  for  defendant.*^ 

§  2036.  Negligently  Starting  Car  While  Plaintiff  Is  in  Act  of 
Boarding  It — Taking  Hold  of  Hand  Rail,  (a)  The  court  instructs 
the   jury   that   if   you   find   and   believe   from   the   evidence   that   on 

or  about  the  day  of  ,  the  defendant  was  operating  certain 

lines  of  street  railroads  in  the  city  of  St.  L.,  Mo.,  and  par- 
ticularly a  double-track  line  of  railroad  running  east  and  west  on 
M.  avenue,  past  the  intersection  of  M.  and  E.  avenues,  in 
said  city;    and  if  you  further  find   and  believe   from  the   evidence 

44 — The     above     instructions    ap-         45— Maguire  v.   St.    L.   T.    Co.,  103 
proved   in  Kikenberry  v.   St.   Louis     Mo.   App.  459,   78   S.   W.  838,  840. 
T.    Co.,  103   Mo.   App.   442,   80  S.   W. 
360    (361,    362). 


1318  FORMS  OF  INSTRUCTIONS.  [§  2036. 

that  the  plaintiff  attempted  to  board  one  of  the  defendant's  eastbound 
cars  on  M.  avenue,  at  the  intersection  of  said  M.  and  E. 
avenues,  and  on  the  east  side  of  said  E.  avenue,  and  south  side  of 
said  M.  avenue,  at  a  place  where  defendant's  cars  were  in  the 
habit  of  stopping  to  receive  passengers,  and  that  plaintiff,  at  said 
time  and  place,  had  reason  to  believe,  and  did  believe,  that  said  car 
was  stopping  for  passengers  to  board  said  car  at  said  place;  and  if 
you  further  believe  and  find  from  the  evidence  that  the  plaintiff  took 
hold  of  the  hand  rail  of  said  car  at  the  rear  end  thereof  for  the 
purpose  of  becoming  a  passenger  on  said  car;  and  if  you  find  from 
the  evidence  that  the  defendant's  servants  in  charge  of  said  ear  knew, 
or  by  the  exercise  of  ordinary  care  should  have  known,  that  plaintiff 
was  attempting  to  board  said  ear  as  a  passenger;  and  if  you  further 
believe  from  the  evidence  that  after  the  plaintiff  had  so  taken  hold 
of  the  handrail  of  said  car  at  the  rear  end  thereof  for  such  purpose 
the  said  servants  in  charge  of  said  car  suddenly  started  the  same 
before  the  plaintiff  had  a  reasonable  time  to  get  upon  said  car  and 
to  a  place  of  safety  therein,  and  that  the  injury  complained  of  was 
caused  by  the  failure  to  stop  the  car  and  by  such  sudden  starting  of 
the  car  under  such  circumstances ;  and  if  you  further  believe  from 
the  evidence  that  the  plaintiff  at  the  time  exercised  ordinary  care 
in  attempting  to  board  the  car  in  the  manner  shown  by  the  evidence — 
then  your  verdict  should  be  for  the  plaintiff.'**^ 

(b)     If  the  jury  find  from  the  evidence  that  on  the day  of 

the    plaintiff    was    standing    at    the    corner    of    E.    and    A.    avenues 

in  the  city  of  ,  intending  -to  board  one  of  the  cars  operated  by 

defendant  along  and  upon  E.  avenue;  and  if  you  further  find 
from  the  evidence  that  a  ear  of  the  defendant  stopped  at  the  corner 
of  E.  and  A.  avenues  at  the  usual  stopping  place  for  taking 
on  passengers,  and  that  while  said  car  was  so  stopped  the  plaintiff 
took  hold  of  the  hand  rail  with  the  purpose  and  intention  of  boarding 
said  car  and  become  a  passenger  thereon,  and  raised  one  foot  towards 
or  onto  the  step  of  the  platform  of  said  car,  and,  while  in  such  posi- 
tion, the  car  started  before  the  plaintiff  had  reasonable  time  to  get 
aboard,  if  you  find  that  it  did  so  start;  and  if  you  further  find  that 
in  consequence  of  such  starting  the  plaintiff  was  injured — your  ver- 
dict should  be  for  the  plaintiff'.*^ 

46 — Maguire  v.   St.   L.   T.   Co.,  103  speedily       overturned,       and       the 

Mo.  App.  459,  78  S.  W.  838  (840).  reasonable  proposition  adopted  tliat 

47 — Shanahan    v.    St.    L.    T.    Co.,  instructions    in    a   case    are    to    be 

109  Mo.  App.  228,  83  S.  W.  783  (784).  talten  as  a  whole,  and  can  be  un- 

The  court  said:  derstood  by  the  jury,  as  composed 

"Error  is  imputed  to  this  in  that  of  men  of  common  sense,  in  no 
It  authorized  a  verdict  for  plaintiff,  other  way,  and  that  a  single  in- 
ignoring  any  evidence  of  contribu-  struction  need  not  cover  the  whole 
tory  negligence,  and  without  limit-  case.  Owens  v.  Railway,  95  Mo. 
Ing  the  right  of  recovery  to  the  169,  8  S.  W.  350,  6  Am.  St.  39." 
absence  of  such  contributory  neg-  "Nor  does  this  instruction  predi- 
ligence  on  his  part.  This  fallacious  cate  a  right  of  recovery  upon  an 
doctrine  w.-is  enunciated  in  Sulli-  act  of  negligence  not  the  proxi- 
van    v.    Railroad,    88    Mo.    169,    but  mate  cause  of  the  accident,  as  af- 


§2037.]  NEGLIGENCE— STREET  RAILROADS.  1319 

§  2037.  Motorman  Must  Act  Under  Directions  of  Conductor — 
Knowledge  of  Either  Motorman  or  Conductor  That  Plaintiff  Is  Board- 
ing Car  Sufficient.  If  you  believe  from  the  evidence  that  the  plaintiff 
was  standing  upon  the  rear  platform  of  defendant's  car  for  the 
purpose  of  requesting  passage  thereon  from  the  conductor,  while  the 

same  was  stopped  and  standing  at  ,  that  said  car  was  in  charge 

of  and  being  operated  by  its  motorman  and  conductor,  and  that  in 
operating  the  same  the  motorman  had  control  of  the  power  which 
caused  its  motion,  and  so  controlled  the  stopping,  starting  and  speed 
of  the  car,  and  said  motorman  was  under  the  direction  of  the  con- 
ductor, and  was  required  to  stop  and  start  said  car  upon  signals 
from  the  conductor  by  means  of  a  bell  to  be  rung  by  the  conductor; 
that  either  of  them — the  said  conductor  or  motorman — knew,  or  by 
the  exercise  of  ordinaiy  care  would  have  known  that  plaintiff  was 
so  standing  upon  said  platform,  and  failed  to  exercise  ordinary  care 
for  the  safety  of  the  plaintiff  in  the  starting  of  said  car,  and  that 
such  failure  caused  the  said  car  to  be  started  suddenly,  and  without 
notice  or  warning  to  plaintiff,  at  a  rapid  rate  of  speed,  upon  a  curve 
in  the  track,  and  thereby  caused  the  plaintiff  to  be  thrown  from 
the  said  platform  of  the  car  and  injured,  as  the  result  of  such  failure 
in  the  exercise  of  ordinary  care — then  you  should  find  that  such  fail- 
ure constituted  negligence.** 

§  2038.    Effect  of  Failure  of  Conductor  to  See  Intending  Passenger. 

If  the  jury  believe  from  the  evidence  that  the  plaintiff  came  up  to 
the  car  from  the  rear,  and  was  not  upon  the  car,  but  was  in  a  position 
where  the  conductor,  in  the  exercise  of  ordinary  care  in  looking  for 
intending  passengers,  at  the  rear  step  of  his  car,  would  not  ordinarily 
see  plaintiff,  and  the  conductor,  in  the  exercise  of  ordinary  care  in 
looking  for  intending  passengers  at  the  rear  step,  did  look  there, 
and  in  so  looking  saw  no  intending  passenger,  and  at  once  gave  the 
signal  to  go  ahead,  and  the  car  thereupon  started,  then  there  could 
be  no  reeovei'y  in  this  ease,  and  your  verdict  will  be  for  the  de- 
fendant.^^ 

§  2039.  Effect  of  Stranger  Ringing  Bell  and  Starting  Car.  If  the 
jury  believe,  from  the  evidence,  that  some  person  not  in  the  em- 
ployment of  the  defendant  company  rang  the  bell  which  started  the 

firmed  by  appellant.  The  joint  in  view  of  the  objection,  if  the 
specifications  of  negligence  in  motorman  was  not  under  the  di- 
starting  the  car  before  the  plain-  rection  of  the  conductor,  how  the 
tiff  was  afforded  a  reasonable  op-  car  could  be  run  orderly,  and  with 
portunity  to  safely  get  on,  and  in  safety  to  passengei's?  It  is  a  mat- 
not  stopping  subsequently  to  avert  ter  of  common  knowledge  that 
the  peril  impending  in  his  jeopard-  motormen  stop  and  start  street 
ous  situation  of  being  dragged  and  cars  in  response  to  signals  given 
clinging  to  the  car,  in  themselves  by  the  conductor,  and  that  such 
are  not  inconsistent,  and  both  find  cars  could  not  be  operated  with 
abundant  support  in  the  testi-  any  degree  of  safety  in  any  other 
mony."  manner." 

48— Brock    v.    St.    L.    T.    Co.,    107  49— Gaffney    v.    St.    Paul    C.    Ry. 

Mo.    App.    109,    81    S.    W.    219    (222).  Co.,  81  Minn.  459,  84  N.  W.  304  (305). 

"It  might  be  pertinent  to  inquire, 


1320  FORMS  OF  INSTRUCTIONS.  [§  2040. 

train  at  the  time  in  question,  still  that  fact  ^vill  not  exempt  the  de- 
fendant company  from  liability  in  this  ease ;  provided  the  juiy  believe, 
from  the  evidence,  that  the  conductor  could,  by  use  of  due  care  and 
diligence,  have  countermanded  the  unauthorized  signal  for  starting 
the  train  in  time  to  have  prevented  anj^  injury  to  the  plaintifi,  if  he, 
the  conductor,  had  exercised  due  care  and  diligence  in  the  discharge 
of  his  duties ;  and  provided  the  jury  believe,  from  the  evidence,  that 
the  plaintiff  at  the  time  in  question  was  in  the  exercise  of  reasonable 
care  and  diligence  for  his  own  safety.^" 

§  2040.  Negligently  Starting  Car  While  Passenger  Is  Alighting. 
(a)  The  jury  are  instructed  that  the  law  requires  the  employes  of 
street  railways  to  do  more  than  to  stop  reasonably  long  enough 
for  passengers  to  safely  alight  from  cars.  They  are  bound  and  re- 
quired to  ascertain  and  know  that  no  passenger  is  in  the  act  of 
alighting  from  the  ear  before  putting  it  in  motion  again.  If  an 
emjDloye  fails  in  that  respect,  then  such  failure  is  imputed  to  his 
employer,  and  is  actionable  negligence  on  the  part  of  the  employer, 
and  it  is  no  excuse  for  the  em^Dloye  or  his  employer  to  show  that  the 
ear  on  the  particular  occasion  was  operated  in  the  usual  manner.^^ 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  on  or  about  the  plaintiff,  Mrs.  A.,  was  a  pas- 
senger  upon   one   of   defendant's   street    cars    running   north   on   B, 

street  in  the  city  of ,  and  had  paid  her  fare ;    and  that  said  ear 

stopped  at  B.  avenue,  or  near  that  point,  for  the  purpose  of 
permitting  said  Mrs.  A.  to  alight  therefrom,  and  that  while  she  was 
in  the  act  of  alighting  from  said  car  the  said  ear  was  without  warning 
started  forward  with  a  sudden  movement  which  caused  Mrs.  A.  to  be 
thrown  to  the  ground  and  injured,  while  she  was  exercising  ordinary 
care  on  her  part;    and  if  you  further  find  and  believe  from  the  evi- 

50 — N.  C.   St.   R.   R.   Co.  v.  Cook,  in    the   discharge   of   his    duties   he 

145   111.   551   (557),   33  N.   E.   958.  could    know,    whether    any    person 

"We  see  no  objection  to  the  in-  was  attempting  to  get  on  or  off  his 
struction.  It  was  the  duty  of  the  train  or  car  before  permitting  the 
appellant  to  stop  its  car  a  suf-  same  to  start  in  such  manner  as 
ficient  length  of  time  to  enable  ap-  would  be  likely  to  injure  a  person 
pellee  to  get  fully  and  safely  on  so  getting  on  or  off  the  same.  It 
same.  City  R.  Co.  v.  Mumford,  97  was  a  duty  appellant  owed  to  the 
111.  560;  2  Shear.  &  Red.  Neg.  sec.  public  to  be  discharged  through  its 
508;  Thompson  on  Car.  Pass.,  sec.  conductors  or  other  agents  whom 
16;  Dougherty  v.  Mo.  Pac.  Ry.,  81  it  might  select  to  afford  its  pas- 
Mo.  330,  51  Am.  Rep.  239;  C.  &  A.  sengers  time  and  opportunity  to 
R.  R.  Co.  v.  Wilson,  63  111.  167;  Chi.  board  and  depart  from  its  cars  in 
W.  D.  Ry.  Co.  v.  Mills,  105  id.  63;  safety.  The  fact,  therefore,  if  it 
C.  &  A.  R.  R.  Co.  v.  Arnot,  144  111.  be  conceded  that  the  signal  for 
261,  33  N.  E.  204,  19  L.  R.  A.  313.  starting    was    given    by    an    unau- 

Carriers  of  passengers  are  held  to  thorized   person   would   not   exempt 

the  exercise  of  the  utmost  or  high-  the   railroad   company   from   liabn- 

est   degree   of   care,   skill   and   dill-  ity   if   the   conductor  or   agents   of 

gence  for  the  safety  of  the  passen-  the  railway  company  in  chai-ge  by 

ger    that    is    consistent     with    the  the   exercise  of  due  care   and   dili- 

mode  of  conveyance  employed.  The  gence   could     have     prevented     the 

car  or  train  was  in   the  control  of  moving    of    the    car    and    thereby 

the    conductor,     and     he     was     re-  avoided   the  injury." 

quired  to  know,  if  by  the  exercise  51 — Crump  v.  Davis,  33  Ind.  App. 

of  due  care,  caution  and  diligence  88,   70   N.    E.   886,  887. 


§  2040.]  NEGLIGENCE— STREET   RAILROADS.  1321 

dence  that  said  sudden  movement  of  said  car  was  directly  produced  by 
the  defendant's  agent  or  employe  in  charge  of  the  movement  of  said 
car,  and  that  his  said  act  in  so  causing  the  said  ear  to  be  suddenly 
started,  as  aforesaid,  amounted  to  a  want  of  such  care  as  devolves 
on  a  carrier  of  passengers  (as  defined  in  another  instruction),  and 
that  as  a  direct  consequence  of  such  omission  of  such  care  by  said 
agent  of  defendant  Mrs.  A.  received  injury — then  your  verdict  should 
be  for  the  plaintiffs.^- 

(c)  If  the  jury  believe,  from  the  evidence,  that  the  defendant  con- 
trolled   and    operated,    for   the    purpose   of   carrying   passengers    for 

hire,  certain  street  cars  upon. avenue  in  the  city  of  ,  

County,  ,   and  that  the  plaintiff,  on  or  about   the  day  of 

was  a  passenger  for  hire  on  one  of  the  said  cars  of  the  de- 
fendant, and  that  the  defendant,  by  its  servant,  caused  the  said  car 
to  be  stopped  for  the  purpose  of  allowing  passengers  to  alight  there- 
from, and  the  plaintiff  was  in  the  act  of  alighting  from  said  car 
while  said  car  was  so  stopped,  and  while  in  the  act  of  alighting  from 
said  car  was  using  all  reasonable  care  and  caution  to  avoid  the 
injuiy  complained  of  in  the  declaration,  and  that  the  defendant, 
through  its  servant,  negligently  and  carelessly  caused  said  car  to  be 
set  in  motion  while  the  plaintiff  was  so  alighting  from  said  car,  and 
that  thereby  the  plaintiff  was  injured,  then  the  jury  should  find  the 
defendant  guilty.^^ 

(d)  If  you  believe  from  the  evidence  that  on  or  about  the  

day  of plaintiff  boarded  one  of  defendant's  street  cars,  and  be- 
came a  passenger  thereon,  and  that  she  attempted  to  alight  therefrom 
after  said  car  had  been  stopped,  and  if  you  further  believe  from  the 
evidence  that  while  she  was  in  the  act  of  alighting  from  said  car  the 
car  was  suddenly  put  in  motion,  without  giving  her  sufficient  time 
to  alight,  and  if  you  further  find  from  the  evidence  that  the  defendant 
was  guilty  of  negligence  in  failing  to  give  the  plaintiff  sufficient  time 

52 — Abbitt    v.    St.    L.   T.    Co.,    106  ment   that   there   was   no   evidence 

Mo.  App.  640,  81  S.  W.  484.  upon  which   the  instruction   should 

"It  seems  to  us  that  it  would  be  be    predicated    might    be    regarded 

quite    difficult,     if    not    impossible,  as   well   taken.      But,    upon   exami- 

to     embody    in     an     instruction     a  nation    of    the    record,    it    will    be 

more    accurate    expression    of    the  found  that  there  is  evidence  tend- 

law  as  applicable  to  any  given  case  ing   to  prove  ordinary  care  on  the 

than    that     embodied     in     that    of  part    of    the    plaintiff.      The    objec- 

plaintiff.      Dawson    v.    Transit    Co.,  tions    that    the    instruction   entirely 

102  Mo.  App.  277,  76  S.  W.  689;  Bat-  omits    the    question    as   to    whether 

ten    v.    Transit    Co.,    102    Mo.    App.  the    negligence    was    the   proximate 

285,    76   S.    W.    727."  cause  of  the  injury,  and  that  it  re- 

53— N.  C.  St.  R.  R.  Co.  v.  Brown,  quired     the     plaintiff     to     exercise 

178   111.    187   (188),    aff'g   76   111.    App.  reasonable    care    but    did    not    in- 

654.  52  N.   E.  864.  struct    the    jury    as    to    what    was 

The    court,    in   its    opinion,    said:  reasonable    care,    are    obviated    in 

"It  may  be  conceded  that  plaintiff  other    instructions     given    by    the 

could    not    recover    unless    she    was  court." 

in  the  exercise  of  ordinary  care  at  For     a    similar     instruction,     see 

the    time    of    the    accident,    and    if  Springfield     Ry.     Co.     v.     Hoeffner, 

there    was    no    evidence    whatever  175    III.    634,    51    N.    E.    884,    aff'g   71 

in  the  record  tending  to  show   or-  111.  App.  162. 
dinary  care  on  her  part,  the  argu- 


1322  FORMS  OF  INSTRUCTIONS.  [§  2041, 

to  alight  from  its  car,  and  in  suddenly  starting  said  car,  if  you  so 
find  the  facts  to  be,  and  that  such  negligence,  if  any,  directly  caused 
plaintiff  to  fall,  and  that  she  was  injured  thereby,  then  your  verdict 
should  be  for  the  plaintiff,  unless  you  find,  under  the  charge  herein- 
after given  you,  that  the  plaintiff  was  guilty  of  negligence  herself 
that  contributed  to  her  injury.^'* 

(e)  I  instruct  you  also,  gentlemen,  that  it  is  the  duty  of  a  railway 
company  such  as  this  to  use  the  degree  of  care  which  I  have  defined 
as  being  the  duty  of  railway  companies,  to  see  to  it  that  passengers 
intending  to  alight  have  a  reasonable  time  in  which  to  alight  and 
detach  themselves  in  safety  from  the  car  in  which  they  are  traveling. 

(f)  And  that  it  is  also  the  duty  of  such  railroad  companies,  in 
the  event  that  a  passenger  is  alighting,  or  is  in  the  act  of  alighting, 
to  use  that  same  high  degree  of  care  that  I  have  defined,  to  prevent 
injury  to  that  passenger,  in  not  starting  the  car  while  that  passenger 
is  in  a  position  of  danger,  and  when  the  employes  of  the  company 
either  know,  or  ought  to  know  by  the  exercise  of  the  same  degree  of 
care  that  the  laws  impress  upon  them,  that  the  passenger  is  in  that 
condition  of  danger  or  apparent  danger.  Any  breach  of  the  perform- 
ance of  his  duty  which  I  have  thus  more  specifically  defined  would 
be  such  negligence,  under  the  issues  in  this  case,  that  the  jury  could 
take  cognizance  of.^^ 

§  2041.  Slowing  Car  Up  and  Then  Starting  Suddenly  While  Pas- 
senger Is  in  Act  of  Alighting,  (a)  If  you  find  from  the  evidence 
that,  before  the  injuries  complained  of  were  received,  plaintiff  noti- 
fied the  conductor  of  the  train  that  she  desired  to  leave  the  same 
at  C.  street,  that  the  conductor  notified  the  gripman  of  this  fact; 
and  you  find  that,  while  crossing  C.  street,  the  defendant  let  go  the 
cable,  and  put  on  the  wheel  brake,  and  slowed  down  so  that  after 
arriving  on  the  straight  track,  north  of  the  north  line  of  C.  street, 
said  train  was  then  moving  at  a  rate  of  from  two  to  three  miles  per 
hour;  and  if  you  find  from  the  evidence  that  plaintiff  then  arose, 
and  stepped  on  the  platform,  as  if  to  descend  from  the  car,  that  the 
gripman  turned  once  or  twice  to  observe  her ;  and  if  you  further  find 
that  about  this  time,  or  before  plaintiff'  left  her  position,  the  gripman 
suddenly  let  off  the  brake,  and  permitted  the  car  to  start  with  a  sud- 

54 — San    Ant.    T.    Co.    v.    Welter,  to  plaintiff's  recovery,  is  submitted 

—  Tex.  Civ.  App.  — ,  77  S.  W.  414.  by  the  charge  for  the  jury's  deter- 

The    court   said    in    part:      "It    is  mination.     San   Ant.   &   A.    P.    Ry, 

urged  under  the  assignment,  as  an  v.    Belt,    24    Tex.    Civ.    App.    281,    59 

objection  to  the  charge,  that  it  'as-  S.   W.   610;   G.    H.   &   S.   A.   Ry.   Co. 

sumed  the  fact  to  be   that   defend-  v.  Waldo,  —  Tex.  Civ.  App.  — ,  32  S. 

ant's  car  had  stopped  when  plain-  W.    783;    and    authorities    cited.     A 

tiff  undertook  to  alight  therefrom,'  charge  should  be  taken  as  a  whole, 

when   the    existence    of    such   fact  and   when   the   part   complained   of 

was    an    issue    made    both    by    the  is   taken    and    considered    with   the 

pleadings  and  the  evidence.  We  do  fourth    paragraph,    it    is    too    clear 

not   think  the  charge   obnoxious  to  for  argument   that  it   does  not  as- 

the  objection.     In   our  opinion,   the  sume   such    fact." 
question    of   the   existence   of   such        55 — Oilmore   v.    Seattle   &   R.    Ry. 

fact,  as  well  as  all  others  essential  Co.,  29  Wash.  150,  69  Pac.  743  (745). 


§2042.]  NEGLIGENCE— STREET  RAILROADS.  1323 

den  jerk,  by  reason  whereof  plaintiff  was  violently  thrown  to  the 
ground  and  received  the  injuries  complained  of;  and,  if  you  find  that, 
at  the  time  the  plaintiff  arose  to  get  off  the  car,  she  had  reasonable 
ground  to  believe  that  the  car  was  about  to  stop,  and  that  h^r  posi- 
tion did  not  contribute  to  her  fail  and  injuries, — then  the  defendant 
would  be  liable  to  plaintiff  in  such  sum  as  the  evidence  shows  you 
she  sustained,  not  exceeding  the  amount  claimed  in  the  petition, 
unless  you  further  find  from  the  evidence  that  plaintiff  could,  by 
the  exercise  of  due  care,  have  avoided  the  consequence  of  the  negli- 
gent act  of  the  defendant,  if  you  find  it  was  so  negligent,  and  if  you 
rfind  such  to  be  the  facts. 

(b)  If  you,  gentlemen  of  the  jury,  find  from  the  testimony  in 
'this  case  that  the  plaintiff,  A.,  was  a  passenger  on  the  defendant's 
cars  at  the  time  alleged  in  the  petition,  that  the  servants  of  the 
company  in  charge  of  those  cars  knew  at  what  point  she  desired  to 
alight,  she  was  entitled  to  be  carried  by  the  defendant  company,  with 
proper  and  reasonable  care,  to  the  place  where  she  desired  to  alight, 
and  have  the  cars  stop  at  that  point  a  sufficient  length  of  time  to 
permit  her  to  alight  with  reasonable  care  and  diligence.  And  if  you 
further  find  from  the  testimony  that,  when  the  defendant's  ears 
reached  that  point,  they  had  commenced  slowing  up,  but  did  not 
stop,  but  passed  beyond  such  point,  and  then  continued  to  slow  up, 
and  while  going  very  slow,  as  if  to  immediately  stop,  the  plaintiff, 
A.,  arose  from  her  seat  and  stepped  upon  the  platform  or  guard  on 
the  side  of  the  car,  which  platform  or  guard  was  used  for  alighting 
from  the  car,  and  that  as  she  stepped  on  that  platform  or  guard, 
for  the  purpose  of  alighting  when  the  car  should  stop,  the  gripman 
propelling  the  car  saw  her,  and  moved  the  cars  suddenly  forward, 
with  a  jerk,  before  stopping  them  and  giving  A.,  the  plaintiff,  an 
opportunity  to  alight,  and  that  by  such  sudden  movement  forward 
she  was  thrown  to  the  ground  and  injured,  and  that  she  herself  was 
free  from  blame,  under  all  the  circumstances  of  the  case,  then  your 
verdict  should  be  in  favor  of  the  plaintiff.°^ 

§  2042.  Movement  of  Car  Must  Be  Attributable  to  Act  of  Men  in 
Charge.  The  jury  are  instructed  that,  if  tiiey  believe  from  the  evi- 
dence that  there  was  a  sudden  movement  of  the  car  at  the  instant  of 
time  when  the  plaintiff  was  attempting  to  get  off  from  the  car,  such 
fact  alone  does  not  show  negligence  on  the  part  of  the  railway  com- 
pany; for,  in  order  to  show  negligence  on  the  part  of  the  railway 
company,  there  must  be  some  evidence  of  a  sudden  movement  of  the 
car,  attributable  to  some  act  or  action  of  the  men  in  charge  of  the 
train,  and  that  such  act  of  negligence  on  the  part  of  the  men  in 

56 — Omaha  St.   Ry.   Co.  v.   Craig,  that   thfe   instructions  were   correct 

39   Neb.   601.   58  N.   W.  209  (213).  in    every   particular.     As    has   been 

"The    complaint    made    of    these  stated    above,    it    was    not    for    the 

instructions    is    that    they    fail    to  court    to    say    what    acts    or    omis- 

state  what  would   have  constituted  sions  of  —  rendered   her  g-uilty   of 

contributory     negligence     on     contributory  negligence.     That  was 

part.    But    we    are    of    the    opinion  for   the   jury." 


1324  FORMS   OF  INSTRUCTIONS.  [§2043. 

charge  of  the  train  cannot  be  determined  by  the  jury  from  mere 
conjecture. ^^ 

§  2043.  Conductor  Must  See  That  No  Passenger  Is  in  Act  of 
Alighting.  The  jury  are  instructed  that  it  is  the  duty  of  a  conductor 
of  a  street  ear  operated  by  electricity,  when  his  car  has  been  stopped 
for  passengers  to  alight,  to  see  and  know  that  no  passenger  is  in  the 
act  of  alighting,  or  is  otherwise  in  a  position  which  would  be  ren- 
dered perilous  by  the  motion  of  the  car,  when  he  again  puts  the  ear 
in  motion."'^ 

§  2044.    Ringing  Bell  to  Go  Ahead  While  Passenger  Is  Alighting. 

(a)  If  you  tind  in  this  ease  that  while  the  plaintiff  was  attempting 
to  alight  from  the  car  the  conductor  rang  the  bell,  and  the  car  started 
up,  and  the  accident  occurred  in  that  manner,  then  the  plaintiff  would 
be  entitled  to  recover,  because  it  would  amount  to  actionable  negli- 
gence on  the  part  of  the  conductor  to  ring  the  bell  while  the  plaintiff 
was  in  the  act  of  alighting.     There  can  be  no  question  about  that. 

(b)  If  you  believe  the  plaintiff's  theory,  and  believe  that  the  ac- 
cident occurred  by  reason  of  the  negligence  of  the  car  conductor, 
by  ringing  the  bell  while  he  was  in  the  act  of  alighting,  then  he  is 
entitled  to  recover  such  damages  as  the  evidence  shows  you  he  has 
suffered. 

(c)  If  on  the  contrary  you  believe  the  plaintiff  attempted  to  alight 
from  the  street  car  of  the  defendant  while  holding  a  large  package 
in  his  left  hand  and  before  the  car  was  brought  to  a  standstill,  and 
in  consequence  thereof  suffered  the  injury  shown,  then  the  plaintiff 
cannot  recover,  and  your  verdict  must  be  for  the  defendant,  because, 
obviously',  it  would  be  an  act  of  negligence  on  his  part  to  alight  from 
a  car  which  was  in  motion,  and  if  he  did  that  thing,  the  proximate 
cause  of  the  injury  would  be  his  own  negligence,  and  not  negligence 
on  the  part  of  the  company. ^^ 

§  2045.  Failure  of  Conductor  to  Warn  Passenger  of  Danger  Known 
to  Conductor,  but  Unknown  to  Passenger.  If  you  believe  from  the 
evideiu-e  that  the  phiintiti:  was  a  passenger  as  claimed,  and  was  about 
to  alight  at  the  time  and  place  he  claims,  and  had  not  safely  alighted, 
and  that  the  conductor  of  the  car  upon  which  plaintiff  is  claimed  to 
have  been  riding  saw  and  knew  that  plaintiff  was  exposed  to  danger 
in  alighting  from  the  car,  which  danger  plaintiff  was  ignorant  of, 
and  could  not,  in  the  exercise  of  ordinary  care,  perceive,  nevertheless 
allowed  plaintiff  to  alight  and  be  injured;  and  if  you  believe  that  in 
so  doing,  if  he  did,  the  conductor  was  guilty  of  negligence  (that  is, 
failed  in  the  exercise  of  extraordinary  diligence)  and  that  such  negli- 

57 — Omaha  St.   Ry.   Co.   v.   Craig,  "The  charge  must  be  taken  as  a 

3S   Neb.   601,    58    N.    W.    209.(215).  whole,  and  we  think  the  jury  must 

58 — Birmingham    Tiy.    &    El.    Co.  have     understood     the     charge     to 

V.    Wlldman,    119    Ala.    547,    24    So.  mean    that   it   would    be   negligence 

548   (549).  on    the    part    of    the    conductor    to 

59— Kirchner    v.    Detroit    C.    Ry.  ring    the    boll    and    start    the    car 

Co.,    91    Mich.    400,    51    N.    W.    1059  while   the  plaintiff  was  attempting 

(1060).  to    alight." 


§2046.]  NEGLIGENCE— STREET  RAILROADS.  1325 

gence,  if  there  was  such  negligence,  caused  plaintiff's  injun',  and  that 
plaintiff  could  not  by  ordinary  care  have  avoided  the  consequences 
to  himself  of  defendant's  negligence,  if  shown, — the  plaintiff  would 
be  entitled  to  recover.'''* 

§  2046.  Passenger  Alighting  Near  Parallel  Track.  If  you  believe 
from  the  evidence  that  the  phiintiff  was  a  passenger  as  claimed,  at 
the  time  and  place,  and  was  about  to  alight  as  claimed,  and  had  not 
safely  alighted  from  the  car;  and  if  you  believe  from  the  evidence 
that  it  was  dangerous,  and  that  defendant  knew  it,  or  ought  to  have 
known  it  in  the  exercise  of  extraordinary  diligence,  to  allow  a  pas- 
senger to  alight  on  the  side  of  the  car  next  a  parallel  track  and  took 
no  steps  to  prevent  it ;  and  if  you  believe  that  that  was  negligence 
(that  is  the  failure  to  exercise  extraordinary  diligence)  and  thereby 
plaintiff  was  injured  and  that  plaintiff  could  not  by  the  exercise  of 
ordinary  care  have  avoided  the  consequences  to  himself  of  defendant's 
negligence,  if  shown, — the  plaintiff  would  be  entitled  to  recover.^^ 

§  2047.    Alighting  Passenger  Struck  by  Car  Coining  from  Opposite 

Direction.     If  you  believe  from  the  evidence  that  on  or  about  , 

at  the  place  alleged  in  this  suit,  the  plaintiff  was  a  passenger  on  one 
of  the  defendant's  electric  cars,  and  that  as  the  plaintiff  was  in  the 
act  of  alighting  from  the  car,  and  just  before  he  had  safely  landed, 
another  car  of  the  defendant  approached  from  the  opposite  direction, 
running  at  a  reckless  and  unusual  rate  of  speed,  struck  and  injured 
plaintiff;  and  if  you  believe  such  running  of  said  ear  was  negligent 
(that  is  the  absence  of  extraordinary  diligence)  and  that  such  negli- 
gence, if  you  find  it  to  be  negligence,  caused  plaintiff's  injury,  and 
that  by  ordinary  care  plaintiff"  could  not  have  avoided  the  conse- 
quences to  himself  of  defendant's  negligence,  if  you  find  that  to  have 
existed  as  explained — the  plaintiff  would  be  entitled  to  recover.^- 

§  2048.  Duty  of  Motormen  on  Approaching  Cars.  If  you  believe 
from  the  evidence  that  at  the  place  alleged,  and  at  the  time  the  plain- 
tiff was  a  passenger  on  defendant's  electric  car  and  that  as  the  plain- 
tiff was  in  the  act  of  alighting  from  the  car,  and  before  he  had  safely 
landed,  the  employes  on  the  car  which  it  is  claimed  struck  plaintiff 
saw  that  the  car  on  which  plaintiff  is  claimed  to  have  been  riding 
had  stopped  to  let  a  passenger  off,  if  you  believe  they  did  see  and 
know  that  the  car  had  stopped  for  that  purpose,  or  could  in  the  exer- 
cise of  extraordinary  diligence  have  so  seen  and  known,  and  failed 
to  stop  the  car,  which  is  claimed  to  have  struck  plaintiff,  or  check 
up  and  get  same  well  under  control;  and  if  you  believe  that  in  the 
exercise  of  extraordinary  diligence  they  could  have  stopped  said  car, 
or  checked  up  and  got  the  same  well  under  control,  and  that  in  the 
exercise  of  such  diligence  they  ought  to  have  done  so,  and  their  failure 
to  do  so,  if  there  was  such  a  failure,  was  slight  negligence;  and  if 

60— Atlanta  Consol.  St.  Ry.  Co.  61— Atlanta  Cons.  St.  Ry.  Co.  v. 
V.    Bates,    103    Ga.    333,    30    S.    E.    41     Bates,    supra. 

(46).  62— Atlanta  Cons.   St.   Ry.   Co.  v. 

Bates,    supra. 


1326  FORMS  OF  INSTRUCTIONS.  [§  2049. 

you  believe  that  such  negligence,  if  you  find  it  to  have  existed,  caused 
plaintiff's  injury,  and  that  by  ordinary  care  plaintiff  could  not  have 
avoided  the  consequences  to  himself  of  defendant's  negligence,  if 
shown, — the  plaintiff  would  be  entitled  to  recover.^^ 

§  2049.    Failure  to  Check  Reckless  Rate  of  Speed  of  Approaching 

Car.  If  you  believe  from  the  evidence  that  the  plaintiff  was  a  pas- 
senger, as  claimed,  at  the  time  and  place,  and  was  about  to  alight, 
as  claimed,  and  had  not  safely  alighted  from  the  car,  and  the  of- 
ficers (motorman  and  conductor,  one  or  both)  on  the  car  which  it  is 
claimed  struck  the  plaintiff  became  aware  of  plaintiff's  danger,  if 
he  was  in  danger,  and  then  continued  to  go  forward  at  a  reckless 
rate  of  speed,  under  the  facts  and  circumstances  of  the  case;  and 
if  you  believe  that  doing  so  was  slight  neglect  towards  the  plaintiff, 
and  that  thereby  plaintiff  was  injured,  and  that  by  the  exercise  of 
ordinary  care  he  could  not  have  avoided  the  consequences  to  himself 
of  defendant's  negligence,  if  shown,  then  the  plaintiff  would  be 
entitled  to  recover.*^* 

If  you  believe  from  the  evidence  that  the  plaintiff  was  a  pas- 
senger as  claimed  at  the  time  and  place,  and  was  about  to  alight  as 
claimed;  and  had  not  safely  alighted,  and  if  you  believe  from  the 
evidence  that  the  car  which  is  claimed  to  have  run  against  the 
plaintiff,  was  not  provided  with  a  proper  brake  chain,  so  as  to  enable 
it  to  be  checked  up  with  sufficient  quickness,  and  that  therein  the 
defendant  was  guilty  of  slight  neglect  towards  the  plaintiff,  and  that 
such  negligence  caused  plaintiff's  injury,  if  injured,  and  that  by  ordi- 
nary care  plaintiff  could  not  have  avoided  the  consequences  to  him- 
self of  defendant's  negligence,  if  shown,  then  the  plaintiff  would 
be  entitled  to  recover. *^^ 

§  2050.  Passenger  Raising  Umbrella  While  Alighting.  The  plain- 
tiff contends  that  on  that  occasion  he  did  all  that  in  the  exercise  of 
ordinary  care  he  should  have  done,  and  he  claims  that  his  observation 
of  the  defendant  in  letting  off  passengers  under  similar  circumstances 
led  him  to  act  as  he  did,  and  not  to  anticipate  danger  in  getting  off 
the  car;  that  his  attention  for  the  moment  was  withdrawn  by  the 
rain,  and  in  raising  or  preparing  to  raise  his  umbrella,  and  that  in 
all  of  these  facts,  if  they  appear  from  the  evidence,  and  all  the  sur- 
rounding circumstances,  he  was  not  negligent,  but  exercised  all  the 
care  that  the  law  required  of  him — exercised  ordinaiy  care.  To 
determine  the  truth  of  this  issue,  you  will  examine  all  the  evidence 
and  facts  of  the  case  that  will  illustrate  the  question  and  find  the 
truth;  the  rule  of  law  being  the  precise  thing  which  every  prudent 
person  who  is  a  passenger  is  bound  to  do  before  stepping  from  an 
electric  street  railroad  car  in  a  city  at  a  street  crossing,  when  the 
car  had  stopped  to  let  him  off,  on  the  side  next  a  parallel  track,  as 

63— Atlanta  Cons.  St.   Ry.  Co.  v.        65— Atlanta  Cons.  St.   Ry.   Co.  v. 
Bates,    supra.  Bates,  supra. 

64— Atlanta  Cons.  St.   Ry.  Co.   v. 
Bates,  supra. 


§2051.]  NEGLIGENCE— STREET  RAILROADS.  1327 

near  the  track  on  which  the  stopped  car  is  standing  as  the  evidence 
may  show  in  the  case,  is  that  which  every  prudent  man  who  is  a 
passenger  would  do  under  like  circumstances.  If  prudent  men  who 
were  passengers  would  look  and  listen  so  must  everyone  else  who  is 
a  passenger,  or  take  the  consequences,  so  far  as  the  consequences 
might  have  been  avoided  by  that  means.^^ 

§  2051.  When  Relation  of  Passenger  and  Carrier  Ceases — Injury 
Through  Backward  Movement  After  Alighting.  The  court  instructs 
the  juiy  that,  after  the  plaintiff  alighted  in  the  street  from  the  de- 
fendant's car,  so  as  to  be  free  from  injury  by  its  forward  movement, 
the  defendant  ceased  to  owe  the  plaintiff  any  further  duty,  except  to 
use  ordinary  care  to  avoid  injuring  him;  and  if  the  jury  believe 
from  the  evidence  that  the  plaintiff  was  injured  by  a  backward  move- 
ment, or  movement  towards  the  car,  on  his  part,  caused  by  an  ap- 
proaching vehicle  in  the  street,  or  from  any  other  cause  over  which 
the  defendant  had  no  control,  and  that  by  ordinaiy  care  on  the  part 
of  the  defendant's  employes  in  charge  of  said  car  the  injury  to  the 
plaintiff  could  not  have  been  avoided  after  they  discovered,  or  could 
by  ordinary  care  on  their  part  have  discovered,  plaintiff's  peril,  and 
by  the  exercise  of  ordinary  care  could  then  have  avoided  injuring  him 
by  stopping  the  car,  the  law  is  for  the  defendant,  and  the  jury  should 
so  find.*^'^ 

§  2052.  Carrying  Passenger  Past  Destination,  (a)  The  jury  are 
further  instructed  that  any  failure  of  the  defendant  company,  if 
such  there  was,  to  stop  at  the  exact  point  where  the  company  is 
accustomed  to  stop  its  cars,  is  not  of  itself  negligence  on  the  part  of 
the  company. 

(b)  The  jury  are  further  instructed  that,  if  the  plaintiff  believed 
that  the  train  was  about  to  pass  the  place  of  her  destination  without 
stopping,  such  fact  did  not  justify  her  in  attempting  to  get  off  of  the 
car  while  it  was  still  in  motion. 

(c)  The  jury  are  further  instructed  that  under  no  circumstances 
can  the  plaintiff  recover,  unless  the  defendant,  by  its  agents  and 
servants  in  charge  of  the  train,  did  some  act,  or  was  guilty  of  some 
negligence,  which  contributed  to  the  injury.*^^ 

§  2053.  Injury  Through  Over-crowding  of  Car.  (a)  The  court 
instructs  the  jury  that  the  acts  of  negligence  charged  against  the 

66 — Atlanta  Cons.  St.  Ry.  Co.  v.  der  what  circumstances  the  duty- 
Bates,    supra.  would   cease.     It   presented   to   the 

67^Louisville   Ry.    Co.    v.    Megle-  jury    the    theory    of    the    case    on 

mery,  25  Ky.  1587,  78  S.  W.  217  (218).  which   alone   all    the    testimony   in- 

"The  above  instruction,  which  troduced  by  the  defendant  was 
was  refused  by  the  court,  states  given,  and,  on  the  whole  case,  we 
the  law  correctly,  and,  with  this  conclude  that  the  refusal  to  ^ive 
instruction  before  thorn,  the  mind  the  instruction  was  prejudicial  to 
of  the  jury  would  have  been  the  substantial  rights  of  the  de- 
brought  more  directly  to  the  issue  fendant." 

they    were   to    try.      It    defines    the  68— Omaha   St.    Ry.    Co.  v.    Craig, 

duty    owing    by    the    defendant    to  39  Neb.   601,   58  N.    W.   209   (215). 
plaintiff,  and  shows  when  and  un- 


1328 


FORMS  OF  INSTRUCTIONS. 


[§  2054. 


defendant  in  plaintiff's  declaration  are  negligence  in  permitting  its 
cars  on  -which  the  plaintiff  rode  to  be  over-crowded,  and  negligence 
in  running  its  ear  on  -which  the  plaintiff  rode  at  an  excessive  rate  of 
speed. 

(b)     The  court  instructs  the  jury  that  if  you  believe,  from  the 
preponderance  of  the  evidence  in  this  case,  that  the  plaintiff,  F.,  on 

the day  of ,  19 — ,  became  a  passenger  on  one  of  defendant's 

cars,  and  that  while  he  was  a  passenger  of  such  car,  he,  while  exer- 
cising due  care  for  his  own  safety,  was  injured  by  the  negligence  of 
the  defendant,  as  charged  in  plaintiff's  declaration  or  some  count 
thereof,  then,  in  law,  the  defendant  is  liable  for  such  injury,  and  the 
jury  should  so  find  by  their  verdict.*'^ 

§  2054.    Assaults  on  Passengers  by  Company's  Servants,     (a)     The 
court  instructs  the  jury  that  if  you  believe  from  the  evidence  that  on 

or  about  the  day  of ,  the  plaintiff  was  a  passenger  on  one 

of  defendant's  cars  running  on  F.  avenue,  in  this  city,  and  that  while 
plaintiff  was  on  said  ear  as  a  passenger,  the  conductor  in  charge  of 
said  car,  and  while  in  the  discharge  of  his  duties  as  such  conductor 
without  cause,  excuse,  or  provocation  therefor,  did  strike,  assault, 
beat  or  mistreat  plaintiff,  thereby  knocking  plaintiff  down,  and  eject- 
ing him  from  said  car,  by  reason  of  which  plaintiff  was  hurled  to  the 
pavement  on  said  street,  and  by  reason  of  which  plaintiff  sustained 
injuries  to  his  person,  then  your  verdict  should  be  for  the  plaintiff.''*' 


69— Alton  Lgt.  &  T.  Co.  v.  Oiler, 
217   111.    15   (18),    75   N.    E.   419. 

"Counsel    says    that    No.    4    (b), 
standing    by    itself,    was    not    ob- 
jectionable,  but   that  considered  in 
connection  with   No.   3a   (a)   it  was 
seriously   hurtful   to   the   appellant 
company.     Counsel  insists  tliat  in- 
struction 3a  applies  to  both  counts 
of    the    declaration,    and    does    not 
state    fully    the   essential    elements 
of  the  negligence  charged  in  either 
count;  that  the  jury  were  likely  to 
understand   from    instruction  4   (b) 
considered    in   connection    with    in- 
struction   3a    (a),    that    proof    that 
the   car  was   overcrowded,   merely, 
would  sustain  the  issue  made  un- 
der the  first  count.  Both  counts  of 
the    declaration    charged    that    the 
company   was   guilty   of   negligence 
in  cau.^ing  and   permitting   the  car 
to  be  overcrowded.  The  first  count 
charged  that  the  motion  of  the  car 
forced  the  other  passengers  against 
the  appellee  and   thus  pushed   him 
from    the    car.     The    second    count 
charged    like    negligence    in    over- 
crowding   the    car,    and    that    the 
motion  of  the  car,  the  speed  being 
rapid     and     dangerous,     threw    the 
appfllce    from    the   car.     The   over- 
crowding of   the   car   and    the   mo- 
tion or  movement  of  the  car  were 


elements  of  negligence  in  both 
counts,  and  the  manner  in  which 
the  motion  operated  to  throw  the 
appellee  from  his  place  on  the 
steps  was  stated  differently  in  the 
two  counts.  The  first  count  was 
based  upon  the  theory  that  the  ap- 
pellant company  induced  and  per- 
mitted the  car,  the  platforms  and 
the  steps  thereof  to  be  so  crowded 
with  passengers  that  the  move- 
ment or  motion  of  the  car  at  an 
ordinary  rate  of  speed  was  danger- 
ous to  passengers,  and  that  there- 
fore the  appellant  company  failed 
in  its  duty  towards  its  passengers 
by  attempting  to  run  the  car  so 
overcrowded,  in  the  same  manner 
and  the  same  speed  and  motion  as 
would  have  been  employed  had  it 
contained  no  more  passengers  than 
it  was  intended  to  accommodate 
and  convey  in  safety.  The  second 
count  chai-ged  the  same  negligence 
as  to  the  overcrowding  of  the  car, 
and  alleged  in  addition,  that  the 
company  negligently  propelled  its 
car  at  even  a  greater  than  the  or- 
dinary rate  of  speed.  Instruction 
No.  3a  (a)  therefore,  though  not 
carefully  drawn,  did  not  misdirect 
the  jury  as   to  the  issues." 

70— Sonnen    v.    St.    L.   T.   Co.,   102 
Mo.   App.   271,   76   S.   W.   691   (692). 


§2054.]  NEGLIGENCE— STREET   RAILROADS.  1329 

(b)  I  charge  you,  gentlemen  of  the  jury,  that  abusive  language 
or  opprobrious  epithets  alone  never  justify  the  commission  of  an 
assault  by  a  conductor  in  charge  of  a  train  upon  a  passenger. '^^ 

(c)  If  the  juiy  find  from  the  evidence  that,  while  the  conductor 
in  charge  of  defendant's  car,  was  in  the  orderly  discharge  of  his 
duties,  plaintiff  pi'ovoked  or  brought  on  a  difficulty  with  said  con- 
ductor, and  by  striking  or  threatening  to  strike  said  conductor,  so 
aroused  his  passions  that  he  assaulted  and  injured  said  plaintiff, 
then  and  in  that  event  the  court  declares  to  you  that  said  conductor 
alone  is  responsible  to  plaintiif  for  whatever  injuries  he  may  have 
inflicted  upon  said  plaintitf,  and  the  plaintiff  cannot  recover  in  this 
case. 

(d)  The  court  instructs  the  jury  that  while  plaintiff  was  on  de- 
fendant 's  car,  riding  as  a  passenger  thereon,  it  was  his  duty  to  deport 
himself  orderly  and  obey  all  reasonable  requests  that  might  be  made 
of  him  by  the  conductor  in  charge  of  said  car  for  the  benefit  or  con- 
venience of  other  passengers.  And  if  you  believe  from  the  evidence 
that  the  plaintiff  took  a  position  on  the  rear  platform  of  said  car, 
in  a  place  where  his  presence  would  and  did  interfere  with  other 
passengers  in  getting  on  or  off  of  said  car,  then  it  was  his  duty, 
when  requested  by  the  conductor  so  to  do,  to  remove  to  some  other 
part  of  said  car,  where  he  would  not  obstruct  the  passage  or  inter- 
fere with  passengers  getting  on  or  off  the  car,  and  if  plaintiff  refused 
when  so  requested  to  so  change  his  position  upon  said  car,  then  the 
conductor  in  charge  of  said  car  had  a  right  to  remove  the  plaintiff 
out  of  the  passageway,  and  if  in  so  doing  he  used  no  more  force  than 
was  reasonably  necessaiy  to  accomplish  such  purpose,  and  plaintiff 
because  of  such  effort  on  the  part  of  the  conductor  to  so  remove  him 
from  such  position  on  the  platform,  either  struck  or  attempted  to 
strike  the  conductor,  then  the  conductor  had  a  legal  right  to  defend 
himself  against  such  assault,  in  whatever  manner,  and  with  whatever 
means  were  apparently  necessary  to  prevent  plaintiff  from  doing  him, 
the  conductor,  bodily  harm.  And  if  the  jury  find  that  the  assault 
complained  of  by  plaintiff  occui'red  under  the  circumstances  and  in 
the  manner  above  set  forth,  then  your  verdict  must  be  for  the  de- 
fendant.'^ 

(e)  If  the  jury  find  from  the  evidence  that  the  plaintiff  intended 
to  end  his  journey  as  a  passenger  at  Sixth  street  and  W.  avenue, 
and  went  to  the  rear  platfoiTn  of  the  car  for  the  purpose  of  alighting 
and  was  given  reasonable  opportunity  to  alight  at  that  point,  but 
because  a  controversy  arose  between  the  plaintiff  and  the  conductor 
about  the  past  occurrence  of  the  conductor  refusing  a  transfer  to 
plaintiff,  and  that  the  plaintiff  remained  upon  said  car  for  the  pur- 
pose of  continuing  the  controversy,  and  that  when  the  car  reached 
S.  and  L.  streets  the  jDlaintiff  was  in  the  act  of  alighting,  and  the  con- 

71— Birmingham  Ry.   L.  &  P.   Co.         72— Sonnen   v.    St.    L.    T.    Co..    102 
V.    Mullen,    138   Ala.    614,    35   So.    701     Mo.  App.  271,  76  S.  W.  691  (692). 
(702). 

84 


1330  FORMS  OF  INSTRUCTIONS.  [§  2055. 

ductDr  put  his  hand  upon  the  plaintiff,  pushed  him  off,  and  that  there- 
upon the  plaintiff  again  got  upon  the  car,  struck  and  assaulted  the 
conductor,  then  the  conductor  had  lawful  right  to  use  such  force 
as  was  reasonably  necessaiy  in  resisting  the  plaintiff  to  prevent 
injury  to  himself;  and  if,  while  the  conductor  and  plaintiff  were 
engaged  in  their  struggle  and  scuffle,  the  motorman  came  to  the  rear 
platform,  and  the  plaintiff  struck  him  or  attempted  to  strike  him, 
then  the  motorman  had  the  lawful  right  to  use  such  force  as  was 
reasonably  necessary  to  prevent  injury  to  himself  in  resisting  the 
plaintiff;  and  if  the  jury  find  from  the  evidence  that  the  alleged  as- 
sault upon  plaintiff  occurred  substantially  under  these  circumstances, 
and  that  neither  said  conductor  nor  said  motorman  used  any  more 
force  than  was  reasonably  necessary  to  protect  themselves  against 
the  plaintiff,  then  the  plaintiff  is  not  entitled  to  recover  for  the  al- 
leged assaults  made  upon  him.'^^ 

§  2055.  Wrongful  Ejection  of  Passenger  from  Car — Presumption 
That  Natural  and  Probable  Consequences  of  Wrongful  Act  Are  In- 
tended. The  jury  are  instructed  that  the  gist  of  this  action  is  the 
alleged  wrongful  ejection  of  the  plaintiff  from  the  defendant's  car. 
He  cannot  recover  upon  proof  of  mere  negligence,  however  gross 
such  negligence.  The  cause  of  action  alleged  by  the  plaintiff  is  not 
for  negligence,  and  does  not  require  proof  of  plaintiff's  freedom  from 
negligence.  The  plaintiff's  only  right  of  recovery  under  his  complaint 
is  for  willful  injury,  if  proven.  A  willful  injuiy  is  that  which  flows 
from  an  injurious  act,  purposely  committed,  with  the  intent  to  com- 
mit injury.  In  determining  whether  the  injury,  if  any,  was  committed 
willfully,  you  may  consider,  with  other  circumstances  of  the  case, 
the  manner  of  the  conductor,  the  force,  if  any,  used  by  him,  and  the 
effects  of  his  acts,  together  with  the  presumption  that  every  person 
intends  the  natural  and  probable  consequences  of  his  wrongful  acts; 
and  an  unlawful  intent  may  be  inferred  from  the  conduct  which 
shows  a  reckless  disregard  of  consequences,  and  a  willingness  to  in- 
flict injury  by  purposely  and  voluntarily  doing  the  act,  with  knowledge 
that  some  one  is  in  a  situation  to  be  unavoidably  injured  thereby.'^* 

73— Murphy   v.    St.    L.    T.    Co.,   96  ed,    however,   that   the   use   of   the 

Mo.  App.  272,  70  S.  W.  159.  article     'the'     preceding-     the     word 

74 — Citizens'  St.  R.  Co.  v.  ■Willoe-  'conduct'  in  this  instruction,  con- 
by,  134  Ind.  563,  33  N.  E.  627  (628).  veyed  to  the  mind  of  the  jury  the 

"This  instruction,  we  'think,  idea  that  the  court  was  character- 
states  the  law  correctly.  It  puts  iziiig  the  conduct  of  the  conductor 
the  case  upon  the  theory  outlined  who  is  alleged  to  have  inflicted  the 
in  the  complaint  as  we  construe  it,  injuries  for  which  suit  is  brought 
and  nnnouuced  correct  rules  for  as  reckless,  and  in  disregard  of 
arriving  at  a  just  conclusion  on  consequences,  and  as  exhibiting  a 
this  theory.  The  rule  that  every  willingness  to  inflict  an  injury  by 
one  is  presumed  to  intend  the  na-  doing  an  act  purposely  and  vol- 
tural  and  probable  consequences  untarily,  with  a  knowledge  that 
of  his  own  wrongful  acts  is  ele-  someone  was  in  a  situation  to  be 
rnontary.  The  definition  of  a  will-  unavoidably  injured  thereby.  We 
ful  injury  Is  correct,  under  all  the  cannot  agree  with  counsel  in  this 
authorities  upon  that  subject.  Pal-  construction  of  the  language  used 
mor  v.  C.  St.  T..  &  P.  R.  Co.,  112  in  this  instruction.  It  is  plain,  we 
Ind.  250,  14  N.  E.  70.    It  is  contend-  think,   when  the  whole  instructicia 


§  2056.]  NEGLIGENCE— STREET  RAILROADS.  1331 

§  2056.     Use  of  More  Force  Than  Necessary  in  Ejectment.     The 

jury  are  instructed  that,  even  if  the  jury  believe,  from  the  evidence, 
that  the  plaintiff  did  not  pay  his  fare  or  someone  pay  it  for  him 
when  riding  on  the  defendant's  car,  and  the  conductor  of  the  said 
defendant's  car  then  in  charge  of  the  car  did  not  undertake  to  re- 
move him  in  a  peaceable  manner,  using  no  more  force  than  was  neces- 
sary, but  pushed  or  threw  him  off  the  car  while  the  car  was  in  motion, 
and  without  any  immediate  warning,  and  he  was  injured  thereby,  then 
the  defendant  is  liable  for  such  injurj-  and  damage. '^^ 

§  2057.  Posted  Warnings  in  Cars.  The  court  instructs  the  jury 
that  the  fact  that  no  notices  were  posted  in  the  cars  warning  pas- 
sengers to  keep  off  the  inner  footboard  was  not  of  itself  such  neg- 
ligence as  authorizes  the  plaintiff  to  recover  in  this  action."*' 

§  2058.  Separation  of  White  and  Colored  Passengers — Series, 
(a)  If  you  believe  from  the  evidence  that  the  conductor  used  no 
more  force  than  was  reasonably  necessary  to  enforce  in  a  proper  man- 
ner a  rule  requiring  colored  passengers  to  sit  in  the  front  part  of  the 
car,  then  I  charge  you  that  your  verdict  must  be  for  the  defendant. 

(b)  If  you  believe  from  the  evidence  that,  at  the  time  plaintiff 
claims  she  was  ejected  from  the  car,  the  defendant  had  in  force  on 
its  railroad  a  rule  requiring  colored  passengers  to  sit  in  the  front 
part  of  the  car,  and  white  passengers  to  sit  in  the  rear  part  of  the 
ear,  and  if  j'ou  further  believe  from  the  evidence  that  the  conductor 
used  no  more  force  than  was  reasonably  necessary  to  enforce  such 
rule  in  a  proper  manner,  you  must  find  for  the  defendant. 

(c)  If  you  believe  from  the  evidence  that  the  conductor  requested 
the  plaintiff  to  take  a  seat  in  the  forward  end  of  the  car;  that  she 
refused  to  comjDly  with  the  request ;  that  she  could  have  found  in  the 
forward  end  of  the  car  a  vacant  seat;  that  at  the  time  there  was  a 
rule  in  force  requiring  colored  passengers  to  sit  in  the  forward  end 
of  the  car;  that  the  conductor  used  no  more  force  than  was  necessary 
to  reasonably  enforce  such  rule  in  a  reasonable  and  proper  manner, — 
you  must  find  for  the  defendant. 

(d)  The  court  charges  the  juiy  that  the  defendant  was  not  re- 
is  taken  together  that  the  court  show  misconduct  on  his  part.  Other 
was  announcing  to  the  jury  a  gen-  instructions  told  the  jury  that  the 
era!  proposition  of  law,  leaving  conductor  would  be  justified  in 
them  to  determine  from  the  evi-  putting  appellee  off  the  car  for  us- 
dence  in  this  case  whether  such  ing  vulgar  and  indecent  language 
principle  was  applicable  to  the  con-  in  a  voice  loud  enough  to  annoy 
duct  of  the  conductor  who  is  al-  or  disturb  other  passengers.  While 
leged  to  have  inflicted  the  injury  this  would  be  true,  the  law  would 
of  which  the  appellee  is  making  not  justify  unreasonable  or  exces- 
complaint."  sive   force,   or   permit   his   removal 

75 — Chicago  C.  Ry.  Co.  v.  Pelle-  from  the  car  at  a  place  or  under 
tier,  134  111.  120  (123),  24  N.  E.  770.       circumstances     dangerous     to     his 

"The  instruction  was  not  directed  life  or  liimb.  The  instruction  com- 
to  the  right  to  eject  appellee,  but  plained  of  went  only  to  that  branch 
to  the  manner  of  doing  it,  and  it  of  the  case,  and  correctly  stated 
could  not  have  been  understood  as     the  law." 

excluding  from   the  jury  a   consid-         76 — Allen  v.  St.  L.  T.  Co.,  183  Mo. 
eration  of  the  testimony  tending  to     411,  81   S.   W.  1143  (1148). 


1332  FORMS  OF  INSTRUCTIONS.  [§  2058. 

quired  to  keep  and  maintain  separate  compartments  or  ears  for  its 
white  and  colored  passengers. 

(e)  If  you  believe  from  the  evidence  that  the  motorman  did  not 
aid  or  assist  in  the  ejection  of  the  plaintiff,  you  must  find  for  the 
defendant. 

(f)  I  charge  you,  gentlemen  of  the  jury,  that  under  the  law  the 
defendant  "was  not  required  to  provide  a  separate  car  for  the  colored 
race  on  its  E.  railroad;  nor  was  the  defendant,  under  the  law,  re- 
quired to  divide  its  cars  on  such  railroad  by  partitions,  so  as  to  se- 
cure for  the  races  separate  accommodations. 

(g)  If  you  believe  from  the  evidence  that  on  and  before  the 

day  of ,  there  was  in  force  on  the  defendant's  E.  railroad  a  rule 

requiring  colored  passengers  to  sit  in  the  front  part  of  the  car,  and 
for  white  passengers  to  sit  in  the  rear  part  of  the  car;  that  the 
conductor  requested  the  plaintiff  to  take  a  seat  in  the  front  end  of 
the  car,  and  that  the  jDlaintiff  refused  to  take  a  seat  in  the  front  end 
of  the  car  when  so  requested,  and  there  was  room  for  her  to  take  a 
seat  in  the  front  part  of  the  car;  that  no  more  force  was  used  than 
was  necessary  to  have  her  comply  with  such  rule, — then  I  charge 
you  that  you  must  find  for  the  defendant. 

(h)     If  you  believe  from  the  evidence  that  on  and  before  the  

day  of  ,  there  was  a  rule  in  force  on  the  defendant's  railroad 

requiring  colored  passengers  to  sit  in  the  front  part  of  the  car,  and 
for  white  passengers  to  sit  in  the  rear  part  of  the  ear,  I  charge  you 
that  such  rule  was  reasonable. 

(i)  I  charge  you,  gentlemen  of  the  jury,  that  if,  under  the  evi- 
dence in  this  case,  if  you  believe  it,  you  should  find  that  there  was 
in  force,  at  the  time  plaintiff  claims  to  have  been  injured,  a  rule  on 
the  defendant's  line  of  street  railroad  requiring  negro  passengers  to 
ride  in  the  front  end  of  the  ear,  and  white  passengers  to  ride  in  the 
rear  end  of  the  car,  such  rule  is  reasonable,  and  you  are  not  author- 
ized from  the  evidence  to  find  that  it  was  the  duty  of  the  defendant 
to  put  in  its  car  a  partition  to  separate  negro  and  white  passengers, 
instead  of  such  reasonable  rule.'^^ 

77 — Bowie  v.   Birmingham  Ry.   &  car  of   the   defendant   at   Pliiladel- 

Elec.   Co.,  125  Ala.   397,   27   So.  1016,  phla  to   go  to   Oxford,   and  toolc  a 

82  Am.   St.   247,  50  L.   R.  A.   632.  seat  at   or  near   the   middle   of   it. 

"The  que.stion  here  presented  was  A    rule    of    the    road    required    the 

ably   considered   in   an   opinion   de-  conductor  to  make  colored  persons 

livered    by   Justice    Agnew,    of   the  sit  at  one  end  of  the  car.     He  got 

supreme  court  of  Penn.  in  the  case  a  seat  for  her  at  the  place  fixed  by 

of   R.   Co.  v.   Miles,   55  Pa.   St.   209,  the  rule,  and  asked  her  to  take  it. 

from  which  we  quote  at  length,  as  She    declined,    positively    and    per- 

the  reasons  he  gave  for  sustaining  sistently   to    do    it.     The   conductor 

the    reasonableness    of    the    regula-  told  her  of  the  rule,  requesting  her 

lion  are  .so  forcibly  .stated,  and  the  to  take  the  other  seat,  warned  her 

status  of  the  two  races  with  refer-  that  he  must  require  her  to  leave 

cnce    to    each    other    as    stated    by  the  cars  if  she  refused,  and  at  last 

hhn    to    exist    in    Pennsylvania    in  put    her   out.     The   simple   question 

1S67    is    the    status    of    the    two    in  is  whether  a  public  carrier  may,  in 

Alabama  today.     The  facts  of  that  the  exercise  of  his  private  right  of 

cane    were     these:       M.,     a    colored  property,  and  in    the   due  perform- 

woman  (the  plaintiff),  got  into  the  ance   of   his   public   duty,    separate 


2059. 


NEGLIGENCE— STREET   RAILROADS. 


1333 


§  2059.  Regulations  as  to  Transfers,  (a)  The  court  instructs  the 
jury  that  the  regukition  of  the  defendant  company  that  persons  trans- 
ferred from  one  car  to  another  can  ride  upon  the  second  car  without 
paying  fare  only  upon  the  production  of  a  transfer  check  from  the 
conductor  of  the  first  car  is  a  reasonable,  valid,  and  binding  regula- 


passengers  by  any  other  well-de- 
lined  characteristic  than  that  of 
sex.  The  ladies'  car  is  known  upon 
every  well-regulated  railroad,  im- 
plies no  loiss  of  equal  right  on  the 
part  of  the  excluded  sex,  and  its 
propriety  is  doubted  by  none.  This 
question  must  be  decided  upon 
reasonable  grounds.  If  there  be  no 
clear  and  reasonable  difference  to 
base  it  upon,  separation  cannot  be 
justified  by  mere  prejudice.  Nor 
is  merit  a  test.  The  negro  may  be 
proud  of  his  service  in  the  field  as 
a  defender  of  his  country.  But  it 
is  not  thought  indefensible  to  sep- 
arate even  white  soldiers  from 
other  passengers.  There  was  a 
clear  and  well-founded  difference 
between  the  civil  and  military 
character,  and  the  separation  of 
soldiers  from  citizens  implied  no 
want  of  equality,  but  a  sound  regu- 
lation of  the  right  of  transit.  The 
right  of  the  carrier  to  separate  his 
passengers  is  founded  upon  two 
grounds — his  right  of  private  prop- 
erty in  the  means  of  conveyance, 
and  the  public  interest.  The  priv- 
ate means  he  uses  belong  wholly 
to  himself,  and  imply  the  right  of 
control  for  the  protection  of  his 
own  interest,  as  well  as  the  per- 
formance of  his  public  duty.  He 
may  use  his  property,  therefore,  in 
a  reasonable  inanner.  It  is  not  an 
unreasonable  regulation  to  seat 
passengers  so  as  to  preserve  or- 
der and  decorum,  and  to  prevent 
contacts  and  collisions  arising  from 
natural  or  well  known  customary 
repugnancies,  which  are  likely  to 
breed  disturbances  by  a  promiscu- 
ous sitting.  This  is  a  proper  use 
of  the  right  of  private  property, 
because  it  tends  to  protect  the  in- 
terest of  the  carrier  as  well  as  the 
interests  of  those  he  carries.  If  the 
ground  of  regulation  be  reasonable, 
courts  of  justice  cannot  interfere 
with  his  right  of  property.  The 
right  of  the  passenger  is  only  that 
of  being  carried  safely,  and  with  a 
due  regard  to  his  personal  com- 
fort and  convenience,  which  are 
promoted  by  a  sound  and  well- 
regulated  separation  of  passengers. 
An  analogy  and  illustration  are 
found  in  the  case  of  au  iim-keeper, 
who,  if  he  have  room,  is  bound  to 


entertain  proper  guests;   and   so  a 
carrier    is    bound    to    receive    pas- 
sengers.     But    a    guest    in    an    inn 
cannot  select   his    room   or   his   bed 
at    pleasure;    nor    can    a    voyager 
take    possession    of  a    cabin    or    a 
berth  at  will,  or  refuse  to  obey  the 
reasonable    orders    of    the    captain 
of  a  vessel.  But,  on  the  other  hand, 
who    would     maintain     that     it     is 
reasonable  regulation,   either  of  an 
inn  or  a  vessel,  to  compel  the  pas- 
sengers,  black  and  white,   to  room 
and   bed    together?     If   a   right   of 
private    property    confers    no    right 
of  control,  who  shall  decide  a  con- 
test  between    passengers    for   seats 
or  berths?     Courts  of  justice  may 
interpose  to  compel  those  who  per- 
form    a     business     concerning     the 
public,     by     the     use     of     private 
means,   to  fulfill  their  duty   to   the 
public,  but  not  a  whit  beyond.  The 
public   also   has  an   interest   in    the 
proper    regulation    of    conveyances 
for   the  preservation  of   the   public 
peace.      A  railroad    company    has 
the   right,   and    is   bound,    to   make 
reasonable   regulations   to   preserve 
order   in   its   cars.      It    is   thfe    duty 
of    the    conductor    to    repress    tu- 
mults as  far  as  he  reasonably  can, 
and   he  may,   on  extraordinary  oc- 
casions,   stop    his    train    and    eject 
the    unruly    and    tumultuous.      He 
cannot   interfere    in    the   quarrel   of 
others  at  will,  merely.     In  order  to 
preserve  and  enforce  his  authority 
as  the  servant  of  the  company,  he 
must   have    a    power    to    establish 
proper  regulations  for  the  carriage 
of  passengers.    It  is  much  easier  to 
prevent    difficulties   among   passen- 
gers by  regulations  for  their  sepa- 
ration,   than    it    is    to    quell    them. 
The  danger  of  breach  of  the  peace 
engendeied      by      the      feeling      of 
aversion     between     individuals     of 
the    different    races   cannot    be    de- 
nied.    It  is  the  fact  with  which  the 
company   must  deal.     These   views 
are    sustained    by    high    authority. 
Judge    Story,    in   his   Law   of  Bail- 
ments,   stating    the    duty    of    pas- 
sengers 'to  submit  to  such  reason- 
able regulations  as  the  proprietors 
may  adopt  for  the  convenience  and 
comfort    of    the    other    passengers, 
as  well  as  for  their  own  proper  in- 
terests,'   says,    'The   importance   of 


1334 


FORMS  OP  INSTRUCTIONS. 


[§  2059. 


ticn;  and  if  the  plaintiff  knew  of  it,  and  transferred  from  one  car  to 
another  without  asking  the  conductor  for  a  transfer  cheek,  and  with- 
out his  telling  her  none  was  necessary,  she  cannot  recover. 

(b)     The  court  instructs  the  jury  that  if,  by  the  custom  or  regula- 
tion of  the  defendant  company,  passengers  paying  on  one  car  could 


the  doctrine  is  felt  more  strikingly 
in  cases  of  steam  boats  and 
railroad  cars.'  Story,  Bailm.  sec. 
591a.  See  also,  Id.  sec.  476a;  Angell 
Carr.  sec.  528;  1  Am.  Ry.  Cas.  393, 
394.  The  right  to  separate  being 
clear  in  proper  cases,  and  it  being 
the  subject  of  sound  regulation,  the 
question  remaining  to  be  consider- 
ed is  whether  tliere  is  such  a 
difference  between  the  white  and 
black  races  within  this  state,  re- 
sulting from  nature,  law,  and  cus- 
tom, as  makes  it  a  reasonable 
ground  of  separation.  The  ques- 
tion is  one  of  difference,  not  of 
superiority  or  inferiority.  Why  the 
Creator  made  one  black  and  the 
other  white,  we  know  not;  but  the 
fact  is  apparent,  and  the  races  dis- 
tinct, each  producing  its  own  kind, 
and  following  the  peculiar  law  of  its 
constitution.  Conceding  equality, 
with  natures  as  perfect  and  rights 
as  sacred,  yet  God  has  made  them 
dissimiliar,  with  those  natural  in- 
stincts and  feelings  which  He  al- 
ways imparts  to  His  creatures 
when  He  intends  that  he  shall  not 
overs'tep  the  natural  boundaries  He 
has  assigned  to  them.  The  natural 
law  which  forbids  their  inter-mar- 
riage, and  that  social  amalgamation 
which  leads  to  a  corruption  of 
races,  is  as  clearly  divine  as  that 
which  imparted  to  them  different 
natures.  The  tendency  of  inthnate 
social  intermixture  is  to  amalga- 
mation, contrary  to  the  law  of 
races.  The  separation  of  the  white 
and  black  races  upon  the  surface 
of  the  globe  is  a  fact  equally  ap- 
parent. Why  this  is  so,*  is  not 
necessary  to  speculate,  but  the  fact 
of  a  distribution  of  men  by  race 
and  color  is  as  visible  in  the  provi- 
dential arrangement  of  the  earth 
as  that  of  heat  and  cold.  The  nat- 
ural separation  of  the  races  is 
therefore  an  undeniable  fact,  and 
all  social  organizations  which  lead 
to  their  amalgamation  are  repug- 
nrint  to  the  law  of  nature.  From 
social  amalgamation  it  is  but  a  step 
to  illicit  intercourse,  and  but  an- 
other to  intermarriage.  But  to  as- 
sert separnteness  is  not  to  declare 
Jii''nriority  in  either.  It  is  not  to 
df'olare  one  a  slave  and  the  other 
a  freeman.    That  would  be  to  draw 


the  illogical  sequence  of  inferiority 
from  difference  only.  It  is  simply 
to  say  that,  following  the  order  of 
Divine  Providence,  human  author- 
ity ought  not  to  compel  these 
widely  separated  races  to  intermix. 
The  right  of  such  to  be  free  from 
social  contact  is  as  clear  to  be  free 
from  intermarriage.  The  former 
may  be  less  repulsive  as  a  condi- 
tion, but  not  less  entitled  to  pro- 
tection as  a  right.  When,  there- 
fore, we  declare  a  right  to  main- 
tain separate  relations  as  far  as  is 
reasonably  practicable,  but  in  a 
spirit  of  kindness  and  charity,  and 
with  due  regard  to  equality  of 
rights,  it  is  not  prejudice,  nor  caste, 
nor  injustice  of  any  kind,  but 
simply  to  suffer  men  to  follow  the 
law  of  races  established  by  the 
Creator  himself,  and  not  to  com- 
pel them  to  intermix  contrary  to 
their  instincts.  Never  has  there 
been  an  intermixture  of  the  two 
races,  socially,  religiously,  civilly, 
or  politically.  By  uninterrupted 
usage  the  blacks  live  apart,  visit 
and  entertain  among  themselves, 
occupy  separate  places  of  public 
worship  and  amusement,  and  fill  no 
civil  or  political  stations;  not  even 
sitting  to  decide  their  own  causes. 
In  fact,  there  is  not  an  institution 
of  the  state  in  which  they  have 
mingled  indiscriminately  with  the 
whites.  Even  the  common-school 
law  provides  for  separate  schools 
when  their  numbers  are  adequate. 
In  the  military  service,  also,  they 
were  not  intermixed  with  the 
white  soldiers,  but  were  separated 
into  companies  and  regiments  of 
color;  and  this  is  not  by  way  of 
disparagement,  but  from  motives 
of  wisdom  and  prudence,  to  avoid 
the  antagonisms  of  variant  and 
immiscible  races.  Law  and  cus- 
tom having  sanctioned  a  separation 
of  races,  it  is  not  the  province  of 
the  judiciary  to  legislate  it  away. 
We  cannot  say  there  was  no  dif- 
ference in  fact,  when  the  law  and 
the  voice  of  the  people  had  said 
there  was.  The  laws  of  the  state 
are  found  in  its  constitution,  stat- 
utes, institutions,  and  gcmeral  cus- 
toms. It  is  to  these  sources  judges 
must  resort  to  discover  them.  If 
they    abandon    these     guides,     they 


§  2059.] 


NEGLIGENCE— STREET   RAILROADS. 


133e 


ride  on  another  one  by  presenting  upon  the  second  car  a  transfer 
check  procured  from  the  first,  and  the  plaintiff  failed  to  procure  such 
transfer  check  and  present  it  on  the  ear  to  which  she  transferred 
then  she  was  not  entitled  to  ride  on  the  car  to  which  she  transferred 
without  the  payment  of  fare.     The  conductor  was  not  authorized  to 


pronounce  their  own  opinions,  not 
the  laws  of  those  whose  officers 
they  are.  Following  these  guides, 
we  are  compelled  to  declare  that 
at  the  time  of  the  alleged  injury 
there  was  that  natural,  legal,  and 
customary  difference  between  the 
white  and  black  races  in  this  state 
which  made  their  separation  as 
passengers  in  a  public  conveyance 
the  subject  of  a  sound  regulation 
to  secure  order,  promote  comfort, 
preserve  the  peace,  and  maintain 
the  rights  both  of  carriers  and 
passengers.' 

"In  Hall  V.   DeCuir,  95  U.  S.  485, 
24  L.  Ed.  547,  which  was  a  suit  by  a 
negro  woman  against  the  owner  of 
a    steamboat    for    refusing   her   ac- 
commodations,   on    account    of   her 
color.  In     the    cabin    specially    set 
apart  for  white  persons,   the  court 
after    citing    approvingly    the    case 
above   quoted   from,   said:     'Where 
the     passenger     embarks      without 
making    any    special    contract,    and 
without  knowledge  as  to  what  ac- 
commodations   will     be     afforded, 
the   law    implies    a   contract    which 
obliges     the      carrier     to     furnish 
suitable     accommodations    '.accord- 
ing   to    the    room    at    his    disposal; 
but   the   passenger  in   such    a   case 
is   not   entitled    to    any    particular 
apartments  of  special  accommoda- 
tions. Substantial      equality      of 
right   is  the   law   of  the  state  and 
of  the  United   States;  but  equality 
does  not   mean  identity;  as,   in  the 
nature  of  things,  identity  is  the  ac- 
commodation   afforded    to    passen- 
gers,  whether   colored   or  white,   is 
impossible,    unless    our   commercial 
marine     shall     undergo     an     entire 
change.  Adult  male  passengers  are 
never    allowed    a     passage     In    the 
ladies'    cabin;    nor    can    all    be    ac- 
commodated,   if     the     company     is 
large,    in    the    state    rooms.      Pas- 
sengers are  entitled  to  proper  diet 
and    lodging,    but    the    laws    of    the 
United    States    do    not    require    the 
master  of  a  steamer  to  put  persons 
in  the  same  apartment  who  would 
be  repulsive  or  disagreeable  to  each 
other.        Steamers     carrying      pas- 
sengers as  a  material  part  of  their 
employment    are    common   carriers, 
and  as   such  enjoy  the  rights  and 


are  subject  to  the  duties  and  obli- 
gations of  such  carriers;  but  there 
was  and  is  not  any  law  of  congress 
which  forbids  such  a  carrier  from 
providing  separate  apartments  for 
his  passengers.  What  the  passenger 
has  a  right  to  require  is  such  ac- 
commodation as  he  has  contracted 
for,  or,  in  the  absence  of  any 
special  contract,  such  suitable  ac- 
commodations as  the  room  and 
means  at  the  disposal  of  the  car- 
rier enable  Jiim  to  supply;  and.  in 
locating  his  passengers  in  apart- 
ments and  at  their  meals,  it  is  not 
only  the  right  of  the  master,  but 
his  duty,  to  exercise  such  reason- 
able discretion  and  control  as  will 
promote,  as  far  as  practicable,  the 
comfort  and  convenience  of  his 
whole    company.' 

"Booth,  St.  Ry.  Law,  Sec.  325, 
says:  'The  doctrine  that,  in  the 
absence  of  statutory  inhibition,  a 
common  carrier  may  lawfully  make 
color  a  basis  of  classification,  but 
require  its  white  and  colored  pas- 
sengers to.  occupy  separate  cars 
or  different  parts  of  the  same  car 
when  like  accommodations  are  pro- 
vided, has  received  the  support  of 
many  of  the  courts,  both  state  and 
federal,  and  is  the  rule  which  has 
been  followed  in  the  greater  num- 
ber of  decisions  heretofore  ren- 
dered.' See.  also,  cases  cited  bv 
Booth.  St.  Ry.  Law,  note  3,  p.  443, 
and  note  1,  p.  444;  Plessy  v.  Fergu- 
son, 163  U.  S.  537,  16  Sup.  Ct.  1138. 
41  L.  Ed.  256. 

"The  other  question  presented  is 
whether  the  reasonableness  of  the 
rule  is  a  mixed  question  of  law 
ind  fact,  or  purely  a  question  of 
law  for  the  court.  The  principle 
upon  which  the  reasonableness  of 
the  rule  is  sustained  in  this  case 
is  that  the  carrier's  right  of  prop- 
erty in  the  means  of  the  convey- 
ance and  the  public  interest  is  best 
subserved  by  a  separation  of  negro 
and  white  passengers;  that  their 
separation  tends  to  secure  order, 
promote  comfort,  preserv'e  the 
peace,  and  maintain  the  rights  of 
both  carrier  and  passengers. 
When  the  rule  is  established  by 
the  evidence,  and  its  violation 
shown  by  a  passenger,  undisputed- 


1336  FORMS  OF  INSTRUCTIONS.  [§  2060- 

allow  her  to  ride  on  his  car  without  the  payment  of  fare  or  the  pre- 
sentation of  such  transfer  cheekJ® 

§  2060.  Giving  Wrong  Transfer,  (a)  The  court  instructs  the  jury 
that  if  you  believe  from  the  evidence  that  the  agents  of  the  defend- 
ant made  a  mistake  in  giving  to  the  plaintiff  a  transfer  ticket  and  in- 
stead of  giving  him  a  P.  Avenue  transfer  gave  him  an  S.  Street  trans- 
fer, the  plaintiff  is  entitled  to  recover,  and  in  assessing  the  damages 
the  plaintiff  is  entitled  to  have  reasonable  damages  compensatory  for 
the  treatment  which  he  received.  The  defendant  company  was  bound 
to  see  to  it  that  the  plaintiff  was  provided  with  a  proper  transfer,  and 
if  a  mistake  was  made  the  responsibility  therefor  rested  upon  the 
company  and  not  upon  the  plaintiff. 

(b)  And  the  court  further  instructs  the  jury  that  if,  upon  the 
■other  hand,  they  believe  that  the  conduct  of  the  agents  of  the  com- 
pany was  wanton  and  malicious,  and  that  they  purposely  gave  him 
the  wrong  transfer,  and  that  they  maliciously  and  wantonly  ejected 
him  from  the  ear  because  of  personal  dislike  or  animosity,  then  the 
plaintiff  is  entitled  to  recover,  and  in  assessing  damages,  in  that  view 
of  the  case,  the  plaintiff  is  entitled  to  recover  not  only  compensatory 
but  vindictive  damages.'^^ 

§  2061.  Same  Subject — Entering  Car  Without  Transfer — Negli- 
gence of  First  Conductor.  The  jury  are  instructed  that  if  you  believe 
from  the  evidence  that  it  was  the  rule  or  custom  of  the  company  to 
require  a  transfer  ticket  at  the  point  at  which  plaintiff  made  the 
change,  but  if  you  should  further  find  that  her  entering  the  car  with- 
out procuring  a  transfer  ticket  was  the  result  of  the  negligent  conduct 
of  the  conductor  of  the  first  car,  and  that  the  plaintiff,  as  a  reasonably 
prudent  person,  had  a  right,  under  the  circumstances,  to  assume  from 
the  conduct  and  statements  of  the  first  conductor  that  she  would  be 
carried  on  W. '  M.  without  such  transfer  ticket  or  further  payment 
of  fare,  then  she  was  entitled  to  be  carried  by  the  second  car  without 
further  payment  of  fare.^° 

§  2062.  Contributory  Negligence  of  Passengers — In  G-eneral.  (a) 
The  court  instructs  the  jury  that  the  plaintiff'  was  bound  to  use  rea- 
sonable care  on  her  part  to  avoid  injury,  to  which  defendant's  negli- 
gence, if  any,  may  have  exposed  her.    Reasonable  care  may  be  defined 

ly,  it  is  a  question  of  law  for  tlie  writing-;    leaving    for   consideration 

court.    It  is  of  no  consequence  that  by   the  jury,   as   it   did,   the  single 

the    defendant    company    operated  question     whether     the     conductor 

other  lines,  and  no  such  regulation  used    more   force    than   was   neces- 

is  enforced  by  it  upon  them.     The  sary    in   enforcing   the   rule,   under 

fact   that   it   does   not   exercise   fhe  the  circumstances." 

right  to  establish  and  enforce  such  78— Little  Rock  T.   &  E.   Ry.   Co. 

a    regulation    upon    its    other   lines  v.    Trainer,    68   Ark.    106,   56    S.    W. 

affords   no   reason   for  saying   that  789  (790). 

the   regulation  established   and  en-  79— Carpenter  v.  Washington  &  G. 

forced    in    this    case    is    unreason-  R.   Co.,  121  U.   S.  474  (476),  7  S.   Ct. 

able,   or   that  the  company  has  no  1002. 

right   to   establish   such   a   rule.  80— Little    Rock    T.    &    Elec.    Ry. 

"On    this   phase    of    the    case    the  Co.    v.    Trainer,    68    Ark.    106,    56    S. 

court    could     have     instructed     the  W.  789  (790). 
Jury   afJirmatively,   if   requested   in 


§2062.]  NEGLIGENCE— STREET   RAILROADS.  1337 

to  be  that  degree  of  care  which  a  prudent  person  would  have  exer- 
cised under  the  circumstances  in  which  the  plaintiff  found  herself  at 
that  time.  By  this  test,  was  the  plaintiff  free  from  negligence?  Might 
she,  situated  as  she  was,  by  the  exercise  of  ordinary  prudence,  have 
avoided  injury  to  herself,  notwithstanding  the  negligent  conduct  of 
the  defendant?  If  so,  she  cannot  recover,  if  she  failed  to  exercise 
such  care.  In  considering  this  question,  all  the  evidence  bearing 
upon  the  points  indicated  in  the  foregoing  instruction  as  to  defend- 
ant's negligence  is  proper  to  be  considered  also.  If,  in  the  light  of 
all  of  these  circumstances  in  evidence,  a  reasonably  prudent  person, 
exercising  her  faculties  of  sight  and  hearing,  would  have  seen  or 
heard  and  avoided  the  danger,  or  if  the  danger  was  apparent  and 
easily  avoidable  to  a  person  exercising  reasonable  care  as  before  de- 
fined, the  plaintiff  cannot  recover,  if  she  negligently  failed  to  avoid 
it,  and  must  suffer  the  consequences  of  her  own  carelessness.^^ 

(b)  The  court  instructs  the  jury  that  if  the  plaintiff  on  the  occa- 
sion complained  of,  acted  in  a  manner  which  an  ordinarily  prudent 
person  would  not  have  acted  and  this  conduct  was  the  cause  of  or 
contributed  materially  to  her  injury,  she  cannot  recover.^- 

(c)  The  court  instructs  the  jury  that  if  you  believe  that  F.  was 
injured  by  reason  of  the  U.  T.  C. 's  carelessness,  or  the  carelessness 
of  its  employes,  and  that  his  injuries  were  not  contributed  to  by  care- 
lessness or  negligence  on  his  own  part,  he  would  be  entitled  to  a  ver- 
dict; otherwise  he  would  not.^^ 

(d)  The  court  further  instructs  you  that  a  person  who  enters  a 
street  car  to  be  transported  to  a  certain  place,  and  pays  his  fare,  is 
a  passenger,  and  that  there  is  a  corresponding  obligation  on  the  part 

81 — Prothero   v.    Citizens'    St.    Ry.  and    to   avoid    danger,    as   an   ordi- 

Co.,  134  Ind.  431,  33  N.  E.  765  (767).  narily  prudent  person  would  under 

"Persons  traveling,  entering  cars  the  circumstances;  leaving  it  for 
or  vehicles  or  structures  of  the  the  jury  to  take  into  consideration 
character  of  the  one  in  this  case,  all  facts  and  circumstances  de- 
are  required  to  use  their  senses  of  veloped  by  the  evidence  in  the 
sight  and  hearing  to  avoid  the  ap-  case,  and  say  whether  or  not  the 
parent  danger.  In  all  cases,  a  per-  appellant  was  guilty  of  negligence 
son  is  required  to  exercise  ordinary  which  contributed  to  the  injury, 
prudence  to  avoid  danger.  Such  The  instruction  does  not  go  to  the 
prudence  may  require  more  or  less  extent  of  holding  that  appellant 
exercise  of  the  senses,  owing  to  the  was  required  to  exercise  her  facul- 
situations  and  surroundings.  In  ties  of  sight  and  hearing  and  men- 
some  instances,  a  person  of  ordi-  tal  power  to  their  full  extent  and 
nary  prudence  would  give  but  little  capacity,  or  to  any  particular  de- 
heed  to  the  things  surrounding  him;  gree,  but  that  she  was  required  to 
in  others,  where  danger  was  quite  exercise  them  to  the  extent  which 
apparent,  he  would  exercise  a  a  reasonably  prudent  person  would 
much  higher  degree  of  diligence  to  have  done  under  all  the  circum- 
avoid  danger.  The  extent  to  which  stances.  The  instructions  correct- 
one's  faculties  must  be  exercised  ly  stated  the  law.  Stewart  v. 
to  constitute  ordinary  care  de-  Penn.  Co.,  130  Ind.  242,  29  N.  E. 
pends     upon     the     particular     sur-  916." 

roundings.     The  instruction  in  this  82— Selma    St.    &    S.    Ry.    Co.    v. 

case   lays   down    the    rule    that    the  Owen,  132  Ala.  420,  31  So.  598  (600). 

appellant  was  required   to   exercise  83— Foster  v.   Un.   T.   Co.,  199  Pa. 

such  care  and  diligence  in  the  ob-  498,    49   Atl.   270. 
servation  of  the  things  around  her, 


1338  FORMS  OF  INSTRUCTIONS.  [§2063. 

of  the  passenger  to  act  with  prudence,  and  to  use  the  means  provided 
for  his  safe  transportation  with  the  same  reasonable  circumspection 
and  care  that  is  required  on  the  part  of  the  carrier,  for  the  law  does 
not  prescribe  a  different  rule  or  measure  of  care  with  respect  to 
parties,  and,  if  his  negligent  act  solely  contributes  to  bringing  about 
the  injury  of  which  he  complains,  he  cannot  recover.** 

(e)  The  court  instructs  the  jury  that  to  escape  the  responsibility 
of  contributory  negligence,  a  plaintiff,  in  an  action  for  damages  for 
an  alleged  negligence  of  another,  is  not  required  to  exercise  more 
care  than  is  usual  under  similar  circumstances  among  careful  persons 
of  the  class  to  which  such  plaintiff  belongs.*^ 

§  2063.  Same  Subject — States  Holding  Burden  of  Proof  Is  on 
Plaintiff  to  Prove  Freedom  from  Contributory  Negligence.    The  court 

instructs  the  jury  that  before  the  plaintiff  is  entitled  to  recover,  he 
must  establish  three  things  by  a  fair  preponderance  of  the  evidence : 
(1)  That  he  received  the  injuries  or  some  part  thereof  alleged  in  his 
complaint;  (2)  that  the  carelessness  and  negligence  of  the  defendant 
company,  its  agents  or  servants,  were  the  proximate  cause  of  said  in- 
juries; (3)  that  he  himself  was  free  from  any  carelessness  or  negli- 
gence which  contributed  to  said  injury.  If  he  has  established  by  such 
preponderance  of  the  evidence  all  three  of  said  propositions,  then  he 
would  be  entitled  to  recover  in  this  action.  If,  however,  plaintiff  has 
failed  to  establish  either  one  of  said  propositions  by  such  preponder- 
ance, then  he  is  not  entitled  to  recover.*** 

84— Memphis  St.  Ry.  Co.  v.  Shaw,  'To    escape     the    responsibility    of 

110  Tenn.   467,  75  S.  W.  713  (714).  contributory  negligence,   the   plain- 

"The  criticisin  is  in  the  use  of  tiff  is  not  required  to  exercise  more 
the  word  'solely,'  and  the  conten-  care  than  is  usual  under  similar 
tion  is  that  the  court  should  have  circumstances  among  careful  per- 
told  the  jury  that,  if  both  plaintiff  sons  of  the  class  to  which  he  be- 
and  the  company  were  negligent,  longs.'  We  think  this  instruction 
the  plaintiff  could  not  recover.  To  correctly  propounds  the  law  nppli- 
give  to  tlie  word  'contribute'  its  le-  cable  to  this  case.  All  persons  are 
gal  signification  would  make  the  not  chargeable  with  the  same  de- 
charge  unintelligible,  as  one  act  gree  of  care,  and  the  jury,  in  pass- 
oannot  'contribute'  solely  to  effect  ing  upon  the  care  that  the  plaintiff 
a  given  result,  but  only  in  connec-  should  exercise  at  the  time  of  the 
tion  with  some  other  act,  and  there  accident,  had  the  right  to  con- 
can  be  no  sole  contributory  cause  sider  the  class  to  which  she  be- 
of  an  accident.  We  may  assume  longed,  and  had  the  right  to  take 
therefore,  that  the  trial  judge  into  consideration  all  the  circum- 
meant,  if  the  negligence  act  of  the  stances  surrounding  the  accident, 
plaintiff  produced  or  was  the  sole  as  they  would  appear  to  a  person 
cause  of  the  injury,  she  could  not  of  her  class." 
recover."  86 — Citizens   St.   Ry.   Co.   v.   Merl, 

85— Normile    v.    Wheeling   T.    Co.,  26  Ind.  App.  284,  59  N.   E.  491  (493.) 

57   W.   Va.  132,  49   S.   E.   1031  (1033).  "The  burden  of  proof  is  upon  the 

"There  is  no  objection  pointed  plaintiff  to  show  by  a  fair  pre- 
out  to  this  instruction,  and  it  seems  ponderance  of  the  evidence  that  at 
to  have  been  taken  from  the  case  the  time  of  the  accident  and  injury 
of  Dimmey  v.  Ry.  Co.,  27  W.  Va.  to  the  plaintiff's  intestate  he  (the 
32,  55  Am.  Rep.  292,  in  which  the  plaintiff's  iiit(>state)  was  in  the  ex- 
court  gave  to  the  jury  an  instruc-  ercise  of  such  care  as  a  prudent 
tion  In  substantially  the  same  man  would  have  exercised  under 
language,  and  also  the  court  laid  all  the  circumstances;  and  in  de- 
down   the  law  in  that  case  to  be:  termining  this  proposition  the  jury 


§2064.]  NEGLIGENCE— STREET  RAILROADS.  1339 

§  2064.  Same  Subject — States  Holding  Burden  of  Proof  Is  on  De- 
fendant to  Show  Contributory  Negligence  of  Plaintiff,  (a)  The  jury 
are  instructed  by  the  court  that  if  the  defendant  relies  upon  the  con- 
tributory negligence  of  the  plaintiff  to  defeat  the  plaintiff's  action, 
the  burden  of  proving  such  contributory  negligence  rests  upon  the 
defendant,  and  it  will  not  avail  the  defendant  unless  it  has  been  estab- 
lished hj  preponderance  of  the  evidence. ^^ 

(b)  Contributory  negligence  on  the  part  of  a  passenger  cannot  be 
presumed  from  the  mere  fact  of  injury,  but  must  be  proved.  On  the 
other  hand,  the  proof  of  an  injury  to  a  passenger  on  the  car  of  a 
common  carrier  casts  ujwn  the  common  carrier  the  burden  of  proving 
that  the  injury  was  occasioned  by  inevitable  casualty,  or  some  other 
cause  which  human  care  and  foresight  could  not  prevent,  or  by  con- 
tributory negligence  of  the  plaintiff,  unless  the  proof  on  the  part  of 
the  plaintiff'  tends  to  show  that  the  injury  was  occasioned  by  the  con- 
tributory negligence  of  the  passenger,  or  by  inevitable  casualty,  or 
by  some  other  cause  which  human  care  and  foresight  could  not  pre- 
vent.^* 

(c)  While  the  burden  of  proof  is  upon  the  defendant  to  establish 
the  contributory  negligence  of  the  plaintiff,  yet  this  does  not  relieve 
the  plaintiff"  of  the  burden  of  proving  that  her  injuries  were  solely 
caused  by  the  negligence  of  the  defendant,  as  stated  in  these  instruc- 
tions. The  burden  of  proving  the  fact  rests  upon  the  plaintiff  through- 
out the  entire  case,  and  if  the  jury  find  that  her  negligence,  either  in 
whole  or  in  part,  caused  or  directly  contributed  to  cause  her  injuries, 
then  plaintiff  is  not  entitled  to  recover,  and  your  verdict  must  be  for 
the  defendant.®^ 

§  2065.  Same  Subject — Deafness  of  Passenger.  The  court  instiiicts 
the  jury  that  on  the  question  of  ordinary  care  required  of  the  plaintiff 
himself  to  avoid  the  consequences  to  himself  of  defendant's  negli- 
gence, if  such  is  shown,  the  fact  that  he  was  partially  deaf,  if  such 
was  the  fact,  would  not  affect  or  lessen  the  degree  of  care  required 
of  him;  that  care  being  the  degi-ee  of  care  which  every  prudent  man 
would  exercise  under  the  same  or  similar  circumstances."" 

have    the    right    to    take    into    ac-  88 — Boone  v.  Oakland  T.   Co.,  139 

count    the    darkness    of    the    night,  Cal.  490,  73  Pac.  242  (244). 

the    position    which    the    plaintiff's  89 — Gharst    v.    St.    L.    T.    Co.,   115 

intestate  was   sitting    or     standing  Mo.  App.  403,  91  S.  W.  453  (457). 

upon  the  running  board  of  the  car  "The  instruction  given,  we  think, 

at  the  time  of  the  accident  and  in-  fairly      submitted       the      issue      of 

jury  to  him,  and  the  fact  whether  plaintiff's    contributory    negligence 

or  not  a  prudent  man,  would,  un-  to  the  jury,  not  with  as  much  de- 

der     all     the     circumstances,     have  tail     and     particularity     as     would 

been  riding  upon  the  running  board  have    the    one     refused,     but     it    is 

of  the  car  at  the  time  and  place  of  equally     comprehensive,     and,     we 

the  accident."  think,  correctly  states  the  law." 

Approved    in    Stone   v.    Lewiston  90 — Atlanta    C.    St.     Ry.     Co.     v. 

B.  &  B.  St.  Ry.,  99  Me.  243,  59  Atl.  Bates,  103  Ga.   333,  30  S.  E.  41  (49). 

56  (58).  "The     charge     is      altogether     as 

87 — Washington.   A.    &   Mt.   V.   E.  favorable    to    the    defendant    com- 

Ry.   Co.    V.    Quayle,   95   Va.   741,   30  pany  as  could   be  asked.     The   in- 

S.  E,  391  (394).  struction    was    to    the    effect    that 


1340  FORMS   OF  INSTRUCTIONS.  [§2066. 

§  2066.  Same  Subject — Standing  on  Platform  When  Car  Is  Over- 
crowded. You  are  instructed  that  it  is  the  duty  and  obligation  of 
common  carriers  for  hire  to  furnish  passengers  with  seats  for  their 
accommodation,  and,  if  you  believe  from  the  evidence  in  this  ease  the 
defendant  received  the  said  N.  as  a  passenger,  the  said  N.  thereby 
became  entitled  to  a  seat;  and,  if  he  was  prevented  from  obtaining 
a  seat  by  reason  of  the  ear  being  overcrowded,  you  are  instructed 
that  it  ■was  not  negligence  for  said  N.  to  stand  or  be  upon  the  plat- 
form of  said  car,  providing  you  believe  that  in  standing  upon  said 
platform  the  said  N.  was  exercising  ordinary  care  and  prudence,  and 
would  have  been  safe  from  injury  if  the  ear  had  been  run  in  a  care- 
ful manner.^^ 

§  2067.  Same  Subject — Leaving  Seat  and  Standing  on  Platform  to 
Accommodate  Lady  Passenger.  The  court  instructs  the  juiy  that  if 
you  find  from  the  evidence  in  the  cause  that  the  plaintiff  was  a  pas- 
senger on  one  of  defendant's  cars,  and  was  occupying  a  seat  inside 
in  a  safe  place;  and  you  further  find  that  said  car  was  crowded  with 
passengers,  and  all  the  seats  were  taken,  and  that  the  plaintiff  arose 
and  vacated  his  seat  to  accommodate  some  lady  passengers  who  en- 
tered the  car,  and  that  on  account  of  the  crowded  condition  of  said 
ear,  instead  of  standing  therein,  he  voluntarily  left  it  and  passed  out 
to  the  platform,  and  remained  standing  on  the  outside,  where  the 
accident  occui-red, — then  as  to  whether  or  not  in  so  con- 
ducting himself  he  was  guilty  of  negligence  is  a  question  of 
fact,  which  I  submit  to  you.  If  his  conduct  in  this  respect,  in  doing 
what  he  did  under  the  circumstances,  was  the  conduct  of  an  ordinarily 
prudent  and  cautious  man,  then  he  was  not  guilty  of  negligence.  If, 
on  the  other  hand,  in  going  out  upon  the  platform,  under  the  circum- 
stances, he  did  that  which  a  prudent  and  cautious  person  would  and 
ought  not  to  do,  then  he  would  be  guilty  of  negligence. °- 

plaintiff's   deafness    could    not    les-  or   other   motor   cars,   running  less 

sen    the    degree    of    care    required;  swiftly,  and  for  that  reason  great- 

that,     notwithstanding     his    defect  er    care    is    necessary    upon    steam 

he   should   exercise   the   same   cau-  railway    trains.     But   the   principle 

tion    'which     every     prudent     man  is   the   same   in   both   cases.     Both 

would  exercise  under   the   same  or  must   care   for   the   safety   of   their 

similar    circumstances.'      This    did  passengers.     It  would  not  be  negli- 

not  imply  that  he  was  required  to  gence  per  se  for  a  street  car  com- 

exercise   only   that    care    which    a  pany   to   fail   to   furnish  a   seat   to 

prudent  man  who  could  hear  would  each  of  its  passengers;  but,  where 

use,   but  which   a   prudent  man   in  scats   are   not   furnished,   and    pas- 

the   same   condition   as   to   the   im-  sengers   are   permitted   or   required 

pairment  of  his  hearing  would  ex-  to  stand  upon  cars,  greater  care  is 

ercise."  required    in    the    operation    of    its 

91 — Halverson  v.   Seattle  El.   Co.,  cars    than    where   all   are   provided 

35  Wash.  600,  77  Pac.  1058  (1061).  with    seats.      Nor    is    it    negligence 

"The     obligation     of     street     car  per  se   for  a  passenger  to   ride   or 

companies     to     furnish     seats     for  stand  upon  the  platform  of  a  car. 

their    passengers    rests     upon     the  Graham   v.    McNeill,   20   Wash.    466, 

same    principle    as    that    of    steam  55  Pac.  631,  43  L.  R.  A.  300,  72  Am. 

railways,    viz.,    the   accommodation  St.   121;   T.   &   F.   St.   P.    Ry.  Co.   v. 

and  safety  of  their  passengers.  No  Boudrou,    92    Pa.    St.    475,    37    Am. 

doubt,  swiftly  moving  steam   rail-  Rep.    707;    Cattano    v.    IVIet.    St.    R. 

way  trains  are  more  dangerous  to  Co.,  173  N.  Y.  565,  66  N.  E.  563." 

standing    passengers    than    electric  92 — Terre    Haute    E.    Ry.    Co.    v. 


§2068.]  NEGLIGENCE— STREET  RAILROADS.  1341 

§  2068.  Same  Suljject — Standing  on  Platform  by  Direction  of  Em- 
ployes in  Charge  of  Car.  The  court  instructs  the  jury  that  it  is  the 
duty  of  the  passengers  on  the  car  to  follow  the  reasonable  instructions 
and  directions  of  those  in  charge  of  the  car,  in  regard  to  moving  from 
one  point  of  the  car  to  another,  unless  it  is  apparent  to  the  passen- 
ger, in  exercising  ordinary  care,  that  the  movement  would  be  attended 
with  danger;  and  a  passenger  may  rightfully  assume  that  the  serv- 
ants in  charge  of  the  car  are  familiar  with  its  operations,  and  that 
they  have  a  reasonable  knowledge  of  what  is  safe  and  prudent  for 
the  passenger,  in  giving  such  instructions  or  directions.  Therefore 
if  in  this  case  one  of  the  servants  of  the  defendant, — the  conductor 
in  charge  of  the  car, — directed  the  plaintiff  to  stand  on  the  platform, 
where  he  was  standing  when  the  accident  occurred,  it  was  the  duty 
of  the  plaintiff  to  do  so,  unless  it  was  known  and  apparent  to  him 
at  the  time  that  it  would  be  unsafe  for  him,  in  the  exercise  of  ordi- 
nary care  and  prudence,  to  leave  the  car  and  stand  upon  the  plat- 
form; and  if,  while  standing  upon  the  platform,  you  find  he  was  in- 
jured without  any  fault  of  his,  but  while  standing  there  at  the  direc- 
tion of  the  servant  of  the  company,  then,  under  these  circumstances, 
even  though  you  should  find  that  his  position  was  an  unsafe  one,  yet 
this  would  not  defeat  23laintiff's  right  to  recover,  provided  the  danger 
was  not  apparent  to  him  when  he  obeyed  the  instructions  given,  and 
took  his  position  on  the  platform.^^ 

§  2069.  Same  Subject — Riding  on  Running  Board,  (a)  The  court 
instructs  the  jury  that  if  they  shall  find  that  the  plaintiff's  intestate 
voluntarily  assumed  the  position  in  which  he  was  riding,  sitting  upon 
the  running  board  of  the  car,  and  bringing  portions  of  his  body  out- 
side the  line  of  the  car  and  running  boards,  when  he  could  have  rid- 
den upon  the  front  or  rear  platform  of  the  car,  taking  into  account 
the  rate  of  speed  at  which  the  car  was  going,  the  darkness  of  the 

Lauer,   21   Ind.   App.   466,   52   N.   E.  be    the    same    in    either    instance. 

703   (705).  We    think    it    clear    too    that    it    is 

93 — Terre    Haute    El.    Ry.    Co.    v.  the   duty   of   the   passenger  to   fol- 

Lauer,   21   Ind.   App.   466,   52   N.   E.  low     the     reasonable     instructions 

703  (705).  and  rely  on  the  judgment  of  those 

"The  proposition  that  it  is  not  in  charge  of  the  car,  in  regard  to 
negligence  per  se,  but  a  question  moving  from  one  part  of  the  car 
of  fact  for  the  jury,  for  a  passen-  to  another,  unless  it  is  apparent 
ger  on  a  street  railway  to  ride  up-  to  the  passenger  that  the  move- 
on  the  platform,  has  been  decided  ment  would  be  attended  with 
in  many  decisions.  Marion  St.  danger.  Prothero  v.  Railway  Co., 
R.  Co.  V.  Shaffer,  9  Ind.  App.  486.  134  Ind.  431,  33  N.  E.  765;  Cincin- 
36  N.  E.  861 ;  Nolan  v.  Railroad  Co.,  nati,  H.  &  J.  R.  Co.  v.  Carper, 
87  N.  Y.  63,  41  Am.  Rep.  345;  Ma-  112  Ind.  26,  13  N.  E.  122,  and  14  N. 
guire  V.  Railroad  Co.,  115  Mass.  E.  352;  Louisville  &  N.  R.  Co.  v. 
239;  Burns  v.  Railway  Co.,  50  Mo.  Kelly,  92  Ind.  371. 
139;  Chi.  &  A.  R.  Co.,  v.  Fisher,  141  The  fact  that  appellee  responded 
111.  614,  31  N.  E.  406;  Beal  v.  Rail-  to  a  general  request,  which  ap- 
way  Co.,  157  Mass.  444,  32  N.  E.  pealed  to  him  as  directly  as  to 
653.  anyone  else  in  the  car,  should  not 

Whether  one  rides  on  the  plat-  deprive  him  of  any  right  he  would 
form  of  his  own  motion,  or  upon  have  had,  growing  out  of  a  corn- 
request  of  the  conductor,  would  pliance  with  a  request  addressed 
not   be   material.     The   rule   would  to  him  individually." 


1342  FORMS  OF  INSTRUCTIONS.  [§  2070. 

night,  and  the  insecurity  of  the  plaintiff's  intestate's  position  on  the 
running  board,  the  jury  have  the  right  to  consider  all  of  these  facts 
as  bearing  upon  the  question  whether  at  the  time  and  place  of  the 
accident  the  plaintiff's  intestate  was  in  the  exercise  of  such  care 
and  prudence  as  an  oi-dinarily  careful  and  prudent  person  would 
exercise  under  like  circumstances.^* 

(b)  An  act  or  a  failure  to  act  under  such  circumstances  that  a 
person  of  ordinary  care,  caution  and  prudence  would  not  have  appre- 
hended danger  therefrom,  is  not  an  act  or  failure  to  act,  in  law,  as 
would  amount  to  contributory  negligence.  So  in  this  case,  if  you 
find  from  the  evidence  that  the  car  upon  which  the  plaintiff  took 
passage  Avas  full  of  passengers,  the  seats  being  all  filled;  that  after 
getting  on  said  car  he  stood  upon  the  running  board  of  said  car, 
holding  to  the  handholds  upon  said  car — such  act  of  so  riding  upon 
said  running  board  of  said  car  would  not  constitute  negligence  ujDon 
his  part,  such  as  would  bar  a  recovery  in  this  action. ^^ 

§  2070.  Same  Subject — Obejring  Instructions  to  Move  to  Another 
Part  of  the  Car.  The  court  instructs  the  jury  that  it  is  the  duty  of 
a  passenger  on  a  car  to  follow  the  reasonable  instructions  of  those 
in  charge  of  the  car  in  regard  to  moving  from  one  part  of  the  car  to 
another,  unless  it  is  apparent  to  passenger  that  the  movement  would 
be  attended  with  danger ;  and  a  passenger  may  rightfully  assume  that 
the  servants  in  charge  of  the  car  are  familiar  with  the  operations 
of  the  car,  and  that  they  have  a  reasonable  knowledge  of  what  is 
safe  and  prudent  for  the  passengers,  in  giving  such  instructions. 
Therefore,  if  you  find  from  the  evidence  that  one  of  the  servants  of 
the  defendant  directed  the  plaintiff'  to  move  to  that  part  of  the  car 

94 — Stone    v.    Lewiston    B.    &    B.  disputed.'     In   Graham   v.    McNeill, 

Ry  Co.,  99  Me.  243,  59  Atl.  56  (57).  20  Wash.   466,  55  Pac.  631,  43  L.  R. 

In  C.   C.   Ry.   Co.  v.   Schmidt,   117  A.   300,  72  Am.   St.   121,   it  was  held 

111.   App.  213  (215),  aff'd  217  111.   396,  that:     'It  is  not  contributory  negli- 

75  N.  E.  383,  it  was  held  that  it  was  gence    as    a    matter    of    law,    for    a 

not  negligence  per  se  for  a  passen-  passenger   to   stand     on    the    plat- 

ger   to   ride   on  the  bumper  of  the  form,  when  the  cars  are  full,  in  a 

car,  and  an  instruction  that  it  was  position  in  which  a  person  exercis- 

regligence    was    held    properly    re-  ing  ordinary  care  would  be  safe  if 

fused.  the   train   was     run    in     a    careful 

95 — Indianapolis     St.     R.     Co.     v.  manner.'     To   the   same   effect   are 

Haverstick,  35  Ind.  App.  281,  74  N.  the    following    cases:      Pendergast 

E.    35.  V.   Union   R.   Co.,   10   App.   Div.   207, 

"The  instruction   correctly   states  41    N.    Y.    S.    927;    Met.    Ry.    Co.    v. 

an     abstract     proposition     of     law.  Snashall,  3  App.   D.   C.  420;   Congs- 

Marion    St.    Ry.    Co.    v.    Shaffer,    9  well   v.   West  St.   &  N.   E.   El.   Co., 

Ind.    App.    486,    36    N.     E.     861.       In  5   Wash.    46,    31    Pac.    411;    Clark   on 

Pomaski  v.  Grant,  119  Mich.  675,  78  'Accident  Law'  37;  Nellis  on  'Street 

N.   W.   891,  the  court   said:     'Error  Surface   Railroads,'   472.     Upon   the 

is    assigned    on     an     instruction     to  question    as     to     whether     appellee 

the  jury  that  it  was  not  negligence  was    guilty    of    contributory    negli- 

for  the  plaintiff  to  ride  on  the  run-  gence,    the    court    fully    and    cor- 

nhig   board   of  this  car.     We  think  rectly   instructed    the    jury    in    its 

in    view    of    the    testimony    of    the  seventh      and      ninth     instructions. 

case,    there    was    no    error   in    this.  These  instructions  were   applicable 

The   plniritiff   testified    that   the  car  to  the  evidence,  and  we  cannot  be- 

was  full,  and  that  he  could  not  get  lieve  that   the  jury   was  misled  by 

Inside,  and  this  testimony  was  not  the  aJbove  instruction." 


§  2071.]  NEGLIGENCE— STREET   RAILROADS.  1343 

where  the  accident  occurred,  it  was  the  duty  of  the  plaintiff  so  to  do, 
unless  it  was  known  and  api^arent  to  her  that  it  would  be  unsafe  for 
her  to  do  so,  and,  in  the  absence  of  apparent  danger,  she  had  a  right 
to  assume  that  it  was  safe  for  her  to  move  to  and  stand  at  the  place 
where  the  defendant's  servants  directed  her  to  move  to  in  the  car. 
And  if  you  find  that  it  was  an  unsafe  place  for  the  plaintiff  to  stand, 
and  that  without  her  fault  she  was  required  by  reason  of  her  moving 
to  stand  at  such    place,  then  your  finding  should  be  for  the  plaintiff.^*' 

§  2071.  Same  Subject— Getting  on  Car  While  in  Motion,  (a)  The 
jury  are  instructed  that  it  is  not  of  itself  in  law  an  act  of  negligence 
for  one  intending  to  become  a  passenger  on  a  street  car  to  board  the 
car  while  it  is  in  motion.  Whether  or  not  it  is  an  act  of  negligence 
to  do  so  is  a  question  of  fact  for  the  jury  to  determine ;  and  in  de- 
termining in  this  case  whether  or  not  the  plaintiff  boarded  the  de- 
fendant's car  at  the  time  and  place  in  question,  and,  if  he  did, 
whether  or  not  his  doing  Avas  negligence  on  his  part,  the  jury  should 
consider  all  the  evidence  and  all  the  circumstances  established  by  the 
evidence,  and  from  these  determine  that  issue.  And  if  the  jury  find 
from  the  evidence,  by  a  preponderance  thereof,  that  the  management, 
operation  and  speed  of  the  said  car  at  the  time  in  question  were 
such  as  to  invite  passengers  and  to  make  it  seem  reasonably  safe  for 
a  person  exercising  ordinary  and  reasonable  care  for  his  own  safety 
to  board  the  defendant's  car,  and  if  you  also  find  from  the  evidence 
that  at  that  time  the  plaintiff  intended  to  become  a  passenger  on  said 
car  and  exercised  ordinary  and  reasonable  care  for  his  own  safety, 
then  he  was  not  guiltj^  of  contributory  negligence;  and  if  you  further 
find  that  the  defendant  did  not  exercise  the  highest  degree  of  care 
consistent  with  the  pi"actical  operation  of  its  car,  for  the  safety  of 
the  plaintiff,  and  that  his  injuries,  if  any,  resulted  from  such  failure 
of  the  defendant  to  exercise  such  degree  of  care,  then  you  should 
find  the  defendant  guilty.^^ 

(b)  The  court  instructs  the  jurj'  that  the  plaintiff  in  attempting 
to  enter  the  car  in  question  was  required  by  law  to  use  ordinary  care 
and  caution  to  avoid  injury  to  himself,  and  if  the  jury  believe  from 

96 — Prothero    v.    Citizens'    St.    R.  constitute     negligence.      The     first 

Co.,  134  Ind.  431,  33  N.  E.  765  (768),  reason    we    have    sufficiently    con- 

97 — Chicago  U.  T.  Co.  v.  O'Brien,  sidered    in    passing    on    the    objec- 

117  III.  App.  183  (190),  rev'd  219  111.  tious   to   instructions  7  and  9.     We 

•303,  76  N.  E.  341,  for  the  giving  of  do   not   think   the  jury   could   have 

another  instruction.  been    misled    by    the    first    sentence 

The  Appellate   Court   said:  of  the  instruction,  which  states  the 

"This  instruction  is  also  claimed  law  as  we  understand  it.  By  the 
to  be  erroneous,  first,  because  it  second  sentence  of  the  instruction 
assumes  that  the  plaintiff  was  a  the  jury  were  plainly  told  that 
passenger  on  the  car;  second,  be-  whether  or  not  the  so  boarding  a 
cause  it  is  misleading  in  stating  car  was  an  act  of  negligence  was 
that  it  is  not,  of  itself,  in  law,  an  a  question  of  fact  for  them  to  de- 
act  of  negligence  for  one  intending  termine  from  all  the  evidence.  The 
to  become  a  passenger  on  a  street  court  also  submitted  to  the  jury, 
car,  to  board  the  car  while  it  is  in  by  appellant's  instruction  13,  the 
motion;  and,  third,  that  it  is  er-  question  whether  appellee  was  or 
roneous  in  stating  that  certain  not  exercising  ordinary  care  when 
facts,  if  found  by  the  jury,  do  not  he  attempted  to  enter  the  car." 


1344  FORMS  OF  INSTRUCTIONS.  [§  2071. 

the  evidence  that  a  person  of  ordinary  prudence  and  caution,  exer- 
cising ordinary  care  for  his  own  safety,  for  one  of  his  age,  intelli- 
gence, capacity  and  experience,  under  such  circumstances  as  attended 
the  plaintiff's  attempt  to  enter  the  car  in  question,  as  shown  by  the 
evidence,  would  not  have  attempted  to  enter  such  car  while  it  was  in 
motion,  and  if  the  juiy  further  believe  from  the  evidence  that  the 
plaintiff  did  attempt  to  enter  the  said  car  while  it  was  in  motion,  and 
that  he  was  injured  in  consequence  of  his  attempting  to  enter  said 
car  while  it  was  in  motion,  if  he  did  so  attempt  to  enter  said  car, 
then  the  jury  should  find  the  defendant  not  guilty.^* 

(c)  The  jury  are  instructed  that  if  they  find  that  plaintiff  sig- 
naled the  car,  and  that  its  speed  was  slackened  at  or  near  a  crossing 
where  defendant  was  accustomed  to  receive  passengers,  and  that  it 
was  apparently  safe  for  him  to  board  the  car,  it  was  not  necessarily 
negligence  as  a  matter  of  law  for  him  to  attempt  to  get  on  the  car 
while  it  was  in  motion.  The  plaintiff  had  a  right  to  rely  upon  the 
watchfulness  and  care  which  it  was  the  duty  of  the  conductor  to 
bestow  toward  persons  about  to  take  passage,  and  that  he  was  not 
bound  to  anticipate  that  the  ear  would  start  I'apidly  or  that  he  might 
be  thrown  against  the  pole  and  injured. 

(d)  The  jury  are  instructed  that  it  is  not  necessarily  negligent  for 
a  passenger  to  get  upon  a  street  car,  even  though  he  knew  the  track 
was  being  repaired,  or  that  there  were  iron  poles  in  close  proximity 
to  the  track  on  the  side  of  the  track  on  which  he  was  about  to  enter; 
for  if  the  car  stopped  or  slackened  its  speed  at  his  signal,  and  he 
was  allowed  to  get  on  the  running  board,  such  acts  on  the  part  of 
the  company  were  an  invitation  to  the  person  to  take  passage;  and 
he  had  a  right  to  presume  that  the  company  would  use  due  care  to 
avoid  danger  to  passengers  incident  to  the  dangerous  condition  of 
the  track,  and  the  close  proximity  of  the  poles  thereto;  that  the  pas- 
senger had  a  right  to  assume  that  the  company's  employes  would 
warn  him  of  any  danger,  and  that  they  would  exercise  such  care  as 
a  person  of  highest  degree  of  skill  and  foresight,  with  knowledge  of 
the  existing  circumstances,  would  use,  in  view  of  such  dangers,  to 
guard  against  accidents  to  passengei-s  by  reason  thereof. 

(e)  Negligence  of  the  defendant  in  running  past  the  plaintiff 
upon  the  street,  whether  he  had  signaled  or  not,  or  whether  he  was 
at  a  station  for  receiving  passengers  or  not,  would  not  authorize  or 
make  it  right  for  the  plaintiff  to  commit  an  act  of  negligence  in  get- 
ting upon  the  car  to  prevent  being  left  behind.  And  if  you  are  of 
the  opinion  that,  at  the  time  of  his  accident,  plaintiff  voluntarily 
threw  himself  upon  a  known  or  perfectly  apparent  danger,  or  as- 
sumed a  perfectly  clear  or  palpable  risk,  he  cannot  now  recover  dam- 
ages of  the  defendant,  even  though  the  servants  of  the  defendant 
were  also  negligent.^^ 

98— Chicago  U.  T.  Co.  v.  O'Brien,     Merl,    26   Ind.    A/pp.   284,    59    N.   E. 
supra.  491,    the    above    three    instructions 

99— In    Citizens'     St.     R.    Co.     v.     were  upheld. 


§2072.]  NEGLIGENCE— STREET   RAILROADS.  1345 

(f)  The  court  instructs  the  jui-y  that  if  they  find  from  the  evidence 
that  the  plaintiff  was  not  on  the  step  of  the  car  when  it  started,  but 
attempted  to  board  it  after  it  was  in  motion,  she  can  not  recover  in 
this  suit ;  but  if  the  jury  find  that  while  the  car  was  still  waiting 
and  receiving  passengers  she  presented  herself  as  an  intending  pas- 
senger, and  gained  a  position  on  the  lower  step  before  the  car  was  set 
in  motion,  and  the  conductor,  in  the  exercise  of  ordinaiy  care  in  the 
discharge  of  his  duty,,  ought  to  have  seen  her  in  that  position,  then 
the  jury  should  find  that  she  was  a  passenger  on  the  car  at  the  time 
of  the  aecident.^*^" 

§2072.  Same  Subject— Getting  Off  Car  While  in  Motion,  (a) 
The  court  instructs  the  jury,  if  you  should  find  and  believe  from  the 
evidence  that  plaintiff's  wife  attempted  to  alight  from  one  of  de- 
fendant's oars  while  the  same  was  in  motion,  and  before  it  had 
stopped  for  passengers  to  alight  therefrom,  and  should  further  find 
and  believe  that  a  person  of  ordinary  care  would  not  have  so  acted 
under  similar  circumstances,  to  return  your  verdict  for  the  de- 
fendant.^ 

(b)  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  in  the  ease,  that,  after  M.  A.  had  safely  boarded  defendant's 
car  and  obtained  a  seat  therein,  she  did,  while  said  car  was  still  in 
motion,  and  before  it  reached  the  regular  stopping  place  for  leaving 
and  taking  passengers  at  the  point  of  her  destination,  to-wit,  — ,  in 

the  city  of  ,  leave  her  seat  and  walk  off  of  said  ear,  and  step 

down  on  the  running  board  of  said  car,  and  stepped  from  the  running 
board  of  said  ear  onto  the  street,  after  having  been  warned  by  the 
conductor  not  to  do  so,  whereby  she  sustained  the  injuries  complained 
of,  then  the  plaintiff  cannot  recover  in  this  suit,  and  your  verdict 
must  be  for  the  defendant. 

(c)  The  act  of  negligence  stated  in  the  plaintiff's  petition  is  de- 
nied in  the  answer  of  defendant.  The  defendant  further  pleads  in 
said  answer  that  the  deceased's  death  was  caused  by  her  own  negli- 
gence in  stepping  off  of  defendant's  oar  while  the  same  was  in  mo- 
tion. If,  therefore,  you  find  from  the  evidence  that  deceased's  death 
was  not  caused  by  a  start  of  the  car,  but  by  her  act  in  stepping  off 
of  defendant's  car  while  the  same  was  in  motion,  after  being  warned 
by  the  conductor  not  to  do  so,  then  plaintiff  is  not  entitled  to  recover, 
and  your  verdict  must  be  for  the  defendant. ^ 

(d)  The  fact  that  the  plaintiff  undertook  to  alight  from  the  car 
at  a  time  when  the  car  was  still  in  motion  does  not  necessarily  maks 

100 — Gaffney  v.  St.  P.  Ry.  Co.,  81  submitted  to  the  jury,  and  having 

Minn.  459,  84  N.  W.   304.  requested      a      proper      charge,      it 

1— Dallas    C.    El.    St.     R.     Co.   v.  should   have  been  given.     Gulf   C. 

Ison,  —  Tex.  Civ.  App.  — ,  S3  S.  W.  &    S.    F.    R.    Co.    v.    Mangham,    95 

408.  Tex.    413,    67    S.    W.    765;    Pelly    v. 

"The     court      gave     a      general  Denison,   etc.,   R.   Co..  —  Tex.   Civ. 

charge  on  contributory  negligence,  App.  — ,  78  S.  "W.  542." 

but    under   the    pleadings    and   evi-  2— Behen  v.  St.  L.  T.  Co.,  186  Mo. 

dence    the    defendant    was    entitled  430,  85  S.  W.   346  (349). 
to    have    its    defense    affirmatively 

85 


1345  FORMS  OF  INSTRUCTIONS.  [§2072. 

her  guilty  of  contributory  negligence.  As  to  whether  she  could  alight 
from  the  car  at  the  time  she  undertook  to  do  so  with  safety,  is  a 
question  of  fact  for  you,  gentlemen,  to  determine  from  all  the  facts 
and  circumstances  in  the  case.  If  you  find  from  the  evidence,  that, 
at  the  time  she  undertook,  to  alight  from  the  ear,  she  could  have  done 
so  with  safety,  by  the  exercise  of  due  diligence  and  care,  then  she 
would  not  be  guilty  of  contributory  negligence,  even  though  you  find 
that  the  car  had  not  come  to  a  full  stop  but  was  still  moving.^ 

(e)  The  juiy  lare  instructed,  as  a  matter  of  law,  that  if  you  believe 
from  the  evidence  that  the  plaintiff  got  off  defendant's  car  at  an 
improper  place,  or  in  an  improper  manner,  and  if  you  further  be- 
lieve that  such  action  on  the  part  of  the  plaintiff  was  a  want  of 
ordinary  care,  which  contributed  to  the  injuries  complained  of,  then 
your  verdict  must  be  for  the  defendant. 

(f)  Although  you  may  believe  that  the  plaintiff  got  off  from  the 
car  at  the  north  side  of  D.  street,  w^hen  the  usual  place  for  alighting 
was  on  the  south  side  of  D.  street,  that  fact  alone  would  not  justify 
you  in  finding  her  guilty  of  negligence  as  would  bar  a  recovery  in 
the  case,  unless  you  believe  and  find  that  it  was  the  proximate  cause 
of  the  injury.* 

(g)  The  court  instructs  the  jury  that,  in  determining  the  ques- 
tion whether  the  plaintiff  Avas  negligent  in  and  about  alighting  from 
the  street  car  in  question  under  the  circumstances  under  which  the 
jury  find,  from  the  evidence,  the  plaintiff  did  so,  they  are  to  take  in- 
to consideration  not  alone  the  age  and  condition  of  the  plaintiff  at 
the  time,  but  also  the  relative  danger  and  risks  attending  the  act  of 
alighting  from  a  car  propelled  by  cable,  as  the  one  in  question  was, 
and  the  character  and  condition  of  the  locality  and  the  plaintiff's 
prior  knowledge  of  its  chai"aeter  and  condition,  as  shown  by  the  evi- 
dence ;  and  they  are  instructed  that  the  plaintiff  was  required  to 
exercise  care  for  her  safety  in  proportion  to  the  dangers  and  risks 
attending  the  act  of  alighting  fi'om  a  cable  car  under  such  circum- 
stances, and  a  failure  on  her  part  to  exercise  this  care  is  negligence 
which  deprives  her  of  the  right  of  recovery  in  this  action ;  and  if  the 
jui-y  believe,  from  the  evidence,  in  this  case,  that  the  plaintiff  did 
not  exercise  such  care,  and  was  guilty  of  such  negligence,  and  that 
such  failure  to  use  such  care  and  such  negligence  contributed  in  any 
way  to  the  injury  complained  of  in  this  action,  then  the  jury  should 
find  the  defendant  not  guilty.'' 

(h)  The  jury  are  instructed  that  if  they  find  from  the  evidence 
that  the  plaintiff  was  injured  while  alighting  from  the  car  while  it 
was  in  motion,  and  that  such  conduct  on  her  part  was  a  want  of 
ordinary  care  for  her  own  safety  which  contributed  to  the  injupy 
complained  of,  then  she  cannot  recover  in  this  case,  and  your  verdict 
should  be  for  the  defendant." 

3— Wabash    R.    T.    Co.    v.    Baker,  5— W.   C.   St.   R.   Co.   v.   Manning, 

—  Ind.   — ,   78   N.   E.   196   (19S).  170   111.   417   (427),   48  N.   E.  958,   aff'g 

4— N.    C.    St.    R.   Co.    v.    Eldridge,  70   111.   App.   239. 

151  111.   542.  38  N.   E.   246.  6— In   Chi.    C.    R.   Co.    v.   Canevin, 


§2072.] 


NEGLIGENCE— STREET   RAILROADS. 


1347 


(i)  That  while  it  was  the  duty  of  defendant  to  stop  its  car  to 
afford  the  plaintiff  an  opportunity  to  alight,  yet  the  failure  to  do 
so  would  not  give  the  jolaintiff  the  right  to  jump  from  the  moving 
car.'^ 


72  111.  App.  81,  the  court  held  the 
above  instruction  should  have 
been  given,  and  that  the  trial 
court  erred  in  modifying  it  by  add- 
ing the  word  "materially"  before 
the  word  "contributed"'  was  revers- 
ible error.  See  comment  of  the 
court  in  this  case  in  Erroneous  In- 
structions,  Vol    III,    same   heading. 

7 — The  above  short  instruction 
approved  in  McDonald  v.  City  El. 
R.  Co.,  137  Mich.  392,  100  N.  W. 
592    (593). 

Compare  that  with  the  follow- 
ing group  of  instructions  found  in 
Omaha  St.  R.  Co.  v.  Craig,  39 
Neb.    601,    58    N.    E.    209    (214,    215). 

"The  jury  are  instructed  that  if 
the  plaintiff  attempted  to  get  off 
a  moving  cable  car  while  the  speed 
of  the  train  was  being  slackened, 
ibut  before  the  train  had  been 
brought  to  a  full  stop,  she  was 
guilty  of  contributory  negligence 
which  bars  her  right  of  recovery, 
if  this  be  true,  although  the  men 
in  charge  of  the  train  did  not  im- 
mediately comply  with  her  re- 
quest to  stop  the  train. 

The  jury  are  further  instructed 
that  if  the  plaintiff  signaled  the 
car  to  stop,  and  the  car  immedi- 
ately began  to  slacken  speed,  and 
the  plaintiff,  without  w\iiting  for 
the  car  to  stop,  did  step  from  the 
car  while  it  was  in  motion,  and 
was  thereby  injured,  she  cannot 
recover. 

The  jury  are  further  instructed 
that  if  they  believe  from  the  evi- 
dence that  the  plaintiff,  in  at- 
tempting to  step  off  from  the  car 
while  still  in  motion,  stepped  di- 
lectly  out  from  the  car,  at  right 
angles  from  the  car,  and  that,  by 
reason  of  the  momentum  of  the 
car  and  her  own  body,  she  was 
caused  to  fall  over  northwards — 
the  direction  in  which  the  car  was 
moving — she  was  guilty  of  con- 
tributory negligence,  and  cannot 
recover. 

The  jury  are  further  instructed 
that  if  they  believe  from  the  evi- 
dence that  the  plaintiff  thought 
she  could  step  from  the  car  with 
safety  to  herself,  even  while  the 
car  was  in  motion,  the  fact  that 
she  so  believed  she  could  stop  from 
the  car  is  not  of  itself  proof  that 
she  wns  guilty  of  contributory 
negligence. 


If  the  jury  should  be  satisfied 
from  the  evidence  that,  when  the 
plaintiff  signaled  the  car  to  stop 
by  the  ringing  of  the  bell  for  that 
purpose,  the  car  immediately  be- 
gan to  slacken  its  speed,  and  that 
the  plaintiff,  without  waiting  for 
the  car  to  stop,  undertook  to  and 
did  step  from  the  car  while  it  was 
still  in  motion,  and  was  thereby 
injured,  she  cannot  recover,  and 
the  defendant  is  entitled  to  the 
verdict. 

The  jury  are  further  instructed 
that  if  you  find  from  the  evidence 
that  the  plaintiff,  without  wait- 
ing for  the  men  in  charge  to  bring 
the  same  to  a  stop,  attempted  to 
get  off  the  train  while  the  same 
was  in  motion,  and  that  injury  re- 
sulted to  her  by  reason  of  her  own 
act  in  attempting  to  get  off  of  the 
train  while  the  same  was  in  mo- 
tion, and  while  the  same  was  be- 
ing brought  to  a  stop,  then  the 
plaintiff   cannot    recover. 

The  jury  are  further  instructed 
that  the  plaintiff  assumed  the  re- 
sponsibility of  danger  in  attempt- 
ing to  step  from  the  car  while  in 
motion,  and  if  they  find  from  the 
evidence  that  she  did  so,  the  fact 
that  she  misjudged  her  ability  to 
get  from  the  car  with  safety,  does 
not  show  negligence  on  the  part 
of  the  defendant  company,  and 
does  not  create  any  liability  on  the 
part  of  the  defendant  company. 

The  jury  are  further  instructed 
that,  if  the  plaintiff  was  injured 
by  the  accident  caused  by  her  at- 
tempting to  jump  off  of  a  moving 
cable  car,  the  defendant  company 
is  not  liable,  unless  the  proof  sat- 
isfies them  that  some  negligent  act 
on  the  part  of  the  company's  ser- 
vants in  charge  of  the  train  pro- 
duced the  injury  shown  by  the 
evidence." 

A  shorter  Nebraska  instruction 
is  found  in  Omaha  St.  R.  Co.  v. 
Boeson.  68  Neb.  437,  94  N.  W.  Rep. 
619    (622): 

"The  jury  are  instructed  that  if 
you  believe  from  the  evidence  that 
the  plaintiff  was  not  thrown  from 
the  car,  but  that  he  attempted  to 
get  off  the  car  while  it  was  in 
motion,  and  fell  into  the  street, 
then  he  cannot  recover  damages, 
and  your  verdict  should  be  for 
the   defendant." 


1348  FORMS  OF  INSTRUCTIONS.  [§  2073. 

(j)  If  you  find  from  the  evidence  that  the  conductor  of  the  north- 
bound car  was  walking  on  the  running  board  on  the  outside  of  the 
same  for  the  purpose  of  collecting  a  fare  from  a  passenger  who  had 
boarded  it,  and  that  he  neither  said  nor  did  anything  to  the  deceased, 
who  was  on  the  running  board  on  the  opposite  side  of  the  car,  and 
that  the  deceased  jumped  off  and  was  killed,  there  cannot  be  a  re- 
covery against  the  defendant.^ 

(k)  But,  if  you  believe  that  a  reasonable  stop  was  made — that  is, 
a  stop  for  a  reasonable  length  of  time — at  or  near  G.  street  and  that 
she  had  given  no  notice  or  signal  that  she  desired  to  get  off  at  this 
place,  and  shall  further  believe  that  afterwards,  after  it  started,  it 
occurred  to  her  that  she  ought  to  have  gotten  off  at  this  place  at 
G.  street,  or  where  it  stopped,  and  shall  believe  that  she  attempted  to 
go  out  of  the  car  while  it  was  in  motion,  and  after  it  had  started 
again,  and  shall  believe  that  by  reason  of  its  being  in  motion  was 
the  cause  of  her  falling  off,  then  she  cannot  recover  in  the  action.^ 

§  2073.  Same  Subject — Jumping  From  Moving  Car  at  Command 
of  Conductor.  The  court  insti-ucts  the  jury  that,  if  you  believe,  from 
the  evidence,  that  the  defendant's  east-bound  car,  at  the  time  and 
place  in  question,  was  running  at  such  a  high  rate  of  speed  as  to  be 
dangerous  for  deceased,  or  any  ordinary  person  so  situated,  to  jump 
from  said  car,  and  that  said  conductor,  while  acting  within  the  scope 
of  his  authority  as  such  conductor  if  he  was  so  acting,  will- 
fully and  wantonly  compelled  deceased  to  jump  from  said  car  in 
manner  and  form  as  charged  in  the  declaration,  if  he  did  so,  and  while 
it  was  running  at  such  rate  of  speed,  and  that  said  conductor's  con- 
duct in  this  regard  showed  a  reckless  disregard  of  deceased's  safety, 
and  that  deceased  was  thrown  down  on  the  adjoining  track  and  ren- 
dered helpless,  and  while  so  lying  upon  said  track  was  run  over  and 
killed  by  the  west-bound  car  before  it  could  be  stopped,  then  you 
should  find  the  defendant  guilty,  even  though  you  should  find,  from 

8 — In     Memphis     St.     R.     Co.     v.  jured,    it   will    then    be   your   duty, 

Newman,    108    Teun.    666,    69    S.    W.  gentlemen,   to   find  your  verdict   In 

269,   it   was   held  vital  error  to  re-  favor    of     the     defendant    in     this 

fuse    the    above    instruction.  case." 

lu   Gilmore  v.   Seattle   R.    Co.,   29  The    instruction    was    held    good 

"Wash.    150,    69    Pac.    743    (745),    an  by  a  reference  to  another  iustruc- 

instruction    was    given    as    follows:  tion  in  the  following  words  of  the 

"If  you  believe  from  the  fair  pre-  court: 

ponderance     of     all     the     evidence  "The  instruction,  standing  alone, 

that  the  plaintiff  had  a  reasonable  would  seem   to  apply  that  the  ap- 

time,  ns  I  will  define  that  to  you,  pellant   was    permitted    to    hold   on 

In    which    to    alight    from    the    car,  to    the    stanchion    or    hand    rail    of 

and    that   she   did,   as   a   matter  of  the  car  for  a  reasonable  time  after 

fact,  alight  from  the  car,  but  that  alighting;  but  the  court  makes  his 

she    retained    her    hold    upon    the  meaning    clear    by    a    further    in- 

guard  rail  or  stanchion  of  the  car  struction  to  the  effect  that  a  pas- 

for    a    longer    time    that    would    be  senger  could  not  be   said  to  be  off 

reasonably    sufFiciont   for   a   person  the    car    so    long    as    he    was    sup- 

of  ordinary  prudence  and  activity,  porting  himself  thereby,  and  being 

considering   all   her  conditions   and  still  in  the  act  of  alighting." 

surroundings,   and  if  you  find  that  9 — Champagne    v.    La    Crosse    C 

by  reason  of  her  so  retaining  hold  R.   Co.,  121  Wis.   554,   99  N.   W.  334 

of    that    guard    rail    she    was    in-  (335). 


§2074.]  NEGLIGENCE— STREET  RAILROADS.  1349 

the  evidence,  that  there  was  no  fault  upon  the  part  of  the  motorman 
of  the  west-bound  car.^** 

§  2074.  Same  Subject — Failure  to  Move  Away  After  Alighting — 
Injury  by  Trailer,  (a)  The  court  instructs  the  jury  that  it  was 
the  dutj'-  of  the  defendant  B.  to  use  the  utmost  care  and  skill  that  pru- 
dent men,  engaged  in  the  same  or  like  business,  are  accustomed  to 
use  under  the  same  or  similar  circumstances,  to  enable  the  plaintiff, 
A.,  to  alight  from  the  car  in  safetj',  and  to  move  far  enough  from 
said  ear,  if  such  moving  away  was  necessary  after  so  alighting,  to  pre- 
vent his  being  struck  or  injured  by  the  trailer  with  said  car;  and  if 
you  believe  from  the  evidence  that  the  defendant  failed  to  use  such 
care,  and  that  by  reason  of  such  failure  the  plaintiff  was  prevented 
from  getting  out  of  the  way  of  defendant's  car  after  he  alighted 
therefrom  and  was  injured  thereby,  then  the  law  is  for  the  plaintiff, 
and  you  will  so  find. 

(b)  It  was  the  duty  of  the  plaintiff,  A.,  to  exercise  ordinary  care 
for  his  own  safety  in  alighting  from  said  car  and  moving  away 
from  the  same,  if  such  moving  away  was  necessary ;  and  if  you  believe 
from  the  evidence  that  the  said  A.  negligently  failed  to  exercise  such 
care,  or  negligently  remained  so  close  to  said  car  as  that  he  was 
struck  by  the  trailer  and  injured,  and,  but  for  such  negligent  failure 
on  the  part  of  the  plaintiff  to  move  away  from  said  car  when  he 
alighted  therefrom,  said  injuiy  would  not  have  been  received  by 
him,  then  the  law  is  for  the  defendant,  and  you  will  so  find.^^ 

§  2075.  Injury  to  Passenger  While  Trying  to  Escape  From  Ap- 
parently Imminent  Danger,  (a)  The  court  instructs  the  jury 
that  if  they  believe  from  the  evidence  that,  while  defendant  was 
operating  with  electricity,  street  cars  as  a  common  earner  of  passen- 
gers for  hire,  the  plaintiff  on  November ,  took  passage  on 

one  of  defendant 's  said  cars,  and  paid  her  fare,  and  while  she  was 
being  carried  as  such  passenger,  there  was  an  explosion  under  the 
ear  occasioned  by  some  part  of  the  apparatus,  and  that  such  explo- 
sion was  followed  by  fiame  and  fire  in  said  car,  from  which  the  car 
took  fire  and  began  to  bum,  and  that  said  explosion,  flame,  fire,  and 
burning  of  said  ear,  were  calculated  to  alarm  and  fill  with  fear  and 
dread  of  injuiy  or  death  from  fire  any  reasonably  prudent  person 
who  was  a  passenger  upon  said  car;  and  if  the  jury  further  believe 
from  the  evidence  that,  thereupon,  plaintiff  became  so  alarmed  and 
filled  with  fear  and  dread  of  being  burned  that  she  endeavored   to 

10 — Chi.    C.    R.    Co.   v.    O'Donnell,  jured.      In    order    to    find    for    the 

207  111.  478  (483),  69  N.   E.   882  (884).  defendant    under    instruction    2,    it 

11 — Louisville  Ry.  Co.  v.  Meglem-  was  not  necessary  for  the  jury  to 

ery,  25  Ky.  1587,  78  S.  W.  217  (218).  believe  from  the  evidence  that   the 

"We  are  unable  to  see  that  there  plaintiff's  negligence  was  the  sole 
was  any  error  in  instructions  1  cause  of  his  injury.  If  it  was  due 
and  2  given  by  the  court.  They  in  part  to  the  plaintiff's  negli- 
are  to  be  read  together,  and,  when  gence  and  in  part  to  the  defend- 
so  read,  state  plainly  that  the  ant's  negligence,  then  he  could  not 
plaintiff  cannot  recover  if  he  failed  recover,  if,  but  for  his  own  negli- 
to  exercise  ordinary  care,  and  but  gence.  the  injury  would  not  have 
for  this   would   not   have   been   in-  happened." 


1350  FORMS  OP  INSTRUCTIONS.  [§  2076. 

escape  from  said  car  through  the  window  thereof,  in  order  to  avert 
what  she  believed  to  be  an  imminent  peril  to  her  life,  and  that  while 
she  Avas  thus  endeavoring  to  escape,  she  exercised  such  care  as  a 
reasonably  prudent  person  would  exercise  under  the  same  circum- 
stances; and  that  in  so  attempting  to  escape  she  was  hurt  by  being 
violently  thrown  upon  the  paved  street;  and  if  the  jury  further  be- 
lieve from  the  evidence  that  such  explosion,  flame,  and  fire  and  burn- 
ing of  said  car  wei'e  occasioned  by  any  defect  in  the  condition  of 
said  car  or  the  apparatus  thereof,  or  by  any  improper  management 
of  said  car,  and  if  such  defective  condition  or  improper  management 
resulted  from  any  negligence  on  the  part  of  the  defendant,  or  its 
agents  or  servants,  that  is,  any  failure  on  their  part  to  exercise  the 
highest  degree  of  care,  skill  and  foresight  of  reasonably  cautious  per- 
son engaged  in  operating  electric  street  cars,  then  the  jury  will  find 
for  the  plaintiff,  and  assess  her  damages,  as  stated  in  another  in- 
struction; unless  the  jury  further  find  that  plaintiff  was  guilty  of 
negligence  directly  contributing  to  her  injuries.^^ 

(b)  The  court  instructs  the  jury  that  if  a  person  without  fault 
on  her  part,  is  confronted  with  sudden  danger,  or  apparent  sudden 
danger,  the  obligation  resting  upon  her  to  exercise  ordinary  care  for 
her  own  safety  does  not  require  her  to  act  with  the  same  delibera- 
tion and  foresight  which  might  be  required  under  ordinary  circum- 
stances.^^ 

§  2076.  Payment  of  Fare  in  Genuine  Coin.  If  you  find  from  the 
evidence  in  the  case  that  the  plaintiff  boarded  defendant's  car,  in- 
tending to  become  a  passenger,  he  was  entitled  to  all  the  rights  and 
privileges     of     a     passenger,— that     is,     there     was     due     him     the 

12— Brod    V.     St.    L.     T.    Co.,    115  13— Chi.   U.    T.   Co.    v.    Newmiller, 

Mo.    App.    202,    91    S.    W.    993    (995).  116    App.     111.     625     (629,     630),     aff'd 

"Defendant  criticizes  the  instruc-  215  111.   ^83,  74  N.   E.  410. 

tlon    on    several    grounds,    one    of  "The  objections  urged  to  the  in- 

which    is   that   it    submits   a   cause  struction  are  that  it  is  an  abstract 

of   action    not    stated    in    the    peti-  proposition   of  law,   and   is   errone- 

tion.     The   instruction,    in   no   way,  ous    in    omitting    the    qualification 

materially    departs   from    the    alle-  that   the   danger   must   be    such    as 

gations    of    the    petition.     The    pe-  to  be  apparent  to  a  person  of  rea- 

tition    is    broad    and    so    is    the    in-  sonatole     prudence      and      common 

struction.      Plaintiff   did    not    allege  sense.      We    do    not    think    the    in- 

thc  specific  cause  of  the  explosion  struction     abstract     in     the     sense 

of    the   car   nor   did    she  prove   the  that  there  is  no  basis  for  it  in  the 

exact  location  or  cause  of  the  ex-  evidence.      If,    as    was    testified    to 

plosion  and  fire.     She  and  her  wit-  by  some  of  the  witneses,  the  flame 

nesses    testified    that    the    noise    of  reached     into     and     nearly    to     the 

the   explosion    came  from    beneath  center   of   the    car,    then,    certainly 

the  bottom  of  the  car,  on  the  left  there    was    sudden    and    apparent 

side   and    near   the   front   end,    and  danger    of    fire,    and    we    think    it 

that    the    fire    enveloped    the    left  would    so    appear    to    a    person    of 

side    of    the    car.      Plaintiff    could  ordinary  prudence.   Apparently  the 

not    know    and    therefore    was    not  passengers    generally    so     thought. 

required     to    allege    the    cause    of  and  it  can  hardly  be  predicated  of 

the   explosion  and   fire.     She   made  all  those  who  sought  to  escape  the 

a  prima  facie  case  by  showing  the  apparent  danger  that  they  were  all 

unusual    occurrence   and   it   is   this  lacking    in    ordinary    prudence    or 

prima    facie    case    the    Instruction  common   sense." 
submitted  to  the  jury." 


§2077.]  NEGLIGENCE— STREET  RAILROADS.  1351 

exercise  of  ordinary  care ;  and  if  he  tendered  to  the  conductor  a  gen- 
iiine  coin  of  the  denomination  as  alleged, — United  States  silver  coin, 
— in  payment  of  his  fare,  it  was  the  duty  of  the  conductor  to  accept 
the  coin,  and  transport  him  to  his  destination.  If  the  coin  presented 
was  not  a  genuine  coin, — in  other  words,  if  it  was  a  counterfeit  coin, — 
the  conductor  ought  not  to  have  accepted  it,  and  if  the  plaintiff 
failed  to  pay  the  fare  demanded  of  him  he  had  the  right  to  expel 
him  from  the  ear.  But  if  the  coin,  as  I  have  stated,  was  a  genuine 
silver  coin  of  the  United  States  Government,  the  conductor  should 
have  accepted  it,  and  returned  to  him  the  change  that  was  proper, 
and  conveyed  him  to  his  destination.  It  is  a  question  of  fact  to  be 
determined  by  you  under  the  testimony  in  the  case.  The  coin  is  in 
evidence,  and  you  have  the  right  to  inspect  it,  in  passing  upon  that 
question.^* 

LIABnJTY  FOR  INJURIES  TO  PERSONS  OTHER  THAN 
PASSENGERS  OR  EMPLOYES. 

§  2077.  Degree  of  Care  Due  Pedestrian,  (a)  The  court  instructs 
the  juiy  that  before  the  plaintiff  can  recover  against  the  defendant 
in  this  action  it  is  incumbent  upon  her  to  prove  to  the  satisfaction 
of  the  jury  that  the  employes  of  defendant  in  charge  of  the  car  in 
question  failed  and  neglected  to  exercise  ordinaiy  care  and  diligence 
in  stopping  its  car  in  time  to  have  avoided  the  injury  to  the  de- 
ceased, A.  H. ;  and,  unless  the  plaintiff  has  shown  by  the  evidence 
such  want  of  ordinary  care  on  the  part  of  the  defendant  company's 
employes  in  charge  of  said  car,  then  the  jury  will  find  their  verdict 
for  the  defendant. 

(b)  The  court  instnicts  the  jury  that  before  the  plaintiff  can  re- 
cover from  the  defendant  in  this  action  it  is  incumbent  upon  her  to 
establish  to  the  satisfaction  of  the  jury  that  the  employes  of  the  de- 
fendant company  in  charge  of  its  car,  after  they  saw,  or  by  the 
exercise  of  ordinaiy  care  might  have  seen,  the  danger  to  the  de- 
ceased, A.  H.,  were  guilty  of  carelessness  or  negligence  in  failing  and 
neglecting  to  stop  said  car  in  time  to  have  averted  the  injury  to  said 
deceased,  A.  H. 

(c)  The  court  instructs  the  jury  that  the  employes  of  the  defend- 
ant company  owed  to  the  deceased,  A.  H.,  only  that  degree  of  care 
which  an  ordinarily  careful  and  prudent  person  engaged  in  the  same 
business  would  have  exercised  under  like  and  similar  circumstances ; 
and,  if  the  jury  believes  from  the  evidence  that  the  employes  of  the 
defendant  company  exercised  such  care,  then  the  juiy  will  find  their 
verdict  in  favor  of  the  defendant. ^^ 

§  2078.  Same  Subject — Not  Liable  for  Mere  Accident  or  Misad- 
venture,    (a)     If  you  believe  and  find  from   the  evidence   that   the 

14— Atlanta    Con.    St.    R.    Co.    v.        15— Holwerson  v.   St.   L.   «fe  S.   R. 
Keeny,    99    Ga.    266,    25    ».    E.    629     Co.,  137  Mo.  216,  57  S.  W.  770. 
33  L.   R.  A.  824. 


1352  FORMS  OF  INSTRUCTIONS.  [§  2079. 

said  K.  was  at  the  north  sidewalk  of  A.  street  when  defendant's  car 
was  crossing  C.  avenue,  and  then  suddenly  started  from  her  position 
at  the  sidewalk  to  cross  A.  street,  and  without  regard  for  her  own 
safety,  or  without  looking  for  or  seeing  the  car,  ran  into  the  same, 
and  that  such  conduct  on  her  part  was  the  sole  cause  of  her  injury 
and  death,  without  any  negligence  or  want  of  ordinary  care  on  the 
part  of  the  motorman  in  charge  of  the  car  causing  or  contributing  to 
such  injury  or  death,  then  you  should  hnd  for  the  defendant. 

(b)  If  you  believe  and  find  from  the  evidence  that  the  injury 
and  death  of  the  said  K.  were  the  result  of  mere  accident  or  misad- 
venture without  the  fault  or  negligence  of  any  one,  then  you  should 
find  for  the  defendant.^® 

§  2079.  Degree  of  Care  Due  Persons  Riding  in  Wagons  or  Other 
Vehicles  Along  Track,  The  court  instructs  the  juiy  that  if  the  plain- 
tiff was  injured  in  the  manner  complained  of  in  the  petition,  and  that 
the  accident  and  consequent  injury,  if  any  there  was,  was  caused  by 
the  failure  of  the  defendant  or  its  employes  to  exercise  reasonable 
and  ordinaiy  care  in  the  operation  of  its  car,  then  the  law  is  for  the 
plaintiff,  and  the  jury  should  so  find.  However,  the  court  further 
instructs  the  jury  that  the  plaintiff  was  bound  to  exercise  that  degree 
of  care  and  caution  for  his  own  safety  that  a  person  of  ordinary 
prudence  would  exercise  under  the  same  and  similar  circumstances, 
and  if  the  jury  believes  that  the  plaintiff  did  not  exercise  such  a 
degree  of  care  and  caution,  and  the  accident  was  occasioned  thereby, 
then  the  law  is  for  the  defendant,  and  the  jury  should  so  find,  unless 
the  jury  should  further  find  that  the  defendant  did  or  could  have 
discovered  the  peril  of  the  plaintiff  in  time  to  have  avoided  the  injury 
to  him  by  the  exercise  of  reasonable  diligence.  ''Ordinary  care,"  as 
used  in  these  instructions,  means  that  degree  of  care  which  a  person 
of  ordinaiy  prudence  would  exercise  under  the  same  or  similar  cir- 
cumstances.^''' 

16 — Koenig-  v.   Union  D.  Ry.   Co.,  moving    cars   propelled    by   electri- 

194  Mo.   564,   92  S.   W.  497.  city  it  is  incumbent  on  those  hav- 

17 — Greene   v.   Louisville   Ry.  Co.,  ing  charge  of  them  in  the  crowded 

27   Ky.    Li.   316.    84   S.   W.   1154.  highway  to  exercise  care  commen- 

"It  is   incumbent  on  all  travelers  surate   with   the  circumstances   for 

on    the    highway    to   exercise    ordi-  the  protection  of  others,  and  to  this 

nary  care  for  the  safety  of  others  end     they     must     keep     a     lookout 

using  the  highway.     The  operators  ahead    of   the  car.     The   failure   of 

of    street    cars    are   bound    by   this  the   court   to   so    instruct   the   jury 

rule  no  less  than  other  persons  on  was  prejudicial  to  appellant  under 

the   highway.     The   only   difference  the    facts    of   the    case.      Shearman 

between  a  street  car  and  other  ve-  &  Redficld  on  Negligence,  par.  485; 

hides   is  that  it  cannot   turn   aside  Thompson  on  Neg*ligence,  par.  1383; 

as    other    vehicles,    but    must    stay  Robinson  v.  Louisville  Ry.   Co.,  112 

on   the    track,   and   it   is  entitled   to  Fed.  484,  50  C.  C.  A.  357;  Louisville 

the   use   of   the   track  without   ob-  R.  Co.  v.  Wood,  2  Ky.  L.  387;  Cen- 

struction   from  other  vehicles;   but  tral    P.    R.    Co.    v.    Chatterson,    14 

it   can   no   more   run   down   another  Ky.    L.    663;    Owensboro    R.    Co.    v. 

vehicle     by    negligence     than     any  Hill,   21   Ky.    L.   1638,    56    S.    W.   21. 

other     traveler     on     the     highway  Tf   appellant   was    obstructing  with 

may    do   so,    although    the    vehicle  his    wagon    the    railway   track,    he 

may  be   upon   its   track.     In   oper-  might    be  punished    for   this   under 

ating     in     public     streets     rapidly  the    city    ordinance;    tout    he    was 


§  2080. 


NEGLIGENCE— STREET  RAILROADS. 


1353 


§  2080.  Degree  of  Care  Due  Infant  Trespasser,  (a)  The  jury  are 
further  instructed  by  the  court  that  if  the  plaintiff,  H.  R.  W.,  at  the 
time  of  the  injury,  was  a  child  of  tender  age  of  7  years,  and  was 

riding  upon  the  defendant 's  car  in  the  city  of ,  whilst  the  same 

was  in  motion,  and  that  the  defendant's  servants  in  charge  of  said 
car  knew  of  his  presence  on  the  car  and  ordered  him  to  get  off,  it  was 
their  duty  to  have  reduced  the  speed  of  said  car,  before  ordering  the 
plaintiff  to  leave  the  same,  to  such  a  rate  of  speed  as  the  plaintiff 
might  depart  from  the  car  with  safety,  notwithstanding  the  jury  may 
believe  that  the  plaintiff  was  at  the  time  a  trespasser  upon  the  defend- 
ant 's  car.  But  in  order  to  find  for  the  plaintiff  the  jury  must  believe 
that  the  order  of  the  conductor  was  given  in  such  a  manner  as  to 
frighten  or  intimidate  the  plaintiff  to  such  an  extent  as  to  cause  him 
to  jump  from  the  car  while  it  was  in  motion ;  taking  into  consideration 
the  age  and  capacity  of  the  plaintiff.^* 


lawfully  upon  the  highway,  and 
had  the  right  to  use  one  part  of 
it  no  less  than  another,  although 
occupied  by  the  track  of  the  street 
railway.  If,  while  on  the  street 
car  track,  he  was  struck  by  the 
car  without  negligence  on  the  part 
of  those  in  charge  of  the  car  when 
his  presence  on  the  track  could  not 
be  discovered  by  them  in  the  exer- 
cise of  ordinary  care  in  time  to 
avert  the  injury,  he  cannot  re- 
cover. But  he  was  not  a  trespas- 
ser on  the  track,  and  he  had  the 
right  to  anticipate  that  a  proper 
lookout  would  be  kept  by  those 
in  charge  of  the  cars,  and  that  or- 
dinary care  would  be  exercised  by 
them  as  in  the  case  of  other  ve- 
hicles to  avoid  running  into  him. 
In  27  Am.  &  Eng.  Ency.  of  Law. 
p.  70,  the  rule  is  thus  stated: 
'While  it  is  the  duty  of  vehicles 
moving  along  street  railway  tracks 
to  leave  the  tracks  on  the  ap- 
proach of  cars,  so  as  not  to  ob- 
struct their  passage,  still  those  in 
charge  of  the  cars  must  use  rea- 
sonable diligence  to  prevent  col- 
lisions, and  the  company  is  liable 
for  injuries  resulting  from  their 
failure  to  do  so.  Thus,  where  a 
vehicle  is  seen  moving  on  the 
tracks  ahead  of  a  car,  the  motor- 
man,  gripman,  or  driver  should 
bring  his  car  under  control,  if  pos- 
sible, so  as  to  avoid  a  collision 
if  the  driver  of  the  vehicle  fails 
to  leave  the  track;  but  he  is  not 
required  to  bring  the  car  to  a  stop 
unless  the  vehicle  is  sufficiently 
near  to  be  reasonably  considered 
in  a  position  of  dTnger.  It  has 
been  held  that,  where  a  street  car 
approaching  from  the  rear  runs 
down   a   wagon   driving    along   the 


track,  this  is  of  itself  sufficient 
evidence  of  negligence  on  the  part 
of  the  street  railway  company,  in 
the  absence  of  special  circum- 
stances excusing  such  act,  to  car- 
ry the  question  to  the  jury.  Where 
a  street  car  is  approaching  from 
the  rear  a  vehicle  moving  along 
the  track,  the  person  operating  the 
car  has  not  the  right  to  proceed 
without  regard  to  the  presence  of 
the  vehicle,  in  anticipation  that 
the  vehicle  will  leave  the  track  in 
time  to  give  free  passage  to  the 
car.'  " 

IS— Richmond  T.  Co.  v.  Wilkin- 
son, 101  Va.   394,  43  S.   E.   622   (623). 

The  above  instructions  "are  ob- 
jected to  upon  the  ground  that 
there  is  no  evidence  to  support 
them;  that  they  assume  that  it 
must  be  dangerous  for  a  boy  of  7 
to  jump  off  a  car  in  motion;  that 
they  assume  that  the  running 
board  of  a  street  car  is  a  dan- 
gerous place  for  a  boy  of  7  years 
of  age  to  stand;  and,  further,  that 
these  instructions  would  forbid 
the  conductor  to  order  a  trespass- 
ing boy  off  his  car  when  the  car 
was  going  slowly  enough  for  him 
to  do  so  with  perfect  safety  to  the 
boy.  These  objections  are  not  well 
taken.  The  evidence  was  ample 
to  sustain  the  instructions,  and 
they  do  not  assume  that  the  run- 
ning board  of  a  car  is  a  dangerous 
place  for  a  boy  7  years  of  age  to 
stand,  or  that  it  is  dangerous  for 
a  boy  of  that  age  to  jump  from 
a  moving  car.  Those  questions 
were  submitted  to  the  jury  upon 
the  evidence,  and  they  are  charged, 
in  reaching  their  conclusion,  to 
consider  whether   the  plaintiff  ex- 


1354  FORMS  OF  INSTRUCTIONS.  [§  2080. 

(b)  If  the  jury  further  believe  from  the  evidence  that  the  em- 
ployes of  defendant  knew  (or  could  have  known  by  the  exercise  of 
reasonable  care),  the  plaintiff  was  on  said  car,  in  a  dangerous  situ- 
ation, considering  his  age  'and  experience  and  understanding,  that 
then  it  was  their  duty  to  slow  up  sufficiently  to  permit  said  plaintiff 
to  leave  said  ear  in  safety,  if  the  same  was  in  motion,  and,  if  the 
said  car  had  not  been  started,  not  to  start  same  until  said  plaintiff 
had  gotten  to  a  place  of  safety;  and,  if  the  jury  believe  from  the 
evidence  that  the  injury  resulted  to  the  plaintiff  from  the  failure  of 
said  employe  in  either  one  of  these  particulars,  they  must  find  for 
the  plaintiff";  provided  they  believe  from  the  evidence  that  the  plain- 
tiff exercised  such  a  degree  of  care  and  caution  as  under  the  circum- 
stances might  reasonably  be  expected  from  one  of  his  age  and  in- 
telligence. 

(c)  If  you  believe  from  the  evidence  that  the  motorman  or  con- 
ductor knew  (or  could  have  known  by  the  exercise  of  reasonable 
care),  that  when  the  car  was  about  to  start  off  on  its  return  trip 
that  the  said  plaintiff  occupied  a  dangerous  position  for  a  child  of 
tender  years,  that  then  it  was  the  duty  of  the  said  conductor  and 
motorman  not  to  start  the  car  while  the  plaintiff  was  so  occupying 
said  position;  and,  if  you  believe  from  the  evidence  that  they  did  so, 
negligence  may  be  imputed  to  the  defendant,  if  the  jury  believe  that 
the  accident  was  occasioned  by  said  negligence;  provided  the  jury 
shall  believe  from  the  evidence  that  the  plaintiff  exercised  such  a  de- 
gree of  care  and  caution  as  under  the  circumstances  might  reasonably 
be  expected  from  one  of  his  age  and  intelligence.^® 

ercised  such  a  degree  of  care  and  tended,  making  it  tlie  duty  of 
caution  as  under  the  circumstances  the  defendant  to  keep  a  lookout 
might  reasonably  be  expected  for  trespassers.  Ordinarily,  it  is 
from  one  of  his  age  and  intelli-  not  the  duty  of  a  railroad  com- 
gence.  Nor  does  it  appear  that  pany,  operating  its  trains,  to  use 
these  instructions  are  subject  reasonable  care  to  discover  and 
to  the  objection  that  they  would  avoid  injuring  persons  trespassing 
forbid  the  conductor  to  order  a  upon  its  tracks.  C.  &  O.  R.  Co.  v. 
trespassing  boy  off  his  car  when  Rogers,  100  Va.  324,  41  S.  E.  732. 
the  car  was  going  slowly  enough  Whether  or  not  this  rule  applies 
for  him  to  do  so  with  safety  to  the  to  street  railways  in  a  populous 
boy.  Whether  the  car  was  going  city,  where  children  of  tender 
slowly  enough  to  justify  the  con-  years  are  constantly  coming  in 
ductor  in  ordering  a  child  7  years  dangerous  proximity  to  street  cars, 
of  age  to  jump  off  was  a  question  we  need  not  now  consider,  for  the 
for  the  jury,  and,  under  the  in-  instructions  under  consideration, 
structions  given  in  this  case,  the  when  applied  to  the  facts  of  the 
jury  were  chai-ged  with  the  duty  case  at  bar,  are  free  from  objec- 
of  determining  that  question."  lion.  The  employes  of  the  defend- 
19 — Richmond  T.  Co.  v.  Wilkin-  ant  company  knew  that  the  chil- 
pon,  101  Va.  394,  43  S.  E.  622  (624).  dren  were  on  the  car.  The  motor- 
Objections  were  also  made  to  the  man  admits  that  he  saw  plaintiff, 
above  instructions  upon  the  together  with  other  children,  on 
"ground  that  they  tell  the  jury,  the  running  boards  of  the  car  just 
If  the  employes  of  the  defendant  before  it  started,  and  that  he 
could  have  known  by  the  exercise  moved  off  when  the  bell  was  rung, 
of  reasonable  care  that  the  plaintiff  without  looking  back  to  see  if  they 
was  on  the  car  in  a  dangerous  sit-  were  off.  The  conductor  admits 
uation,    etc.,    thereby,    it    is    con-  that  he  saw  as  many  as  three  boys 


2081.] 


NEGLIGENCE— STREET   RAILROADS. 


1355 


§  2081.  Statutory,  Municipal  and  Other  Regulations  of  the  Public 
Authority,  (a)  The  court  instructs  you  that  there  is  an  ordinance 
of  the  city  of  Memphis,  a  violation  of  which  is  a  misdemeanor,  which 
provides  as  follows : 

Article  39,  paragraph  5:  "Conductors  and  drivers  of  each  car 
shall  keep  a  rigid  lookout  for  all  teams,  carriages,  and  persons,  on 
foot,  and  especially  children,  either  on  the  track,  or  moving  towards 
it,  and  on  the  first  appearance  of  danger  to  such  team  or  persons,  or 
other  obstructions,  the  car  shall  be  stojiped  in  the  shortest  time  and 
space  possible." 
/    Also  another  section,  namely : 

Article  39,  paragraph  25:  "At  no  point  within  the  city  limits 
shall  they  (meaning  the  street  cars)  run  at  a  greater  speed  than  15 
miles  per  hour. ' ' 

(b)  The  court  instructs  you  that  a  failure  to  comply  with  the 
city  ordinances  above  cjuoted,  within  the  city  limits,  is  negligence  per 
se,  and  will  render  the  railway  company  liable,  if  its  negligence  was 
the  proximate  cause  of  the  accident  and  injui-y.^" 


on  the  car,  and  that  they  turned 
some  of  tlje  seats.  He  says  that 
he  thought  they  were  off,  but  ad- 
mits that  he  did  not  see  but  two 
get  off.  If,  therefore,  it  were  im- 
proper for  these  instructions  to  use 
the  expression,  'or  could  have 
known  by  the  exercise  of  reason- 
able care,'  it  was  harmless  error, 
for  the  employes  knew,  at  or 
about  the  time  the  car  started, 
that  the  children  were  on  the  car, 
and  the  conductor  ordered  them 
off." 

20— Memphis  St.  R.  Co.  v. 
Haynes,  112  Tenn.  712,  81  S.  W.  374 
(375). 

"In  the  case  of  Queen  v.  Day- 
ton C.  &  I.  Co.,  95  Tenn.  45S,  32 
S.  W.  460,  30  L.  R.  A.  82,  49  Am. 
St.  935,  it  was  held  that  the  em- 
ployment of  an  infant  in  a  mine 
in  violation  of  the  statute  forbid- 
ding such  employment,  and  de- 
claring it  a  misdemeanor,  consti- 
tuted per  se  such  negligence  as 
rendered  the  employer  liable  for 
all  injuries  sustained  by  the  in- 
fant in  the  course  of  the  employ- 
ment. In  Riden  v.  Grimm  Bros., 
97  Tenn.  220,  36  S.  W.  1097,  35  L. 
R.  A.  587,  it  was  held  that  the 
sale  of  intoxicating  liquors  to  an 
habitual  drunkard,  after  notice 
from  the  latter's  wife  forbidding 
it,  in  violation  of  Acts  1889,  c.  68, 
making  such  sale  a  misdemeanor, 
was  per  se  such  negligence  as  ren- 
dered the  seller  liable  to  the  wife 
for  the  death  of  the  husband,  or 
other  injury  resulting  to  her  from 


&uch  sale.  In  Schmalzried  v. 
White,  97  Tenn.  36,  36  S.  W.  393,  32 
L.  R.  A.  782,  the  court  had  under 
consideration  the  question  whether 
the  violation  of  a  city  ordinance 
would  impose  the  same  liability  as 
the  violation  of  a  statute.  The 
ordinance  under  examination  there 
concerned  the  erection  of  fire  es- 
capes on  buildings.  In  that  case 
the  court  used  the  following  lan- 
guage: 'It  is  insisted  that  the  ordi- 
nance of  1890  imposed  no  duty 
upon  the  owners  of  this  building, 
for  a  breach  of  which  a  civil  ac- 
tion can  be  maintained  by  one  sus- 
taining injury  for  such  breach, 
and  that  therefore  the  trial  judge 
was  in  error  in  letting  this  go  to 
the  jury.  It  is  conceded  that  for 
a  violation  of  a  general  statute  a 
civil  action  will  lie  at  the  instance 
of  a  party  injured  thereby.  Queen 
V.  Da>-ton  C.  &  I.  Co.,  95  Tenn.  458, 
32  S.  W.  460,  30  L.  R.  A.  82,  49  Am. 
St.  635.  But  it  is  insisted  that  this 
is  not  true  with  regard  to  a  viola- 
tion of  a  municipal  ordinance.  An 
examination  of  the  authorities  will 
show  much  diversity  of  judicial 
opinion  on  this  question.  The  cases 
of  Bott  V.  Pratt,  33  Minn.  323.  23 
N.  W.  237.  53  Am.  Rep.  47;  Osborne 
V.  McMasters,  40  Minn.  103.  41  N. 
W.  543,  12  Am.  St.  698;  Hayes  v. 
Mich.  C.  R.  R.,  Ill  U.  S.  228.  4 
Sup.  Ct.  369,  28  L.  Ed.  410,  and 
Salisbury  v.  Hochenroder.  106 
Mass.  458,  8  Am.  Rep.  354,  hold  that 
for    the    violation    of    a    municipal 


1356 


FORMS  OF  INSTRUCTIONS. 


[§  208L 


(e)  You  are  instructed,  gentlemen  of  the  juiy,  that  it  is  the  duty 
of  the  street  railway  company  to  exercise  ordinary  care  to  keep 
level  with  the  balance  of  the  street  the  space  between  their  rails  and 
tracks  and  two  feet  on  each  side  of  the  same,  and  keep  the  tops  of 
the  rails  of  their  tracks  on  a  level  with  the  surface  of  the  street.    It 


ordinance  an  action  can  be  main- 
tained by  a  private  individual  in- 
jured tliereby.  The  cases  of  Pliil- 
adelphia  R.  R.  v.  Ervin,  89  Pa.  71 
33  Am.  Rep.  726;  Flynn  v.  Canton 
Co.,  40  Md.  312,  17  Am.  Rep.  603 
Heeney  v.  Sprague,  11  R.  I.  456 
23  Am.  Rep.  502,  and  Vandyke  v 
Cincinnati,  1  Disn.  (Ohio)  532,  talce 
the  contrary  view.  At  the  April 
term,  1903,  of  this  court,  at  this 
place,  in  the  case  of  Memphis  St. 
R.  Co.  v.  Williford  (no  opinion 
filed),  error  was  assigned  upon  the 
charge  of  the  circuit  judge,  sub- 
stantially the  same  as  that  now 
complained  of.  Indeed,  the  same 
city  ordinances  which  are  copied 
supra  were  involved  in  that  case, 
and  were  the  subjects  of  the 
charge  of  the  circuit  judge  there. 
The  court  held  in  an  oral  opinion 
delivered  by  Mr.  Justice  Shields, 
that  the  same  rule  laid  down  in 
Queen  v.  Dayton  C  &  I.  Companj', 
supra,  in  respect  of  statutes,  ap- 
plied to  city  ordinances.  We  have 
again  examined  the  question,  but 
deem  it  unnecessary  to  go  into  an 
extended  discussion  of  it.  To  what 
has  already  been  said  in  our  cases 
we  shall  only  add  that  we  are  un- 
able to  find  any  convincing  force 
in  the  suggestion,  occurring  in 
many  of  the  cases,  that  a  distinc- 
tion should  be  made  between  stat- 
utes and  ordinances,  in  respect 
of  the  question  referred  to,  on  the 
ground  that  the  former  can  create 
a  cause  of  action  between  private 
individuals,  or  a  civil  cause  of  ac- 
tion in  any  sense,  and  the  latter 
cannot.  If  an  ordinance  be  passed 
for  the  protection  of  the  individ- 
uals composing  the  public,  as  dis- 
tinguished from  the  municipality 
itself,  and  be  within  the  legislative 
power  of  the  corporation,  and  any 
member  of  the  public  suffer  an  in- 
jury peculiar  to  himself  by  reason 
of  the  violation  of  such  ordinance 
by  some  other  person,  it  is  difficult 
to  see  why,  on  any  sound  theory, 
4ie  may  not  have  an  action  there- 
for against  the  offender.  Such  or- 
dimncps  are  devised  for  the  pur- 
pose of  creating  rulf^s  of  conduct 
for  the  fruidance  of  the  people,  just 
as   statutes   are,   and  they   may  be 


said  to  emanate  ultimately  from 
the  Legislature,  since  municipali- 
ties, in  this  state  at  least,  can  ex- 
ercise no  powers  which  are  not  ex- 
pressly or  by  implication  conferred 
upon  them  by  that  body. 

It  is  true  that  the  ordinance  does 
use  the  expression  'on  the  first 
appearance  of  danger  to  such 
teams  or  persons  .  .  .  the  car 
shall  be  stopped,'  etc.,  but  this 
language  must  be  given  a  reason- 
able construction.  Taking  into  con- 
sideration the  purpose  intended  to 
be  served  by  the  ordinance,  we  are 
of  opinion  that  it  means,  when 
the  danger  of  a  collision  becomes 
imminent,  the  car  shall  be  stopped. 
The  danger  to  be  apprehended  is 
always  that  of  a  collision.  It  is 
always  potential  when  street  cars 
and  other  vehicles,  horsemen  and 
pedestrians  are  using  the  same 
thoroug'hfare.  It  does  not  become 
actual  until  it  is  perceived  to  be 
imminent.  It  may  be  then  said 
to  first  appear  as  a  real  danger. 

When  the  danger  of  a  collision  is 
imminent,  it  is  certainly  not  un- 
reasonable to  require  the  railway 
company  to  stop  its  cars  in  the 
shortest  time  and  space  possible. 
This,  of  course,  implies  that  the 
machinery  and  appliances  shall  be 
in  proper  condition,  and  also  that 
the  servants  of  the  company  shall 
do  all  that  men  of  reasonable  care, 
prudence  and  alertness  in  the  same 
situation  and  with  the  same  appli- 
ances could  do  to  stop  the  car  and 
prevent  the  collision.  Citizens'  St. 
Ry.  Co.  v.  Dan,  102  Tenu.  320-325, 
52  S.   W.   177. 

Nor  is  this  rule  in  conflict  with 
that  laid  down  in  Citizens'  St.  Ry. 
V.  Shepherd,  107  Tenn.  444,  64  S.  W. 
710. 

In  that  case  the  court  held  that, 
when  the  danger  of  a  collision  be- 
came imminent,  then  it  became  the 
duty  of  the  motorman  to  use  ordi- 
nary care  to  stop  his  car  and  pre- 
vent an  accident.  But  ordinary 
care  under  such  circumstances — 
that  is,  when  the  danger  of  a  col- 
lision is  imminent — is  that  degree 
of  care  which  is  described  in  the 
next,  but  one,  preceding  para- 
graph." 


§2082.]  NEGLIGENCE— STREET  RAILROADS.  1357 

is  also  their  duty  to  stop  their  cars  at  least  five  feet  before  approach- 
ing a  railroad  crossing.  It  is  also  the  duty  of  the  emjaloye  of  the 
defendant  company  operating  their  cars,  when  they  discover  a  person 
in  peril  on  their  track,  to  use  reasonable  diligence  to  stop  the  car  and 
avoid  injury  to  such  person.-^ 

§  2082.  Joint  Liability  With  Other  Individuals  or  Corporations. 
The  court  instructs  the  jury  that  the  plaintiff  has  filed  her  declaration 
containing  one  count' which  states  her  cause  of  action;  that  in  and  by 
said  declaration  she  charges  both  the  defendants  with  negligence 
causing  said  injury;  that  the  juiy  may  find  one  or  both  of  the  de- 
fendants guilty  or  not  guilty,  as  the  jury  may  determine  from  all  the 
evidence  in  the  case;  that  before  the  jury  can  find  the  defendant,  the 
S.  Ry.  Co.  guilty,  they  must  believe,  from  a  preponderance  of  the 
evidence,  that  the  said  S.  Ry.  Co.  is  guilty  of  the  negligence  charged 
against  it  in  said  declaration ;  that  the  injury,  if  any,  sustained  by  the 
plaintiff  w^as  a  natural  consequence  of  the  negligence  charged  against 
the  said  S.  Ry.  Co.,  flowing  directly  and  immediately,  in  unbroken 
sequence,  from  said  alleged  negligence. 2- 

§  2083.  Care  of  Road  Beds  and  Tracks,  (a)  The  eoui-t  instructs 
the  jury  that  though  they  may  believe  from  the  evidence  that  the 
plaintiff,  B.,  saw  the  heap  of  snow,  alleged  to  have  been  piled  or 
thrown  by  the  defendant  company,  and  knew  that  it  was  of  a  danger- 
ous character,  but  knew  that  other  persons  had  crossed  there,  and 
reasonably  believed  that  by  the  exercise  of  reasonable  care,  she  could 
cross  the  same  in  safety,  her  attempt  is  not  contributory  negligence. ^^ 

(b)  If  the  jury  find  from  the  evidence  that  the  defendant's  street 
car  track  was  in  an  unsafe  condition,  and  that  the  rails  projected 
above  the  surface  of  the  street  to  such  an  extent  as  to  render  cross- 
ing over  the  same  dangerous  at  the  point  where  the  said  G.  attempted 
to  cross, the  same,  and  that  the  said  G.  actually  saw  or  discovered 
the  dangerous  condition  of  said  track  or  rail,  or  in  the  exercise  of 
ordinary  care  ought  to  have  seen  it,  and  attempted  to  cross  the  same 
with  a  loaded  wagon,  and  was  injured  thei'eby,  and  that  an  ordinarily 
prudent  person  would  not  have  done  so,  and  that  he  was  negligent  in 
so  doiijg,  then  and  in  this  event  the  plaintiffs  could  not  recover,  and 
you  will  find  for  the  defendant.-* 

(c)  The  jury  are  instructed  that  if  there  was  a  hole  in  the  top  of 
the  culvert  as  alleged,  and  that  the  defendant  was  negligent  in  fail- 

21 — Dallas  Cons.  El.  St.  R.  Co.  v.  in  part."    The  plaintiff  was  riding 

Ely,    Tex.    Civ,    App.   ,    91  in  a  cab  at  the   time  of  the   acci- 

S.  W.  887  (888).  dent,  and,  on  bringing-  suit  against 

22 — Springfield    Cons.    R.    Co.    v.  the    cab    company    and    the    street 

Putenny,    200    111.    9,    65    N.    E.    442,  railway      company      jointly,      each 

aff'g  101  111.  App.   95.    In  this  case  tried   to   exculpate   itself  by   incul- 

it    was    held    proper    for   the    trial  pating  the  other. 

court    to    have    struck    out    at    the  23 — Newport  N.   &  O.  P.   R.   &  E. 

end    of    the    above    instruction   the  Co.  v.  Bradford,  99  Va.  117,  37  S.  E. 

following      words,      "without      any  807  (809). 

possible    intervening    and    probable  24 — Citizens'    R.    Co.    v.    Gossett, 

efficient  cause  to  which  such  injury     Tex.    Civ.   App.   ,    85   S   W. 

might  have  been  due,  in  whole  or  35    (36). 


1358  FORMS  OF  INSTRUCTIONS.  [§  2084. 

ing  to  repair  it,  and  that  plaintiff,  without  negligence  on  his  part, 
was  injured  by  falling  into  the  hole,  then  j^ou  will  find  for  plaintiff, 
and  allow  him  such  damages  as  the  proof  may  show  he  has  sustained, 
if  any.-^ 

(d)  The  jury  are  instructed  that  the  defendant  had  no  jurisdic- 
tion or  control  over  that  part  of  the  street  outside  of  its  tracks  and 
right  of  way,  and  could  in  no  manner  regulate  and  control  the  action 
of  storekeepers  or  other  persons,  and  could  not  prevent  them  from 
shoveling  the  snow  off  from  the  sidewalk  or  from  making  paths 
through  the  snow  and  throwing  the  snow  into  piles  or  heaps  upon  the 
street  outside  of  its  tracks  and  right  of  way.  And  if  the  jury  believe 
from  the  evidence  that  certain  storekeepers  or  other  persons  did  at 
the  time  and  at  the  place  where  the  accident  to  the  plaintiff  happened, 
shovel  snow  and  ice  from  the  sidewalk  out  into  the  street,  and  did 
shovel  paths  in  the  snow  and  ice,  throwing  it  to  either  side,  making 
piles  of  snow  and  ice  in  the  street  outside  of  defendant's  tracks  and 
right  of  way  at  the  place  in  ciuestion,  and  at  the  time  in  question,  and 
that  such  accumulations  or  piles  of  snow  and  ice  were  the  cause  of 
the  accident  complained  of,  then  the  jury  should  find  the  defendant 
not  guilty.-^ 

(e)  The  jury  are  instructed  that  it  was  the  duty  of  the  city  of 

and  not  of  the  defendant  to  remove  the  accumulations  of  snow 

and  ice,  if  any,  which  had  become  lodged  between  the  defendant's 
tracks  and  right  of  way  and  the  sidewalk  at  the  time  and  at  the 
place  when  and  where  the  accident  comiDlained  of  occurred.  So  if 
the  jury  believe  from  the  evidence  that  the  plaintiff  was  injured  by 
reason  of  an  accumulation  of  ice  and  snow  in  the  street  outside  of 
defendant's  tracks  and  right  of  way,  and  that  such  accumulation 
of  snow  and  ice  at  the  time  and  place  in  question  was  the  cause  of 
the  accident,  then  the  jury  should  find  the  defendant  not  guilty  (un- 
less you  further  find  from  the  evidence  that  such  accumulation  of 
snow  and  ice  was  caused  by  the  defendant.)-'' 

§  2084.  Cars  and  Appliances,  (a)  The  court  instructs  the  jury 
that  the  cars  of  said  railway  shall  be  of  modern  type,  propelled  by 
electricity  or  any  other  motive  power,  except  steam,  which  is  or  may 
become  suitable  for  railway  purposes,  and  must  be  properly  lighted 
in  the  nighttime,  whether  standing  or  running.-** 

(b)  A  street  railway  company  is  required  to  use  cars  that  will 
not  unduly  endanger  the  lives  and  limbs  of  persons  using  the  streets 
and  crossing  its  tracks.  It  may  not  use  old  and  obsolete  cars  that 
are  difficult  to  control  or  without  good  equipment  to  stop;  and  if  by 
such  use  an  injury  is  inflicted,  when  the  use  of  a  more  modern  or 

25— Laredo  El.  &  R.  Co.  v.  Ham-  134    Mich.    195,    96    N.    W.    34    (35). 

ilton,    23   Tex.    Civ.   App.   480,   56   S.  "We  think  this  instruction  fairly 

W.  998  (1000).  presented  the  question  to  the  jury. 

26— Kornazsewka  v.  W.  C.  St.  R.  See  Rascher  v.  St.  R.  Co.,  90  Mich. 

Co.,   76  111.  App.  366   (369).  413,    51    N.   W.    463,   30   Am.    St.   447; 

27— Ibid  McGee  v.  St.  R.  Co.,  102  Mich.  107, 

28— Ensley  v.   Detroit  U.   R.   Co.,  60  N.   W.    293,  26   L.   R.   A.   300,   47 

Am.  St.  507." 


§2085.]  NEGLIGENCE— STREET  RAILROADS.  1359 

complete  car  with  good  equipment  to  stop,  such  as  is  generally  in 
use,  would  not  have  caused  the  injury,  then  such  company  in  the  use 
of  such  old  and  obsolete  car  without  good  equipage  to  stop  it,  is 
guilty  of  neglect.  This  rule,  however,  does  not  require  the  company 
to  use  the  most  recent  pattern  or  kind  of  car  or  brake  manufactured, 
but  it  does  I'equire  it  to  use  such  a  pattern  or  kind  of  ear  and  brake 
as  is  in  general  use  in  cities  or  towns  of  the  size  where  it  is  used.-'-* 

§  2085.  Sounding  Bells  and  Gongs.  The  court  instructs  the  jury 
that  it  was  the  duty  of  the  defendant's  gripman  to  sound  his  gong 
or  bell  when  approaching  L.  avenue,  so  as  to  give  notice  to  persons 
desiring  to  cross  said  street  of  the  approach  of  the  train  of  cars ;  and 
if  you  find  from  the  evidence  that  said  gripman  failed  to  sound  his 
gong  or  bell,  or  give  any  other  warning,  when  approaching  said 
avenue,  and  that,  but  for  his  failure  to  so  sound  his  gong  or  bell  or 
give  such  warning,  the  accident  complained  of  would  not  have  hap- 
pened, your  verdict  should  be  for  the  plaintiffs,  unless  you  also  find 
from  the  evidence  that  B.,  at  the  time  she  was  killed  by  defendant's 
cars,  was  not  using  that  degree  of  care  in  going  upon  defendant's 
tracks  which,  in  the  ordinary  experience  of  mankind,  was  to  be  ex- 
pected of  a  girl  of  her  age  and  capacity  under  the  circumstances 
shown  in  the  evidence.^'^ 

§  2086.  Use  of  Proper  Brakes,  (a)  The  court  instructs  the  jury 
that  the  law  requii-es  that  the  defendant's  servants  should  be  watch- 
ful to  see  that  the  way  is  clear  in  the  direction  in  which  the  train  is 
going,  and  that,  where  they  have  reason  to  anticipate  the  sudden  and 
unexpected  appearance  of  children  upon  or  approaching  the  track, 
they  should  so  manage  the  grip  and  brakes  of  the  cars  as  to  be  able 
to  stop  the  cars  quickly  and  readily,  should  occasion  require.  If, 
therefore,  under  all  the  circumstances  detailed  in  the  evidence,  you 

29— Indianapolis     St.    R.     Co.     v.  negligence  per  se.  Such  failure  be- 

Schomberg,  Ind.   App.  ,  71  comes    negligence    only    when    the 

N.    E.    237    (239),   aff'd  164   Ind.   Ill,  circumstances    render    the    ringing 

72  N.  E.  1041.  of  the   bell   necessary,   and,   if   the 

"The  use  of  an  old  car  without  circumstances  are  in  dispute, 
good  equipment  to  stop  it  ought  to  whether  the  occasion  is  such  as 
be  an  act  of  negligence,  but  the  in-  calls  for  the  sounding  of  the  bell 
struction  does  not  require  the  use  is  a  question  of  fact  for  the  jurj\ 
of  cars  and  brakes  of  the  most  But  is  it  the  duty  of  the  court  to 
recent  patterns,  but  only  such  as  require  the  jury  to  find  facts  that 
are  in  general  use  in  cities  and  are  undisputed  and  established  by 
towns  of  the  size  where  it  is  used,  the  evidence  of  both  sides?  We 
It  characterizes  the  act  as  one  of  think,  under  the  unquestioned  cir- 
negligence.  It  certainly  could  not  cumstances  of  this  case,  it  was  the 
be  considered  one  of  due  care.  It  duty  of  the  grripman  to  have  sound- 
does  make  the  liability  of  defend-  ed  his  gong  on  the  approach  of 
ant  depend  absolutely  upon  cir-  Lemp  avenue;  and  the  inference 
cumstances."  is  strong  that  if  he  had  done  so  the 

30— Schmidt  v.  St.  L.  R.  Co.,  163  child,  who  according  to  the  grip- 
Mo.  645.  63  S.  W.  834  (836).  man's      own      evidence,      probably 

"There    is   no    statute   making   it  could  not  see  the  car  on  account  of 

the  duty  of  the  gripman  to  sound  the   buggy,   would   have   heard   the 

the  gong  or  bell   at   the   approach  gong,  and  would  not  have  run  into 

of   a   street   crossing,   and   there  is  danger.    We  see   no   error   in  that 

no  law  making  a  failure  to  do  so  Instruction." 


1360  FORMS  OF  INSTRUCTIONS.  [§  2087. 

find  that  there  was  reason  to  anticipate  the  sudden  and  unexpected 
appearance  of  children  upon  or  approaching  the  track  at  the  inter- 
section of  L.  avenue  with  B.,  and  you  further  find  that  defendant's 
servants  in  charge  of  its  train  of  cars  were  not  so  managing  its  grip 
and  brakes  so  as  to  be  able  to  stop  said  train  quickly,  should  occa- 
sion require,  and  you  further  find  that  the  death  of  the  plaintiffs' 
daughter  was  caused  by  the  failure  of  defendant's  servants  to  so 
manage  said  grips  and  brakes,  then  your  verdict  must  be  for  the 

plaintiffs,  unless  you  should  also  find  from  the  evidence  that  , 

at  the  time  she  was  killed  by  defendant's  cars,  was  not  using  that 
degree  of  care  in  going  upon  defendant's  tracks,  which,  in  the  ordi- 
naiy  experience  of  mankind,  was  to  be  expected  of  a  girl  of  her 
age  and  capacity  under  the  circumstances  shown  in  the  evidence.^i 

(b)  You  are  instructed  that  defendant  was  under  no  obligation 
to  supply  the  safest  or  most  effective  brakes  that  could  be  obtained, 
or  to  use  the  utmost  care  in  keeping  the  brakes  on  its  cars  in  repair, 
but  was  bound  to  use  only  ordinary  care  in  the  selection  of  its  brakes 
and  in  maintaining  and  keeping  the  same  in  repair;  but  ordinary  care 
in  such  a  case  requires  the  care  usually  exercised  in  the  operation  of 
electric  street  car  lines,  and  it  is  the  duty  of  a  party,  in  operating 
an  electric  car,  to  use  the  best-  appliances  in  common  use,  and  to 
exercise  great  care  in  keeping  its  appliances  for  stopping  cars  in 
good  condition. ^2 

§  2087.    Allowing  Running  Board  to  Extend  Over  Sidewalks.    It 

was  the  duty  of  defendant,  in  running  its  cars  on  the  highway,  to  use 
reasonable  care  to  avoid  injury  to  persons  using  the  highway;  and 
what  is  reasonable  care  depends  upon  the  circumstances  of  the  ease; 
and,  as  the  danger  of  accident  increases,  the  degree  of  care  should 
also  increase.  It  was  the  duty  of  the  defendant  to  the  plaintiff  to 
exercise  such  care  as  would  be  exercised  by  a  reasonably  prudent  man 
under  all  the  circumstances.  At  places  where  there  is  more  danger 
the  speed  must  be  greatly  reduced,  and  the  gong  should  be  sounded 
to  give  warning;  and  if  the  defendant  company  was  operating  a  car, 
the  running  board  of  which,  at  curves,  extended  over  a  part  of  the 
sidewalk,  it  was  its  duty  to  use  reasonable  care  and  diligence  to  pre- 
vent injui-y  thereby  to  any  person  standing  on  the  sidewalk  at  such 
place;  and  it  is  the  duty  of  the  motorman  operating  such  car  to  use 
reasonable  care  to  avoid  injuiy  to  persons  on  the  sidewalk  at  places 
where  there  is  such  overlapping  of  the  running  board ;  and  reasonable 
care  may  mean  great  care,  depending  upon  the  circumstances,  and 
the  greater  the  overlapping,  the  greater  degree  of  care  must  be  exer- 

31— Schmidt  v.   St.  L.  R.  Co.,  163  streets  of   a   great   city,   witli   any 

Mo.  645,  63  S.  W.  834  (837).  degree  of  safety  to  pedestrians  and 

32— Mock    V.    Los    A.    T.    Co.,    139  others,    except   by    'keeping-  its  ap- 

Cal.   616,  73  Pac.   454   (455).  pliances  for  stopping  cars   in  good 

"We    think    the    law    should    be,  condition.'  Therefore  ordinary  pru- 

and    is,    as    stated    in    this    instruc-  dence    requires    that     'great     care' 

lion.     Of  course,  a  street  car  can-  should    be  exercised   in  this   direc- 

not    be   operated   upon   the    public  tion." 


§2088.]  NEGLIGENCE— STREET  RAILROADS.  1361 

eised.     It  is  his  duty  to  avoid  injury  to  persons  lawfully  using  the 
public  street,  whether  crossing  it  or  whether  on  the  sidewalk.^^ 

§  2088.  Rate  of  Speed,  (a)  The  court  instructs  you  that  while 
the  defendant  company  was  permitted  by  ordinance  to  run  its  cars 
at  the  point  where  the  accident  happened  at  a  speed  not  exceeding  — 
miles  per  houi',  yet  such  permission  fixed  the  highest  rate  of  speed  at 
which  the  defendant  company  was  peiTuitted  under  any  circumstances 
to  run,  and  did  not  authorize  the  defendant  company  to  mn  at  such 
rate,  regardless  of  any  and  all  cii'cumstances  and  conditions  that 
might  exist.  If,  therefore,  you  find  from  the  evidence  that  the  plain- 
tiff was  run  over  and  injured,  as  alleged,  by  defendant's  car,  at  a 
point  on  the  defendant's  tracks  where  the  defendant's  servants  and 
agents  had  reason  to  anticipate  the  appearance  of  children  and  other 
persons  upon  the  track,  and  if  you  further  find  that  the  defendant 
at  the  time  of  the  injuiy  was  running  its  said  car  at  a  rate  of  speed 
which,  under  the  facts  and  circumstances  shown  by  the  evidence,  was 
careless,  negligent  and  dangerous,  and  in  consequence  thereof  ran  over 
and  injured  said  plaintiff,  and  provided  you  further  find  from  the 
evidence  that  said  B.  at  the  time  exercised  such  care  for  her  own 
safety  as  could  be  reasonably  expected  of  a  child  of  her  age  and 
capacity,   then   your   verdict   should   be    for   plaintiff,    although   you 

should  also  find  that  such  rate  of  speed  did  not  exceed  the  rate  of 

miles  per  hour.^* 

(b)  You  are  further  instructed,  that,  if  the  car  of  the  defendant 
was  being  propelled  at  a  greater  rate  of  speed  than  —  miles  an  hour, 
such  speed  was,  in  law,  negligence,  and  if  such  speed  was  the  direct 
and  immediate  cause  of  the  death  of  T.,  that  but  for  such  negligent 
speed,  if  you  so  find  it  was,  the  accident  would  not  have  occurred,  the 
plaintiff  is  entitled  to  recover.  If,  however,  the  speed  of  the  car  was 
less  than  fifteen  miles  an  hour,  the  same  was  not  negligence,  and  the 
plaintiff  cannot  recover,  if  you  believe  the  deceased  was  lying  on  the 
car  track,  unless  she  has  proved  that  the  motorman  in  charge  of  the 
car  could  by  use  of  the  means  reasonably  within  his  power  have 
stopped  the  ear,  after  he  saw  T.,  in  time  and  distance  sufficient  to 
avoid  striking  T.^^ 

(c)  With  respect  to  the  alleged  negligence  of  defendant  operating 

33 — Hayden    v.    P.    H.    &    W.    R.  instructions    in    Birmingham    R.    & 

Co.,  76  Conn.  355,  56  Atl.  613  (616).  E.   Co.   v.   City  S.   Co..  119  Ala.  547, 

"We  think  this  was  a  fair  state-  24  So.  558  (559),  43  L.  R.  A.  385. 
ment  of  the  law  relative  to  the  "(a)  The  duty  of  a  motorman  on 
duty  of  the  defendant  and  its  serv-  an  electric  car  varies,  to  some  ex- 
ants  towards  the  plaintiff  in  this  tent,  according-  to  the  locality  in 
case,  and  that  it  was  well  adapted  which  he  is  running.  He  rnay  be 
for  the  guidance  of  the  jury."  permitted  to  run  at  a  speed  in  open 

34 — Heinzle    v.    Met.    St.    R.    Co.,  country,  where  there  are  no  cross- 

182  Mo.  528.  81  S.  W.  848  (853).  ings,  which  would  not  be  permitted 

35 — Taylo'r    v.     Houston    El.     Co.,  where    he    would    be    likely    to    en- 

Tex.   Civ.   App.   ,   85  S.  W.  counter   people    and    vehicles    upon 

1019    (1020),     where    an    intoxicated  the  track. 

person    lying    on    the     track     was         (b)     It   would   be  proper  for  him 

killed.  to  run  the  car  at  one  speed  in  one 

See   also  the   following  series   of  part  of  the  town,  and  not  to  run 
86 


1362 


FORMS  OF  INSTRUCTIONS. 


[§  2088. 


its  cars  at  a  high  and  excessive  rate  of  speed,  you  are  instructed  that, 
under  the  ordinance  of  the  City  of  St.  L.,  defendant  had  the  right  to 
operate  its  car  at  the  place  mentioned  in  the  testimony  at  a  rate 
of  speed  not  exceeding  10  miles  per  hour.  Before,  therefore,  you  can 
find  against  the  defendant  on  account  of  the  excessive  speed,  you  must 
find  either  that  the  defendant  operated  its  ear  in  excess  of  the  speed 
of  10  miles  an  hour,  or  at  such  a  speed  which,  under  the  evidence  and 
under  the  circumstances  given  in  the  testimony,  amounted  to  negli- 
gence, and  unless  you  so  find,  and  also  further  find  that  such  exces- 
sive or  negligent  speed  was  the  cause  of  the  death  of  plaintiffs'  son, 
then  plaintiffs  are  not  entitled  to  recover  on  account  of  such  speed.^* 


at  such  rate  of  speed  at  another 
part  of  the  town,  where  it  was 
more  densely  populated. 

(c)  In  determining-  whether  he 
was  guilty  of  negligence  in  this 
case,  gentlemen  of  the  jury,  you 
will  consider  the  locality  where 
he  was  running;  whether  or  not 
there  was  danger  of  his  striking  a 
vehicle  or  person  upon  the  track 
at  any  crossing,  and  how  fast  he 
was  running;  how  far  his  light 
would  enable  him  to  observe  dan- 
gers in  front  of  him;  within  what 
distance  he  could  stop  the  car, — 
and  from  all  the  circumstances 
which  the  evidence  discloses  to 
you,  surrounding  this  matter,  you 
will  determine  whether  or  not  he 
was  guilty  of  negligence  in  running 
the  car. 

(d)  It  is  the  duty  of  the  motor- 
man,  when  h.e  is  running  where 
he  may  come  into  collision  with 
some  person  or  vehicle  at  a  cross- 
ing, at  some  place  where  the  per- 
son or  vehicle  has  a  right  to  be, 
to  keep  his  car  under  such  control 
as  that  he  may  stop  it  in  time  to 
avoid  the  injury,  if  he  had,  with 
proper  diligence,  discovered  the 
danger.  While  he  may  run  with 
greater  or  less  speed  according  to 
the  locality  in  which  he  is  running, 
it  is  his  duty  to  at  least  retain 
control  over  his  car;  and  that  con- 
trol must  be  such  that  he  may,  in 
case  he  encounters  danger  and  dis- 
covers it,  by  doing  those  things 
which  will  control  his  car,  so  reg- 
ulate his  speed  that  he  will  come 
to  a  full  stop  before  he  does  the 
injury  to  the  person  or  vehicle  that 
may  be  in  front  of  him,  or  give 
that  person  or  vehicle  an  oppor- 
tunity to  get  out  of  the  way.  He 
is  not  bound  to  anticipate  that 
anybody  will  do  anything  in  get- 
ting upon  the  track,  which  he 
ought  not  to  do,  but  "he  is  bound  to 


know  that  other  people  have  a 
right  upon  the  track,  besides  him- 
self, and  in  running  the  trains  he 
must  so  run  them  that  he  may  dis- 
cover danger,  if  he  can  discover  it 
by  the  exercise  of  proper  diligence, 
so  as  to  stop  the  car,  and  avert 
the  injury  which  might  happen  to 
a  person  in  his  way  upon  the 
track.  If  the  night  is  dark  and 
he  cannot  see  further  ahead  than 
his  light,  of  course  it  is  his  duty 
to  take  that  fact  into  consideration 
in  determining  the  speed  of  his 
car.  If  he  cannot  see  but  a  little 
way  ahead,  he  must  run  more 
slowly  than  if  he  could  see  a  long 
way  ahead. 

(e)  If  he  fails  in  any  such  duty, 
he  is  guilty  of  negligence;  and  if 
the  injury  results  to  any  persons 
upon  the  track,  or  to  property 
which  is  where  it  has  a  right  to  be, 
then  the  company  for  whom  the 
motorman  is  acting  is  liable  for 
the  result." 

36 — Masterson  v.  Transit  Co.,  204 
Mo.   507  (517),  98  S.  W.  505. 

"Plaintiffs  interpret  this  to  mean 
that  the  jury  were  instructed  that 
defendant  had  the  absolute  right 
to  run  its  car  then  and  there  at 
the  rate  of  10  miles  an  hour  re- 
gardless of  the  circumstances. 
That  is  a  misunderstanding  of  the 
instruction.  Plaintiffs,  in  their  pe- 
tition, had  counted  on  the  ordi- 
nance and  at  the  trial,  to  obviate 
the  necessity  of  introducing  the  or- 
dinance in  evidence,  it  was  admit- 
ted by  counsel  on  both  sides  in 
open  court  that  the  speed  limit 
fixed  by  the  ordinance  was  10  mile.s 
an  hour.  The  plaintiffs  having  in- 
voked the  ordinance  as  one  of  the 
measures  of  speed  to  be  observed 
by  the  defendant,  the  latter  had 
the  right,  in  view  of  the  admission, 
to  have  the  jury  instructed  that 
so  far  as  the  ordinance  was  con- 


§  2089.]  NEGLIGENCE— STREET  RAILROADS.  1363 

(d)     The  court  instructs  the  jury  that  plaintiff's  petition  charges 

that  its  servant  was,  on ,  about p.  m.,  driving  his  stake 

wagon  drawn  by  three  horses,  one  of  them  being  in  the  lead,  south 
on  E.  avenue,  and  that  at  the  intersection  of  E.  and  H.,  while  said 
wagon  was  being  driven  from  the  north  side  towards  the  south  side 
thereof,  an  east-bound  ear  of  the  defendant  company  struck  said  lead 
horse.  The  negligence  charged  against  said  defendant  is:  First,  that 
said  ear,  while  approaching  said  crossing,  was  being  operated  at  an 
excessive  and  dangerous  rate  of  speed  to  persons  and  animals  cross- 
ing H.  avenue  at  its  intersection  with  E. ;  second,  that  the  motorman 
thereof  failed  to  give  'any  warning  of  the  approach  of  said  car  on  E. 
avenue.  The  court  instructs  you  that  in  regard  to  those  allegations 
of  negligence  the  burden  of  proof  is  upon  the  plaintiff  to  show  by  the 
preponderance  or  greater  weight  of  the  evidence  that  said  accident 
was  caused  b}'  either  one  or  both  said  alleged  acts  of  negligence.  By 
"burden  of  proof"  is  meant  that  the  evidence  to  sustain  a  proposition 
thus  to  be  proved  is  greater  in  weight  and  credibility  in  your  judg- 
ment than  the  evidence  to  the  contrary.^^ 

§  2089.  Same  Subject — As  to  Infant  Trespassers.  The  jury  are 
further  instructed  by  the  court  that,  if  the  plaintiff  at  the  time  of  the 
injury,  was  a  child  of  tender  age  of  thirteen  years,  and  was  riding 
upon  the  defendant's  ear  in  the  city  of  A.,  whilst  the  same  was  trav- 
eling at  a  fast  rate  of  speed,  that  it  was  the  duty  of  the  defendant's 
motorman  in  charge  of  said  train  to  have  reduced  the  speed  of  said 
train,  before  ordering  the  plaintiff  to  leave  the  same,  to  such  a  rate  of 
speed  as  the  plaintiff'  might  depart  from  the  train  with  safety,  not- 
withstanding the  jury  may  believe  that  the  plaintiff  was  at  the  time 
a  trespasser  upon  the  defendant's  car.^^ 

§  2090.  Frightening  Animals — Car  Operated  in  Ordinary  Manner. 
If  the  defendant  was  operating  an  interurban  railroad  on  and  along 
a  public  highway,  and  if  while  mnning  its  cars  along  and  upon  its 
said  railroad,  plaintiff's  horse  became  frightened  at  the  running  of 
said  ear,  or  at  the  appearance  of  said  car,  aside  from  said  sign  or 
banner,  and  said  car  was  being  run  and  operated  in  the  ordinary 
way  of  operating  said  car,  then  the  court  instructs  you  that  said  fright 
of  said  horse  under  such  condition  could  not  be  chargeable  to  the 
defendant.^^ 

earned,  defendant  had  the  right  to  to   negligence,    the   plaintiffs   could 

run  its  car  at  the  rate  of  10  miles  not    recover    on    the    issue    as    to 

an    hour.    But   the   instruction   did  speed.     We  find  no  fault  with  that 

not  say  that  the  car  could  be  law-  instruction." 

fully  run  10  miles  an  hour  regard-         37 — Sanitary   D.    Co.   v.    St.    L.   T. 

less  of  the  circumstances;   its   nat-  Co.,  98  Mo.  App.  20,  71  S.  W.  726. 

ural   meaning  was   that   if  the   car         38 — Washington    A.    &    Mt.    V.    E. 

was  not  run   in  excess  of  10  miles  R.   Co.   v.   Quayle,  95  Va.  741,  30  S. 

an  hour  there  was  no  violation  of  E.  391  (394). 

the    ordinance,    and    it    said    if    the         39 — Indianapolis   &    G.    R.    T.    Co. 

car    was    not    run    in    excess    of   10  v.  Haines,  33  Ind.  App.  63,  69  N.  E. 

miles  an  hour  or  at   such   a  speed  1S7  (188). 

which     under     the     circumstances         "It  would  be  a  strained  construc- 

shown    in    the    evidence    amounted  tion  of  the  language  used  in   this 


1364  FORMS  OF  INSTRUCTIONS.  [§  2091. 

§  2091.     Same  Subject — Car   Not   Operated  in   Ordinary  Manner. 

If  the  jury  believe  from  the  evidence  that  the  horse  of  plaintiff  was 
frightened  by  the  noise  and  smoke  arising  from  the  machinery  of  the 
car  of  defendant,  and  that  said  noise  and  smoke  was  not  incident  to 
the  ordinary  operation  of  their  cars  they  are  instructed  tbat  this 
raises  the  presumption  that  such  noise  and  smoke  would  not  have 
been  caused  if  those  who  had  the  providing,  maintaining  and  care  of 
defendant's  machinery  had  used  proper  care  thereto,  and  in  the 
absence  of  an  explanation  on  the  part  of  the  defendant  showing  due 
care  on  its  part,  they  may  infer  that  the  defendant  was  guilty  of 
negligence ;  and  if  they  further  believe  that  such  negligence  caused 
the  accident  as  set  forth  in  the  declaration,  and  that  the  plaintiff  was 
free  from  fault,  they  must  find  for  the  plaintiff.*'' 

§  2092.  Right  of  Way  of  Street  Gary  Over  Other  Vehicles  Driven 
Along  Track — Collision  With  Same,  (a)  The  jury  are  instructed 
that,  by  reason  of  its  convenience  to  the  public  as  a  carrier  of  pas- 
sengers, and  because  of  the  inability  of  its  cars  to  .turn  out,  a  street 
railway  company  is  invested  with  the  right  of  way  over  other  vehicles 
over  the  portion  of  street  occupied  by  its  tracks,  and  it  is  the  duty 
of  the  drivers  of  such  vehicles  to  turn  out  and  allow  its  cars  to  pass, 
and  to  use  care  not  to  obstruct  and  delay  the  same,  and  if  the  jury 
believe,  from  the  evidence,  that  the  plaintiff,  while  neglecting  such 
duty  and  failing  thereby  to  use  ordinary  care  for  his  own  safety,  was 
injured,  then  he  cannot  recover  in  this  case.*^ 

instruction    to    say    that    the    jury  sumption    of    negligence    from    the 

would   understand  it  to  mean  that  simple    occurrence    of    an    accident 

appellee  might  recover  if  his  horse  arises  where  the  accident  proceeds 

became   frightened  at   the   running  from    an   act    of   such   a   character 

of  the  car  unless  it  was  shown  that  that  when  due  care  is  taken  in  its 

the  car  was  being  run  and  operat-  performance,    no    injury    ordinarily 

ed  in  the  ordinary  way  of  operat-  ensues  from  it  in  similar  cases,  or 

Ing   the   car.    A  careful   considera-  where  it  is  caused  by  the  misman- 

tion    of    the    instruction     discloses  agement    or    misconstruction    of    a 

nothing  prejudicial  to  appellant."  thing    over    which    the    defendant 

40— Richmond     R.     &     E.     Co.-    v.  has   immediate   control,    or  for   the 

Hudgins,   100  Va.    409,   41    S.   E.    736  management     and    construction    of 

(738).  which  he  is  responsible.     Transpor- 

"  'As  a  rule  negligence  is  not  pre-  tation  Co.   v.   Downer,  11  Wall  129, 

sumed.     But  there  are  cases  where  20  L.  Ed.  160;  Phil.  W.  &  B.  R.  Co. 

the  maxim  res  ipsa  loquitur  is  di-  v.    Anderson,    72    Md.    519,    20   Am. 

rectly     applicable,     and     from    the  St.    493,    20   Atl.    2    (note),    8   L.    R. 

thing   done    or    omitted    negligence  A.     673;     Railway     Co.     v.     Locke, 

or    care    is    presumed.'    16    Am.    &  312  Ind.  404,  14  N.  E.  391,  2  Am.  St. 

Eng.     Inc.     Law     448.     'When     the  193;  Hayes  v.   Railroad  Co.,  Ill  U. 

physical  facts  of  an  accident  them-  S.    228,    4    Sup.    Ct.    369,    28    L.    Ed. 

selves   create   a   reasonable   proba-  410.'  " 

bility   that   it   resulted   from   negli-  41— North  C.   E,  Ry.   Co.   v.  Peu- 

gonce,    the    physical     facts     them-  ser,  190  111.  67  (70),  60  N.  E.  78. 

selves   are    evidential,   and    furnish  "Street     railway     companies    are 

what    the    law    terms    'evidence    of  public    carriers    of   passengers    and 

negligence'  in  conformity  with  the  are    given    corporate    existence    to 

maxim  res  ipsa  loquitur.  Seybolt  v.  enable  them   to  provide   the  means 

R.    Co.,   95   N.   T.   562,   47   Am.   Rep.  of    rapid     transportation     for     the 

75;   2  Jag.  Torts  938;   Whart.   Neg.,  convenience  of  the  people  and   the 

§421;    Cooley,    Torts    799;    Bigelow,  promotion    of    the    public    welfare. 

Torts  596;  Shear  &  R.,  §  59.    A  pre-  The  cars  of  such  corporations  can- 


§2092.]  NEGLIGENCE— STREET  RAILROADS.  1365 

(b)  You  are  instructed  that,  although  you  believe  from  the  evi- 
dence that  the  wagon  which  the  street  car  collided  with  was  driven 
in  front  of  the  ear  for  some  distance  near  the  railroad  track,  but  in 
a  place  of  safety,  these  facts  would  not,  under  the  law,  make  it  the 
duty  of  the  motorman  to  stop  his  ear;  and  if  you  believe  said  motor- 
man  rang  his  gong  on  seeing  said  wagon  near  said  track,  as  afore- 
said, so  as  to  warn  said  persons  on  said  track  on  said  wagon  that  the 
car  was  approaching,  he  (the  motorman)  had  a  right  to  anticipate 
that  the  wagon  would  be  kept  out  of  danger  and  give  him  the  right 
of  way,  and  under  the  circumstances  he  would  not  be  called  upon  to 
stop  the  car  or  to  check  the  same  until  he  saw  the  driver  was  ignorant 
of  the  approach  of  the  car,  and  that  a  collision  would  likely  occur.*^ 

(c)  The  jury  are  instructed  that  by  reason  of  its  convenience  to 
the  public  as  a  carrier  of  passengers,  and  because  of  the  inability 
of  its  cars  to  turn  out,  a  street  railway  company  is  vested  with  the 
right  of  way  over  other  vehicles  over  the  jDortion  of  the  street  occu- 
pied by  its  tracks,  and  it  is  the  duty  of  the  drivers  of  such  vehicles 
to  turn  out  and  allow  its  cars  to  pass,  and  to  use  care  not  to  obstruct 
and  delay  the  same.  And  if  the  jury  believe  from  the  evidence  that 
the  plaintiff,  while  neglecting  such  duty,  if  he  did  neglect  such  duty, 
and  failing  thereby  to  use  ordinaiy  care  for  his  own  safety,  was  in- 
jured, then  the  plaintiff  cannot  recover  in  this  ease.*^ 

(d)  A  street  car  has 'the  right  of  way  upon  that  portion  of  the 
street  upon  which  it  alone  can  travel.    If,  therefore,  a  private  vehicle 

not  give  and  take  the  road — turn  his  presence  there  serves  to  impede 
to  right  or  left — as  can  ordinary  the  passage  of  the  cars.  A  street 
vehicles,  but  must  move  on  and  railway  company  is  charged  with 
along  the  rails  laid  down  in  the  the  knowledge  that  the  public  may 
street  for  that  purpose.  The  grant  lawfully  use  the  entire  street,  and 
to  such  corporation  of  the  right  to  it  must,  in  operating  its  cars  on 
use  the  streets  of  a  city  must  by  the  streets,  employ  all  reasonable 
necessary  implication  be  held  to  means  to  avoid  injuring  those 
confer  the  right  of  passage  along  whom  it  knows  may  rightfully  use 
its  tracks  superior  to  the  right  of  that  part  of  the  streets  occupied 
a  horseman  or  one  driving  a  ve-  by  its  tracks.  The  principles  we 
hide  on  that  portion  of  the  street  have  pronounced  are  supported  by 
occupied  by  the  tracks  of  the  rail-  adjudicated  cases  in  this  court  and 
way  company.  Such  companies  do  the  consensus  of  modern  author- 
not,  however,  have  an  exclusive  ity.  Chicago  W.  D.  R.  Co.  v.  Bert, 
right  to  the  use  of  that  part  of  69  111.  388;  North  C.  St.  R.  Co.  v. 
the  streets  occupied  by  their  Smadraff,  189  id.  155.  59  N.  E.  507; 
tracks.  The  public  are  not  deprived  Elliott  on  Roads  &  Streets,  2d  ed., 
of  the  right  to  use  all  parts  of  sees.  761-2.  It  was  an  error  to  re- 
the  street  in  the  ordinary  manner,  fuse  to  grant  the  instruction." 
but  retain  such  right,  subject  to  See  also  the  instructions  ap- 
the  superior  right  of  passage.  A  proved  in  C.  C.  Ry.  Co.  v.  Rohe, 
citizen  passing  along  the  street  in  118  III.  App.  322  (326);  C.  C.  Ry.  Co. 
a  carriage,  buggy  or  like  vehicle,  v.  Manger,  105  111.  App.  579  (584), 
subject  to  the  rule  must  exercise  and  Purington  Brick  Co.  v.  Eck- 
ordinary  care  for  his  own  safety  man,  102  111.  App.  183  (186). 
and  not  obstruct  the  passage  of  42 — Hot  Spr.  St.  R.  Co.  v.  Hil- 
the  car.  may  drive  on  the  track  dreth,  72  Ark.  572,  82  S.  W.  245 
rails  laid  in  the  street  by  the  street  (248). 

car  company,  and  drive  along  and  43 — Chi.    C.    R.    Co.    v.    Meinheit, 

upon    such    track    or   rails    without  114   111.    App.    497    (498). 

becoming  a  trespasser,  but  it  is  his  "In   North   C.    E.    R.    Co.   v.   Peu- 

duty   to   leave   the  track  whenever  ser,  190  111.  67,  60  N.  E.  78,  the  same 


1366  FORMS  OP  INSTRUCTIONS.  [§  2092; 

in  traveling  upon  the  public  highway,  meets  with  a  street  oar,  the 
private  vehicle  must  yield  the  right  of  way  to  the  street  car.** 

(e)  The  court  instructs  the  jury  that  while,  if  you  believe  from  the 
evidence,  that  the  occupants  of  the  sleigh  in  question  were  driving 
along  the  street  in  such  a  position  that  they  were  likely  to  be  injured 
by  the  defendant's  car,  the  motorman  in  charge  of  the  defendant's 
car  was  bound  to  use  ordinary  care  to  prevent  such  threatened  injury, 
if  he  knew,  or  by  the  exercise  of  ordinary  care  might  have  known,  of 
the  danger,  and  if  by  the  use  of  ordinary  care  he  might  have  avoided 
it,  yet  if  the  jury  believe  from  the  evidence  that  the  said  sleigh  was 
driven  in  front  of  the  ear  so  suddenly  that  the  said  motorman  had  no 
such  notice  of  any  danger  to  the  occupants  of  said  sleigh  as  to  give 
such  motorman  an  opportunity  to  avoid  the  danger  by  the  exercise  of 
such  presence  of  mind  and  of  such  ordinary  care  as  is  to  be  expected 
from  men  of  ordinary  coolness  and  prudence  under  such  circumstances 
as  were  then  suiTounding  him,  and  if  the  jury  further  believe  from 
the  evidence  that  at  the  time  of  the  accident  and  prior  thereto  the 
car  of  the  defendant  was  being  operated  with  ordinary  care,  then  the 
plaintiff  has  no  right  to  a  verdict  in  her  favor.*^ 

(f)  You  are  instructed  that  while  the  plaintiff  had  the  right  to 
use  the  street,  and  any  and  all  parts  of  it,  as  might  be  necessary  in 
traveling  thereon,  yet  the  defendant  in  operating  its  cars  on  a  fixed 
track,  is  not  expected  nor  required  to  turn  out  for  persons  occupying 
its  tracks,  but  so  far  as  passage  along  its  tracks  is  concerned,  it  has 
the  superior  right  of  passage,  and  men  driving  horses  must  turn  out 
and  allow  the  cars  to  pass.'*'' 

(g)  If  you  further  find  from  the  evidence  that  there  was  no 
obstruction  in  the  way  to  prevent  the  motonnan  from  seeing  S.  as  he 
drove  out  of  B.  avenue  and  drove  along  V.  street,  and  S.  drove  upon 
the  track  at  'a  distance  far  enough  ahead  of  the  ear,  which  was  being 
operated  by  A.,  the  motorman,  to  have  enabled  any  ordinarily  careful 
person  to  have  stopped  his  car,  if  need  be,  to  avoid  a  collision,  where 
the  motorman  had  been  on  the  lookout  and  had  his  car  under  con- 
trol, then  the  court  charges  you  that  it  was  negligence  on  the  part 
of  A.,  the  motorman,  to  have  collided  with  S.,  the  wagoner,  and  what- 
ever injuries  S.  received  in  consequence  of  such  injuries  he  has  the 
right  to  recover  for;  the  jury  are  instructed  in  this  connection  that  a 
motorman  has  a  right  to  assume  that  a  person  who  is  upon  the  track 
and  apparently  capable  of  taking  care  of  himself  will  leave  it  before 

instruction  was  asked  by  the  de-  struck  the  waggon  and  the  plaintiff 
fendant  and  refused  and  because  was  thrown  out  and  injured." 
of  such  refusal  the  judgment  was  44 — Doolin  v.  Omnibus  C.  Co.,  140 
reversed.  In  that  case  the  wagon  Cal.  369,  73  Pac.  1060  (1061). 
in  which  the  plaintiff  was,  and  the  45— West  C.  St.  R.  Co.  v.  Pet- 
street  car,  were  upon  the  same  ters,  95  111.  App.  479  (482),  aff'd  196 
track,  going  the  same  way.  the  car  111.  298.  63  N.  E.  662.  See  also 
behind  the  wagon.  The  driver  at-  W.  C.  St.  R.  Co.  v.  Kautz,  89  III. 
tempted     to    turn    his    horse     and  App.    309. 

wagon    from    the    track    and   while  46 — Met.   St.   R.   Co.   v.   Rouch,   66 

the  hind  wheels  of  the  wagon  were  Kans.  195,  71  Pac.  257. 
still  on  or  near  the  track,  the  car 


§  2093.]  NEGLIGENCE— STREET   RAILROADS.  1367 

the  ear  reaches  him,  and  that  the  motorman  can  indulge  in  this  pre- 
sumption until  the  danger  of  a  collision  becomes  imminent."*^ 

§  2093.  Street  Crossings — Pedestrians,  (a)  The  court  instructs 
the  jury  that  a  traveler  upon  a  street  crossing,  desiring  to  cross  the 
street  car  track  there  situate,  has  not  the  same  right  to  require  the 
speed  of  a  car  to  be  slackened,  to  enable  him  to  pass  over  the  track, 
as  the  person  in  charge  of  the  car  has  to  require  him  to  give  way  to 
allow  the  car  to  pass. 

(b)  It  is  as  much  his  duty,  as  a  matter  of  law,  to  see  an  approach- 
ing car  which  is  in  plain  sight  and  in  dangerous  proximity  to  the 
crossing,  and  not  to  negligently  place  himself  in  the  way  of  it,  as  it 
is  to  look  for  the  car.  Testimony  of  a  person  or  any  number  of  per- 
sons that  he  or  they,  when  approaching  a  street  car  track  with  a 
view  of  crossing  it,  looked  along  the  track  for  a  coming  car,  and  did 
not  see  one,  although  a  car  was  in  plain  sight,  and  so  near  the  point 
of  observation  as  to  render'an  attempt  to  cross  the  track  in  front  of 
it  dangerous,  is  inconsistent  with  all  reasonable  probabilities.*^ 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  the  evi- 
dence that  the  employes  of  defendant  in  charge  of  the  car  in  question 
used  ordinary  care  in  the  management  of  said  ear  at  and  near  the 
place  where  the  deceased,  A.,  was  injured,  and  that  as  soon  as  they 
saw  the  deceased.  A.,  in  a  position  of  danger,  or  by  the  exercise  of 
ordinary  care  might  have  seen  that  he  was  in  danger,  they  used  such 
care  and  caution  in  stopping  said  car  to  avoid  injury  to  said  deceased, 
A.,  as  a  person  of  oi'dinary  care  and  prudence  would  have  exercised 

47_Citizens'   R.   Co.  v.   Shepherd,  diligence    and    care    to    cross    over 

107  Teiin.  444,  64  S.  W.  710.  the    defendant's    said     tracks    and 

48— Lightfoot    v.    Winnebago     T.  get  off  the  same  so  as  to  avoid  a 

Co.,  123  Wis.  479,  102  N.  W.  30  (32).  collision;    and    if   they    further   be- 

The    court    further    instructs   the  lieve,    from   the   evidence,   that  the 

jury  that,  if  they  believe,  from  the  defendant's    servants    and      agents 

evidence,  that  the  said  C,  deceased,  who   were   managing  said  car  saw 

attempted    to    cross    over    the    de-  the   said   C,   or   by   the   exercise  of 

fendanfs  tracks  at  or  near  M.  ave-  ordinary  care  could  have  seen  him, 

nue,    in    the    city    of   ,    on    or  in   time,   after  he   started   to  cross 

about  the  of  ,   as     al-  said  tracks,  to  have  slowed  up  its 

leged   in   the   plaintiffs  declaration  said   car  and   have   prevented  said 

or    some    count    thereof,    and    that  collision,  then  it  was  their  duty  to 

while    crossing    over   the    same    he  have  done  so,  and  a  failure  to  per- 

was  struck  by  one   of  the  defend-  form    such    duty    would    be    negli- 

ant's  cars,  and  was  injured  there-  geuce  upon  the  part  of  defendant's 

by.    and    that    at    the    time    he    at-  agents  as  would  render  the  defend- 

tempted  to  cross  the  same  he  saw  ant    liable,    provided    they    further 

defendant's  car  coming  along  said  believe,   from   the  evidence,   that  a 

tracks,  and  that  a  reasonably  pru-  failure  to  check  the   speed  of  said 

dent    man    would    have    reason    to  car    was    the    proximate    cause    of 

believe,  from  the  distance  said  car  said  injury,  and  that  the  plaintiff's 

was     away,     there    was     sufficient  intestate    was    in    the    exercise    of 

time  to  cross  over  said  tracks  safe-  due  care  for  his  own  safety  at  and 

ly    before    said     car    would     reach  before    the    time    of    the    collision, 

the  place  where  the  deceased  was  In  W.   C.   St.   R.   Co.  v.   Foster,  175 

attempting    to    cross;    and    if    they  111.   396   (.398),   51   N.   E.   690,   aff'g    <4 

further  believe    from   the  evidence.  HI.  App.  414.  the  court  m  comment 

that    the    ^aid    C      deceased,    acted  on  above  said:    "This  instruction  is 

upon  the  belief  and  was  using  due  objectionable  in  some  respects,  in- 


1368  FORMS  OF  INSTRUCTIONS.  [§  2094. 

under  like  and  similar  circumstances,  then  the  verdict  of  the  jury- 
must  be  for  the  defendant.-*^ 

§  2094.  Street  Crossings — Vehicles  Crossing  Track,  (a)  The  court 
instructs  the  jury  that  neither  the  defendant  for  the  operation  of  its 
ears,  nor  the  plaintiff  for  crossing  the  street  had  the  exclusive  right 
to  the  use  of  T.  avenue  at  its  intersection  with  S.  street  west.  Neither 
had  a  superior  right  over  the  other,  and  each  would  be  obliged,  in  so 
far  as  the  undertaking  in  which  each  was  engaged  and  the  car  or 
vehicle  each  was  using  would  reasonably  permit,  to  take  reasonable 
precaution  to  avoid  collision  each  with  the  other.^° 

(b)  It  is  the  duty  of  the  defendant,  by  its  agents  or  servants,  to 
use  reasonable  care  to  see  vehicles  which  may  be  passing  across  its 
tracks ;  and  if  you  believe  from  the  evidence  that  the  motorneer  of 

the  defendant  did  not  use  ordinary  care  to  observe  while  he 

was  passing  across  the  track  of  the  defendant  upon  a  public  street, 
and  that  if  said  motorneer  had  used  such  ordinary  care,  he  could 
have  seen  the  carriage  in  time  to  have  stopped  his  car  or  slackened 

its  speed,  so  as  to  have  avoided  injury  to  said  carriage  and and 

,  and  that  the  plaintiff,  while  using  ordinaiy  care,  was  injured 

as  charged  in  the  declaration  on  account  of  such  neglect,  the  jury 
must  find  a  verdict  for  the  plaintiff.^^ 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  all  the 
evidence  that  the  agents  or  servants  of  the  defendant  corporation  at 
the  time  of  the  injuries  to  plaintiff,  carelessly  and  negligently  ran 
said  car  or  ears  upon  plaintiff's  team,  and  that  by  the  exercise  of 
ordinary  care  they  could  have  avoided  doing  so,  and  that  such  negli- 
gence, and  not  negligence  on  the  part  of  the  plaintiff,  was  the  cause 
of  the  injuries  to  plaintiff,  they  should  find  for  the  plaintiff.^^ 

(d)  If  the  jury  shall  find  from  the  evidence  that  both  the  motor- 
man  and  the  plaintiff  supposed  that  the  plaintiff  would  be  able  to  get 
across  the  track  without  being  struck  by  the  ear,  and  that  in  so 
doing  they  both  erred  in  their  judgment  in  respect  to  the  matter, 
and  that  the  accident  was  due  to  such  error  in  judgment  on  their 
part,  then  the  plaintiff  can  not  recover,  and  their  verdict  must  be  for 
the  defendant.'*^ 

form,    but    not    seriously     so.      In  49— Holverson    v.    St.    L.    St.    R. 

substance  it   tells   the   jury   that  if  Co.,  137  Mo.  216,  57  S.  W.  770. 

they    believe    the    plaintiff's    intes-  50 — Stanley  v.   Cedar  R.  &  M.  C 

tate  was  injured  in  a  certain  man-  R.    Co.,  119  Iowa  526,  93  N.   W.  489 

ner,   while    he   himself   was   in   the  (492). 

exercise   of   due   care   and   caution,  51 — Springfield  C.  R.  Co.  v.  Clark, 

and  if  they  believe  the  defendant's  51   111.  App.   626  (632). 

servants  did  or  omitted   to  do  cer-  52 — Twelkemeyer  v.  St.  Ij.  T.  Co., 

tain  things,  the  plaintiff  is  entitled  102  Mo.  App.  190,  76  S.  W.  682  (684), 

to    recover.      Either    party    is    en-  11  L.  R.  A.  323. 

titled   to   have  the   jury   instructed  53 — Holmstrom   v.   Oldham  Bank, 

as  to  his  theory  of  the  case."  69  111.  App.  110   (112). 

See  the  exhaustive  comment  on  a  The  court  instructs  the  jury  that 

like   instruction  in   Snyder  v.   Peo-  the  rights  of  plaintiff  and  defend- 

ple's  Ry.  Co.,  Del.  ,  53  Atl.  ant  to  travel  in  the  street  in  ques- 

433.  tion   were   equal.    It  was   also  the 


§  2095.]  NEGLIGENCE— STREET  RAILROADS.  1369 

§  2095.  Street  Crossings — Fire  Engines  Crossing  Track,  (a)  If 
the  jury  find  and  believe,  from  the  evidence,  that  G.  and  S.  streets 

were,  on  the  day  of  ,  open  public  streets  within  the 

city  of  St.  L. ;  and  if  the  jurj-  further  find  and  believe,  from  the  evi- 
dence, that  at  said  time  the  defendant  was  using  the  tracks,  railway 
and  ear  mentioned  in  the  evidence  for  the  purpose  of  transporting 
persons  for  hire  from  one  point  to  another  in  said  city,  as  a  street 

railroad   operated   by  electricity,   and  that  on   said   day  was 

plaintiff's  husband,  and  an  employe  of  the  fire  department  of  the  city 
of  St.  L.,  and  was  discharging  his  duty  therein  as  the  driver  of  a  fuel 
wagon,  said  fuel  wagon  being  at  the  time  a  part  of  the  fire  apparatus 
of  said  department  and  then  being  used  in  the  business  of  said  depart- 
ment, and  that  plaintiff's  said  husband  was  at  said  date  driving  the 
horses  attached  to  said  fuel  wagon  along  G.  street,  going  in  a  west- 
wardly  direction;  and  if  the  jury  further  find  and  believe,  from  the 
evidence,  that  while  plaintiff's  said  husband  was  so  driving  the  horses 
attached  to  said  fuel  wagon  along  G.  street,  and  across  S.  street  at 
its  intersection  with  G.  street,  defendant's  car  ran  into  and  collided 

with  said  wagon,   causing  the   said  to  be   thrown  from  said 

wagon  and  injured  to  such  an  extent  as  to  cause  his  death;  and  if 
the  jury  fm-ther  find  and  believe,  from  the  evidence,  that  defendant's 
agents,  servants  or  employes  in  charge  of  and  operating  said  car 
either  saw,  or  by  keeping  a  vigilant  watch  for  vehicles  moving  toward 
the  track  upon  which  said  car  was  being  propelled  could  have  seen, 
said  horses  and  fuel  wagons  moving  toward  and  across  said  track  and 
in  danger  of  injury,  and  that  after  seeing  said  horses  and  fuel  wagons 
moving  toward  said  track,  or,  after  they  could  have  seen  by  keeping 
a  vigilant  watch  as  aforementioned,  defendant's  ag'ents,  servants  and 
employes,  or  either  of  them,  could  by  stopping  said  ear  within  the 
shortest  time  and  space  possible  under  the  circumstances,  have  averted 
said  collision  and  injury,  and  neglected  to  do  so;  and  if  the  jury  find 

and  believe,  from  the  evidence,  that  said  exercised  ordinary 

care  and  prudence  in  driving  toward  and  across  said  track, — then  your 
verdict  should  be  for  the  plaintiff. 

(b)  The  court  instructs  the  jury  that  by  the  terms  of  the  ordi- 
nance (No.  )  read  in  evidence,  the  defendant's  motorman,  con- 
ductor or  other  persons  in  charge  of  its  car  mentioned  in  evidence, 
were  bound  to  keep  a  vigilant  watch  for  vehicles  moving  toward  de- 
fendant's  track,  and  upon  the  first  appearance  of  danger  to  such 
vehicle  the  person  or  persons  in  charge  of  said  car  were  bound  to 

duty  of  the  servants  of  the  defend-  were  exercising  reasonable  care  for 

ant  to  take  notice  of  the  ordinary  their    own    safety,    and    who   were 

use   to   which    said    street   was   put  about  to  cross  the  tracks  would  be 

by  the  traveling  public,  and  it  was  warned  of  the  approach  of  the  car 

also   their  duty  to  expect  that  ve-  by    the    ringing    of    bells    or   other 

hides   would    be   driven   across   the  necessary   warning, 

tracks     in     front     of     approaching  Above      instruction    approved    in 

cars,   and  to  keep  a  vigilant   look-  Burns  v.  Met.   St.   R.   Co.,  66  Kan. 

out   for   such   travelers,    and   so   to  188,  71  Pac.  244  (246). 
operate  the  cars  that  persons  who 


1370  FORMS  OF  INSTRUCTIONS.  [§2096. 

stop  said  ear  within  the  shortest  time  and  space  possible,  and  a 
failure  to  keep  such  vigilant  watch,  and  to  stop  said  car  (if  you  find 
from  the  evidence  that  defendant's  servants,  agents  or  employes  did 
so  fail)  was  negligence  upon  the  part  of  defendant. 

(c)  The  court  instructs  the  jury  that  by  the  terms  of  ordinance 
No.  ,  read  in  evidence,  the  person  or  persons  in  charge  of  de- 
fendant's car  mentioned  in  the  evidence  were  required  to  give  to  the 

fuel  wagon  driven  by (if  you  find  from  the  evidence  that  said 

fuel  wagon  was  a  part  of  the  fire  apparatus  of  the  city  of ),  the 

right  of  way  upon  the  street  over  which  it  was  passing  (if  you  find 
from  the  evidence  said  fuel  wagon  was  going  upon  said  street  in  re- 
sponse to  an  alarm  of  fire) ;  and  if,  from  the  evidence,  you  find  that 
the  person  or  persons  in  charge  of  said  car  either  carelessly  or  wan- 
tonly obstructed  or  interfered  with  said  fuel  wagon  while  going  to  a 
fire,  such  conduct  on  the  part  of  said  person  or  persons  is  negligence 
on  the  part  of  defendant. 

(d)  The  court  also  instructs  the  jury  that  it  was  the  duty  of 

the   deceased,  ,   to  exercise   ordinary   care   upon   his   part   to 

make  use  of  his  faculties  on  approaching  the  crossing  of  defend- 
ant's  track;   that,  whether  the   servants  operating  defendant's  car 

by   electricity  gave   signals   or  not,   it  was   the   duty  of  to 

look  and  listen  before  driving  on  defendant's  track,  and  if,  from 
the  evidence,  the  jury  believe  that  failed  to  exercise  or- 
dinary care,  and  failed  to  look  and  listen,  and  thereby  directly 
contributed  to  the  wagon  and  defendant's  car  coming  into  contact 

and  causing  the  injuries  which  produced  said  's  death,  then 

their  verdict  should  be  for  the  defendant  company. 

(e)  The  court  also  instructs  the  jury  that  if,  from  the  evidence, 
they  believe  that  the  motorman  of  the  ear  had  no  warning,  nor 
could  have  know^n  thereof  by  keeping  a  vigilant  watch,  as  indi- 
cated in  other  instructions  given,  regard  being  had  to  the  circum- 
stances and  surroundings,  until  both  the  ear  and  the  wagon  had 
reached  the  intersection  of  S.  and  G.  streets,  and  the  jury  also 
believe  that  the  wagon  and  car  were  then  both  going  at  such  speed 
that  it  was  impossible  for  defendant's  motorman  to  avoid  a  col- 
lision between  them,  then  the  jury  should  find  a  verdict  for  the 
defendant.'""'* 

(f)  The  court  instructs  the  jury  that  it  was  the  duty  of  the 
defendant  to  give  audible  signals  of  the  approach  of  its  cars,  and 
that  nonperformance  of  this  duty  was  evidence  of  negligence  on 
the  part  of  the  defendant,  and  that,  if  the  evidence  satisfied  the 
jury  that  a  failure  to  give  signals  was  the  proximate  cause  of  the 
injury  complained   of,   that  was   actionable   negligence.^'^ 

§  2096.  Collision  with  Other  Street  Cars,  (a)  The  court  instructs 
the  jury   that   it   was   the   duty  of   the   defendant   company   in   the 

54— Guinney  v.  Southern  E.  Co.,  55— Cons.  T.  Co.  v.  Chenowith,  61 
167   Mo.   595,   67    S.    W.    296.  N.   J.      L.   554,   35   Atl.   1067   (1068). 


§2097.]  NEGLIGENCE— STREET  RAILROADS.  1371 

operation  of  its  ears  to  use  ordinary  care  to  prevent  collision,  and 
to  observe  that  provision  of  the  city  ordinance  which  give  to  the 
east  and  west  bound  ears  the  right  of  way  at  intersecting  points 
over  north  and  south  bound  cars.  It  was  at  the  time  the  duty 
of  the  plaintiff  in  the  operation  of  the  east  bound  car  to  exercise 
for  his  own  protection  ordinary  care  to  avoid  collision,  and  not- 
withstanding his  right  of  way,  because  of  his  being  on  an  east 
bound  ear,  it  was  his  duty  to  avoid  collision  if  he  saw  danger 
ahead,  or  in  the  exercise  of  ordinary  care  would  have  seen  danger, 
in  time  to  have  stopped  his  car  or  otherwise  have  averted  the  acci- 
dent; and  if  you  believe  from  the  evidence  plaintiff  failed  to  exer- 
cise such  care  or  perfonn  such  duty,  and  that  such  failure  in  any 
way  contributed  to  his  injury,  then  he  is  not  entitled  to  recover, 
(b)  By  "ordinary  care"  is  meant  such  care  as  a  person  of 
ordinary  prudence  would,  under  the  same  or  similar  circumstances, 
exercise.  The  absence  of  such  care  is  negligence.  If,  therefore, 
from  the  evidence,  you  believe  that  the  defendant  company  operated 

upon   a  public   open   street  of  the   car  which   collided  with 

the  car  of  the Company,  and  that  in  its  operation  at  the 

time  of  the  accident  the  defendant  company,  by  its  servants  or  em- 
ployes in  charge  of  said  car,  failed  to  give  the  east-boujnd  car  the 
right  of  way,  and  negligently  ran  its  car  so  as  to  collide  with 
the  east-bound  car,  and  that  by  reason  of  such  collision  the  plain- 
tiff was  injured,  and  that  he  was  himself  at  the  time  of  the  acci- 
dent exercising  ordinary  care  for  his  own  protection  as  herein 
defined,  then  your  verdict  should  be  for  the  plaintiff.  The  burden 
of  proving  any  negligence  of  defendant  or  failure  to  obsen'e  the 
city  ordinance  regarding  the  right  of  way  is  upon  the  plaintiff 
throughout  the  entire  case  to  establish  it  by  a  preponderance  or 
greater  weight  of  the  testimony.  The  burden  of  so  proving  any 
contributory  negligence  on  the  part  of  the  plaintiff  is  upon  the  de- 
fendant.^^ 

§  2097.  Collision  with  Persons  on  or  Near  Tracks,  (a)  The 
court  instructs  the  jury,  as  a  matter  of  law,  that  if  they  believe 
from  the  evidence  that  eveiything  was  done  that  could  be  done 
by  the  defendant 's  servants  to  stop  the  car  as  soon  as  they  saw, 
or  by  the  exercise  of  ordinary  care  could  have  seen,  the  danger  of 
the  plaintiff,  then  the  jury  should  find  the  defendant  not  guilty.^'^ 

(b)  The  law  of  this  ease  is,  and  the  court  so  instructs  you,  that 
it  was  the  duty  of  the  motorman  in  charge  of  the  defendant's  car 
on  S.  street,  near  L.  Place,  to  run  his  car  at  a  reasonable  rate  of 
speed,  and  to  keep  a  lookout,  and  to  keep  his  car  under  reasonable 
control  at  such  place  as  he  might  reasonably  expect  persons  to  be 

56 — McLain    v.    St.    L.    &    S.    R.  instruction  was  rightfully  asked  by 

Co..  100  Mo.   374,  73  S.   W.  909  (912).  appellant,    and   that   the   refusal  of 

57 — West   C.   St.   R.   Co.   v.  Camp,  the  trial  court  to  ^ve  it  was  such 

46  111.  App.  503  (504).  error   as  to   demand   a   reversal  of 

The    court    says    that    the   above  the  judgment. 


1372  FORMS  OF  INSTRUCTIONS.  [§  2098. 

on  the  track  of  said  ear,  and  to  exercise  ordinary  care  for  the 
safety  of  persons  using  the  track  or  street;  and  if  you  further  be- 
lieve from  the  evidence  in  this  case  that  the  motorman  in  charge 
of  this  ear,  which  collided  with  the  deceased  and  killed  her,  negli- 
gently failed  in  any  of  these  particulars  that  I  have  just  announced 
to  you,  and  that  by  reason  of  such  failure  the  deceased^,  E.,  was 
killed,  then  the  law  is  for  the  plaintiff,  and  you  should  so  jfind. 

(c)  But  unless  you  believe  from  the  evidence  that  the  motor- 
man  in  charge  of  defendant's  car  negligently  failed  in  some  of  the 
particulars  which  I  have  announced  to  you,  and  that  E.  was  killed 
as  a  result  of  such  negligent  failure  on  the  part  of  the  motorman, 
then  the  law  is  for  the  defendant,  and  you  should  so  find.^^ 

§  2098.  Same  Subject— Child  Run  Over  by  Car— Series,  (a)  The 
jury  are  instructed  that  if  they  believe  and  find  from  the  evidence 
that  plaintiffs  are  the  parents  of  B.,  deceased;  that  said  deceased 
at  the  time  of  his  death  was  a  minor,  unmarried  and  of  the  age 
of  seven  years;  and  that  defendant  on  and  prior  to  about  the 
day  of  ,  was  engaged  in  the  business  of  transport- 
ing passengers,  for  hire,  from  one  point  to  another  within  the  city 
of  St.  L.,  by  a  street  railway,  and  for  that  purpose  used  and  op- 
erated its  railway,  and  a  certain  gripear  and  trailer  composing  the 
train ;  and  if  the  jurors  further  believe  and  find  from  the  evidence 
that  Morgan  street  at  said  time  was  an  open  public  street  of  the 
city  of  St.  L.  at  the  place  hereinafter  mentioned ;  and  if  the  jurors 

further  believe  and  find  from   the  evidence  that  on  the  of 

that  said  child  was  in  said  M.  street,  at  a  point  at  or  near  the 

crossing  on  the  east  side  of  T.  street,  and  whilst  on  said  street  at 
said  place  he  was  run  over  by  defendant's  said  gripear,  and  there- 
by injured,  and  died  from  the  effect  thereof;  and  if  the  jurors 
further  believe  and  find  from  the  evidence  that  defendant's  grip- 
man  in  charge  of  said  gripear  just  before  and  at  the  time  of  so 
running  over  and  injuring  said  child  was  not  keeping  a  vigilant 
watch  for  all  persons  on  foot,  especially  children,  either  on  its 
said  track,  or  moving  towards  it,  or  that  said  gripman  did  not  stop 
said  gripear  in  the  shortest  time  and  space  possible,  under  the 
circumstances,  upon  the  first  appearance  of  danger  to  said  child; 
and  if  the  jurors  further  believe  and  find  from  the  evidence  that 
s'aid  gripm'an,  by  the  keeping  of  such  vigilant  watch,  would  have 
seen  said  child  moving  towards  the  track,  or  upon  the  track  and 
in  danger,  and  could,  in  the  exercise  of  ordinary  care,  by  so  stopping 
said  gripear  in  the  shortest  time  and  space  possible  under  the  cii'- 
cumstanees,  have  averted  the  injury  from  said  child ;  and  if  the 
jurors  further  believe  and  find  from  the  evidence  that  plaintiffs  exer- 
cised ordinary  care  in  the  custody  of  said  child,  in  keeping  it  from 
being  exposed  to  said  injury,  according  to  their  condition  in  life, 
and  that  said  child  exercised  the  degree  of  care  which  is  reasonably 
to  be  expected  from  a  child  of  his  years  and  experience  under  the 

58— Eirk's    Adm'r   v.    Ry.    Co.,   —    Ky.  — ,  98   S.   W.  293. 


§2098.; 


NEGLIGENCE— STREET  RAILROADS. 


1373 


eireumstanees, — then  your  verdict  should  be  for  the  plaintiff,  and, 
if  you  find  for  the  plaintiffs,  you  will  assess  their  damages  in  the 
sum  of  not  exceeding  five  thousand  dollars. 

(b)     The  jurors  are  instructed  that  if  the  defendant  was  engaged 
in  the  business  of  transporting  passengers,  for  hire,  from  one  point 

to  another  within  the  city  of  St.  L.,  on  or  about  the  day  of 

,  then,  by  Ordinance  No.  17188,  read  in  evidence,  it  became 


the  duty  of  the  gripman  in  charge  of  the  gripcar  to  keep  a  vdgilant 
watch  for  persons  on  foot,  especially  for  children,  either  on  its  track 
or  moving  towards  it,  and,  on  the  first  appearance  of  danger  to  such 
person  or  child,  it  was  the  duty  of  the  griioman  to  stop  the  car  in  his 
charge  in  the  shortest  time  and  space  possible  under  the  circum- 
sitances.  The  court  instructs  the  jury  that  the  degree  or  measure 
of  care  or  caution  which  said  infant  child,  B.,  was  required  to  ex- 
ercise, was  that  which  is  ordinarily  exercised,  and  which  is  reason- 
ably to  be  expected  from  a  child  of  his  years  and  exiDerience,  under 
the  circumstances  he  was  in,  as  shown  by  the  evidence,  and,  before 
the  jury  can  find  him  guilty  of  contributoiy  negligence,  they  must 
find  that  he  failed  to  exercise  such  care  or  caution  as  might  reason- 
ably be  expected  of  a  child  of  his  years  and  experience  under  the 
circumstances;  and  the  burden  of  proving  contributory  negligence 
is  on  the  defendant  to  establish  by  a  pi-eponderance  of  the  evi- 
denee.^^ 


59 — Hogan  V.  Citizens'  Ry.  Co., 
150  Mo.   473,   51   S.   W.  473   (474). 

The  following-  instructions  were 
approved  in  the  same  case,  and, 
together  with  the  instructions  in 
the  text,  constitute  a  series. 

The  court  instructs  the  jury 
that  in  considering  this  case  they 
should  not  indulge  in  any  mere 
suppositions  or  imaginings  as  to 
what  may  or  may  not  have  been 
done  or  occurred  at  the  time  of  the 
occurrence,  but  must  decide  the 
case  upon  the  evidence  of  the  wit- 
nesses and  the  instruction  of  the 
court.  And  the  court  further  in- 
structs the  jury  that  they  are  the 
sole  judges  of  the  credibility  of  tlie 
witnesses  and  the  weight  to  be 
given  to  their  testimony,  and  in 
weighing  the  testimony  the  jury 
should  take  into  consideration,  not 
only  what  they  have  testified  to, 
but  also  their  manner  of  testify- 
ing, and  their  bias,  if  any  is  shown, 
towards  or  against  plaintiffs  or 
defendant,  their  ability  at  the  time 
to  clearly  see  what  occurred,  and 
now  to  clearly  recall  and  relate  the 
facts;  and,  if  the  jury  believe  from 
the  evidence  that  any  witness  has 
knowingly  sworn  falsely  to  any 
material  fact,  then  the  jury  may 
disbelieve  the  whole  or  any  part 
of  such  witness'  testimony. 


The  court  instructs  the  jury 
that,  though  there  was  a  crowd  of 
people  at  the  northeast  corner  of 
M.  and  T.  street,  the  gripman  was 
not  required,  under  the  allegations 
of  the  petition  and  the  law,  to  slow 
down  his  train  to  one,  two  or  three, 
or  four,  or  five,  or  six  miles  an 
hour,  or  to  stop  it,  or  try  to  stop  it, 
before  the  rush  of  the  people  to- 
wards the  track;  and  the  jury 
must  not  impute  any  negligence  to 
the  gi-ipman  because  he  did  not 
stop,  or  try  to  stop,  or  was  not 
running  very  slowly,  before  the 
rush  of  the  crowd  occurred,  or  the 
first  appearance  of  danger. 

The  court  instructs  the  jury  that 
there  is  no  evidence  in  this  case 
tending  to  prove  the  cars  were  be- 
ing run  at  a  greater  rate  of  speed 
than  eight  and  one-half  miles  an 
hour,  and  therefore  the  jury 
should  not  consider  the  allegations 
of  negligence  that  the  train  was 
being  run  at  a  greater  rate  of 
speed  than  eight  and  one-half 
miles  an  hour.  And  the  court  fur- 
ther instructs  you  that  if  you  ber 
lieve  from  the  evidence  that  as  the 
train  was  approaching  Twelfth 
street  the  gripman  rang  the  bell, 
and  it  could  be  heard  at  the  north- 
east corner  of  T.  and  M.  streets, 
then  the  court  instructs  you   that 


1374 


FORMS  OF  INSTRUCTIONS. 


[§  2099. 


§  2099.  Failure  to  Check  Speed  of  Car  When  Danger  Imminent 
to  Person  on  Track,  (a)  It  is  the  duty  of  a  motonnan  in  charge  of 
a  street  ear  to  exercise  reasonable  care  and  diligence  to  discover 
any  person  or  vehicle  upon  or  near  to  the  track  in  front  of  the  car 
which  he  is  operating,  and  if  he  discovers  a  vehicle  in  charge  of  a 
person  upon  said  track,  or  so  near  as  to  be  likely  to  be  struck  by 
said  ear,  and  he  has  reason  to  believe  that  said  person  is  uncon- 
scious of  his  danger,  or  unable  to  avoid  it,  it  is  his  duty  to  use  every 
reasonable  effort  to  stop  the  car,  and  if  in  such  case  he  causes  or 
permits  said  car  to  run  with  unabated  speed,  and  without  effort  to 
check  or  stop  the  same,  until  it  runs  into  and  strikes  said  vehicle, 
destroying  it,  injuring  the  horses  attached  to  it,  and  the  pei*son  in 
charge  of  it,  the  company  would  be  guilty  of  negligence,  and  a  re- 
covery could  be  had  for  any  injuiy  sustained.^'' 

(b)  If  you  find  from  the  evidence  that  upon  the  day  and  at  the 
time  of  the  accident,  it  was  clear,  and  the  view  at  the  point  where 


he  performed  his  whole  duty  un- 
der the  alleg-ations  of  negligence 
in  that  regard,  and  under  the  law, 
and  he  was  not  required  to  be 
ringing  it  as  he  was  crossing  T. 
street  and  approaching  the  east 
crossing,  and  you  must  find  that 
allegation  of  negligence  concern- 
ing the  not  ringing  of  the  bell  in 
favor  of  the  defendant.  And  the 
court  further  instructs  you  that 
all  the  evidence  in  this  case  shows 
that  the  child,  B.,  was  on  the  pave- 
ment, in  the  crowd,  and  if  the 
jury  believe  from  the  evidence  that 
the  gripman  and  conductor  were 
keeping  a  vigilant  watch  for  all 
persons  on  foot,  especially  chil- 
dren, as  mentioned  in  these  in- 
structions, as  the  train  was  cross- 
ing T.  street  and  approaching  the 
east  crossing,  and  that  as  soon  as 
the  crowd  surged  or  rushed  to- 
wards the  track  the  gripman 
stopped  the  train  in  the  shortest 
time  and  space  possible  under  the 
circumstances,  then  your  verdict 
must  be  for  the  defendant,  not- 
withstanding the  gripman  did  not 
notice  the  boy  as  he  ran  from  the 
pavement  and  onto  the  track,  or 
thereafter. 

The  court  further  instructs  the 
jury  that  an  accident  may  happen, 
and  a  person  be  injured  or  killed 
therein,  that  is  not  caused  by  the 
negligence  of  any  person  connected 
therewith;  and  if  the  jury  believe 
from  the  evidence  that  the  death 
of  the  child,  B.,  was  the  result  of 
such  mere  accident  or  misadven- 
ture, then  your  verdict  must  be  for 
the  defendant. 

The  court  Instructs  the  Jury  that 


while  the  child,  B.,  was  required 
to  use  only  such  care  and  caution 
as  could  be  reasonably  expected  of 
a  child  of  his  years  and  experi- 
ence, nevertheless  he  was  required 
to  use  such  care  and  caution;  and 
if  the  jury  believe  from  the  evi- 
dence that  he  did  not  do  so,  and 
was  himself  negligent  in  running 
right  in  front  of  and  close  to  the 
car,  and  his  being  run  upon  by  the 
car  was  the  result  of  his  negli- 
gence, in  not  exercising  such  care, 
then  the  jury  will  find  their  ver- 
dict for  the  defendant. 

The  court  instructs  the  jury 
that,  under  the  pleadings  and  evi- 
dence, no  want  of  care  or  negli- 
gence can  be  imputed  to  the  de- 
fendant because  it  did  not  have 
other  or  different  appliances  about 
its  gripcar  than  it  had,  and  there- 
fore the  jury  must  not  consider 
that  matter  at  all. 

60— Indianapolis  T.  &  T.  Co.  v. 
Smith,  —  Ind.  App.  — ,  77  N.  E.  1140 
(1143). 

"The  above  instruction  as  an  en- 
tirety correctly  states  the  law.  We 
are  unable  to  see  anything  in  it 
that  assumes  that  the  car  could 
have  been  stopped.  It  is  the  the- 
ory and  contention  of  appellee 
that  the  motorman  could,  by  the 
exercise  of  reasonable  care,  have 
seen  the  wagon  by  reason  of  the 
light  from  the  electric  light  and 
the  headlight  of  the  car. 

"Upon  the  point  of  omitting  from 
the  instruction  the  question  of  ap.. 
pellee's  contributory  negligence 
does  not  render  the  instruction  er- 
roneous when  construed  in  connec- 
tion with  the  other  instructions." 


§2099.]  NEGLIGENCE— STREET  RAILROADS.  1375 

it  occurred  was  unobstnacted,  so  that  the  motorman  could  have  seen 
plaintiff's  wagon,  on  or  near  the  track,  if  he  had  exercised  ordinary 
diligence,  and  further  find  that  the  motomian  had  knowledge  of  the 
conditions  existing  at  the  place  of  the  collision,  and  that  he  could 
have  seen  the  plaintiff's  peril  in  time  to  have  stopped  the  car  and 
prevented  the  accident,  by  the  exercise  of  reasonable  care,  then  I 
instruct  that  his  failure  to  do  so,  thus  causing  the  injury,  would 
constitute  negligence  upon  the  part  of  the  company  defendant,  and 
you  should  find  for  the  plaintiff,  unless  you  further  find  that  plaintiff, 
by  his  own  negligence,  caused  or  contributed  to  the  injury  com- 
plained of.*'^ 

(c)  It  is  the  duty  of  a  motoimam,  running  and  operating  a 
street  car  along  and  upon  the  street  of  a  city  to  have  it  under  such 
control  that  it  may  be  stopped  within  a  short  distance,  if  occasion 
requires.  From  his  failure  to  exercise  reasonable  care  in  that  re- 
gard, negligence  may  be  inferred.  It  is  also  the  duty  of  a  motorman 
to  exercise  the  highest  degree  of  care  to  avoid  injury  to  a  person 
after  discovering  his  peril.  If  you  find  from  a  preponderance  of 
the  evidence  that  on ,  190 — ,  the  defendant  company  was  run- 
ning and  operating  a  line  of  railway  along  and  upon  I.  avenue,  in 
the  city  of  C,  having  double  tracks  thereon;  that  at  a  point  near 
where  said  line  of  railway  intersects  B.  street  said  I.  avenue  is  nar- 
row, said  street  being  60  feet  wide,  and  no  more;  that  at  said  time, 
and  at  said  place  on  said  street,  and  on  the  southwest  side  of  said 
street,  thei'e  was  a  ditch  II/2  feet  deep  and  5  feet  wide  which  was 
filled  with  water,  snow,  and  ice,  and  was  in  a  dangerous  and  unsafe 
condition  to  drive  upon  or  over  with  a  vehicle,  and  there  was  not 
sufficient  space  between  said  ditch  and  the  tracks  of  defendant's 
railway  for  a  person  to  drive  with  ,a  vehicle,  without  obstructing  said 
street  cars;  that  said  company  and  its  employes  had  full  knowledge 
of  the  condition  of  said  street,  and  of  the  dangerous  condition  of 
said  ditch  for  the  passage  of  vehicles;  that  on ,  19 — ,  plain- 
tiff, in  the  transaction  of  his  business,  was  driving  a  horse  and 
loaded  wagon  along  I.  Ave.;  that  before  he  reached  or  entered  upon 
said  narrow  place  he  stopped,  and  looked  to  see  if  any  car  was  in 
sight  or  approaching;  that  there  was  none;  that  thereupon  he  drove 
carefully  along  a  narrow  space,  the  wheel  of  his  wagon  being  upon 
said  track  or  very  near  to  it,  that  as  he  was  so  driving,  he  saw  one  of 
the  defendant's  cars  ai^proaching  from  the  northwest  running  at  a 
high  and  dangerous  speed;  that  he  was  in  plain  view  of  said  car 
and  there  was  nothing  to  prevent  the  conductor  and  motorman  in 
charge  of  said  car  from  seeing  him  or  his  wagon  in  the  perilous 

61— Indianapolis   T.    &   T.   Co.   v.  fairly  state  the   law  applicable  to 

Smith,  Ind.  App.  ,  77  N.  E.  the    facts    that    we    do    not    deem 

1140    (1144).  it  either  necessary  or  important  to 

"This   instruction,    of    which    ap-  take  up  the  objections  and  discuss 

pollant      complains      and      against  them    separately.      The    instruction 

which  counsel  urg^e  some  objec-  is  a  correct  statement  of  the  law." 
tions,  seems  to  us  to  so  clearly  and 


1376  FORMS  OF  INSTRUCTIONS.  [§2100. 

situation  in  which  he  was ;  that  no  warning  was  given ;  that  the  speed 
of  said  ear  was  not  lessened,  nor  was  said  ear  stopped  nor  at- 
tempted to  be  stopped;  that  plaintiff  endeavored  to  drive  out  of  the 
way  and  avoid  said  ear,  but  could  not  do  so;  that  said  car  was  negli- 
gently run  against  his  said  wagon,  overturning  it  and  throwing  it 
in  the  ditch;  plaintiff  was  thrown  to  the  ground;  his  leg  was  broken 
and  he  was  otherwise  injured,  as  in  complaint  set  out,  then  I  in- 
struct you  that  you  should  find  for  the  plaintiff,  unless  you  should 
further  find  that  plaintiff,  by  his  own  negligence,  contributed  to  the 
injury.62 

§  2100.  Contributory  Negligence  of  Persons  Other  Than  Passen- 
gers or  Employes — In  General,  (a)  The  court  instructs  the  jury, 
if  you  believe  from  the  evidence  that  plaintiff  was  guilty  of  negli- 
gence, and  that  this  negligence  combined  with  the  negligence  of 
defendant  to  produce  the  accident,  so  that  both  acts  together  con- 
stituted the  proximate  cause  of  the  injury,  then  the  negligence  of 
the  plaintiff,  however  slight,  would  bar  a  recovery,  and  you  should 
find  for  the  defendant.^^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  sole  efficient 
cause  of  the  injury  to  the  plaintiff  was  the  negligent  manner  in 
which  plaintiff's  horse  was  driven  at  the  time  and  place  in  question, 
if  you  believe  from  the  evidence  said  horse  was  negligently  driven, 
then  you  should  find  the  defendant  not  guilty."* 

(c)  If  you  find  from  the  evidence  that  the  plaintiff's  injuries,  if 
any,  were  directly  and  proximately  caused  by  the  negligence,  if  any, 
of  the  defendant,  as  explained  to  you  in  the  second  and  third  in- 
structions, then  it  is  your  duty  to  .ascertain  and  determine  whether 
the  plaintiff  was  himself,  at  and  previous  to  the  time  of  receiving 

62— Indianapolis   T.    &   T.    Co.   v.  quences  of  negligence  will  probably 

Smith,   Ind.    App.   ,   77   N.  be    serious    injury    to   others,    and 

E.   1140   (1143).  where    the   means    of   avoiding   in- 

"Assuming    that    there    was   evi-  fliction  of  injury  to  others  is  com- 

dence  tending  to  support  all  of  the  pletely    within    the    party's    power, 

facts   to   which    the   court   referred  ordinary   care   requires   almost  the 

in  this  instruction,  we  do  not  think  utmost  degree  of  human  vigilance 

there    was    any   error    in    directing  and  foresight." 

the    jury    that    under    such    facts  63— Memphis      St.      R.      Co.      v. 

the    motorman    was    charged    with  Haynes,  112  Tenn,  712,  81  S.  W.  374 

the     exercise     of     the     highest     de-  (380). 

gree   of   care.     In   Lake   Erie,   etc.,  "The  instruction  stated  a  correct 

Co.    V.  Juday,   19  Ind.   App.   436,   49  rule  of  law,  and  should  have  been 

N.  E.  843,  the  question  under  con-  given  to  the  jury.     Memphis  St.  R. 

sideration    was    embraced    in     the  Co.  v.  Wilson,  108  Tenn.   618,  69   S. 

quotation    from    that    case    which  W.    265;    Nashville    St.    R.    Co.    v. 

appears   in   a   former   part   of   this  Norman,    108   Tenn.    331,    67    S.    W. 

opinion.    In    the    case    of    Gagg    v.  479;    Saunders    v.    R.    R.,    99   Tenn. 

Vetter,    41    Ind.    242,    13    Am.    Rep.  13.^,    41    S.    W.    1031;    Barr   v.    R.    R., 

322,   the  court   quoted   from   Kelsey  lOf)  Tenn.  547.  58  S.  W.  849." 

v.    Barney,   12   N.    Y.    425,   and   ap-  64— N.  C.   St.  R.   Co.  v.  Smadraff, 

proved  the  following:        Under  the  89   111.   App.   411   (416),   aff'd   189  111. 

same    circumstances    a    very    high  155,  59  N.  E.  527.     See  also  Chi.  U. 

degreo    of    vigilance    is    demanded,  T.   Co.    v.    Leach,   117   III.    App.   169 

even  under  the  requirements  of  or-  (173),  aff'd  215  111.  184,  74  N.  E.  119. 
dinary     care.    Where     the     conse- 


§  2100.]  NEGLIGENCE      STREET     RAILROADS.  1377 

his  injuries,  if  any,  exercising  such  ordinary  care  as  a  man  of 
reasonable  caution  and  prudence  would  have  exercised  under  like 
circumstances;  and  if  you  find  that  his  failure  so  to  do  directly 
contributed  to  his  injuries,  if  any,  then  your  verdict  should  be  for  the 
defendant;  and  upon  the  issue  of  the  exercise  of  ordinaiy  care  by  the 
plaintiff  the  burden  of  proof  is  upon  him  to  establish  the  same  to  your 
satisfaction  by  a  fair  preponderance  of  the  evidence.*'^ 

(d)  But  if  you  find  that  the  plaintiff  by  any  act  or  omission  on 
his  part  was  guilty  of  negligence  as  hereinbefore  defined  and  that 
such  negligence  directly  contributed  in  causing  the  collision  and  in- 
juries, if  any,  then  you  will  find  for  the  defendant,  regardless  of 
whether  or  not  it  or  its  servants  were  also  negligent."^ 

(e)  It  was  the  duty  of  the  deceased,  E.,  to  exercise  that  degree 
of  care  which  persons  of  her  age,  experience,  and  intelligence  usually 
exercise  for  her  own  safety  in  using  the  street,  and  although  you 
may  believe  from  the  evidence  that  the  motorman  in  charge  of  the 
car  was  negligent,  as  submitted  to  you  by  another  instruction,  yet, 
if  you  further  believe  from  the  evidence  that  E.  failed  to  exercise 
that  degree  of  care,  to  wit,  such  care  as  persons  of  her  age,  experi- 
ence, and  intelligence  usually  exercise  under  like  or  similar  circum- 
stances, and  that  such  failure  on  her  part  so  contributed  to  bring 
about  her  injury  that  but  for  such  failure  she  would  not  have  been 
injured,  then  the  law  is  for  the  defendant,  and  you  should  so  find.*'^ 

(f)  The  court  instructs  the  jury  that  if,  from  the  evidence,  they 
believe  that  both  the  plaintiff  and  the  servant  of  defendant  operating 
said  defendant's  car  were  guilty  of  negligence,  and  that  plaintiff's 
negligence  directly  contributed  to  the  accident,  then  the  verdict 
should  be  for  the  defendant.^^ 

65— Stanley  v.  Cedar  R.  &  M.  C.  the  danger  that  a  person  of  ordi- 

R.   Co.,  119  Iowa  526,  93  N.  W.  4S9  nary   prudence,   caution   and   intel- 

(491).  ligence  would  usually  exercise  un- 

The  court  instructs  the  jury  that  der    the    same    or   similar    circum- 

while  it  is  true  that  if  the  plaintiff  stances,   then  you  should  find  that 

was    guilty    of   contributory    negli-  the  plaintiff  was  not  guilty  of  con- 

gence,    that    fact    alone    would    re-  tributory  negligence, 

lieve  the  defendant  company  from  Approved    in    Chi.    U.    T.    Co.    v. 

all    liability,    yet    in    order    to    find  Chugren,    110    111.    App.    545    (546-7), 

the  plaintiff  guilty  of  contributory  Justice    Ball    holding    that   the   use 

negligence   j'^ou   must   believe   from  of  the  word   "usually"  was  equiv- 

the     evidence     that     the     plaintiff  alent  to  "ordinary."     But  see  C.  C. 

failed  to  exercise  that  care  merely  Ry.    Co.   v.    Schonler,   111   111.    App. 

which    the    law    requires,    and    he  470  (472),  where  Justice  Stein  holds 

is   only   required   by   law,   to   exer-  in    a   similar    instruction    that    the 

cise  such  care  and  foresight  as  an  use  of  the  word  "usually"  was  re- 

ordinarily  prudent  man  possessing  versible  error. 

ordinary    intelligence    would    exer-  66 — Met    St.    R.    Co.   v.    Rouch,   66 

cise    under    circumstances    similar  Kans.  195,  71  Pac.  257  (258). 

to    those    surrounding    the   plaintiff  67 — Eirk's    Adm'r   v.    Ry.    Co.,    — 

at   the   time   of  the   alleged    injury.  Ky.  — ,  98  S.   W.  293. 

And   if   you   believe   from   the   evi-  68— Septowsky    v.    St.    L.    T.    Co., 

denre  that  the  plaintiff  in  endeav-  102  Mo.  App.  110,  76  S.  W.  S93  (697). 

oring    to   cross   over   the   tracks    of  The  jury   are   instructed   that   by 

said    company   and    while    on    said  the  term   "ordinary   care  and   pru- 

tracks,  or  either  of  them,  exercised  dence,"    as   used    in    these   instruc- 

that    care    and    foresight    to    avoid  tions,  is  meant  that  degree  of  care 

87 


1378  FORMS  OP  INSTRUCTIONS.  [§2101. 

§  2101.  Rule  That  Burden  of  Proof  is  on  Defendant  to  Prove 
Contributory  Negligence.  The  jurors  are  instructed  that  negligence 
cannot  be  presumed,  and  the  burden  of  proof  is  upon  the  plaintiff 
to  establish  by  the  preponderance  or  greater  weight  of  the  evidence 
the  facts  necessary  to  a  verdict  in  his  favor  under  these  instructions. 
And  the  jurors  are  further  instructed  that,  while  the  burden  of  proof 
is  upon  the  defendant  to  prove  the  contributory  negligence  of  the 
plaintiff  alleged,  yet  this  does  not  relieve  the  plaintiff  from  proving 
by  a  preponderance  or  greater  weight  of  the  evidence  that  the  in- 
juries alleged  and  complained  of  were  caused  solely  by  the  negli- 
gence of  the  defendant's  servants  in  charge  of  said  ear.  The  burden 
remains  upon  the  plaintiff  throughout  the  entire  case,  and  if  the 
jurors  believe  and  find  from  the  evidence  that  the  alleged  injuries 
were  caused  by  plaintiff  driving  in  front  of  said  oar  so  close  that  the 
motorman  in  charge  thereof  was  unable  by  the  use  of  ordinary  care 
to  stop  the  same  in  time  to  avoid  the  collision,  or  if  you  believe  that 
the  alleged  injuries  were  caused  by  the  combined  or  concunring  negli- 
gence of  the  plaintiff  and  defendant's  servants  in  the  particulars 
set  out  in  these  instructions,  or  if  you  believe  that  the  alleged  in- 
juries were  due  to  an  accident  or  misadventure  for  which  neither 
party  is  responsible,  then  the  plaintiff  is  not  entitled  to  recover  and 
your  verdict  must  be  for  the  defendant.*® 

§  2102.  Same  Subject — Rule  as  to  Children,  (a)  The  court  in- 
structs the  jury  that  the  conduct  of  an  infant  is  not  of  necessity  to 
be  judged  by  the  same  rules  which  govern  that  of  an  adult;  that 
while  it  is  the  general  rule  in  regard  to  an  adult  or  grown  person 
that,  to  entitle  him  or  her  to  recover  damages  for  an  injuiy  result- 
ing from  the  fault  or  negligence  of  another,  he  or  she  must  have 
been  free  from  fault,  such  is  not  the  rule  in  regard  to  an  infant  of 
tender  years.  The  care  and  caution  required  of  a  child  is  according 
to  its  maturity  and  capacity  wholly,  and  this  is  to  be  detennined  by 
the  circumstances  of  the  ease  and  the  evidence  before  the  jury,  and 
the  law  presumes  that  a  child  between  the  ages  of  7  and  14  cannot 
be  guilty  of  contributory  negligence,  and,  in  order  to  establish  that 
a  child  of  such  age  is  capable  of  contributory  negligence,  such  pre- 

that  would  be  used  by  a  person  of  not  preponderate  in  favor  of  plain- 
ordinary  prudence  under  the  same  tiff,  then  the  verdict  should  be  for 
or    similar    circumstances;    and    a  defendant. 

failure  to  exercise  ordinary  care  as  If,  from  the  evidence,  the  jury 
so  defined  is  negligence.  The  bur-  believe  that  both  the  deceased,  G.. 
den  of  proving  that  G.  did  not  ex-  and  the  servant  of  defendant  op- 
ercise  ordinary  care  to  avoid  the  erating  its  car,  were  equally  guilty 
collision  and  injury  which  resulted  of  negligence  which  directly  con- 
in  his  death  is  upon  the  defendant,  tributed  to  the  injury  and  death 
The  charge  of  negligence  made  of  said  G.,  then  the  verdict  should 
by  plaintiff  against  defendant  by  be  for  the  defendant, 
this  action  must  be  proved  to  the  Above  instructions  approved  in 
satisfaction  of  the  jury  by  the  pre-  Guinney  v.  So.  El.  Co.,  167  Mo.  595, 
ponderance    of    the    evidence.    The  67  S.  W.  296. 

jury  have  no  right  to  prosume  neg-  69 — Freymark    v.    St.    L.    T.    Co., 

llgence,  and,   if  the  evidence   does  111  Mo.  App.  208,  85  S.  W.  607  (608). 


§  2102.J 


NEGLIGENCE— STREET    RAILROADS. 


1379 


sumption  must  be  rebutted  by  evidence  and  circumstances  establish- 
ing his  maturity  and  capacity."" 

(b)  Upon  the  issue  as  to  whether  the  deceased  was  guilty  of  neg- 
ligence contributing  to  her  death,  such  as  will  prevent  the  plaintiffs 
from  recovering  in  this   case,   the  court  instructs  you  that   the   law 

requires   all   persons   situated    as    deceased,   ,    was,   when   and 

before  the  accident  happened,  to  exercise  ordinary  care  and  caution 
to  avoid  injury  to  themselves,  and  that  the  absence  of  such  care 
and     caution     constitutes     negligence.       In     determining,     however, 

whether  the  deceased,  ,  was  exercising  such  oare  and  caution, 

the  jury  should  take  into  consideration  her  age  and  capacity,  since 
the  law  requires  of  a  child  nine  years  old  only  such  care  and  cau- 
tion as  might  reasonably  be  expected  of  one  of  her  age  and  capacity 
under  similar  circumstances.  If,  therefoi'e,  you  find  that  the  de- 
ceased,    ,    in    going   upon    defendant's    track,    was   using   that 

degi'ee  of  care  which,  in  the  ordinarj^  experience  of  mankind,  was 
to  be  expected  of  one  of  her  age  and  capacity  under  similar  circum- 
stances, then  she  was  not  guilty  of  negligence,  within  the  meaning 
of  the  law  and  these  instructions.     The  court  further  instructs  you 


70— Richmond  T.  Co.  v.  Wilkin- 
son, 101  Va.  394,  43  S.  E.  622  (623). 

See  also  the  three  following  in- 
structions in  the  same  use: 

The  court  further  instructs  the 
jury  that  if  they  believe  from  the 
evidence  that  the  plaintiff  was  in- 
jured by  jumping  from  a  moving 
electric  car  of  the  defendant, 
whilst  being  propelled  through  the 
streets  of  the  city  of  R.,  and  that 
the  plaintiff's  act  of  jumping  from 
the  car  was  caused  by  the  orders 
of  the  defendant's  motorman  or 
conductor  in  charge  of  the  car, 
given  while  the  car  was  in  motion, 
then  they  must  find  for  the  plain- 
tiff, provided  the  jury  shall  believe 
that  the  plaintiff,  by  reason  of  his 
age  and  want  of  judgment  and 
discretion,  was  unable  to  exercise 
care  and  caution  to  resist  the  or- 
ders of  the  defendant's  motorman 
or  conductor.  The  jury  must  be- 
lieve from  the  evidence  that  the 
conductor  ordered  the  plaintiff  to 
get  off,  while  the  car  was  moving. 
In  such  a  threatening  manner  as 
to  intimidate  the  plaintiff,  consid- 
ering his  age  and  capacity  and 
thereby  caused  him  to  jump  from 
said    car. 

The  court  instructs  the  jury  that 
if  they  believe  from  the  evidence 
that  the  plaintiff,  W..  at  the  time 
of  the  injury  was  a  child  of  tender 
years,  and  had  boarded  a  car  of 
the  defendant  company  whilst  the 
same  was  standing  at  the  eastern 


terminus  of  the  defendant's  road, 
and  that  the  agents  and  employes 
of  the  defendant  company  Itnew, 
or  could  have  known  by  the  exer- 
cise of  ordinary  care,  of  his  pres- 
ence on  said  car,  and  that  said 
child  was  standing  on  the  step  of 
said  car,  and  that  step,  was  a 
place  of  danger  for  a  child, 
that  it  was  the  duty  of  the  agents 
or  employes  of  said  company  to 
take  notice  of  the  danger  of  the 
plaintiff;  and  if  they  believe  from 
the  evidence  that  the  conductor 
or  motorman  allowed  the  car  to 
start  while  the  plaintiff  occupied 
such  position,  which  action  in  per- 
mitting the  said  plaintiff  to  remain 
on  the  car  resulted  in  the  injury 
to  said  plaintiff,  then  they  shall 
find  for  the  plaintiff  provided  the 
jury  shall  believe  from  the  evi- 
dence that  the  plaintiff,  by  reason 
of  his  age  and  want  of  judgment, 
and  discretion,  was  not  guilty  of 
contributory  negligence  as  hereto- 
fore defined  in  these  instructions. 
"The  court  instructs  the  jury 
that,  even  if  they  may  believe 
from  the  evidence  that  the  plain- 
tiff was  guilty  of  contributory  neg- 
ligence, that  they  are  instructed 
that  still  the  plaintiff  would  be  en- 
titled to  recover  against  the  de- 
fendant, if  they  believe  from  the 
evidence  that  the  servants  and 
agents  of  the  defendant  company 
in  charge  of  said  car  did  not  do  all 
they    could     to    avoid    the    injury 


1380 


FORMS  OF  INSTRUCTIONS. 


[§  2102. 


that  the  burden  of  proving  that  the  deceased, 


-,  was   guilty 


of  negligence  contributing  to  her  death,  is  upon  the  defendant.'^^ 
(e)  The  jury  are  instructed  that  although  they  may  find  from 
the  evidence  that,  at  the  time  of  the  accident  to  the  plaintiff,  de- 
fendant's train  was  running  at  a  gi'eater  rate  of  speed  than  five 
miles  an  hour,  that  would  not  justify  a  recovery  in  this  case  in  favor 
of  the  plaintiff,  unless  the  jury  further  find  that  the  plaintiff  taking 
into  consideration  his  age  and  experience  and  understanding,  by 
reason  of  the  threatening  language  of  the  motorman  had  reasonable 
ground  for  believing  that  the  motorman  intended  to  inflict  physical 
violence  upon  the  plaintiff,  or  to  eject  him  from  the  ear,  or  so  ter- 
rorized the  plaintiff  as  to  compel  him  against  his  will  to  jump  fi-om 
the  oarJ- 

after  his  danger  was  known,  or 
might  have  been  known  by  the  ex- 
ercise of  ordinary  care. 

71— Schmidt  v.  St.  L.  R.  Co.,  163 
Mo.  645,  63  S.  W.  834  (836). 

The  court,  in  its  opinion,  said: 

"The  objection  offered  to  this  is 
that  it  assumes  that  the  child  was 
9  years  old.  A  fact  which  is  really 
in  dispute  should  never  be  as- 
sumed in  an  instruction,  but  a 
minor  point,  about  which  there  is 
no  dispute,  which,  though  tech- 
nically in  issue,  is  virtually  con- 
ceded, may  sometimes  be  assumed 
without  rendering  the  instruction 
reversible  error.  In  this  case,  the 
only  evidence  as  to  the  child's  age 
was  given  by  her  father,  who  said 
she  was  9  years  old.  There  was 
no  question  or  contradiction  of 
that.  She  was  spoken  of  by  the 
witnesses  for  defendant,  as  well  as 
for  plaintiff,  as  a  young  child,  and 
"the  little  girl."  fill  through  the 
trial.  The  defendant  refers  to  her 
as  such  in  the  instructions  it 
asked.  The  exact  age  of  the  child 
was  not  made  a  point  of  dispute, 
and  a  year  or  two  younger  or  older 
would  have  made  no  difference  in 
the  case." 

72— Washington,  etc.,  Ry.  Co.  v. 
Quayle,  95  Va.  741,  30  S.  E.  391  (393). 

The  four  following  instructions 
are  taken  from  the  same  case: 

The  jury  are  instructed  that  al- 
though they  may  believe  from  the 
evidence  that  the  motorman  called 
to  the  plaintiff  and  his  compan- 
ions to  get  off  the  car,  yet  to  en- 
title the  plaintiff  to  recover  in  this 
action,  the  jury  must  believe  that 
said  call  of  the  motorman  was  of 
such  a  threatening  character  as  to 
Justify  the  belief  in  the  mind  of 
tho  plaintiff,  taking  into  consid- 
eration his  age,  that  the  motorman 
Intended  to  do  him  bodily  harm,  or 


to  eject  him  from  the  said  car 
while  it  was  in  motion  and  the 
plaintiff  through  fear  of  such 
threat  jumped  from  the  car  and 
was  injured,  and  that  the  jury 
must  further  believe  that  it  was 
within  the  scope  and  duty  of  said 
motorman  to  order  the  plaintiff 
to  get  off  of  said  car. 

The  court  further  instructs  the 
jury  that  if  they  shall  believe  from 
the  evidence  that  the  plaintiff  was 
injured  by  jumping  from  a  moving 
train  of  the  defendant  whilst  be- 
ing propelled  through  the  streets 
of  the  city  of  A.,  at  the  unlawful 
rate  of  speed  of  from  ten  to  twelve 
miles  per  hour,  and  that  the  plain- 
tiff's act  of  jumping  from  the  train 
was  caused  by  the  orders  of  the 
defendant's  motorman  or  conduct- 
or in  charge  of  the  train,  then  they 
may  find  for  the  plaintiff,  provided 
the  jury  shall  believe  that  the 
plaintiff  by  reason  of  his  age  and 
want  of  judgment  and  discretion 
was  unable  to  exercise  sufficient 
care  and  caution  to  resist  the  or- 
ders of  the  defendant's  said  motor- 
man. 

The  court  doth  further  instruct 
the  jury  that  the  conduct  of  an  in- 
fant is  not  of  necessity  to  be 
judged  by  the  same  rule  which 
governs  that  of  an  adult;  thai 
while  it  is  the  general  rule  in  re- 
gard to  an  adult  or  grown  person, 
that  to  entitle  him  to  recover  dam- 
ages for  any  injury  resulting  from 
the  fault  or  negligence  of  another, 
he  must  have  been  free  from  fault, 
such  is  not  the  rule  in  regard  to 
an  infant  of  tender  years;  the  care 
and  caution  required  of  a  child  is 
according  to  his  maturity  and  ca- 
pacity wholly,  and  this  is  to  be 
determined  by  the  circumstances 
of  the  case  and  the  evidence  before 
the  jury. 


2103.1 


NEGLIGENCE— STREET    RAILROADS. 


1381 


(d)  A  child  that  is  not  over  three  years  of  age  cannot  be  guilty 
in  law  of  negligence  contributing  to  its  injury;  and  it  is  the  duty 
of  all  persons  and  corporations  to  take  this  rule  of  law  into  con- 
sideration in  the  transaction  of  business,  and  in  the  operation  of 
machinery  or  other  mechanical  devices,  and  in  the  use  of  streets, 
highways    and   public    places.      The    defendant   in    the    operation    of 

cars  in  the  streets  of was  chargeable  with  notice  of  this  rule, 

and  cannot  avoid  its  liability  by  merely  showing  that  the  action  or 

conduct  of  the  child ,  if  he  were  not  over  three  years  of  age, 

contributed  to  the  injury."^ 

§  2103.     Same  Subject — Rule  as  to  Intoxicated  Persons,     (a)     If 

■the  jury  believe  from  the  evidence  that  the  plaintiff's  decedent,  on 
the  evening  when  he  met  with  the  accident  that  resulted  in  his  death, 
was  intoxicated  from  drink,  and  that,  being  so  intoxicated,  he  at- 
tempted to  cross  defendant's  railway  track  in  front  of  a  moving  car 
that  was  approaching  him,  so  close  to  said  ear  that  he  could  not  move 
beyond  the  point  on  the  track  that  he  first  reached  before  the  car 
struck  him,  then  you  are  instructed  that  the  plaintiff  cannot  recover 
in  this  action.''* 


The  court  further  instructs  the 
jury  that  the  ordinances  of  the  city 
of  A.  require  tliat  no  engine  or  car 
shall  be  drawn  or  propelled  by  the 
defendant  company  over  its  rail- 
way tracks  on  F.  street,  within  the 
corporation  limits  of  the  city  at  a 
rate  of  speed  exceeding  five  miles 
per  hour;  and  if  the  jury  shall  be- 
lieve from  the  evidence  that  the 
plaintiff  was  riding  upon  the  de- 
fendant's car  on  the  day  of  the 
injury,  which  was  being  propelled 
or  drawn  at  a  greater  rate  of  speed 
than  five  miles  per  hour  within  the 
limits  of  said  city,  to  wit,  from 
ten  to  twelve  miles  per  hour  and 
whilst  said  car  was  being  so 
drawn  and  propelled  by  the  de- 
fendant, the  plaintiff  was  ordered 
by  the  defendant's  motorman  or 
conductor  in  charge  of  the  train 
to  get  off  said  car.  and  thereby 
frightened  or  intimidated  the 
plaintiff  to  such  an  extent  as  to 
cause  him  to  jump  from  the  car 
while  running  at  the  unlawful  rate 
of  speed  aforesaid,  and  that  the 
plaintiff's  injury  was  caused  by 
the  order  of  the  defendant's 
agent  and  the  speed  of  the  car. 
they  shall  find  for  the  plaintiff 
providing  they  believe  from  tl.e 
evidence  that  the  plaintiff  exer- 
cised such  a  degree  of  care  and 
caution  as  under  circumstances 
might  reasonably  be  expected  from 
one   of  his   age  and   intelligence. 

73— In   Indianapolis  St.   R.   Co.  v. 


Schomberg,  —  Ind.  App.  — ,  71  N. 
E.  237,  238,  aff'd  164  Ind.  Ill,  72  N. 
E.  1041,  the  above  instruction  was 
said  to  state  correctly  the  rule  ap- 
plicable to  young  children. 

74 — Richmond  T.  Co.  v.  Martin's 
Adm'x.,  102  Va.  209,  45  S.  E.  886 
(SS7). 

"The  well-known  rule  in  this 
class  of  cases  is  that  a  plaintiff 
seeking  to  recover  damages  for  an 
injury  caused  by  the  negligence  of 
the  defendant  must  himself  be  free 
from  negligence,  and,  if  it  appears 
that  his  negligence  has  contributed 
as  an  efficient  cause  to  the  injury 
of  which  he  complains,  the  court 
will  not  undertake  to  balance  the 
negligence  of  the  respective  parties 
for  the  purpose  of  determining 
which  was  most  at  fault.  The  law 
recognizes  no  graduations  of  fault 
in  such  case,  and  where  both 
parties  have  been  guilty  of  negli- 
gence, as  a  general  rule  there  can 
be  no  recovery.  There  is  really  no 
distinction  between  negligence  in 
the  plaintiff  and  negligence  in  the 
defendant,  except  that  the  negli- 
gence of  the  former  is  called  'con- 
tributory  negligence.'  " 

If  the  jury  believe  that  the  plain- 
tiff was  intoxicated,  and  that  by 
the  exercise  of  ordinary  prudence 
could  have  avoided  the  accident 
if  sober,  he  is  guilty  of  contrib- 
utory negligence,  and  cannot  re- 
cover; or  if  the  accident  was  part- 
ly  due   to  the   intoxication   of   the 


1382  FORMS  OF  INSTRUCTIONS.  [§  2104. 

(b)  If  you  find  and  believe  from  the  evidence  that  the  plaintiff 
herein,  as  he  approached  the  scene  of  the  accident  complained  of 
herein,  failed  to  look  and  listen  for  the  approach  of  defendant's  car, 
and  that  such  failure  on  his  part  contributed  to  the  accident  com- 
plained of  herein,  and  that  a  person  of  ordinaiy  prudence  would  not 
have  so  acted  under  the  same  or  similar  circumstances,  then  you  are 
instructed  that  this  would  constitute  contributory  negligence  on  the 
part  of  the  plaintiif. 

(e)  If  you  find  and  believe  from  the  evidence  that,  when  the  plain- 
tiff discovered  the  approach  of  the  defendant's  car,  he  failed  to 
check  the  speed  of  his  horse  in  sufficient  time  to  avoid  an  accident, 
and  that  a  person  of  ordinary  jDrudence  would  and  could  have  cheeked 
the  speed  of  his  horse  in  time  to  have  avoided  an  accident,  then  you 
are  instructed  that  this  would  constitute  contributory  negligence  on 
the  part  of  the  plaintiff. 

(d)  If  you  find  and  believe  from  the  evidence  that  at  the  time  of 
the  accident  complained  of  herein,  the  plaintiff  was  in  a  state  of  in- 
toxication or  semi-intoxication,  and  that  such  state  of  intoxication 
or  semi-intoxication  placed  him  in  such  condition  that  he  was  unable 
to  and  failed  to  exercise  that  caution  and  care  required  of  him  under 
instructions  heretofore  given,  and  that  such  condition  contributed  to 
the  accident  complained  of  herein,  then  you  are  instructed  that  this 
constituted  contributory  negligence  on  the  part  of  the  plaintiff.''^ 

§  2104.  Rule  to  Stop,  Look  and  Listen,  (a)  The  court  instructs 
the  jury  that  it  was  the  duty  of  the  plaintiff'  to  take  notice  of  the 
fact  that  ears  were  liable  to  pass  along  the  tracks  of  the  defendant 
at  any  time,  and  that  they  could  not  turn  out  of  the  track,  and  it  was 
his  duty  to  make  a  vigilant  use  of  his  senses  of  sight  and  hearing 
W'hen  about  to  cross  the  track  of  the  defendant,  to  ascertain  if  there 
was  a  present  danger  in  crossing,  and  if  he  failed  so  to  do,  and  if  by 
looking  and  listening  for  approaching  cars,  he  would  have  discovered 

plaintiff    he    cannot    recover.    But  English,   —   Tex.    Civ.    App.   — ,    93 

you  must  find  before  you  can  take  S.  W.  1096  (1098). 
up    the   consideration   of   these   re-         "It  is  settled  law  that  the  defend- 

quests    that     he    was    intoxicated,  ant  in  a  case  like  the  present  has 

It  must  not  be  conjecture  on  your  the   rigrht   to   prepare   and   demand 

part    or   guess    work.     It    does    not  the    giving    of   a    charge    requiring 

follow  that  because  the  man  sang  the  jury   to   find   whether  the  evi- 

in    his    wagon,    or   asked,    perhaps,  dence   establishes   the   existence   of 

foolish  questions  of  passers-by,  or  any  fact  or  specified  group  of  facts 

that   his   breath   smelled   of  liquor,  which  if  true  would   in  law  estab- 

that    he    was    intoxicated.     That    is  lish   its   plea  of  contributory  negli- 

some  evidence  of  the  fact,  but  you  gcnce;    and    this    is   true   if   proper 

must   find,    in   order  to   invoke   the  charges  are  asked  as  to  each  of  the 

law  of  these  requests,  that  he  was  several    special    pleas    of   contribu- 

intoxicatod,   and    that    that   intoxi-  tory    negligence    presented    by    the 

cation   contributed   to  the   accident  record.     Gulf.  C.  &  S.  F.   R.  Co.  v. 

—that  is,   that  a  sober  man  would  Shieder,   88  Tex.   152,   30   S.   W.   902, 

not  have  been   hurt.  28  L.  R.  A.  538;  M.  K.  &  T.  R.  Co. 

Above      instruction      upheld       in  v.    McOlamory,    89    Tex.    635,    35    S. 

Shelly  v.   Brunswick   T.   Co.,    65   N.  W.    1058;    M.    K.    &    T.    R.    Co.    v. 

J.   L.  639.  48  Atl.  562  (564).  Rogers,  91  Tex.  52,  40  S.  W.  956." 

75— Dallas  Cons.  E.   St.  R.  Co.  v. 


§2104.]  NEGLIGENCE— STREET    RAILROADS.  1383 

the  car  in  question  approaching  in  time  to  have  avoided  colliding 
with  it,  then  he  cannot  recover. '^*^ 

(b)  If  you  find  from  the  evidence  that  plaintiff  looked  to  the 
north  for  an  approaching  car  before  going  upon  the  track,  and  you 
further  find  that  at  the  time  she  so  looked  the  said  ear  was  there 
approaching  and  within  view  of  her,  then  you  are  instructed  that 
plaintiff  is  chargeable  with  knowledge  of  its  approach,  although 
plaintiff  claims  that  she  did  not  see  said  car  approaching. '^'^ 

(e)  Although  you  may  believe  from  the  evidence  that  the  car 
was  being  operated  at  a  speed  exceeding  15  miles  per  hour,  and  that 
the  defendant's  agents  in  charge  of  said  car  failed  to  observe  that 
the  plaintiff  was  in  danger  of  being  struck  by  the  car,  still,  if  you 
further  believe  from  the  evidence  that  the  plaintiff,  by  looking  or 
listening,  could  have  seen  or  heard  the  approaching  car  in  time  to 
have  stopped  before  going  on  the  track  over  which  it  was  running, 
and  thereby  have  avoided  the  injury,  and  that  plaintiff  did  not  stop 
and  look  and  listen  before  going  on  the  track,  then  your  verdict  must 
be  for  defendant. 

(d)  Even  if  you  do  find  from  the  evidence  that  the  motorman  in 
charge  of  the  car  saw  the  plaintiff  was  going  upon  the  track  in  front 
of  the  car,  and  could,  by  the  exercise  of  care  on  his  part,  have  stopped 
■the  car  before  reaching  plaintiff,  yet  if  you  further  -find  from  the 
evidence  that,  after  said  motorman  knew  plaintiff  was  going  on  the 
track,  the  plaintiff  knew,  or  by  looking  or  listening  for  the  approach- 
ing car  could  have  known,  of  its  approach,  and  that  it  was  not  likely 
to  stop  before  reaching  him,  and  that  he  could  have  then  desisted 
from  stepping  on  the  track  in  front  of  said  ear  and  thereby  have 
avoided  the  injury,  and  that  the  plaintiff  did  not  stop  and  look  and 
listen  before  going  on  the  track,  then  your  verdict  must  be  for  de- 
fendant.'''® 

(e)  If  the  jury  believe  from  the  facts  and  circumstances  given  in 
evidence  that  the  plaintiff  situated  as  he  was  in  the  wagon,  would  in 
the  exercise  of  ordinary  care  have  seen  the  approaching  car  on  13th 
street  in  time  to  have  warned  the  driver  of  its  approach,  and  in  time 
to  have  prevented  the  collision,  then  it  was  his  duty  to  have  done  so, 
and  if  he  failed  to  do  so  then  he  cannot  recover,  and  your  verdict 
must  be  for  the  defendant,  notwithstanding  the  defendant  may  too 
have  been  negligent. 

(f )  The  court  instructs  the  jury  that  it  is  the  duty  of  persons  on 

76 — Burns  v.  Met.  St.  Ry.  Co.,  66  correctly  the  law  in  these  instruc- 

Kans.  188,  71  Pac.  244  (245).  tions." 

"This  direction  was  amplified  by  77 — Met.    St.    R.    Co.    v.    Agnew, 

another    in    which    the    jury    were  65  Kas.  478,  70  Pac.  345. 

told    that  if   the  plaintiff   could    by  78— Deitring  v.   St.   L.   T.   Co.,  109 

looking    or    listening    'or    by    other  Mo.    App.    524,    85    S.    W.    140    (147). 

careful  and  prudent  acts'  have  dis-  See    also    the    instructions    in    Hol- 

covered  the  approach  of  the  car  in  verson   v.    St.   L.   &   S.   R.   Co.,   137 

time  to  have  avoided  the  collision,  Mo.  216,  57  S.  W.  770,  and  in  Sani- 

he  could  not  recover.    "We  are  well  tary   D.    Co     v.    St.    L.    T.    Co.,   98 

satisfied  that  the  trial  court  stated  .Mo.  App.  20,  71  S.  W.  726. 


1384  FORMS  OF  INSTRUCTIONS.  [§2104. 

public  streets,  whether  on  foot  or  in  vehicles,  to  be  ordinarily  prudent 
and  careful  in  crossing  street  car  tracks  and  to  both  look  and  listen 
for  approaching  cars,  and  even  though  the  jury  should  find  in  this 
case  that  the  gong  of  the  car  was  not  sounded  still  if  the  plaintiff 
could,  by  exercising  ordinary  care  with  respect  to  the  speed  with 
which  he  approached  the  track,  and  in  looking  for  the  approach  of 
cars  have  caused  the  said  wagon  to  be  stopped  in  time  to  avert  the 
collision  then  your  verdict  will  be  for  the  defendant.^^ 

(g)  If  you  find  from  the  evidence  that  the  deceased  was  walking 
along  and  upon  B.  street  for  the  purpose  of  crossing  defendant's 
track  in  said  street,  then  it  was  the  duty  of  the  deceased,  while  ap- 
proaching defendant's  street  car  track,  to  look  in  the  direction  from 
which  the  car  was  approaching,  and  also  to  listen  for  the  purpose  of 
ascertaining  whether  a  car  was  approaching  or  not ;  and  if  he  found 
from  such  means  that  a  car  was  approaching  so  near  as  that  there 
was  danger  of  a  collision,  then  it  was  deceased's  duty  to  stop  before 
going  upon  the  track,  and  to  let  the  car  pass  without  interference  or 
delay.  If  the  jury  find  from  the  evidence  that  the  deceased  failed  to 
look  or  to  listen,  or  that  if  he  did  look  and  listen  that  he  failed  to 
heed  what  he  saw  or  heard,  and  that  the  situation  was  such  that  by 
looking  or  listening  he  might  have  seen  or  heard  the  approach  of  the 
car  in  time  to  have  avoided  the  accident,  and  that  he  failed  to  do  so, 
and  that  such  failure  directly  contributed  to  causing  deceased's  injury 
and  death,  then  the  plaintiff  cannot  recover,  and  your  verdict  must  be 
for  the  defendant. 

(h)  While  the  burden  of  proof  is  upon  the  defendant  to  establish 
its  plea  of  contributory  negligence  upon  the  part  of  the  deceased,  yet 
this  does  not  relieve  the  plaintiff  from  establishing  by  a  preponder- 
ance or  the  greater  weight  of  the  evidence  that  the  sole  cause  of  de- 
ceased 's  injury  was  the  negligence  of  the  defendant 's  agent,  as  defined 
in  the  other  instructions,  and,  notwithstanding  defendant's  plea  of 
contributory  negligence,  that  the  burden  of  proof  rests  upon  the  plain- 
tiff throughout  the  trial  of  the  case;  and  if  the  juiy  find  from  the 
evidence  that  the  death  of  the  deceased  was  caused  by  an  accident  for 
which  neither  party  is  responsible,  or  from  the  combined  and  con- 
curring negligence  of  the  deceased  and  the  motorman,  in  the  manner 
set  out  in  these  instructions,  then  the  plaintiff  is  not  entitled  to  re- 
cover, and  your  verdict  must  be  for  the  defendant. 

(i)  Even  if  the  jury  do  find  from  the  evidence,  that  the  motorman 
in  charge  of  said  car  saw  the  plaintiff's  husband  approaching  the 
track  in  front  of  the  car,  the  motorman  had  the  right  to  assume  and 
act  upon  the  presumption  that  the  plaintiff's  husband  would  stop 
before  going  upon  the  track,  and  was  under  no  duty  to  attempt  to 
stop  the  car  until  he  became  aware  that  the  plaintiff's  husband  was 
going  to  get  on  the  track  in  front  of  the  ear,  or  until  his  conduct  and 
actions  Wf)u]d  have  led  a  person  of  ordinai-y  prudence  to  conclude  that 
he  was  going  to  do  so.^" 

7»— Holden  v.  Missouri  R.  Co.,  177  80— Kckhard  v.  St.  L.  T.  Co.,  190 
Mo.  456,  76  S.   W.  973  (975).  Mo.    593,    89   S.    W.    602. 


§2104.]  NEGLIGENCE— STREET    RAILROADS.  1385 

(j)  Although  the  jury  may  find  from  the  evidence  that  defendant's 
the  St.  L.  T.  Co. 's  agents  in  charge  of  the  car  did  fail  to  sound  any 
bell  or  gong  on  said  car,  and  did  not  stop  or  slow  up  said  car  and 
avert  the  collision,  and  did  not  keep  a  watch  for  persons  on  or  ap- 
proaching the  track,  and  did  not  stop  the  ear  in  the  shortest  time  and 
space  possible  after  the  first  appearance  of  danger,  still,  if  you  find 
from  the  evidence  that  plaintiff  saw  the  approaching  car,  or,  by 
looking,  could  have  seen  said  car  in  time  to  have  kept  the  horse  and 
wagon  off  the  track  and  avoid  the  collision,  and  failed  to  see  or  heed 
what  he  saw,  then  the  plaintiff  cannot  recover  and  your  verdict  must 
be  for  the  said  defendant.  If  the  jurj'  find  from  the  evidence  that 
the  plaintiff's  alleged  injuries  were  caused  by  the  mutual  and  con- 
curring negligence  of  plaintiff  and  the  defendant 's,  the  St.  L.  T.  Co.  's 
motoi-man  in  charge  of  said  car,  and  that  the  negligence  of  either, 
without  the  concurrence  of  the  negligence  of  the  other,  would  not 
have  caused  the  injury,  then  your  verdict  must  be  for  the  said  de- 
fendant. 

(k)  If  the  jury  believe  from  the  evidence  that  plaintiff  was  driv- 
ing a  wagon  south  on  Nineteenth  street,  and  that  Nineteenth  street 
was  crossed  by  the  railroad  tracks  of  the  defendant,  St,  L.  T.  Co., 
laid  in  0.  street,  then  it  was  the  duty  of  plaintiff,  in  approaching 
said  street  railway  tracks  to  look  in  the  direction  from  which  the 
ear  was  approaching  and  also  to  listen  for  the  purpose  of  ascer- 
taining whether  a  ear  was  approaching  or  not,  and  if  he  found  by 
such  means  that  a  car  was  approaching  so  near  that  there  was 
danger  of  a  collision,  then  it  was  the  plaintiff's  duty  to  stop  before 
going  upon  the  track  and  let  the  car  pass  without  delay  or  hinderance ; 
and  if  the  jury  find  from  the  evidence  that  the  plaintiff  failed  to  look 
or  listen,  or  if  he  looked  or  listened,  that  he  failed  to  heed  what  he 
saw  or  heard,  and  to  stop  his  horse  and  keep  off  the  track,  and  that 
said  failure  directly  contributed  to  plaintiff's  alleged  injuries,  then 
the  plaintiff  cannot  recover  and  your  verdict  must  be  for  the  de- 
fendant.®^ 

(1)  The  jurors  are  instructed  that  it  was  the  duty  of  the  plaintiff 
before  driving  on  or  across  the  track  of  the  defendant,  to  look  and 
listen  for  approaching  cars;  and  if  you  find  and  believe  from  the 
evidence  that  plaintiff  failed  so  to  do,  and  that  by  looking  and  listen- 
ing he  could  have  seen  or  heard  the  approaching  ear  of  defendant  in 
time  to  have  kept  off  the  track,  and  averted  the  injury  to  himself, 
then  you  must  find  a  verdict  for  the  defendant,  unless  you  further 
believe  and  find  from  the  evidence  that  defendant's  servants  in 
charge  of  said  car,  after  they  saw,  or  by  the  exercise  of  ordinary 
care  might  have  seen  that  plaintiff  was  in,  or  intended  to  place  him- 
self or  wagon  in  a  position  of  peril,  failed  to  use  such  care  and  cau- 
tion in  stopping  said  car  to  avoid  injury  to  plaintiff  as  a  person  of 
ordinary  care  and  prudence  would  have  exercised  under  the  same  or 
similar  cireumstanees.**- 

81— Rodgers  v.  St.  L.  T.  Co.,  117  82— Freymark  v.  St.  L.  T.  Co.. 
Mo.   App.    678,    92    S.    W.    1157.  Ill  Mo.  App.  208,  85  S.  W.  606  (608). 


1386 


FORMS  OP  INSTRUCTIONS. 


[§  2105. 


(m)  It  was  the  duty  of  plaintiff  to  look  and  listen  for  the  ap- 
proach of  the  ear,  before  attempting-  to  pass  over  the  track,  and  if 
you  believe  from  the  evidence  that  he  failed  to  look  and  listen,  and 
that  such  failure  was  the  direct  and  proximate  cause  of  the  accident, 
or  directly  contributed  to  it  as  its  proximate  cause,  your  verdict 
should  be  for  the  defendant.^^ 

§  2105.  Bicyclist — Collision  With  Car.  If  the  jury  shall  find  from 
the  evidence  that  plaintiff  ran  his  bicycle  into  the  side  of  defendant's 
ear,  and  thereby  caused  the  accident,  then  they  are  instructed  that, 
under  the  declaration  in  this  case,  their  verdict  must  be  for  the  de- 
fendant.^* 

§  2106.  Failure  of  Driver  of  Vehicle  Passing  Along  or  Near  Track 
to  Use  Reasonable  Care,  (a)  If  you  find  from  the  evidence  that 
phiintiff  was  driving  eastwardly  beside  the  track  at  the  time  of  the 
accident,  and  so  near  the  rails  as  to  prevent  the  car  from  passing  the 
rear  without  collision,  and  that  while  so  driving  he  failed  to  look 
back  from  time  to  time  along  the  track,  or  to  listen  for  signals  from 


83— Nashville  Ry.  Co.  v.  Norman, 
108  Tenu.  324,  67  S.  W.  479  (481). 
See  also  the  instruction  on  this 
subject  in  Citizens'  Ry.  Co.  v. 
Ford.  25  Tex.  Civ.  App.  328,  60  S. 
W.   680  (681). 

In  Georgia,  in  Macon  Ry.  &  L. 
Co.  V.  Barnes,  121  Ga.  443,  49  S.  E. 
282,  it  has  been  held  not  erroneous 
to  refuse  to  charge  the  jury  that 
one  who  drives  on  and  along  a 
street  railway  track  laid  in  a  pub- 
lic highway  "should  be  careful  to 
look  and  listen  with  ordinary  care 
to  avoid  a  collision." 

The  court  said: 

"Whatever  may  be  the  rulings 
on  the  subject  in  other  jurisdic- 
tions, it  is  well  settled  in  this  state 
that  it  is  not  incumbent  upon  the 
court  to  instruct  the  jury  that  it  is 
the  duty  of  one  who  attempts  or 
Intends  to  cross  a  railroad  track 
to  use  his  senses  of  hearing  and 
seeing  before  stepping  on  the  track. 
'The  precise  thing  which  any  man 
should  do  before  stepping  upon  a 
railroad  track  is  that  which  any 
prudent  man  would  do  under  sim- 
ilar circumstances.  If  prudent 
men  would  look  and  listen,  so  must 
every  one  else,  or  take  conse- 
quences, so  far  as  the  consequences 
mlglit  hnvc  been  avoided  by  that 
means.  The  court  cannot  instruct 
the  jury  what  a  prudent  man 
would  do,  for,  in  legal  contempla- 
tion, the  Jury  know  it  better  than 
the  fourt.'  Richmond  &  D.  R.  Co. 
v.  Howard,  79  Ga.  44,  53,  3  S.  E. 
426:  Richmond  &  D.  R.  Co.  v.  John- 
ston, 89  Ga.  560,  15  S.   E.  908;  Met. 


St.  R.  Co.  v.  Johnson,  90  Ga.  500, 
16  S.  E.  49.  'What  particular  means 
or  measures  of  diligence  would  be 
appropriate  under  the  circum- 
stances should  be  left  to  the  jury.' 
Ins.  Co.  of  N.  Am.  v.  Leader,  121 
Ga.  260,  48  S.  E.  972.  If  the  court 
should  charge  in  a  case  of  this 
character  that  it  was  the  duty  of  a 
party  to  do  a  specific  thing,  would 
it  not  be  equivalent  to  saying  that 
the  omission  to  do  that  thing 
would  be  negligence?  It  is  true 
that  in  the  opinion  rendered  in 
Savannah  Ry.  Co.  v.  Beasley,  94 
Ga.  142,  146,  21  S.  E,  285,  286,  it 
was  said  that  'people  who  intend 
,to  cross  its  (the  street  railroad's) 
track  should  be  careful  to  look  and 
listen  to  avoid  a  collision.'  " 

84— So.  C.  C.  R.  Co.  V.  Kinnare, 
96   111.    App.    210   (215). 

In  Harrington  v.  Los  A.  Rv.  Co., 
140  Cal.  514,  74  Pac.  15,  20,  98  Am. 
St.  Rep.  285,  an  instruction  direct- 
ing a  verdict  in  defendant's  favor, 
if  certain  facts  were  found,  was 
modified   by  the  court  adding: 

"Unless  you  shall  also  find  that 
the  motorman  in  charge  of  defend- 
ant's car,  after  perceiving  the  dan- 
gerous situation  then  and  there  ex- 
isting, did  recklessly  or  wantonly 
send  his  car  forward.  Whether  or 
not  such  reckless  or  wanton  con- 
duct of  the  defendant  did  occur 
and  cause  the  collision  is  a  ques- 
tion of  fact  for  you  to  determine 
from  the  evidence,  the  same  as 
you  must  determine  from  other 
facts   submitted," 


§2106.]  NEGLIGENCE— STREET    RAILROADS.  1387 

an  approaching  ear,  or  if  you  find  that,  thus  driving'  along  the  track, 
he  failed  to  turn  out  and  leave  the  track  unobstructed  on  the  approach 
of  the  ear  from  the  rear,  or  if  you  find  that  plaintiff  drove  upon  the 
track  in  front  of  an  approaching  car  without  looking  or  listening  for 
same,  or  so  short  a  time  before  the  wagon  was  struck  as  to  prevent 
any  possibility  of  stopping  the  ear  in  time  to  prevent  an  accident, 
then  it  is  your  duty  to  determine  whether,  in  doing  or  omitting  to  do 
any  one  of  these  acts,  plaintiff  was  guilty  of  contributoiy  negligence. 

(b)  And  in  doing  this  you  may  consider  all  the  facts  and  circum- 
stances proven  at  the  trial,  as  surrounding  the  accident,  including,  so 
far  as  proven,  the  topogra^Dhy  of  the  locality  at  the  j^laee  of  the  acci- 
dent;  the  character  of  the  vehicle  in  which  plaintiff  was  riding;  the 
position  of  the  vehicle  at  the  time  of  the  accident;  the  speed  of  the 
approaching  car;  the  distance  at  which  it  could  have  been  seen  or 
heard  by  the  driver  of  the  wagon  if  he  had  looked  and  listened — in 
fine,  to  every  minute  detail  of  the  accident ;  and  if  you  find,  after 
considering  all  the  facts  and  circumstances  proven  to  you,  that  plain- 
tiff was  guilty  of  contributory  negligence  in  any  of  these  respects,  and 
that  such  contributory  negligence  was  the  proximate  cause  of  (that  is 
to  say,  the  cause  which  led  to  or  directly  contributed  to  produce)  the 
accident  and  injury,  then  there  can  be  no  recovery,  and  your  verdict 
should  be  for  the  defendant. 

(e)  It  is  the  duty  of  a  driver  of  a  private  vehicle,  while  on  the 
track,  or  so  near  to  it  as  to  prevent  a  ear  passing  without  a  collision, 
not  only  to  turn  off  when  called  upon  b}^  the  servant  of  the  railroad 
company,  but  to  listen  to  whatever  signal  there  may  be  of  an  ap- 
proaching car;  and  he  should  also  look  behind  him  from  time  to  time, 
so  that  he  may,  if  the  car  be  so  near,  turn  off  and  allow  it  to  pass 
without  hindrance  or  any  slacking  of  ordinary  speed,  and,  if  he  fail 
to  observe  this  precaution,  he  does  so  at  his  own  risk.^^ 

(d)  The  court  instructs  the  jury  that  if  they  believe  from  the  ev'u 
dence  that,  after  the  plaintiff's  horse  became  frightened  by  the  car, 
plaintiff  pulled  him  so  suddenly  to  the  left  as  to  cause  plaintiff  to 
fall  from  the  wagon,  and  that  in  so  doing  the  plaintiff  did  not  exercise 
reasonable  care,  and  received  the  injury  complained  of  in  this  ease  in 
consequence  thereof,  they  must  find  for  the  defendant. 

(e)  In  considering  the  question  as  to  whether  or  not  plaintiff  acted 
with  reasonable  care  in  pulling  the  reins,  they  must  consider  all  the 
circumstances  by  which  he  was  surrounded  at  the  time,  and  particu- 
larly whether  by  the  negligence  of  the  defendant  he  had  been  so 
flurried  or  excited  as  to  make  it  reasonable  for  him  to  act  as  he  did.^® 

(f)  If  you  find  from  the  evidence  that  plaintiff  saw  the  car  ap- 
proaching, and  afterwards  had  time  to  avert  the  alleged  collision  by 

85— Memphis      St.      R.      Co.      v.  as  above  set  out  when  they  are  all 

Haynes,  112  Tenn.  712,  81  S.  W.  374  taken   together." 

(378).  86— Richmond    Ry.    &    E.    Co.    v 

"We  do  not  think  that  the  plain-  Hudgins,   100  Va.   409,  41  S.   E.  736 

tiff  in  error  iias  anything   to  com-  (740). 
plain   of   in   the   instructions  given 


1388  FORMS  OF  INSTRUCTIONS.  [§  2107. 

using  ordinary  care  in  turning  out  and  getting  off  the  track  and  out 
of  the  way  of  the  car;  and  if  you  further  find  that  plaintiff,  after  he 
saw  the  ear  approaching,  did  not  use  ordinary  care  in  turning  out 
and  getting  off  the  track  and  out  of  the  way  of  the  car — then  plain- 
tiff was  guilty  of  negligence;  and  if  you  so  find,  and  find  that  such 
negligence  w^as  a  proximate  cause  of  the  injuries,  if  any,  sustained 
by  the  plaintiff,  without  which  they  would  not  have  been  sustained, 
then  your  verdict  must  be  for  the  defendant.*^ 

(g)  If  you  believe  from  the  evidence  in  this  ease  that  when  the 
wagon  with  which  the  street  car  collided  occupied  a  position  which 
enabled  the  car  'to  pass  in  safety  and  without  sti'iking  said  wagon, 
and  that  w-hile  said  wagon  occupied  said  position,  and  while  the  car 
was  approaching  it  from  the  rear,  the  motorman  on  said  car  rang 
the  gong  of  said  car  as  a  warning,  and  that  said  driver  and  plaintiff 
could  have  heard  the  warning  by  the  exercise  of  ordinary  care  and 
attention  to  it,  and  after  said  warning  said  wagon  was  driven  sud- 
denly in  front  of  said  car,  and  sufficiently  close  to  it  to  make  it  im- 
possible to  stop  said  car  by  exercise  of  ordinary  care  and  reasonable 
effort,  and  said  plaintiff  was  injured  by  the  collision  which  ensued, 
he  cannot  recover  in  this  action.®** 

§  2107.  Care  Due  by  Driver  of  Vehicle  Crossing  Track — Ordinary 
Care  Defined,  (a)  The  court  instructs  the  juiy  that  ordinary  cai-e, 
as  mentioned  in  these  instructions,  is  that  degree  of  care  which  an 
ordinarily  prudent  person,  situated  as  the  deceased  was  before  and 
at  the  time  of  the  accident,  would  exercise  for  his  own  safety. 

(b)  If  you  believe,  from  the  evidence,  that  the  plaintiff  became 
frightened  or  alarmed  or  confused  just  before  coming  into  collision 
with  defendant's  car  on  account  of  getting  suddenly  into  a  position 
of  peril,  then  such  sudden  peril  will  not  excuse  him  for  a  failure,  if 
there  was  any,  to  exercise  ordinary  care,  if  you  believe,  from  the 
evidence,  that  he  brought  himself  into  such  position  of  peril  by  reason 
of  his  ow-n  negligence,  if  he  was  negligent,  or  by  reason  of  running 

87 — Kimbal  v.  St.  L.  &  S.  R.  Co.,  her  case  as  she  alleges  it,  and  de- 

108  Mo.  App.  78,  82  S.  W.  1096  (1099).  fendant   was    entitled    to   have    the 

88 — Hot   Spr.    St.    R.   Co.    v.    Hil-  jury  instructed  iu  accordance  with 

dreth,    72    Ark.    572,    82    S.    W.    245  the    evidence    of    those     two     wit- 

(248).  nesses    that,    if    they    believe    their" 

In  W.  C.  St.  R.  Co.  V.  Kautz,  89  evidence   that  appellee  jumped  out 

111.  App.  309,  the  following  instruc-  of  the  wagon,  then  thiit  the  verdict 

tion    was    asked    for    and    refused:  should  be  for  the  defendant.    I.  C. 

"If    you    believe,    from    the    evi-  R.    Co.    v.    C.    T.    &   Trust    Co.,    79 

dence,    that    the    plaintiff    jumped  111.  App.  623;  Wabash  &  W.  R.  Co. 

from  the  wagon,  you  should  find  a  v.  Friedman,  146  111.  583-8,  30  N.  E. 

verdict  in  favor  of  the  defendant."  353.     It   is   not   a   simple   matter  of 

The    appellate   court,    on    appeal,  variance   of  proof  from   the  decla- 

said:  ration  which  was  not  called  to  the 

"This     Instruction     should     have  attention   of  the  court  as  contend- 

been  given.    Two   of   the  witnesses  ed    by    counsel    for    appellee.      The 

te.stlflfd  that  appellee  jumped  from  matter  was  presented   to   the  court 

the  wagon.     The  declaration  as  we  by    the    instruction    asked,    and    it 

have     Hpon     allogoa     thnt     plaintiff  was  error  to  refuse  it.  McCormirk, 

Wiis  thrown  out  by  the  force  of  the  etc.,    Co.    v.     Sendzikowski,    72    111. 

collision.    The  plaintiff  must  prove  App,   402-7,  and  cases  there  cited." 


§2108.]  NEGLIGENCE— STREET    RAILROADS.  1389 

the  risk  of  an  obvious  and  serious  danger  merely  to  avoid  incon- 
venience. 

(c)  When  the  court  instructs  the  jury  that  the  plaintiff  can  not 
recover  unless  C.  was  in  the  exercise  of  ordinary  care  at  the  time  of 
the  injury,  the  court  means  that  C.  was  required  to  exercise  such 
care  for  his  own  safety  not  only  at  the  precise  time  of  the  injury,  but 
during  the  time  and  circumstances  preceding  the  injury  as  well ;  and 
if  you  believe,  from  the  evidence,  that  he  failed  to  exercise  ordinary 
care  for  his  own  safety  in  getting  into  the  position  he  was  in  when 
injured  it  will  be  your  duty  to  find  for  the  defendant,  the  same  as  if 
he  failed  to  exercise  ordinary  care  at  the  pi-ecise  instant  of  the 
injuiy.^^ 

(d)  What  constitutes  ''ordinary  care,"  as  mentioned  in  these  in- 
structions, depends  on  the  facts  of  each  particular  case.  It  is  such 
care  as  a  person  of  ordinaiy  prudence  would  exercise  (according  to 
the  usual  and  general  experience  of  mankind)  in  the  same  situation 
and  circumstances  as  those  of  the  person  or  persons  in  this  case  with 
reference  to  whom  the  term  "ordinary  care"  is  used  in  these  instruc- 
tions. The  omission  of  such  care  is  negligence  in  the  sense  in  which 
that  word  is  used  in  these  instructions.^" 

(e)  By  ordinary  care  is  meant  such  care  as  a  man  of  ordinary 
care  and  prudence  would  have  exercised  under  circumstances  like  to 
those  disclosed  by  the  testimony  in  this  case.^^ 

§  2108.  Pedestrian  Suddenly  Going  Upon  Track  Without  Warning 
to  Motonnan.  1  further  instruct  j'ou  that  if  you  believe  from  the 
evidence  that  without  such  an  act  on  her  part  that  would  indicate 
to  the  motorman,  in  the  exercise  of  ordinary  care,  that  she  was  about 
to  go  upon  the  track,  the  plaintiff's  intestate,  E.,  suddenly  and  with- 
out the  knowledge  of  the  motorman,  and  without  warning  of  her  in- 
tention, went  upon  the  track  so  near  in  front  that  the  motorman,  in 
the  exercise  of  ordinarj'  care,  could  not  stop  the  car  to  warn  her  in 
time  to  avoid  injuring  her,  then  the  law  is  for  the  defendant,  and 
you  should  so  find.^- 

89— So.    Chi.    C.    Ry.    Co.   v.    Kin-  at  the  time  he  was  injured,  as  w^ell 

nare,  216  111.  451  (456),  75  N.  E.  179.  as    his    couduct    while    in   such   po- 

"As    a    criticism    upon    this     in-  sition       or       situation.      There       is 

struction    it    is    urged    that    'it    as-  nothing-    in    the    instruction    which 

sumes    that   an   ordinarily   prudent  would   lead   the  jury  to   infer  that 

and    cautious    person    might     find  if   deceased    exercised    due   care   in 

himself    in    the    situation    that    the  his    endeavors    to    avoid    injury    or 

plaintiff  was  in  at  the  time  of  the  extricate   himself   from    a    position 

accident,  and  assumes  that  he  was  of   danger  plaintiff   might    recover, 

not    guilty    of    contributory    negli-  regardless  of  whether  deceased  had 

gence    in    being   in    the    position   in  by    his    own      negligence     brought 

which  he  found  himself  at  the  in-  himself  into  such  position  of  peril." 

jury.'     We    see    nothing    in    the    in-  90— Sanitary  D.  Co.  of  Mo.  v.   St. 

struction  from  which  any  such  as-  L.  T.  Co.,  98  Mo.  App.  20,  71  S.  "w! 

sumption      is      indicated.     The     in-  726   (727). 

struction  fairly  directed   the  minds  91— Hanlon   v.    Milwaukee  E.   Ry. 

of  the  jury  to  the  acts   of  the  de-  &  L.  Co.,  118  Wis.  210.  95  N.  W.  100 

ceased  connected  with  his  going  to  (104). 

the  left  of  the  buggy  and  bringing  92— Eirk's    Adm'r   v.    Ry.    Co.,    — 

himself  into   the   situation   or  posi-  Ky.  — ,  98  S.  W.  293. 
lion    in    which     he    found    himself 


13'jO  forms  of  instructions.  [§  2109, 

§  2109.  Injury  Avoidable  Notwithstanding  Contributory  Negli- 
gence of  Plaintiff,  (a)  The  court  charges  the  jury  all  that  is  meant 
by  wanton  or  willful  or  intentional  negligence  is  the  conscious  failure 
on  the  part  of  the  motorman  to  use  reasonable  care  to  avoid  the 
injury  after  discovering  the  danger  to  the  wagon,  if  the  jury  believe 
from  the  evidence  that  there  was  such  failure  and  the  injuiy  re- 
sulted therefrom ;  and  in  such  case  any  negligence  on  the  part  of  the 
plaintiff,  whether  it  contributed  to  the  injury  or  not,  is  not  a  defense 
or  excuse  to  the  defendant  for  injuring  the  plaintiff. 

(b)  Although  the  plaintiff  may  have  been  guilty  of  negligence  in 
allowing  the  wheel  of  the  wagon  to  be  on  the  track  or  near  ithe  track, 
yet  this  negligence  Avill  not  defeat  the  plaintiff's  right  to  recover,  if 
the  motoiTnan  actually  saw,  or  by  keej^ing  a  constant  and  vigilant 
lookout  could  have  seen,  the  exposed  condition  of  danger  of  the 
wagon  or  of  the  plaintiff  in  time  to  have  avoided  the  injury  by  the 
exercise  of  reasonable  care,  and  negligently  failed  to  exercise  such 
reasonable  care;  and  if  the  jury  are  reasonably  satisfied  from  the 
evidence  that  such  negligent  failure  of  the  motorman  was  the  proxi- 
mate cause  of  the  injury  to  the  plaintiff,  then  the  defendant  is  liable, 
and  the  verdict  of  the  juiy  should  be  for  the  plaintiff. 

(c)  It  w^as  the  duty  of  the  motorman  to  keep  a  constant  and  vigi- 
lant lookout  for  persons  and  things  on  the  track;  and  if  the  jury  are 
reasonably  satisfied  from  the  evidence  that  the  motorman,  by  keeping 
such  constant  and  vigilant  lookout,  could  have  seen  the  exposed  con- 
dition of  danger  of  the  wagon  on  or  near  the  track,  or  of  the  plaintiff 
in  time  to  have  avoided  injuring  the  plaintiff  by  the  exercise  of  rea- 
sonable care,  then  the  law  charges  the  motorman  with  seeing  the  ex- 
posed condition  of  the  wagon  or  of  the  plaintiff  within  the  time  stated 
above  in  this  charge,  whether  he  saw  them  or  not. 

(d)  Although  the  plaintiff  may  have  been  guilty  of  negligence  in 
exposing  herself  to  injury  by  allowing  the  wagon  wheel  or  any  part 
of  the  wagon  to  remain  on  or  near  the  track,  yet  such  negligence  will 
not  defeat  her  right  to  recover,  if  the  motorman  saw  the  exposed 
condition  of  danger  of  the  wagon  or  of  the  plaintiff  in  time  to  have 
avoided  the  injury  by  the  exercise  of  reasonable  care,  and  by  the 
use  of  all  means  at  his  command,  and  negligently  failed  to  exercise 
such  reasonable  care;  and  if  the  jury  are  reasonably  satisfied  from 
the  evidence  that  such  negligent  failure  of  the  motorman  was  the 
proximate  cause  of  the  injury  to  the  plaintiff,  then  the  defendant  is 
liable,  and  the  verdict  should  be  for  the  plaintiff'. 

(e)  If  the  jui-y  should  be  reasonably  satisfied  from  the  evidence 
the  plaintiff  was  guilty  of  negligence  in  allowing  the  wagon  wheel  or 
wagon  to  be  on  or  so  near  to  the  track  as  to  expose  it  to  danger  by  the 
ruiiDiiig  of  the  ear,  yet  such  negligence  would  not  be  considered  as 
contributory  negligence  to  the  injury,  if  the  jury  believe  from  the 
evidence  to  their  reasonable  satisfaction  that  the  motorman  saw  the 
exposed  condition  of  tlie  wagon  to  danger  on  or  near  the  track  in 
time  to  avoid  the  injury  by  reducing  the  rate  of  speed  in  time  so  as 


§2109.]  NEGLIGENCE— STREET    RAILROADS.  1391 

to  so  control  it  and  avoid  the  injuiy,  and  the  motorman  negligently 
failed  to  give  such  warning  and  reduce  the  speed  or  stop  said  car, 
and  failed  to  use  all  means  at  his  command  to  avoid  the  injury,  this 
negligence  of  the  motorman  was  the  proximate  cause  of  the  injury  to 
the  plaintiff.93 

(f)  If  the  jury  find  and  believe  from  the  evidence  that  F.  street 

and  B.  street  were,  on  ,  19 — ,  open,  public  streets  within  the 

city  of  S. ;  and  if  the  jury  further  find  and  believe  from  the  evidence 
that,  at  said  time,  the  defendant  operated  an  electric  railway  along 
and  upon  B.  street,  was  using  the  tracks,  and  owned  and  operated 
the  railway  car  mentioned  in  the  evidence,  for  the  pui-pose  of  trans- 
porting persons  for  hire  from  one  point  to  another  in  said  city,  and 
that  on  said  day  E.  was  the  husband  of  plaintiff,  that  plaintiff's  said 
husband  was  at  said  date  crossing  from  the  west  to  the  east  side  of 
B.  street  at  its  intersection  with  F.  street,  and  that  while  he  was  so 
crossing,  defendant's  south  bound  car  run  upon  said  crossing  and 
street  at  a  violent,  excessive,  and  negligent  speed,  knocking  down, 
running  upon,  and  dragging  the  said  E.  and  injuring  him  to  such  an 
extent  as  to  cause  his  death;  and  if  the  jury  further  find  and  believe 
from  the  evidence  that  defendant's  agents,  servants,  and  employes 
in  charge  of  and  operating  said  car  either  saw,  or  by  keeping  a  vigi- 
lant watch  for  persons  moving  toward  the  track  upon  which  said  car 
was  being  propelled  could  have  seen,  said  E.  moving  toward  and 
across  said  track,  and  in  danger  of  injury,  and  that  after  seeing  said 
E.  moving  towards  and  upon  said  track,  or,  after  they  could  have 
seen,  by  keeping  a  vigilant  watch  as  aforementioned,  defendant's 
agents,  servants,  and  employes,  or  either  of  them,  could,  by  stopping 
said  car  within  the  shortest  time  and  space  possible  under  the  cir- 
cumstances, have  averted  said  injury,  and  neglected  so  to  do;  and  if 
the  jury  further  find  and  believe,  from  the  evidence,  that  said  E. 
exercised  ordinary  care  and  prudence  in  Avalking  towards  and  across 
said  track — then  your  verdict  should  be  for  the  plaintiff.^* 

(g)  Even  if  the  jury  believe  from  the  evidence  that  plaintiff  negli- 
gently placed  himself  in  a  dangerous  situation,  yet  if  the  defendant's 
motorman  operating  its  car  saw,  or  by  the  exercise  of  reasonable 
care  might  have  seen,  plaintiff  upon  the  street  and  in  the  act  of  pass- 
ing over  defendant's  track,  and  in  a  dangerous  situation,  in  time  to 
have  avoided  injuring  him  by  the  exercise  of  ordinai*y  care,  but  that 
he  negligently  failed  to  do  so,  then  its  verdict  should  be  for  the 
plaintiff.":^ 

(h)  If  you  believe  from  the  evidence  that  E.  got  upon  the  track 
of  the  street  car,  or  was  in  the  act  of  approaching  the  track  in  such 
I  way  as  to  indicate  to  the  motoi-man,  or  apprise  the  motorman  in 
..'luiige  of  the  car,  that  she  was  in  the  act  of  going  upon  the  track, 

93 — Above    instructions    approved  94 — Eckhard  v.   St.    L.  T.   Co.,  190 

in    Birmingliam    Ry.    L.    &    P.    Co.  Mo.   593,  89  S.  W.  602. 

V.    Brantley,    141    Ala.    614,    37    So.  95— Deitring   v.    St.   L.   T.    Co.,   109 

698  (699).  Mo.  App.  524,  85  S.  W.  140   (147). 


1392  FORMS  OF  INSTRUCTIONS.  [§  2110. 

or  about  to  go  upon  the  track,  far  enough  ahead  of  the  car  that  the 
motorman,  in  the  exercise  of  ordinary  care,  could  have  seen  that  fact 
in  time,  either  by  stopping  the  ear,  or  arresting  its  motion,  or  giving 
a  signal  of  its  approach  so  as  to  notify  her,  and  you  believe  from  the 
evidence  that  the  motorman  failed  so  to  do,  then  the  law  is  for  the 
plaintiff,  although  you  may  believe  that  she  herself  was  negligent; 
that  is,  failed  to  use  such  care  as  I  have  said  persons  of  her  age, 
experience,  and  intelligence  usually  exercise  under  such  circum- 
stances.°'' 

(i)  Though  the  act  of  a  person  in  crossing  or  driving  alongside  the 
track  in  front  of  a  street  railway  car  which  is  moving  towards  him, 
near  enough  to  be  struck,  may  be  negligence,  yet,  if  the  motorman 
in  charge  of  the  car  observes  the  negligence,  or  could  have  observed 
the  negligence,  by  the  use  of  ordinary  care,  when  the  peril  of  a  col- 
lision became  imminent,  and  might  have  avoided  its  effect,  by  due 
care,  in  time  to  prevent  an  accident,  and  failed  to  do  so,  the  company 
would  in  that  event  be  liable."'^ 

§  2110.  Negligence  of  Driver  of  Vehicle,  (a)  It  is  the  duty  of 
the  defendant's  motorman,  when  running  the  defendant's  cars  through 

the  streets  of  the  city  of ,  to  keep  a  lookout  ahead,  to  keep  the 

cars  under  reasonable  control,  and  to  exercise  ordinary  care  to  pre- 
vent injury  to  other  people  who  may  be  using  the  street,  and,  if  there 
is  a  person  or  vehicle  likely  to  be  imperiled  from  the  car,  to  give 
timely  notice  of  the  approach  of  the  car  by  the  usual  and  ordinary 
signal;  and  if  you  shall  believe  from  the  evidence  that  at  the  time 
mentioned  in  the  petition  the  motorman,  in  charge  of  the  car  which 
collided  with  the  wagon  on  which  Mr.  H.  was,  failed  to  exercise  any 
of  those  duties,  and  by  reason  of  such  failure  the  ear  collided  with 
the  wagon,  and  Mr.  H.  was  thrown  from  it,  and  his  death  resulted 
therefrom,  then  the  law  is  for  the  plaintiff,  and  you  should  so  find, 
unless  you  shall  believe  from  the  evidence  that  Mr.  H.  or  the  driver 
in  charge  of  the  wagon  was  negligent,  and  thereby  helped  to  cause 
or  bring  about  the  collision  and  consequent  injury,  and  but  for  which 
negligence  upon  the  part  of  Mr.  H.  or  the  driver  in  charge  of  the 
wagon,  if  any  there  was,  the  injury  would  not  have  occurred. 

(b)  But  if  you  shall  believe  from  the  evidence  that  the  motorman 
in  charge  of  the  car  observed  those  duties  of  which  I  have  spoken  to 
you,  then  the  law  is  for  the  defendant,  and  you  should  so  find,  not- 
witlistanding  the  injury  which  occurred  to  Mr.  H. ;  or  if  you  shall  be- 
lieve from  the  evidence  that  the  driver  of  the  wagon  or  Mr.  H.  was 
negligent,  and  thereby  helped  to  cause  or  bring  about  the  injury  which 
resulted  to  Mr.  li.,  and  that  he  would  not  have  been  injured  but  for 
sucli  contributory  negligence,  if  any  there  was,  then  the  law  is  for  the 
defendant,  and  you  should  so  find,  unless  you  shall  believe  from 
the  evidence  that,  when  the  wagon  became  imperiled  from  the  ear, 

96— Elrk's  Adm'r  v.  Ry.  Co.,  —  97— Memphis  St.  R.  Co.  v. 
Ky.  — ,  98  S.  W.  293.  Haynes,  112  Tenn.  712,  81  S.  W.  374 

(375). 


§2110.]  NEGLIGENCE— STREET    RAILROADS.  1393 

the  motorman  could  by  the  exercise  of  ordinary  care  have  stopped 
the  car,  if  necessaiy,  and  have  prevented  the  collision.  If  such 
was  the  fact  the  law  is  for  the  plaintiff. 

(e)  It  was  the  duty  of  Mr.  H.  and  the  driver  of  the  wagon,  when 
he  turned  to  cross  the  street,  to  exercise  ordinary  care  for  the  pro- 
tection of  themselves,  and  if  either  of  them  failed  to  exercise  that 
degree  of  care,  and  thereby  helped  to  cause  or  bring  about  the  injurj' 
complained  of  in  this  action  to  Mr.  H.,  and  the  injuiy  would  not  have 
occurred  but  for  the  failure  to  exercise  ordinary  care,  either  by  Mr. 
H.  or  by  the  driver,  then  the  law  is  for  the  defendant,  and  you  should 
so  find,  unless  you  shall  believe  from  the  evidence  that,  when  the 
wagon  became  imperiled  from  the  car,  the  motorman  could  by  the 
exercise  of  ordinary  care  have  stopped  the  car,  if  necessary,  and  have 
prevented  the  collision,  as  mentioned  in  instruction  No.  2. 

(d)  If  you  find  for  the  plaintiff,  you  should  find  in  such  sum  as 
will  reasonably  and  fairly  compensate  the  estate  of  Mr.  H.  for  the 
destruction  of  his  power  to  earn  money,  not  exceeding  the  sum  of 

$ ,  the  amount  claimed  in  the  petition ;  and  in  that  connection 

you  may  consider  the  amount  that  Mr.  H.  was  earning,  if  any,  as 
shown  by  the  evidence,  immediately  prior  to  his  death,  and  all  the 
other  circumstances  shown  by  the  evidence  touching  his  capacity  to 
earn  money.  If  you  find  for  the  defendant,  you  will  simply  say  so, 
and  no  more.^^ 

(e)  In  determining  whether  or  not  the  plaintiff  in  this  ease  was 
guilty  of  contributory  negligence,  you  shall  consider  her  own  acts  and 
conduct,  and  all  the  other  circumstances  shown  in  evidence  surround- 
ing the  accident  and  injury,  if  any,  to  the  plaintiff.  And  if  you  shall 
find  from  the  preponderance  of  all  the  evidence  that  the  plaintiff 
acted  as  a  person  of  ordinary  prudence  under  all  the  circumstances, 
you  should  find  her  free  from  contributory  negligence  although  you 
may  find  that  her  husband  was  guilty  of  negligence  in  the  driving  and 
management  of  his  horse  and  vehicle.  In  other  words,  no  negligence 
of  the  husband  in  the  di'iving  and  management  of  said  horse  can  be 
imputed  to  the  plaintiff,  if  you  find  that  she  herself  was  free  from 
any  fault  or  negligence,  and  was  merely  the  passive  guest  of  her 
husband,  without  any  authority  to  direct  or  control  the  conduct  or 
movements  of  her  said  husband  in  the  driving  and  management  of  said- 
horse.^^ 

98 — Louisville  Ry.  Co.  v.  Hoskins,  question   of   the   plaintiff's   contrib- 

Adm'r,  28  Ky.  L.  124,  88  S.  W.  1087  utory  negligence  was  to  be  consid- 

(lOSS).  ered  alone,  to  the  exclusion  of  the 

99 — Indianapolis    St.    R.      Co.     v.  negligence  on  the  part  of  her  hus- 

Johnson,  163  Ind.  518,  72  N.  E.  574.  band.     It   Is   insisted   that   the  jury 

"It    is    insisted    that   this    charge  must     have     understood     by     the 

is    bad    for    the    reason   that    it    in-  charge  that  the  fact  that  the  plain- 

vades   the  province  of   the   jury   in  tiff  was  merely  a  passive  guest  of 

stating    to    them    that    they    shall  her  husband  was  equivalent  to  es- 

consider  the  conduct   of  the  plain-  tablishing  her   freedom   from  fault 

tiff   and    other   circumstances,    etc.;  or    negligence.     It    is    further    con- 

the   further   contention    being   that  tended   that   it  was   not  proper  fa^ 

by  this  statement  of  the  court,  the  the  court  to  use  the  words  'shaii 
88 


1394  FORMS  OF  INSTRUCTIONS.  [§  2111. 

§  2111.  Imputable  Negligence — Rule  in  Illinois.  If  the  jury  find, 
from  the  preponderance  of  the  evidence,  that  the  plaintiff  was  injured 
as  charged  in  her  deehxration,  by  reason  of  the  alleged  negligence  of 
the  defendant,  and  that  at  and  before  the  time  of  receiving  such  in- 
jury, the  plaintiff  was  in  the  exercise  of  ordinary  care  for  her  own 
safety,  and  that  when  injured  she  was  riding  in  the  cutter  in  ques- 
tion as  the  invited  guest  of  X.,  then,  even  though  it  should  appear 
that  said  X.  was  guilty  of  some  want  of  care  that  contributed  in  some 
measure  toward  the  bringing  about  of  the  accident  in  question,  such 
want  of  care,  if  any,  on  the  part  of  said  X.,  will  not  be  imputable  to 
the  plaintiff.^oo 

§  2112.  Imputable  Negligence — Rule  in  Wisconsin.  The  court  in- 
structs the  jury  that  if  the  driver  of  the  vehicle  in  question  was 
guilty  of  any  want  of  ordinary  care  and  prudence  at  the  time  in 
question,  then  the  law  imputes  such  negligence  to  the  plaintiff,  who 
was  riding  with  her.^ 

§  2113.  Imputable  Negligence — Parent  and  Child,  (a)  If  the 
jurj^  shall  believe  from  the  evidence  that  the  mother  accompanied  and 
was  in  charge  of  the  child,  and  negligently  permitted  it  to  go  upon 
the  track  when  the  ear  was  approaching,  or  when,  by  the  exercise 
of  ordinary  care  and  watchfulness,  she  could  have  known  that  the 
car  was  approaching,  and  but  for  the  negligence  of  the  mother  in  per- 
mitting the  child  to  go  upon  the  track  the  injury  would  not  have  hap- 
pened, the  jury  should  find  for  the  defendant. 

(b)  Although  the  jury  may  find  from  the  evidence  that  the  mother 
was  guilty  of  negligence  in  permitting  the  child  to  go  upon  the  track, 
yet  if  the  injury  of  the  child  could  have  been  avoided  by  the  motor- 
man  after  he  knew,  or  could,  by  the  exercise  of  ordinary  care  have 
known,  that  there  was  reasonable  ground  to  believe  that  the  child 
would  go  upon  the  track,  then  the  jury  must  find  for  the  plaintiff.- 

and  'should'  as  they  are  employed  an  opinion  by  Chief  Justice  Ryan, 
in  the  instruction.  That  the  that  'the  driver  of  a  private  con- 
charge  is  not  rendered  bad  for  veyance  is  the  agent  of  the  person 
the  latter  reason  is  fully  settled  in  such  conveyance,  so  that  his 
by  the  decision  of  this  court  in  negli-gence  contributing  to  the  in- 
Strcbin  v.  Lavengood,  Wi  Ind.  478,  jury  complained  of  by  such  person, 
71  N.  E.  494,  and  cases  there  cited."  .    .    .    will  defeat  the  action.'     Pri- 

100— West   C.    St.    R.    Co.   v.   Pet-  deaux    v.    Mineral    Point,    43    Wis. 

ters,    196    111.    298    (303),   aff'g   95   111.  513  (526-531),  28  Am.  Rep.  558.     Such 

App.   479,  63  N.   E.  662.  ruling    has    been    steadily    adhered 

"We    think    that    the    contention  to   during    these   many   intervening 

by    appellant    that    under    this    in-  years.     Otis   v.   Janesville,    47   Wis 

struction,     if     the     jury     concluded  422,   2   N.   W.   783,   40  L.    R.   A.    831; 

from    the   evidence   that  the   plain-  Ritger  v.    Milwaukee,   99   Wis.    190* 

tiff  had  been  injured  by  an  act  ot  197,  74  N.  W.  815;  Olson  v.  Town  of 

the    defendant,    and    that    such   act  Luck,  103  Wis.   33,  35,  79  N.  W    29 

was   alleged    to   be   negligent,    they  if  the  rule  contended  for  is  to  pre- 

then   might  reconcile   it  with   their  vail,    it    is    for   the   Legislature    to 

ron.sclences    to   find    a    verdict    for  say  so." 

the   plaintiff  in    reliance   upon   this        2— Toner's  Adm'r  v.    South   C.   & 

Instruction  is  frivolous."  c.   St.  R.   Co.,  109  Ky.  41,  58  S.  W. 

I— Lightfoot  V.  Winnebngo  T.  Co.,  439   (410) 

^^;L^.'"-  '*^'*'  ^'>"  ^-  ^'^-  -'^  (^^'')-  "In     <^'inal     Co.     v.     Murphy.     9 

This  court  held  27  years  ago,  in     Bush    (Ky)    522,    where    the    death 


§  2113.] 


NEGLIGENCE— STREET    RAILROADS. 


1395 


(c)  The  fact  that  the  wife  of  the  plaintiff  may  have  been  guilty 
of  negligence,  if  such  was  the  ease,  in  permitting  H.  to  go  on  or  into 
the  street  where  and  when  the  defendant  was  operating  cars  over  its 
tracks,  will  not  prevent  the  plaintiff  recovering  in  this  ease,  if  the 
motorman,  after  he  became  aware  of  the  danger  of  the  child,  could 
have  avoided  injuiing  him  by  the  use  of  such  care  as  the  dangerous 
position  of  the  child  and  its  age  required  him  under  the  circumstances 
to  exercise.^ 


of  a  little  girl  5  years  old  was  sued 
for,  this  court  said:  'The  child, 
by  reason  of  its  tender  years,  can- 
not be  said  to  have  been  g-uilty  of 
any  negligence.  She  was  non  sui 
juris,  and  her  conduct,  if  negligent, 
must  be  regarded  as  the  negli- 
gence of  the  parents,  and  not  that 
of  the  infant.  Parents  are  the 
legal  and  natural  custodians  of 
their  children,  and,  when  the  chil- 
dren are  so  young  as  not  to  be 
capable  of  exercising  any  discre- 
tion, their  parents  must  exercise  it 
for  them.  This  control  and  care 
over  children  must  be  such  as  par- 
ents of  ordinary  prudence  exer- 
cise.' In  the  subsequent  case  of 
Schlenk's  Adm'r  v.  Cent.  P.  Ry. 
Co.,  15  Ky.  L.  409,  23  S.  W.  589, 
where  a  child  three  and  one-half 
years  old  was  killed  by  a  street 
car,  by  reason  of  the  negligence 
of  his  nurse  having  him  in  charge, 
this  court,  affirming  the  judgment 
in  favor  of  the  defendant,  said: 
'If  there  was  any  negligence  it 
was  on  the  part  of  the  inexper- 
ienced nurse,  by  reason  of  nonage, 
having  the  boy  in  charge,  and  as 
she  was  the  agent  of  the  plain- 
tiff, in  the  temporary  control  and 
custody  of  the  boy,  her  negligence 
must  be  imputed  to  the  father.' 
Under  the  statute,  a  recovery  in 
this  case,  if  had,  would  go  to  the 
father  and  mother,  one  moiety  to 
each.  Every  reason  that  would 
charge  the  father  with  the  negli- 
gence of  the  nurse  would  apply 
with  equal  force  in  a  suit  of  this 


character,  where  the  wife  has  the 
custody  of  the  child  at  the  time  of 
the  injury,  and  the  court  did  not 
err  in  so  instructing  the  jury.  Be- 
sides, the  pivotal  question  in  the 
case  was  whether  the  child  ran 
suddenly  out  on  the  track,  and 
was  struck  before  he  could  be 
saved  by  ordinary  care  on  the  part 
of  the  motorman,  or  whether  he 
was  loitering  near  the  track  as  the 
car  approached  slowly,  and  ran  in 
front  of  the  car  some  25  or  30 
feet,  while  the  mother  was  calling 
on  the  motorman  not  to  run  over 
her  child,  and  he  might  by  or- 
dinary care  have  avoided  doing  so, 
as  the  evidence  for  appellant 
tended  to  show.  This  issue  was 
fairly  submitted  to  the  jury  by  the 
instructio2is  given  by  the  court; 
for  the  jury  was  expressly  told 
that  notwithstanding  the  negli- 
gence of  the  mother,  and  without 
regard  to  it,  'yet  if  the  injury  of 
the  child  could  have  been  avoided 
by  the  motonnan  after  he  knew, 
or  could,  by  the  exercise  of  ordin- 
ary care,  have  known,  that  there 
was  reasonable  ground  to  believe 
that  the  child  would  go  upon  the 
track,  then  they  must  find  for 
the  plaintiff.'  The  real  issue  in 
the  case  having  been  clearly  sub- 
mitted to  the  jury,  and  fairly  tried 
by  them,  their  verdict  should  not 
be   disturbed." 

3 — Indianapolis  St.  R.  Co.  v. 
Schomberg,  —  Ind.  App.  — ,  71  N. 
E.  237  (239),  aff'd  164  Ind.  Ill,  72 
N.   E.  1041. 


CHAPTER  LXXI. 


NEGLIGENCE— TELEGRAPH  COMPANIES. 


See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


§  2114.  "Negligence"  in  delivery  of 
telegram    defined. 

§  2115.  Duty  of  telegraph  company 
to  make  prompt  delivery 
of    telegram. 

§  2116.  Telegraph  company  not  in- 
surer of  absolute  safety 
and  accuracy  of  telegrams. 

§  2117.  Incorrect  or  insufficient  ad- 
dress given  by  plaintiff  to 
defendant  a  good  defense 
in  actions  for  non-deliv- 
ery. 

§  2118.  Nature  of  knowledge  of 
agents  of  telephone  com- 
pany as  to  purpose  of  call. 


§  2119.  Failure  to  consummate  bus- 
iness trade  through  non- 
delivery   of    telegram. 

§  2120.  No  duty  on  part  of  plain- 
tiff's agent  to  inform  tele- 
graph company  of  his 
agency. 

§  2121.  Care  due  while  working 
with  cable  above  public 
street. 

§  2122.  Lineman — Degree  of  care  re- 
quired while  working  near 
electric   wires. 

§  2123.  Electric  wires — Presumption 
of  danger. 


§2114.  "Negligence"  in  Delivery  of  Telegram  Defined.  ''Negli- 
gence," as  used  in  this  charge,  is  defined  to  mean  the  failure  to  ex- 
ercise ordinary  care,  and  ** ordinary  care"  is  defined  to  mean  such 
care  as  a  person  of  ordinary  prudence  would  have  exercised  under  the 
same  or  similar  circumstances.^ 

§  2115.  Duty  of  Telegraph  Company  to  Make  Prompt  Delivery  of 
Telegram,  (a)  This  is  an  action  by  plaintiifs  for  damages  they 
chiim  tliey  suffered  by  the  nondelivery  of  a  telegram  by  the  defend- 
ant. Coming  right  to  the  points  in  issue,  it  is  the  duty  of  the  tele- 
graph company  to  promptly  deliver  any  message  which  is  given  to 
them  for  transmission  and  delivery,  and  a  failure  to  deliver  promptly 
makes  them  liable  in  damages,  and  it  is  a  question  for  you  to  find, 
from  the  facts  in  this  case,  whether  there  was  prompt  delivery  of  the 


1— Hargrave  v.  Western  U.  T. 
Co..  —  Tex.  Civ.  App.  —  60  S.  W. 
687   (689). 

"Appellants  object  to  this  defini- 
tion because,  they  say,  'when  the 
telegraph  company,  for  hire,  as- 
sumes to  deliver  a  telegram  such 
ns  a  death  message,  the  highest 
dcgrffi  of  care  and  diligence  is 
rff|uirod  of  them  in  the  speedy  and 
prompt  delivery  thereof.'  Such  is 
not  the  law.  The  jury  were  in- 
structed that,  if  the  company 
'fulled  to  exercise  ordinary  care 
and  diligence  to  deliver  said  mes- 
Bage  to  H,  then  they  will  find  for 


the  plaintiffs,  and  assess  their 
damages.'  The  charge  gave  the 
correct  measure  of  diligence.  Ap- 
pellee would  have  been  liable  for 
the  failure  of  any  of  its  employes 
charged  with  the  duty  of  deliver- 
ing the  message  to  exercise  ordi- 
nary care  and  to  have  defined  its 
care  as  including  skill,  fitness,  and 
diligence  on  the  part  of  its  ser- 
vants would  have  added  nothing 
to  the  definition.  The  definiti<m 
given  was  not  erroneous,  and.  if 
appellants  thought  it  was  not  suffi- 
ciently full,  they  should  have  re- 
quested  a  fuller  one." 


1396 


§  2116.]  NEGLIGENCE— TELEGRAPH  COMPANIES.  1397 

message  in  question.  People  send  messages  by  telegram  instead  of  by- 
mail  because  they  are  in  need  of  haste,  and  when  a  message  is  so 
sent  and  received  it  must  be  delivered  with  reasonable  dispatch  in  all 
eases,  and  if  not,  the  company  must  pay  damages  for  failure  to  so 
deliver.  And  it  is  for  you  to  say  whether,  under  all  the  circumstances 
of  this  case,  there  was  such  prompt  delivery  of  the  message  as  will 
relieve  the  defendant  company  from  liability.  The  telegram  in  ques- 
tion demonstrated  upon  its  face  that  it  was  an  urgent  message,  and 
must  be  delivered  with  haste,  and  in  such  cases  a  greater  degree  of 
diligence  must  be  exercised  than  if  no  such  urgency  was  expressed, 
and  you  will  take  this  into  consideration  in  considering  the  facts  and 
making  up  your  verdict.  The  telegram  is  resorted  to  by  the  public  to 
secure  the  speediest  mode  of  communication,  and  the  prompt  delivery 
is  the  very  essence  of  the  undertaking  by  the  company.  Hence  a 
failure  to  make  such  prompt  delivery,  if  shown  in  this  case,  requires 
a  verdict  at  ynur  hands  for  the  plaintiffs  as  hereinafter  indicated. 

(b)  If  you  find  from  the  evidence  that  the  defendant  sent  the  mes- 
sage in  question  with  reasonable  promptness,  and  delivered  the  same 
to  Mr.  D.  with  reasonable  diligence,  your  verdict  must  be  for  the  de- 
fendant. On  the  question  of  prompt  delivery  you  are  to  take  into  ac- 
count the  distance  of  the  place  of  delivery  from  defendants'  office, 
the  distance  of  the  office  from  the  sehoolhouse,  and  the  necessary  time 
it  would  take  to  get  there.  The  burden  is  on  the  plaintiffs  to  show 
by  the  preponderance  of  the  evidence  that  the  allegations  in  the  dec- 
laration are  true,  and  if  the  evidence  on  behalf  of  the  j^laintiffs  fails 
to  do  this,  or  such  evidence  is  fully  met  by  evidence  on  behalf  of  the 
defendant,  then  I  instruct  you  that  the  plaintiffs  cannot  recover.  The 
plaintiffs  cannot  recover  unless  by  the  neglect  of  some  duty  the  com- 
pany owed  them;  and  if  the  message  was  delivered  to  Mr.  D.  with 
reasonable  diligence  your  verdict  must  be  for  the  defendant. 

(c)  If  you  find  that  the  company  did  not  deliver  this  telegi-am,  as 
I  have  indicated,  wdth  such  promptness  as  was  required  under  the 
circumstances,  and  are  liable  for  a  failure  to  so  deliver,  then  you  will 
find  for  the  plaintiffs  such  an  amount  as  will  be  reasonable  under  all 
the  facts  in  the  case.  In  other  words  if  you  find  for  plaintiffs  your 
verdict  will  be  for  what  the  services  of  Mr.  K.  would  reasonably  be 
worth  before  the  commissioners,  on  trying  the  client's  case  at  the  rate 
per  day  as  shown  by  the  evidence  in  this  ease.^ 

§  2116.  Telegraph  Company  Not  Insurer  of  Absolute  Safety  and 
Accuracy  of  Telegrams.  You  are  charged  that  if  the  mistake  made  in 
the  transmission  or  delivery  of  the  message  was  caused  or  brought 
about  on  account  of  or  by  reason  of  negligence  on  the  part  of  the  de- 
fendant, or  its  agents  or  servants,  then,  in  that  event,  the  conditions 
and  stipulations  pleaded  by  defendant  cannot  avail  it  anything  in  this 
action.  The  telegraph  company  is  not  an  insurer  of  absolute  safety 
and  accuracy  in  the  transmission  of  messages.' 

2_Sweet  v.  W.  U.  Tel.  Co..  139  3— W.  U.  Tel.  Co.  v.  Odom,  21 
Mich.   322,  102  N.  W.  850  (852).  Tex.    Civ.    App.    537.    52    S.    W.    632 

(634). 


1398  FORMS  OF  INSTRUCTIONS.  [§  2117. 

S  2117.  Incorrect  or  Insufficient  Address  Given  by  Plaintiff  to  De- 
fendant a  Good  Defanse  in  Actions  for  Non-Delivery.  The  jui-y  are 
instructed  that  if  from  the  evidence  they  believe  that  M.,  who  de- 
livered the  message  in  question  to  the  defendant  company  for  trans- 
mission, gave  to  the  defendant  an  incorrect  or  insufficient  address,  and 
that  in  so  doing  he  was  guilty  of  negligence,  as  that  term  has  been 
hereinbefore  defined,  and  if  the  jury  further  believe  from  the  evidence 
that  such  negligence  on  his  part,  if  any,  contributed  to  the  failure  to 
deliver  the  message  to  H.,  then  the  plaintiff  cannot  recover,  even 
though  the  defendant  may  have  also  been  negligent.* 

§  2118.  Nature  of  Knowledge  of  Agents  of  Telephone  Company  as 
to  Purpose  of  Call.  I  further  instruct  you  that  any  testimony  as  to 
the  knowledge  of  the  fact  (if  it  was  a  fact)  that  the  employes  of  de- 
fendant knew  of  the  death  of  Mrs.  M.,  and  that  the  purpose  of  the 
call  to  get  G.  M.  at  C.  in  communication  with  A.  B.,  in  order  to  notify 
plaintiff  of  his  mother's  death,  must  have  come  to  the  knowledge  of 
the  said  employes  through  some  transaction  or  act  while  they  were 
transacting  the  business  of  the  defendant  in  connection  with  the  call 
put  in.^ 

§  2119.  Failure  to  Consummate  Business  Trade  Through  Non-De- 
livery of  Telegram.  Where,  in  an  action  against  a  telegraph  com- 
pany for  failnre  to  deliver  a  message,  it  is  sought  to  recover  damages 
for  losses  which  would  have  been  prevented  by  a  sale  which  the  mes- 
sage was  designed  to  complete,  it  must  appear  that  the  delivery  of 
the  message  to  the  party  to  whom  it  was  directed  would  have  effected 
a  valid  and  binding  contract.  It  does  not  mean,  though,  that  the  con- 
tract would  not  have  been  binding.  It  does  not  mean  that  there  might 
have  been  a  defense  between  A.  and  B.,  the  persons  to  whom  the  goods 
were  to  be  sold,  if  one  complained  by  reason  of  the  fact  that  he  did 
not  make  a  contract,  as  the  result  of  the  non-delivery  of  the  telegram. 
Matters  of  defense  they  might  set  up  you  cannot  consider  here,  but 
if  tlie  persons  fairly  intended  to  complete  and  perfect  the  sale  con- 
tract, that  is  enough.  It  is  for  you  to  say  in  any  given  case  whether 
or  not  that  was  the  purpose,  and,  if  it  had  gone,  how  far;  and  I  so 
charge  you.  Where  one  partner,  who  has  received  an  offer  in  the 
usual  course  of  trade,  telegraphs  his  co-partner  for  advice  as  to  ac- 
cepting it,  and,  not  hearing  from  him,  on  account  of  the  negligent 
failure  of  the  telegraph  companj^  to  deliver  the  message,  voluntarily 

4 — Hargrave   v.    W.    U.    Tel.    Co.,  knowledge     of     the     agent     being 

—  Tex.    Civ.   App.  — ,   60   S.   W.   687  imputed     to     the     principal,     says: 

(689).  'Thi.s   principle   only    applies   where 

f) — Morrill   V.    S.   W.   Tel.   &   Tele-  the    agent    acquires    his    knowledge 

phone    Co.,    31    Tex.    Civ.    App.    614,  in    the    transaction    of    his    princi- 

73   H.   W.   422   (423).  pal's    business,    and    we    therefore 

"The    rule    is    laid    down    by    our  think  that  the  doctrine  of  imputed 

Sur»reme  Court  in  Tox.  Loan  Agon-  notice    should    be    limited    to    ca.ses 

ry   V.   Taylor,   88  Tex.   49,   29   S.   W.  of  that  character.'  The  charge  was 

1').'7,   and    Kauffmnnn   v.   Robey,   60  in  strict  accord  with  these  authori- 

Tex.   .308.   48  Am.   Rep.   264.     In    the  ties,     and     was     applicable    to     the 

first  caKe  cited,   Mr.   Gaines,   C.  J.,  facts;   hence   not   erroneous." 
in     speaking    of     the     doctrine    of 


§2120.]  NEGLIGENCE— TELEGRAPH  COMPANIES.  1399 

acts  upon  his  own  judgment  and  declines  the  offer,  such  negligence  of 
the  telegrajDh  comi^any  is  not  the  proximate  cause  of  the  loss  sus- 
tained by  failure  to  consummate  the  trade,  and  the  defendant  is  not 
liable  in  damages  upon  proof  that  if  the  message  had  been  reasonably 
delivered  the  co-partner  would  have  advised  acceptance,  and  the  trade 
would  have  been  made.'' 

§  2120.  No  Duty  on  Part  of  Plaintiff's  Agent  to  Inform  Telegraph 
Company  of  His  Agency.  The  court  charges  the  jury  that  it  was  not 
the  dutj'  of  F.  L.  to  inform  the  defendant  company  of  the  fact  that 
in  sending  the  message  described  in  the  complaint,  if  from  the  evi- 
dence you  believe  that  he  was  acting  as  the  agent  of  plaintiff,  that 
he  was  the  agent  of  plaintiff,  in  order  to  make  the  defendant  liable 
to  plaintiff  in  this  cause.' 

§  2121.  Care  Due  While  Working  With  Cable  Above  Public  Street. 
The  public  had  a  right  to  use  the  public  streets  of  P.  City  in  the  exer- 
cise of  due  care,  and  if  defendant  undertook  to  handle  or  work  with 
a  cable  above  the  public  street,  it  was  the  duty  of  defendant  to  use 
care  to  prevent  the  cable  from  falling  on  any  person  who  may  have 
been  on  such  street.^ 

§  2122.  Lineman — Degree  of  Care  Required  While  Working  Near 
Electric  Wires,  (a)  If  the  jury  believe  from  the  evidence  that  it 
was  dangerous  for  R.  to  stand  upon  the  strand  or  messenger  cable, 
which  made  a  perfect  circuit  between  any  charged  electrical  agency 
in  the  hand  of  R.  and  the  ground,  and  that  R.  knew  or  by  the  exercise 
of  ordinary  care  would  have  known,  that  standing  upon  said  mes- 
senger cable  was  dangerous,  and  if  the  jury  further  believe  from  the 
evidence  that  a  man  of  ordinary  prudence  under  such  circumstances 
as  surrounded  R.,  would  not  have  stood  upon  said  messenger  strand 
or  messenger  cable  while  holding  a  telephone  wire  suspended  over 
electric  wires,  then  the  juiy  must  find  the  defendant  not  guilty. 

(b)  If  the  jury  believe  from  the  evidence  that  a  man  of  ordinary 
prudence,  exercising  ordinary  care  for  his  own  safety  under  such  cir- 
cumstances as  surrounded  R.  at  the  time  of  this  accident,  would  have 
worn  and  used  a  safety  belt,  and  that  R.  did  not  at  the  time  of  this 
accident  wear  a  safety  belt,  and  if  the  jury  further  believe  from  the 
evidence  that  the  death  of  R.  would  have  been  prevented  if  the  de- 
ceased had  worn  a  safety  belt,  then  the  jury  must  find  the  defendant 
not  guilty. 

(c)  The  court  instructs  the  jury  that  ordinary  care,  as  mentioned  in 
these  instructions,  is  that  degree  of  care  which  an  ordinarily  prudent 
person,  with  deceased's  knowledge  or  means  of  knowledge  of  electrical 
affairs,  and  situated  as  deceased  was,  before  and  at  the  time  of  the 
accident,  would  exercise  for  his  own  safety.** 

6— Walllngford  v.  W.  U.  Tel.  Co.,  Mayo.  134  Ala.  641,  33   So.  16. 

30  S.  C.  201,  38  S.  E.  443  (44S).  9— Commonwealth      El.      Co.      v. 

7— Manker  v.  W.   U.  Tel.   Co.,  137  Rose,    114    111.    App.    181    (184),    aff'd 

Ala.    292.    34    So.    839.  214   111.    54.=;.   73   N.    E.    780. 

8— Southern   Bell   T.   &  T.   Co.   v.  "Complaint  is  made  of  the  above 


1400 


FORMS  OF  INSTRUCTIONS. 


[§  2123. 


§  2123.  Electric  Wires — Presumption  of  Danger.  The  defendant, 
H.,  in  breaking,  coiling  and  lianging  the  dead  or  uncharged  wii'e  on 
June  20,  1901,  is  presumed  to  have  known  that  it  was  an  electric 
wire,  and  to  have  known  and  realized  the  dangerous  properties  of 
electi-icity,  and  that  a  higher  degree  of  care  was  necessary,  when  a 
thing  on  account  of  which  an  injury  may  be  caused  was  a  highly 
dangerous  one,  and  that  dead  electric  wires  may  be  enlivened  or  be- 
come charged  with  a  current  of  electricity  by  coming  in  contact  with 
a  charged  wire,  and  that  in  case  any  person  touched  or  grasped  such 
a  wire,  it  would  or  might  reasonably  be  expected  to,  endanger  the  life 
or  limbs  of  the  person  touching  it.^" 


instruction  because  of  the  words 
'with  deceased's  knowledge  or 
means  of  knowledge  of  electrical 
affairs.'  The  instruction  obviously 
refers  to  the  question  whether  the 
deceased  exercised  ordinary  care 
for  his  own  safety.  In  our  opinion 
the  defendant  was  not  prejudiced 
by  the  words  complained  of.  The 
deceased  was  an  experienced  liue- 
mau  and  had  been  a  foreman.  Acts 
or  conduct  on  his  part  might 
amount  to  or  constitute  negligence 
when  the  same  acts  or  conduct  on 
the  part  of  one  wholly  ignorant  of 
electrical  affairs  would  not  amount 
to  negligence.  It  was  for  the  jury 
to  find  from  all  the  evidence  what 
the  deceased  did  or  failed  to  do 
and  then  to  say  whether  such  acts 
and  conduct  showed  ordinary  care 
on  his  part  for  his  own  safety,  or 
amounted  to  contributory  negli- 
gence. This  included  as  well  the 
acts   and   conduct   of   the   deceased 


in  placing  himself  in  the  position 
in  which  he  was,  as  his  acts  and 
conduct  in  that  position,  but  we 
cannot  see  that  the  instruction  is 
subject  to  the  criticism  that  it  as- 
sumes that  the  deceased  exercised 
ordinary  care  in  placing  himself 
in  the  position  in  which  he  was  at 
the   time    he   fell." 

10— Nagle  V.  Hake,  123  Wis.  256, 
101   N.   W.   409   (413). 

"The  sentence  now  under  consid- 
eration is  elliptical  in  that  it  does 
not  in  terms  state  with  what  the 
care  required  in  handling  electric 
wires  is  to  be  compared;  but  we 
think  none  could  mistake  the  idea 
intended,  namely  the  idea  that 
greater  care  is  required  in  handling 
such  agencies  which  may  be 
charged  with  mysterious  and  sud- 
den death,  than  in  handling  ordi- 
nary substances,  and  this  as  we 
have  seen  is  a  cori-ect  statement 
of  the   law." 


CHAPTER  LXXII. 


NEGLIGENCE— MISCELLANEOUS. 


See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


i  2124.  Liability  of  gas  company  for 
break  in   gas  pipe. 

i  2125.  Artificial  light— Liability  for 
furnishing  unsafe. 

i  2126.  Coal  mine — Duty  of  owner 
of  to  fence   shaft. 

i  2127.  Boiler  maintained  in  negli- 
gent manner  —Damage 
caused  by  overflow  of  boil- 
er. 

1 2128.  Danger   from    fire. 
2129.  Fire — Negligently      setting  — 
Injury  to  trees. 


§  2130.  Liability  for  damage  from 
ditch  built  on  one's  own 
land. 

§  21.31.  Logs — Degree     of     care     re- 
quired  in   driving. 

§  2132.  Defective  scaffold — Elements 
thc^t  must  be  proven — Bur- 
den of  proof — Preponder- 
ance. 

§  2133.  Hogs— Infection  of  from  fol- 
lowing other  hogs. 


§  2124.  Liability  of  Gas   Company   for  Break  in  Gas  Pipe.     The 

jury  are  instructed  that  there  is  evidence  enough  of  want  of  proper 
care  on  the  part  of  the  defendant  to  make  it  responsible,  on  the 
ground  that  it  was  bound  to  conduct  its  gas  in  a  proper  manner,  and 
that  the  fact  that  the  gas  escaped  was  prima  facie  evidence  of  some 
neglect  on  the  part  of  the  defendant.^ 

§  2125.  Artificial  Light — Liability  For  Furnishing  Unsafe,  (a) 
In  furnishing  an  artificial  light,  if  one  was  necessary,  the  plaintiff 
did  not  assume  all  risk  of  loss  that  might  arise  from  its  use,  for  it 
will  appear  to  you  that  it  was  possible  for  any  person  pui-posely  to 
throw  a  perfectly  safe  light,  furnished  him  under  those  circumstances, 
into  the  oil,  and  thus  cause  a  conflagration.  In  that  case  it  would 
clearly  be  the  negligent  act  of  the  pereon  using  the  candle.  But,  if  a 
light  was  necessary,  it  was  the  plaintiff's  dut}',  if  he  furnished  any 
light  at  all,  to  furnish  a  reasonably  safe  light;  and  it  was  the  defend- 
ant's duty  to  use  the  light  in  an  ordinarily  careful  and  prudent  man- 


1 — Carmody  v.  Boston  Gaslight 
Co.  (four  cases),  162  Mass.  539,  39 
N.   E.  184  (185). 

"This  request  was  copied  from 
a  ruling  given  in  Smith  v.  Gaslight 
Co.,  129  Mass.  318,  where  this  court 
said  of  it  that,  as  applied  to  the 
facts  of  that  case,  it  could  not  be 
said  to  be  wrong.  The  presiding 
justice  in  the  present  case  declined 
to  give  the  instruction,  but  in- 
structed the  jury  in  other  terms, 
which  fully  and  correctly  dealt 
with  the  phases  of  the  cause  to 
which   the   request   was   addressed. 

1401 


While  the  ruling  requested  is  suf- 
ficiently correct,  if  it  be  construed 
as  declaring  that  there  was  enough 
evidence  of  want  of  proper  care 
to  be  submitted  to  the  jury,  it 
would  invade  the  proper  province 
of  the  jury,  if  it  was  understood 
by  them  to  mean  that  there  was 
evidence  enough  to  require  them 
to  find  the  defendant  negligent,  and 
the  presiding  justice  was  not  bound 
to  give  a  ruling  which,  as  applied 
to  the  case  upon  trial,  might  have 
been  so  understood." 


1402  FORMS  OF  INSTRUCTIONS.  [§  2126. 

ner.  If  the  light  was  reasonably  safe,  and  the  defendant's  negligence 
alone  caused  the  injury,  the  plaintiff  should  be  compensated  for  his 
loss.  But  if  the  light  was  not  reasonably  safe,  and  because  the  light 
was  dangerous  which  was  furnished  to  defendant's  servant,  and  de- 
fendant's servant  used  it  with  ordinary  care  and  prudence  and  the 
loss  and  injury  were  caused  by  the  unsafe  and  dangerous  light  fur- 
nished by  the  plaintiff  or  his  servants,  then  the  plaintiff  should  not 
recover.  Or  if  the  plaintiff's  loss  and  injury  Avas  the  result  of  the 
unsafe  light  funiished  by  the  defendant's  servants,  combined  with  the 
careless  use  and  handling  of  it  by  the  defendant's  servants,  then  the 
plaintiff  cannot  recover,  and  your  verdict  should  be  for  the  defend- 
ant. Whether  it  was  the  plaintiff's  duty  or  not  to  supply  a  light,  in 
my  opinion  it  was  his  duty  to  provide  a  reasonably  safe  one  under  all 
the  circumstances ;  and  if  he  failed  so  to  provide  a  safe  light,  and  that, 
combined  with  the  negligent  act  of  the  defendant's  servant,  caused 
the  loss  or  injmy,  then  the  plaintiff  should  not  recover. 

(b)  The  giving  of  a  candle  to  H.  may  not  be  contributory  negli- 
gence in  itself,  because  I  have  already  called  your  attention  to  the 
fact  that  you  are  to  determine  as  a  question  of  fact  whether  a 
candle  was  a  reasonably  safe  light  to  provide  under  the  circumstances. 
Of  course,  whether  the  light  was  safe — whether  the  candle  was  safe — 
or  not,  under  all  the  circumstances,  is  a  question  of  fact." 

§  2126.  Coal  Mine— Duty  of  Owner  of  to  Fence  Shaft.  The  law 
makes  it  the  duty  of  every  operator  and  owner  of  a  coal  mine  to  se- 
curely fence  the  top  of  the  shaft  by  gates  properly  protecting  the 
shaft  and  entry  thereto,  and  if  such  operator  fails  willfully  to  so 
fence  the  shaft,  and  by  reason  of  such  failure  a  person  employed  about 
ihe  mine  is  killed,  the  owxaer  or  operator  is  liable  to  the  widow  of  the 
person  so  killed  for  damages  not  to  exceed  the  sum  of  $ .^ 

2— Dore  v.  Babcock,  72  Conn.  408,  stance  correct,  and  it  was  said:  'In 

44  Atl.  736  (737).  the     case     under    consideration,     it 

3— Catlett    v.    Young,    143    111.    74  was  the  willful  conduct  of  the  coal 

(78),   .32  N.   E.   447.  company,     of     which     the     plaintiff 

"In  the  case  of  Litchfield  C.  Co.  complained,  and,  while  the  de- 
V.  Taylor,  81  111.  590,  it  was  held  ceased  may  not  have  been  entirely 
that,  where  the  party  is  killed  in  free  from  fault,  yet  if  the  jury 
attempting  to  ascend  from  a  coal  find  from  the  evidence  that  the 
mine  by  the  fjill  of  a  lump  of  coal,  wilful  conduct  of  appellant  resulted 
and  it  appears  that  the  defendant  in  the  injury,  the  verdict  would  be 
willfully  used  uncovered  cages  for  justified.'  The  decision  in  this 
the  ascent  and  descent  of  persons  cited  case  sustained  the  instruction 
working  in  the  mine  in  violation  of  given  by  the  court,  on  the  ground 
the  statute,  which  caused  the  that,  under  the  statute  of  1872,  con- 
death,  a  recovery  may  be  had  by  tributory  negligence  was  not  a  de- 
hl.s  widow,  notwithstanding  the  fence.  The  present  statute,  so  far 
deceased  may  not  have  been  free  as  the  question  now  under  consid- 
from  fault  or  negligence  on  his  eration  is  affected,  is  substantially 
part.  Objection  was  there  taken  the  same  as  that  of  1872.  When 
to  the  instruction  of  the  court  that  the  legislature  in  1879  re-enacted 
it  excluded  consideration  of  the  in  substance  the  statute  of  1872,  and 
Jury  the  negligence  of  the  de-  re-enacted  in  the  same  language 
of-aHod,  whifh  may  have  contrib-  section  14,  which  gives  the  right  of 
utod  to  the  injury.  It  was  held  action,  it  must  be  regarded  that  it 
that    the    instruction    was    in    sub-  acted  in  view  of  the  interpretation 


§2121 


NEGLIGENCE— MISCELLANEOUS. 


1403 


§  2127.  Boiler  Maintained  in  Negligent  Manner — Damage  Caused 
by  Overflow  of  Boiler,  (a)  The  defendaut  in  this  case  has  a  perfect 
right  to  use  such  a  combination  or  boiler  as  it  sees  fit,  provided  that 
it  exercises  reasonable  care  in  its  selection,  maintenance  and  use. 

(b)  The  burden  to  prove  lack  of  care,  and  to  prove  negligence, 
which  is  the  same  thing,  is  on  the  plaintiffs  throughout  this  case. 
Unless  they  (the  plaintiffs)  have  shown  that  the  boiler  and  apparatus 
which  was  used  by  the  defendants  were  improper  appliances  to  be 
used,  or  that  they  were  maintained  or  used  by  the  defendants  in  a 
careless  or  negligent  manner,  and  unless  they  have  so  shown  to  your 
satisfaction,  and  by  a  preponderance  of  the  evidence,  you  are  in- 
structed that  you  must  find  for  the  defendants. 

(c)  The  jury  are  instructed  that  they  must  not  consider  this  fact, 
that,  after  the  overflow  occurred,  the  defendant  had  shut  off  the  stop- 
cock at  night  so  as  to  prevent  water  from  flowing  into  the  boiler,  in 
determining  whether  or  not  the  defendant  exercised  due  care  prior 
to  the  accident.* 

§  2128.  Danger  from  Fire.  The  juiy  are  instructed,  that  the 
question  of  negligence  or  diligence  depends  upon  and  partakes  of  the 
surrounding  circumstances  peculiar  to  each  case,  and  in  this  case,  if 
the  jury  believe,  from  the  evidence,  that  defendant's  mill,  as  it  was 


that  more  than  three  years  before 
had  been  placed  by  this  court  upon 
such  statute  of  1S72  and  upo^  said 
section  14,  and  intended  that  in 
case  of  injuries  occasioned  by  any 
willful  violation  of  the  act  of  1879, 
or  by  willful  failure  to  comply  with 
any  of  its  provisions,  the  right  of 
recovery  should  not  depend  upon 
the  exercise  of  ordinary  care  by 
the  person  injui-ed,  or  the  deceased, 
or  be  precluded  by  contributory 
negligence.  This  view  of  the  law 
as  a  matter  of  course  is  based  on 
the  ground  that  there  has  been  a 
willful  failure  to  comply  with  the 
requirements  of  the  statute.  If  the 
statute  has  been  complied  with,  or 
if  the  injury  is  not  occasioned  by 
the  willful  violation  or  willful  fail- 
ure denounced  by  the  statute  but 
by  some  other  alleged  negligence 
of  the  mine  owner,  and  the  person 
injured  or  killed  fails  to  exercise 
ordinary  care,  then  there  will  be 
no  right  of  action." 

4 — Kahn  v.  Triest-Rosenberg  Cap 
Co.,   139   Cal.    340,   73   Pac.   164   (167). 

"The  defendant  was  entitled  to 
the  instruction  as  asked.  The  care 
due  from  the  defendant  is  not  to 
be  measured  by  its  conduct  after 
the  overflow  had  demonstrated  the 
necessity  of  further  precautions, 
but  by  the  conditions  existing  at 
and  before  the  time  of  the  occur- 


rence. If  both  instructions  had 
been  before  them,  the  jury  might 
have  been  misled  to  suppose  that, 
although  not  to  be  considered  as 
a  confession  of  negligence,  it  was 
evidence  of  some  weight,  to  be  con- 
sidered by  them  for  some  purpose. 
But  they  knew  nothing  of  the  in- 
struction refused,  and  were  not  re- 
quired to  attempt  to  distinguish 
between  the  two.  They  were  cor- 
rectly instructed  that  the  subse- 
quent precaution  was  not  to  be  con- 
sidered as  a  confession  of  previous 
neglect.  If  the  fact  could  be  con- 
sidered as  of  any  weight,  it  would 
be  because  of  the  inference  arising 
therefrom  that  the  decision  to  turn 
off  the  stopcock  in  the  future  was 
made  from  the  consciousness  that 
the  failure  to  do  so  in  the  past  was 
neglect,  and  in  that  respect  it 
would  be  a  tacit  confession,  evi- 
denced by  conduct.  A  jury  is  not 
expected  to  indulge  in  metaphysical 
distinctions  so  minute  as  this.  The 
instruction  given  would  be  under- 
stood by  the  ordinary  mind  as  sub- 
stantially a  direction  to  disregard 
the  fact  in  question.  This  is  all 
that  the  court  was  required  to  do, 
and  it  is  not  material  that  it  was 
not  done  in  language  as  accurate 
and  precise  in  the  instruction  given 
as  in  that  asked." 


1404  FORMS  OF  INSTRUCTIONS.  [§  2129. 

accustomed  to  be  used,  endangered  the  buildings  of  the  plaintiff  by 
reason  of  throwing  out  fire  and  sparks  from  the  chimney,  then  it  be- 
came the  duty  of  the  defendant  to  avail  himself  of  some  such  well 
known  apparatus,  or  other  means,  to  prevent  the  escape  of  s^aarks  and 
fire  from  the  chimney  as  experience  had  shown  to  be  reasonably  ade- 
quate for  that  pui-pose;  whether  such  apparatus  or  means  was  gen- 
erally used  on  such  chimneys  or  not,  provided  the  jury  believe,  from 
the  evidence,  that  apparatus  had  been  discovered  and  was  generally 
known  to  persons  engaged  in  the  same  or  similar  business  which 
would  have  lessened  the  danger,  and  were  in  their  nature  and  opera- 
tion reasonably  susceptible  of  being  ai^plied  to  chimneys  of  the  kind 
used  by  the  defendant.^ 

§  2129.  Fire — Negligently  Setting — Injury  to  Trees.  If  you  find 
from  the  evidence  that  the  defendant,  either  by  himself  or  his  servant, 
acting  within  the  scope  of  his  employment,  negligently  set  out,  or 
negligently  suffered  to  escape,  the  fire  which  ran  upon,  burned  over, 
and  injured  plaintiff's  jDremises,  and  that  such  injury  was  the  proxi- 
mate consequence  of  such  negligent  act  or  omission,  then  you  should 
find  for  the  jDlaintiff,  and  award  him  just  compensation  for  the  loss 
which  he  has  sustained.*^ 

§  2130.  Liability  for  Damage  from  Ditch  Built  on  One's  Own 
Land.  If  the  ditch  was  on  defendant's  land,  and  he  used  reasonable 
and  ordinary  care  to  guard  against  injury  to  plaintiff,  he  is  not  liable. 
If  the  embankment  washed  out  from  natural  causes,  the  defendant 
could  not  reasonably  have  foreseen  and"  guarded  against,  he  is  not 
liable,  if  the  dike  was  on  his  own  land.'^ 

§  2131.  Logs — Degree  of  Care  Required  in  Driving.  There  is  no 
absolute  test  fixed  by  law  by  which  the  measure  of  care  required  in  a 
particular  case  can  be  determined.  The  only  standard  is  to  be  found 
in  the  carefully  considered,  dispassionate  judgment  of  the  jury  in 
view  of  all  the  circumstances  of  the  ease.  The  question  always  is, 
what  would  a  person  of  average  prudence  do  under  like  circum- 
stances ?  If  such  a  person,  placed  in  exactly  the  same  situation  as  the 
party  whose  conduct  is  in  question,  possessed  of  the  same  knowledge 
as  he  had  of  all  the  surrounding  facts  and  circumstances,  including 
the  danger  of  resultant  injury  and  the  means  of  avoiding  it,  would 
or  might  have  done  as  such  person  did,  he  is  free  from  fault  and  not 
responsible  for  any  accident  or  injury  that  may  happen. 
Did  the  lumber  company,  their  officers,  agents  and  servants  (because, 
being  a  corporation,  they  could  act  only  by  or  through  their  officers, 
agents  and  servants),  exercise  ordinary  care  in  running  their  logs, 

5— Hoyt  V.  Jeffers,  30  Mich.  181.  material  to   the  issue  and  the  evi- 

6— Wifkham    v.    Wolcott,    1    Neb.  denoo,  and  not  covered  by  the  seii- 

(unrjfj  160,  95  N.  W.  366.  eral  charge,  and  hence  should  havo 

7— Neumeister     v.     Goddard,     125  been  given.    Campbell  v.  Campbell, 

Wis.   82.   103   N.    W.    241    (244).  54  Wis.  90  (98),  11  N.  W.  4r)6:  Curtis 

"Wo  are  constrained  to  hold  that  v.  C.  &  N.  W.   R.  Co.,  95  Wis.  470, 

this    instruction    should    have    been  70  N.   W.   665." 
given.    It  was  applicable  to  a  point 


§2132.]  NEGLIGENCE— MISCELLANEOUS.  1405 

and  pei-mitting  them  to  accumulate  in  the  jam  and  elsewhere  in  the 
yard,  or  in  failing  to  remove  them  prior  to  the  washout?  On  this 
question  you  will  consider  the  question  of  the  logs,  the  number  of 
them,  the  extent  of  the  jam,  what  effect,  if  any,  the  logs  had,  the 
means  of  preventing  their  accumulation,  the  stage  of  the  water,  the 
currents  of  the  river;  in  short,  all  the  considerations  urged  upon  you 
by  counsel  upon  both  sides,  and  all  the  evidence  in  the  case.  And  on 
this  question,  as  upon  the  like  question  in  the  case  of  V.  and  M.,  j^ou 
will  be  likely  to,  and  properly  may,  consider  what  you  would  or  would 
not  have  done  had  you  been  placed  in  their  situation.  If  you  find  that 
they  did  exercise  ordinary  care ;  that  pei'sons  of  average  prudence 
placed  in  their  situation,  i^ossessed  of  their  knowledge  and  means  of 
knowledge  of  the  proper  management  and  driving  of  logs,  their  effect 
upon  the  dam,  and  of  all  the  other  circumstances,  would  or  might 
have  done  as  they  did,  both  in  permitting  the  logs  to  accumulate,  and 
in  failing  to  remove  them, — you  will  return  a  verdict  for  the  lumber 
company.  If  you  find  that  they  did  not  exercise  ordinai-y  care  in 
thus  allowing  the  logs  to  accumulate  or  in  failing  to  remove  them,  and 
that  they  contributed  to  the  washout,  your  verdict  will  be  for  the 
plaintiffs.® 

§  2132.  Defective  Scaffold — Elements  That  Must  Be  Proven — ^Bur- 
den of  Proof — Preponderance.  The  jury  are  further  instructed  that 
the  burden  of  proof  in  this  case  is  upon  the  plaintiff,  and  before  he 
can  recover  on  account  of  the  alleged  negligence  on  the  part  of  the 
defendants  in  providing  or  having  for  use  a  weak,  defective  or  in- 
sufficient plank  as  a  scaffold,  it  is  necessaiy  for  the  plaintiff  to  prove, 
by  a  preponderance  of  the  evidence,  (1)  that  the  plank  was  insuffi- 
cient, weak  or  defective,  and  that  the  accident  happened  as  the  re- 
sult of  such  weakness,  insufficiency  or  defect;  (2)  that  the  defendants 
had  notice  or  knowledge  of  such  insufficiency,  weakness  or  defect,  or 
that  they  might  have  had  notice  thereof  by  the  exercise  of  ordinary 
care;  (3)  that  the  plaintiff  did  not  know  of  such  insufficiency,  weak- 
ness or  defect,  and  that  he  had  no  means  of  knowledge  thereof  equal 
to  those  of  the  defendants;  and  (4)  that  he  was  in  his  relation  to 
the  accident  in  the  exercise  of  ordinai-y  care.  If  the  plaintiff  fails 
to  prove  by  a  preponderance  of  the  evidence  any  one  of  these  four 
propositions,  the  jury  should  find  for  the  defendants,  even  though 
they  find  that  G.  was  foreman,  and  gave  directions  to  use  plank  in 
question.^ 

8— Town   of  Monroe   v.   Connecti-  repeated  in  substantially  the  same 

cut  R.   L.   Co.,  68  N.   H.  89,   39  Atl.  language   in   Hines   Lumber   Co.    v. 

1019   (1021).  Ligas,    172    111.    315,    50    N.    E.    225; 

9— Armour  v.   Brazau,  191  111.  117  Howe   v.    Mendaris,    183   111.   288,    55 

(126),  60  N.  E.  904,  reversing  93  111.  N.  E.  724.  and  Lake  Erie  &  W.  R. 

App.   235.  Co.  V.   Wilson,  189  111.  89.  59  N.  E. 

"The    main    principles    stated    in  573.    As  applied  to  the  facts  in  this 

this    instruction    were    declared    to  case,   there  has  been  no   departure 

be    the    law    in    Goldie    v.    Werner,  from  the  rule  stated  in  the  instruc- 

151  111.  551,  38  N.  E.  95,  where  they  tion,     and     it     should     have     been 

were  quoted  from  §  414  of  Wood  on  given." 

the  Law  of  Masters  and   Servants  See  Negligence — Master  and  Serv- 

and  they  have  been  adhered  to  and  ant,  Chapter  LXIIL 


1406  FORMS  OF  INSTRUCTIONS.  [§  2133. 

§  2133.     Hogs — Infection    of    from    Following    Other    Hogs.      The 

court  instructs  the  jury  that  if  plaintiff,  in  taking  the  hogs  in  con- 
troversy among  his  own  hogs,  failed  to  use  ordinary  care  in  so  doing, 
or  negligently  and  carelessly  permitted  them  to  come  in  contact  with 
and  run  with  his  well  hogs,  plaintiff  cannot  recover  for  loss  by  reason 
of  the  infection  of  his  hogs  from  the  hogs  in  controversy,  if  so  in- 
feeted.io 

10— Brush     v.     Smith.     Ill     Iowa     217.  82  N.  W.  467  (468). 


CHAPTER   LXXIII. 

NEGOTIABLE  INSTRUMENTS. 

See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


§  2134.  Presumptions  in  favor  of  the 
holder. 

§  2135.  Evidence  required  for  recov- 
ery. 

§  2136.  Usury. 

§  2137.  Joint  liability. 

§  2138.  Gift. 

§  2139.  Action  on  bond — Damages — 
Recoupment. 

§  2140.  Balance  on  account — Credits. 

§  2141.  Liability  of  principal  and 
surety. 

§  2142.  Accepting  of  draft  without 
bill  of  lading. 

§  2143.  Execution  and  delivery — Bur- 
den of  proof. 

f'  2144.  Genuineness  of  signature — 
Credibility  of  witnesses — 
Wliat  must  be  proved — 
Bona  fide  holder. 

§  2145.  Receipt  of  payment — Gen- 
uineness of  signature. 

5  2146.  Fraud  — Mistake  — Unable  to 
read — Relying    on    another. 

§2147.  Signature  obtained  through 
artifice  or  fraudulent  rep- 
resentations. 

§  2148.  Must  use  reasonable  care  to 
avoid   imposition. 

§  2149.  Fraud  may  be  waived. 

§  2150.  Defendant  inducing  plaintiff 
to  buy  note — Estoppel. 

§  2151.  Duress — Threats  of  imprison- 
ment. 

§  2152.  Duress — Abuse  of  criminal 
process  —  Lawful  imprison- 
ment not  duress. 

§  2153.  Duress — Ratification  of  void- 
able note. 

§  2154.  Want  of  consideration. 

§  2155.  "Worthless"  and  "doubtful" 
notes. 

S  2156.  Settlement  of  old  debt— Co  i- 
sideration. 

§  2157.  Illegal   consideration. 

§  2158.  Void  consideration — Sale  of 
liquor  on  Sunday — Note  ex- 
ecuted on  Sunday. 

§  2159.  Consideration  —  Forbearing 
suit  on  note. 

§  2160.  Consideration— Settlement   of 

criminal   charge. 
§  2161.  Accommodation    paper. 


§  2162.  Payment— Burden  of  proof. 

§  2163.  Payment — Deception  as  to 
ownership  of  note. 

§  2164.  Protest  —  Demand  of  pay- 
ment. 

§  2165.  Notes  given  in  payment  for 
property. 

§  2166.  Assignee  after  maturity. 

§  2167.  Assignee  with  notice  of  sus- 
picious facts. 

§  2168.  What  constitutes  innocent 
holder. 

§  2169.  Bona  fide  holder— What  viti- 
ates note  in  his  hands. 

§  2170.  Assignee  with  notice  from  an 
assignee  without  notice. 

§2171.  Innocent  purchaser  —  Taken 
as  security  for  pre-existing 
debt. 

§  2172.  Note  taken  in  payment  or 
part  payment. 

§  2173.  Evidence  necessary  to  over- 
come  presumption. 

§  2174.  Note  stolen  or  wrongfully  ob- 
tained. 

§  2175.  Endorsement  in  blank. 

§  2176.  Endorsement  before  maturity 
Innocent  holder. 

§  2177.  Endorsement  —  Intention  — 
Liability. 

§  2178.  Liability  of  endorser— Due 
diligence — Bringing  suit. 

§  2179.  Return  of  the  officer  not  con- 
clusive. 

§  2180.  Extension  of  time. 

§  2181.  Endorsement  constitutes 

prima  facie  liability. 

§  2182.  New  party — New  consider- 
ation. 

GUARANTORS   AND   SURETIES. 

§  2183.  Guarantor  —  Liability  gen- 
erally. 

§  2184.  When  an  endorser  becomes  a 
guarantor — Illinois. 

§  2185.  Guarantor  liable  until  note  Is 
paid— Delay  will  not  re- 
lease. 

§  2186.  Release  of  guarantor— Ex- 
tending time — Surety. 

§  2187.  Consideration    for    guaranty. 

§  2188.  Insolvency  may  be  proved 
by  other  evidence — Return 
of   officer  not   conclusive 


1407 


1408 


FORMS  OF  INSTRUCTIONS. 


[§  2134. 


i  2189  Guaranty  —  Acceptance  — 
Knowledge   thereof. 

i  2190.  Co-sureties— Partners. 

t  2191.  Lien  of  surety— Title  to 
goods. 


§  2192.  Lien  of  surety— Bills  of  lad- 
ing held   by  title  to  goods. 

§  2193.  Possession  of  personal  prop- 
erty evidence  of  ov/nership. 


2134.  Presumptions  in  Favor  of  the  Holder,  (a)  The  court  in- 
structs the  jury  that  the  possession  of  a  note,  indorsed  in  blank, 
unaccompanied  by  any  declaration  or  other  evidence  in  regard  to  it,  is 
prima  facie  evidence  that  the  holder  is  the  owner  of  it;  that  he  took 
it  for  value  before  it  became  due,  and  in  the  regular  course  of 
business.^ 

(b)  The  jury  are  instructed  that  the  indorsee  of  a  promissory 
note,  in  the  absence  of  proof  to  the  contrary,  is  presumed  in  law  to 
have  taken  it  in  due  course  of  trade  before  maturity,  for  value  and 
in  good  faith. 

(c)  When  a  note  is  indorsed  without  date,  the  presumption  of  law 
is,  in  the  absence  of  proof  to  the  contrary,  that  it  was  indorsed  before 
it  became  due. 

(d)  When  the  assignment  of  a  promissory  note  is  without  date, 
the  law  raises  a  presumption  that  the  transfer  was  made  before  the 
maturity  of  the  note,  and  to  rebut  this  presumption  the  burden  of 
proof  is  upon  the  person  alleging  that  the  note  was  assigned  after 
maturity.- 

§  2135.  Evidence  Required  for  Recovery,  (a)  The  court  in- 
structs the  jury  that  if  you  believe  from  the  evidence  in  this  case  that 
the  defendants  executed  and  delivered  to  A.  in  his  lifetime,  the 
notes  mentioned  and  described  in  the  declaration,  and  further  believe 
from  the  evidence  that  said  notes  have  not  been  jDaid  by  the  defend- 
ants or  either  of  them  to  the  said  A.  during  his  lifetime,  or  to  the 
plaintiff  since  his  decease,  then  you  should  find  for  the  plaintiff.^ 

(b)  If  you  find  from  the  evidence  that  the  defendant  signed  the 
note  sued  upon  in  this  action,  and  that  the  plaintiff  jDurchased  it 
before  maturity,  you  will  find  for  the  plaintiff.* 

8  2136.     Usury.     The  court  instructs  the  jury  that  if  you  find  from 

the  evidence  that  on  ,  Y.  executed  twelve  notes  in  the  sum 

of  twenty-one  dollars  each,  payable  in  one,  two,  three,  foux',  five,  six, 
seven,  eight,  nine,  ten,  eleven,  and  twelve  months,  respectively  from 
date,  to  the  order  of  H.,  in  consideration  of  money  bori-owed  by  Y. 
at  that  time,  and  that  nine  of  said  notes  were  secured  by  and 
described  in  the  mortgage  in  evidence,  and  that  said  Y.  delivered  said 

1— Pettee  v.  Prout,  3  Gray  (Mass.)  2— Richards  v.  Betzer,  53  111.  466. 
502;  Warren  v.  Gilman,  15  Me.  70; 
Dugan  V.  U.  S.,  3  Wheat.  172;  Kel- 
ly V.  Ford,  4  la.  140;  Goodman  v. 
•Simoiid.s.  20  How.  343;  Cook  v. 
Hclni.s,  5  Wis.  107;  F.'irwell  v. 
Myens,  36  111.  510;  Stoddard  v.  Bur- 
ton,  41   la.   582. 


3 — Robison  v.  Bailey,  113  111.  App. 
123   (126). 

4— First  Nat.  Bank  v.  Carson,  30 
Neb.   104,  46  N.  W.  276   (278). 

"That  this  request  stated  the 
law  correctly  cannot  be  ques- 
tioned." 


§  2137.] 


NEGOTIABLE  INSTRUMENTS. 


1409 


twelve  notes  to  J,  K.  on  said  day,  then  such  transaction  is  usurious, 
and  the  mortgage  in  evidence  is  void,  and  in  that  case  plaintiff 
cannot  recover  and  your  verdict  must  be  for  the  defendants.^ 

§  2137.  Joint  Liability.  The  jury  are  instructed  that  where  two 
or  more  persons  are  sued  and  they  answer  the  complaint  separately, 
and  one  makes  a  defense  which,  if  sustained,  will  defeat  the  entire 
right  of  recovery,  the  rule  of  law  is  that  if  the  separate  answer  by 
one  of  several  defendants  goes  to  the  merits  of  the  ease,  and  is  such 
that  proof  of  it  will  defeat  a  recovery  by  the  plaintiff,  it  will  inure 
to  the  benefit  of  the  other  defendants.^ 


5 — Kreibohm   v.    Yancey,   154   Mo. 
67,  55  S.  W.  260  (263). 

"The  test  of  usury  in  a  contract 
is  whether  it  would,  if  performed, 
result  in  securing  a  greater  rate  of 
profit  on  the  subject-matter  than 
is  allowed  by  law.  Webb.  Usury 
§  29.  'The  form  of  the  agreement 
is  immaterial,  since  any  shift  or 
device  by  which  illegal  interest  is 
arranged  to  be  received  or  paid  is 
usurious.'  Id.  §28.  'The  true  con- 
struction of  statutes  regulating  in- 
terest upon  the  loan  or  forbearance 
of  money,  goods  or  things  in  action 
is  that  no  greater  rate  of  compen- 
sation than  that  prescribed  shall 
be  taken  upon  a  loan  of  forbear- 
ance of  money  directly  or  indirect- 
ly by  way  of  a  loan  of  property  or 
in  any  other  manner,  no  matter  how 
disguised.'  27  Am.  &  Eng.  Enc. 
Law  p.   935. 

As  was  well  said  by  Treat  J.  in 
Ferguson  v.  Sutphen,  8  111.  547,  566 
and  567  'The  law  against  usury  is 
founded  in  principles  of  public 
policy, — principles  that  have  been 
for  ages  recognized  and  almost  uni- 
versally adopted.  Without  inquir- 
ing into  the  policy  or  justice  of  the 
statutes  for  the  prevention  of 
usury,  it  is  the  imperative  duty  of 
the  judicial  tribunals  faithfully  to 
execute  them.  If  there  is  any  in- 
justice or  impolicy  in  these  enact- 
ments, the  fault  rests  with  the  leg- 
islature, and  it  must  provide  the 
proper  corrective  and  not  the 
courts.  Whenever  the  injured  party 
invokes  the  aid  of  the  courts,  and 
presents  a  case  clearly  within  the 
statute,  there  should  not  be  the 
least  hesitation  in  applying  the  ap- 
propriate remedy.  The  only  effect- 
ual mode  of  discouraging  and  pre- 
venting the  practice  of  usury  is  by 
a  rigid  enforcement  of  the  provi- 
sions of  the  statute.  If  a  case  comes 
within  the  mischief  of  the  statute. 
It  should  be  held  to  be  within  the 
remedy.  A;id  this  seeii^s  to  be  the 
89  y 


principle    on    which    these   statutes 
have    everywhere    been    construed 
and  administered.     The  real  injury 
in  every  case  is  whether  there  has 
been  a  borrowing  and  lending  at  a 
greater    rate    of    interest    than    the 
law  allows,  and  this  becomes  pure- 
ly  a  question   of  fact   to   be  deter- 
mined   from    all   the   circumstances 
of    the    particular    case.      The    law 
looks   at  the  nature  and  substance 
of  the   transaction   and   not   to   the 
color  or  form  which  the  parties  in 
their  ingenuity   have  given   it.     No 
imaginable    act    or    contrivance    to 
cover    up    and    conceal    the    usury 
will  avail  the  parties.  They  will    not 
be  permitted  successfully  to  evade 
the  provisions  of  the  statute  by  any 
conceivable    scheme    or    expedient. 
The      courts      will      follow      them 
through    all    their    shifts    and    de- 
vices and  ascertain   the  true  char- 
acter and  design  of  the  transaction. 
And   if,   upon  such  investigation  it 
appears     that    there   was    in    sub- 
stance, a  loan  at  an  illegal  rate  of 
interest,    no    matter   what    form   or 
shape   the  contract  has  been  made 
to   assume,    it   will   be    declared   to 
be  usurious  and  the  proper  remedy 
applied.'  " 

6— Brant  v.  Barnett,  10  Ind.  App. 
653,    38   N.    E.   421    (422). 

"We  think  counsel  are  mistaken 
in  the  construction  placed  by  them 
on  the  instruction.  The  court  did 
not  tell  the  jury  that  if  the  appel- 
lee,   ,  at  the  time  she  signed 

the  note,  was  a  married  woman, 
and  executed  it  as  surety  for  the 
maker,  that  would  release  the  ap- 
pellee X  from  liability;  but  the 
court  simply  told  them  that,  if  one 
of  the  persons  who  executed  the 
note  established  a  defense  which 
would  defeat  appellant's  right  to 
recover  at  all,  such  defense  inured 
to  the  benefit  of  all  the  other  de- 
fendants, whether  they  individually 
made  such  defense  or  not.  The  in- 
struction states  the  law  correctly. 


1410  FORMS  OF  INSTRUCTIONS.  [§2138. 

§  2138.  Gift.  The  court  instructs  the  jury  that  possession  of  the 
note  by  the  payee  at  the  time  of  his  death  was  evidence  tending  to 
prove  that  there  had  been  no  gift  of  the  note.'^ 

§  2139.  Action  on  Bond — Damages — Recoupment,  (a)  You  are 
charged  that  under  the  terms  of  this  contract  a  bond  has  been  given, 
and  that  bond,  in  substance,  guarantees  the  character  of  this  work 
for  the  term  of  five  years,  and  that,  if  there  is  anything  that  has 
occurred  after  the  acceptance  that  shows  the  work  didn't  hold  out 
under  this  guaranty,  that  suit  should  be  brought  upon  this  bond. 

(b)  I  charge  you  that  whatever  damages,  if  there  are  any,  under 
the  evidence,  this  defendant  can  recoup  here. 

(c)  I  charge  you  that  the  defendant  in  this  ease  is  at  liberty  to 
plead  that  recoupment  here,  and  waive  his  remedy  upon  the  bond,  if 
he  sees  fit. 

(d)  So,  under  this  issue,  if  you  shall  find  that  there  has  been  a 
breach  of  this  contract  on  the  part  of  the  iDlaintift,  and  the  defendant 
has  suffered  damage  from  it,-  vou  may  award  that  damage  to  the 
defendant,  as  against  the  claim  of  the  plaintiff,  even  if  it  overcomes 
the  amount  of  the  plaintiff's  claim,  and  render  judgment  for  the 
balance   to  the  defendant,  if  you  shall  find   anything  of  that  kind.^ 

§  2140.  Balance  on  Account — Credits.  This  is  a  question  of  ac- 
counting and  bookkeeping.  You  have  heard  the  evidence  in  this  case, 
and  you  will  have  to  ascertain  from  it,  as  best  you  can,  the  amount 
of  money  that  is  due  to  the  plaintiff  here.  That  the  defendant  owes 
the  plaintiff  is  admitted  by  the  defendant;  but  the  question  is,  how 
much"?  The  defendant  claims  that  the  amount  claimed  by  the  plaintiff 
is  excessive,  and  that  it  is  entitled  to  certain  credits  thereon,  in  con- 
sequence of  demands  which  they  had  as  against  C,  who  was  the 
payee  of  the  note  transferred  to  the  plaintiff.  If  you  should  find 
from  the  evidence  that  any  of  these  items  which  counsel  have  called 
to  your  attention  were  designed  and  intended  at  the  time  to  have 
been  payments  on  account,  or  to  the  credit  of  the  note,  and  that 
such  items  were  agreed  upon  and  determined  before  the  date  of  the 

indorsement  of  the  note  to  the  plaintiff,  which  was  ,  they  would 

be  entitled  to  have  them  credited  upon  the  amount  due  upon  the 
note — principal  and  interest.  If  you  should  conclude  that  they  are 
not  entitled  to  any  of  these  credits,  then  it  would  be  your  simple 
duty  to  ascertain  the  amount  of  principal  and  interest  due,  after 
deducting  the  amount  of  the  cash  payments  which  are  contained  on 
the  back  of  the  note." 

Stapp  v.   Davis,   78  Inrl.   128;    Moyer  8— "This     instruction       is     sound 

V.    Urand.    102    Ind.    301,    26    N.    E.  law."     Nclsnn    Mfs-    Co.    v.    Shreve, 

12r);    for,    if    the    appellant    had    no  94  Mo.   App.  518,   68  S.  W.  376  (377). 

cause  of  action,  he  was  not  "entitled  9 — Love  v.   Anchor    Raisin    Vino^- 

to  recover."  yard    Co.,   —   Cal.    — ,   45   Pac.    1044 

7— Oelke  v.   Thais,  70  Neb.  465,  97  (1045). 
N.   W.   588. 


§2141.]  NEGOTIABLE  INSTRUMENTS.  1411 

§  2141.  Liability  of  Principal  and  Surety.  The  court  instructs  the 
jury  that  it  makes  no  dift'erence  whether  the  defendant,  I.,  signed 
the  note  in  question  as  principal  or  as  surety;  his  liability  to  pay 
the  note  would  be  the  same  in  either  case,  if  you  find  from  the  weight 
of  the  evidence  he  did  sign  the  note.^° 

§2142.  Accepting  of  Draft  Without  Bill  of  Lading.  If  you  be- 
lieve, from  the  evidence,  that  the  defendants  agreed  to  honor  the 
drafts  of  G.  &  W.  for  the  cost  of  cattle  consigned  to  the  defendants, 
and  that  the  draft  herein  sued  on  was  drawn  for  the  cost  of  cattle  in 
pursuance  of  said  agTeement,  and  that  said  cattle  were  consigned  to 
the  defendants,  then  you  will  find  the  issues  in  this  case  for  the 
plaintiff." 

§  2143.  Execution  and  Delivery — Burden  of  Proof,  (a)  The 
court  instructs  the  jury  that  the  answer  of  the  said  defendant  in  this 
action  is  a  general  denial,  and  that  the  pleadings  put  in  issue  the 
execution  and  delivery  of  the  note  sued  on  herein;  that  is,  the  burden 
of  the  proof  is  on  the  plaintiff  to  prove  that  said  B.  made,  signed 
and  delivered  the  note  sued  on  to  the  plaintiff;  and  that,  unless  you 
believe  from  the  evidence  before  you  that  said  B.  did  make  and  sign 
and  deliver  said  note  to  the  said  iDlaintiff,  your  verdict  should  be  for 
the  said  defendant  and  against  the  plaintiff. 

(b)  The  court  instructs  the  jury  that  in  an  action  on  a  promis- 
sory note  in  this  court  an  answer  on  the  part  of  the  defendant  in 
such  an  action  consisting  of  a  general  denial,  is  a  denial  of  the  execu- 
tion and  delivery  of  the  said  note,  and  throws  back  upon  the  plaintiff 
the  duty  and  burden  of  proving  by  a  preponderance  of  the  evidence 
that  the  note  is  genuine  and  was  executed  and  delivered  by  said  B. 
to  the  said  plaintiff,  and  unless  you  believe  from  the  evidence  before 
you  that  the  said  B.  did  make  and  deliver  the  said  note  to  the  said 
plaintiff  your  verdict  should  be  in  favor  of  said  defendant  and 
against  the  plaintiff. 

10 — Ingram     v.     Reiman,      81    111.  City,    the    bank    knew    nothing-    of 

App.  123  (125).  the    diversion    of    the    consignment 

11— Hall  V.  First  Nat'l  B'k  of  Em-  and  the  substitution  of  o.her  cattle 

poria,  13.3  III.  234  (241),  24  N.  E.  546.  In  their  place  or  stead,  and  cannot 

"It  cannot  be  fairly  said  that  the  be  affected  thereby,  whether  the 
instruction  assumes  any  fact.  If  diversion  was  accidental  or  by  de- 
the  defendants  agreed  to  accept  the  sign.  As  said  by  the  Appellate 
draft  before  it  was  drawn  for  the  Court:  'Where  a  party  agrees  to 
cost  of  the  cattle,  and  it  was  accept  and  pay  a  draft  for  cattle 
drawn,  and  the  cattle  were  con-  bought  and  consigned  to  him,  with- 
signed  to  the  defendants,  they  out  requiring  a  bill  of  lading  to  be 
would  be  liable  therefor  as  fully  attached,  he,  and  not  the  party 
as  though  they  had  formally  ac-  who  in  good  faith  advances  money 
cepted  the  draft  upon  its  presenta-  on  the  draft  relying  on  such  prom- 
tion.  Nor  can  the  contention  that  ise  to  accept  and  pay,  takes  the  risk 
the  cattle  for  which  the  draft  was  of  the  stock  being  diverted  while 
drawn  never  reached  defendants,  in  transit  either  by  accident  or  de- 
but that  an  inferior  lot  was  shipped  sign.'  It  is  apparent  also  that  ap- 
to  them,  avail  as  against  the  pellants  suffered  no  injury  jn  re- 
plaintiff  in  this  case.  If  it  be  true,  spect  of  this  particular  shipment 
as  it  probably  is,  that  the  cattle  as  the  cattle  realized  a  sum  in  ex- 
against  which  the  draft  was  drawn  cess  of  the  draft." 
ultimately    were    sold     at    Kansas 


1412  FORMS  OF  INSTRUCTIONS.  [§  2144. 

(c)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence before  you  that  the  promissory  note  in  controversy  was  never 
delivered  by  B.  in  his  lifetime,  nor  by  the  duly  appointed  executor 
of  his  estate  after  his  death,  then  you  are  instructed  that  it  is  your 
duty  to  find  your  verdict  in  favor  of  the  said  B.  estate  and  against 
the  plaintiff. 

(d)  The  court  instructs  this  jury  that  the  burden  of  proof  is  on 
the  plaintiff  to  prove  by  a  preponderance  of  the  evidence  that  this 
note  in  controversy  is  the  true  genuine  note  of  said  B.  deceased;  that 
it  was  delivered  to  the  plaintiff  G.  by  said  B.,  deceased,  in  his  life- 
time; and  if  the  plaintiff  has  failed  to  so  prove,  then  it  is  your  duty 
to  find  your  verdict  in  favor  of  the  said  defendant  estate  and  against 
the  said  plaintift'.^^ 

§  2144.  Genuineness  of  Signature — ^Credibility  of  Witnesses — 
What  Must  Be  Proved — Bona  Fide  Holder,  (a)  Witnesses  have 
testified  as  to  their  opinion  respecting  the  genuineness  of  the  signature 
to  the  note  in  suit,  based  upon  their  acquaintance  with  and  knowledge 
of  defendant's  genuine  signature.  You  will  carefully  consider  the 
same,  and  give  it  the  weight  and  value  it  is  justly  entitled  to,  taking 
into  account  the  experience  and  knowledge  of  the  witnesses  about  the 
matter  concerning  which  the  opinion  is  given.  Such  evidence,  how- 
ever, is  regarded  as  unsatisfactory.  It  is,  in  fact,  the  result  of  a 
comparison  of  the  signature  in  question  with  the  genuine  signature 
of  the  defendant  as  the  same  is  remembered  and  impressed  upon  the 
mind  of  the  witness  whose  opinion  is  so  given.  Such  evidence  ought 
not  to  overthrow  positive  and  direct  testimony  of  a  credible  witness 
who  testifies  from  personal  knowledge.  It  should  not  be  disregarded 
in  any  case  without  good  and  sufficient  reasons,  such  as  would  entitle 
you  to  disregard  other  evidence.  In  case  of  a  conflict  between  the 
evidence  of  witnesses  about  the  matter  on  which  the  opinion  is  given, 
it  is  important  as  corroborative  evidence. ^^ 

(b)  The  jury  are  instructed  that  in  determining  the  issue  whether 
or  not  the  signature  *'J."  appearing  upon  the  notes  in  evidence  is 

the  genuine  signature  of  the  president  of  the  Association 

at  the  date  of  the  said  notes,  you  ai'e  not  bound,  by  the  fact  that  the 
witness  J.  is  the  person  whose  signature  is  under  consideration,  to 
consider  the  testimony  of  said  J.  himself  on  this  issue  as  conclusive 
or  controlling;  but  you  must  consider  tlie  testimony  of  said  J.,  and 
that  of  each  and  every  other  witness,  bearing  upon  this  issue,  and 
give  to  such  testimony  and  all  the  evidence  such  weight  and  credi- 
bility only  as,  in  your  judgment,  and  under  your  oath  as  jurors,  you 
think  the  same  entitled  to.     And  in  determining  upon  your  verdict 

12 — Garidy    v.    Bissoll's    Estate,    5  of  the  instruction  in  the  parti;"ulars 

Nfb.  (unof.)  184,  97  N.  W.  632  (634).  of  which  complaint  is  made,  and,  if 

13 — Bruner  v.  Wade,  84  la.  698,  51  a  mnro   specific   statement  was   de- 

N.  W.  251  (2.52).  sired,  it  should  have  been  asked. 

No  error  is  apparent  on  the  face 


§2145.]  NEGOTIABLE  INSTRUMENTS.  1413 

you  must  consider  all  the  evidence,  and  every  fact  and  circumstance 
in  evidence  before  you;  and  if,  after  fully  considering  the  testimony 
of  all  the  witnesses,  and  all  the  facts  and  circumstances  developed  by 
the  evidence,  you  are  reasonably  satisfied  that  said  J.,  as  president  of 
said  association,  did  sign  the  name  *'J."  to  said  notes,  then  your 
verdict  must  be  for  plaintiffs. i'* 

(c)  Under  the  issues  as  joined,  it  is  incumbent  upon  the  plaintiff 
•to  prove,  by  a  preponderance  of  the  evidence,  that  the  note  in  suit 
was  executed  by  the  defendant  as  alleged,  that  the  plaintiff  is  the 
owner  of  the  same  and  that  said  note  is  now  due  and  unpaid. 

(d)  If  you  believe  from  the  evidence  that  the  note  in  controversy 
was  not  executed  by  the  defendant — that  is,  that  he  never  signed  the 
same,  or  authorized  his  name  to  be  placed  thereto  by  any  one,  but 
that  his  signature  was  placed  to  said  note  without  his  knowledge  or 
consent — then  you  should  find  for  the  defendant,  although  such  note 
may  have  passed  into  the  hands  of  a  bona  fide  holder  before 
maturity.^^ 

§  2145.  Receipt  of  Payment — Genuineness  of  Signature,  (a)  The 
jury  are  instructed  as  a  matter  of  law  that  the  possession  by  the 
plaintiff  of  uncancelled  promissory  notes,  is  prima  facie  proof  that 
such  notes  remain  unpaid,  and  the  burden  of  proving  the  payment  of 
such  notes  is  ujDon  the  person  alleging  they  have  been  paid;  and 
unless  the  jury  believe  defendant  has  proven  by  a  preponderance  of 
the  evidence,  the  payment  of  the  notes  offered  in  evidence  therein, 
verdict  must  be  for  the  plaintiff. 

(b)  It  is  for  the  jury  to  determine  from  the  evidence  what  the 
parties  intended  in  making  said  receipts,  and  if  they  believe  from  the 
evidence  that  the  parties  did  not  intend  to  adjust,  and  did  not  adjust 
said  notes,  bj'  said  receipt,  they  will  disregard  said  receipt. 

The  jury  are  instructed  that  the  receipt  introduced  in  evidence, 
if  genuine,  is  prima  facie  evidence  of  payment  in  full  of  all  moneys 
owing  by  S.  to  C.  at  the  time  of  the  making  of  said  receipt,  and  in  the 
absence  of  any  rebutting  proof,  establishes  the  fact  of  payment  in 
full  of  all  money  indebtedness  of  said  S.  to  said  C.  existing  at  said 
time. 

(e)  If  you  believe  from  the  evidence  that  tlie  signature  on  the 
receipt  introduced  in  evidence  is  the  genuine  signature  of  C,  then  you 
are  instructed  that  said  receipt  is  evidence  of  the  highest  and  most 

14 — Sanders   v.    North    End   B.    &  been  error  for  the  court  to  refuse  to 

L.   Assn.,  178  Mo.   674,  77  S.  W.  83.3  so    declare.      The    testimony    of    no 

(836).  witness   is  conclusive  upon   a  jury. 

"This  instruction  practically  told  Under  the  issues,  it  was  imposLibla 

the  jury  that,  under  the  issue  as  to  that     J.    should     be     anythingr     else 

whether  the   notes   were   signed   by  than  prominent  in    the  case,  but  it 

J.    or    not,    his    testimony    was    not  cannot    be    said    that    this    instruc- 

conclusive,  but  that  the  jury  must  tion    made     him    or    his     testimony 

decide   that    issue    according  to   all  'unfavorably'    prominent." 

the  evidence  and  facts  and  circum-  15 — First  Nat.  Bank  v.  Carson,  3C 

stances  of  the  case.    It  would  have  Neb.  104.  46  N.  W.  276  (277). 


1414  FORMS  OF  INSTRUCTIONS.  [§  2146. 

satisfactory  character  of  the  payment  in  full  by  S.  to  C.  of  all  money 
due  him  from  S.  at  the  time  of  the  making  of  said  receiiDt.^*' 

§  2146.     Fraud — Mistake — Unable  to   Read — Relying   on   Another. 

(a)  Although  the  jury  may  believe,  from  the  evidence,  that  a  person 
representing  himself  as  the  agent  of  B.,  the  payee  named  in  the  note 
in  suit,  applied  to  the  defendant  to  become  an  agent  of  the  said  B. 
for  the  sale  of  (seed  drills),  to  be  manufactured  by  the  said  B.,  and 
that  it  was  agreed  between  said  agent  and  the  defendant  (that  de- 
fendant should  only  be  required  to  pay  an  agreed  share  of  the  money 
collected  by  him  from  such  sales,  etc.),  and  that  the  defendant  signed 
the  note  offered  in  evidence,  supposing,  at  the  time,  that  he  was 
onlj'  signing  certain  paj^ers  constituting  himself  such  agent,  in  pur- 
suance of  such  agreement,  and  that  he  was  deceived  as  to  the  char- 
acter of  such  paper  by  the  false  and  fraudulent  representations  of 
said  agent  in  reference  thereto,  still  the  defendant  will  be  liable  upon 
said  note,  provided  you  further  believe,  from  the  evidence,  that  the 
defendant  was  able  to  read  writing,  and  did  not  read  the  paper,  or 
without  unreasonable  efforts  in  that  behalf  might  have  learned  the 
true  character  of  the  paper,  by  procuring  the  same  to  be  read  to 
him  by  some  person  having  no  interest  in  deceiving  him;  and  also 
that  the  plaintiff  took  the  note  in  the  ordinary  course  of  business, 
for  value  and  before  due,  and  without  any  notice  of  the  fraud  prac- 
ticed upon  the  defendant.^'' 

(b)  If  defendant  was  induced  to  execute  the  note  in  question  by 
false  and  fraudulent  representations  made  to  him,  regarding  the 
character  of  the  instrument  which  he  was  desired  to  sign,  so  that 
he  was  led  to  believe  the  paper  presented  was  a  wholly  different 
instrument,  then  the  note  is  void  as  to  him,  and  the  plaintiff  cannot 
recover  thereon;  provided,  the  jury  further  believe,  from  the  evidence, 
that  the  defendant  Avas  not  chargeable  with  any  negligence  which 
contributed  to  the  deception. ^^ 

(c)  If  the  jui-y  believe,  from  the  evidence,  that  the  said  B.  was 
the  agent  for  the  plaintiff,  and  that  he  obtained  said  note  from  the 
defendant  as  such  agent,  and  further,  that  when  defendant  signed 
the  note  he  was  unable  to  read  writing  readily,  and  requested  the 
said  B.  to  read  the  same  to  him  (or  the  said  B.  offered  to  read  the 
same  to  him),  and  did  read  it  to  the  defendant,  and  if  the  jury 
further  believe,  from  the  evidence,  that  the  said  B.,  when  reading 
said  note,  misread  the  same  in  any  material  part,  and  thus  misled 
the  defendant,  and  induced  him  to  sign  said  note,  when  he  would 
not  otherwise  have  done  so,  then  these  facts  would  constitute  fraud 

16— roniiolly  v.    Sullivan,    119    111.         18— DeCamp    v.    Haminn,    29    Ohio 

App.   469.  St.     467;     Hubbard     v.     Rankin,     71 

17— Ross    v.  Dolan,    29    Ohio    St.     111.  129;  Gibbs  v.  Linaburg,  22  Mich, 

473.  479. 


§  2147.]  NEGOTIABLE  INSTRUMENTS.  1415 

and  circumvention,  within   the  meaning  of  the  law,  and  the  note  is 
not  binding  upon  the  defendant,  but  is  wholly  void  as  to  him.^^ 

(d)  That  if  a  person  is  induced,  through  a  fraud  practiced  upon 
him,  to  sign  a  promissory  note,  under  the  belief  that  it  is  an  instru- 
ment of  an  entirely  different  character,  and  he  is  guilty  of  no  negli- 
gence on  his  part,  the  note  will  be  void  in  whosesoever  hands  it  may 
be,  as  having  been  obtained  through  fraud  and  circumvention. ^^ 

(e)  In  this  state,  if  the  signature  of  a  person  is  obtained  to  a 
note  by  the  fraud  or  circumvention  of  the  payee  thereof,  or  of  any 
person  acting  for  him,  then  such  a  note  will  be  wholly  void,  even  in 
the  hands  of  a  bona  fide  assignee  without  notice ;  provided,  it  appears, 
from  the  evidence,  that  the  maker  of  the  note  was  not  chargeable  with 
any  want  of  reasonable  care  and  caution  to  avoid  being  imposed 
upon.2^ 

(f)  If  the  jury  believe,  from  the  evidence,  that  the  defendant  was 
induced  to  execute  the  note  in  question  by  false  and  fraudulent  rep- 
resentations made  to  him,  regarding  the  chai'acter  of  the  instrument 
which  he  was  desired  to  sign,  so  that  he  was  led  to  believe  the  paper 
presented  was  a  wholly  different  instrument,  then  the  note  is-  void 
as  to  him,  and  the  plaintiff  cannot  recover  thereon;  provided,  the 
jury  further  believe,  from  the  evidence,  that  the  defendant  was  not 
chargeable  with  any  negligence  which  contributed  to  the  deception. ^^ 

§  2147.  Signature  Obtained  through  Artifice  or  Fraudulent  Repre- 
sentations, (a)  Where  one  voluntarily  signs  a  negotiable  promis- 
sory note,  supposing  it  to  be  an  obligation  of  a  different  character,  but 
has  full  means  of  information  in  the  premises  and  neglects  to  avail 
himself  thereof,  relying  upon  the  representations  of  another,  he  can- 
not set  up  such  ignorance  and  mistake  against  an  innocent  holder  for 
value,  who  takes  it  before  maturity.  If,  however,  his  signature  was 
procured  through  artifice  or  fraudulent  representations,  without  neg- 
ligence on  his  part  (under  such  circumstances  that  reasonable  and 
ordinary  care  would  not  enable  him  to  discover  the  fraud  or  im- 
position), then  the  maker  is  not  liable  on  the  note.^^ 

(b)  Although  the  jury  may  find,  from  the  evidence,  that  there 
was  an  agreement  between  the  agent  of  the  said  B.  and  the  defendant, 
to  the  pui-port  and  effect  of  the  agreement  set  out  in  the  last  instruc- 
tion, and  that  the  defendant,  by  the  false  and  fraudulent  representa- 
tions of  the  said  agent,  was  induced  to  affix  his  signature  to  a  printed 
blank  which  would  be  in  the  form  of  a  promissory  note  when  the 

19— Smentek  v.  Cornhauser.  17  111.  St.   467;   Hubbard  v.   Rankin,  71  111. 

App.     266;    Smith    on     Fraud,     Sec.  129;    Gibbs    v.    Linaburg,    22    Mich. 

209.  479,    7   Am.    Rep.    675. 

20— Hubbard     v.     Rankin,    71    111.  23— DeCamp    v.    Hamma,    29    Ohio 

129.     See  Van  Brunt  v.   Langley,  85  St.  467;   Mead  v.  Munson,  60  111.  49; 

111.  281.  State  Bank  v.  McCov.  69  Penn.  St. 

21— Griffiths    v.    Kellogg,    39    Wis.  204.    8    Am.    Rep.    246;    Douglas    v. 

290.  20  Am.   Rep.  48.  Matting,  29  la.  498,  4  Am.  Rep.  238. 

22 — DeCamp   v.    Hamma,   29   Ohio 


1416  FORMS  OF  INSTRUCTIONS.  [§  2148. 

blanks  were  filled,  but  without  any  intention  of  executing  a  promis- 
sory note,  and  then  delivered  the  said  paper  so  signed  by  him  to 
said  agent,  and  gave  him  no  authority  to  fill  said  blanks  or  to  write 
anything  over  his  signature,  still  the  defendant  would  be  liable  in 
this  ease,  if  you  further  believe,  from  the  evidence,  that  the  agent, 
or  the  said  B.,  afterwards  filled  the  blanks  in  the  form  in  which  it  is 
now  written,  and  that  the  plaintiff  took  the  note  in  the  ordinary 
course  of  business  for  value  and  before  due,  without  any  notice  of 
the  fraud  practiced  upon  defendant. ^^ 

(e)  The  court  instructs  the  jury,  that  fraud  and  circumvention, 
in  obtaining  the  execution  of  a  note,  within  the  meaning  of  the 
statute,  is  not  a  fraud  which  relates  to  the  quality,  quantity,  value 
or  character  of  the  consideration  of  the  note.  It  means  some  trick, 
artifice  or  device,  by  means  of  which  a  person  is  induced  to  give  the 
note  in  question,  under  the  belief  that  he  is  giving  an  instrument  of 
a  different  character;  as  when  a  person  is  induced  to  give  a  note 
under  the  belief  that  it  is  a  receii3t  (or  is  induced  to  give  a  note 
for  one  amount,  under  the  belief  that  it  is  for  a  different  amount). ^^ 

§  2148.  Must  Use  Reasonable  Care  to  Avoid  Imposition.  That  a 
person,  before  executing  a  promissory  note,  should  use  all  reasonable 
and  ordinary  precautions  to  avoid  impositions,  and  if  able  to  read 
writing  readily,  he  should  examine  it  himself,  and  if  not  able  to 
read,  he  should  have  it  read  to  him,  by  some  one  in  whom  he  has 
confidence,  unless  some  trick  or  artifice  is  used,  or  false  statement 
made,  reasonably  calculated  to  induce  him  to  neglect  such  ordinary 
prudence.^" 

§  2149.  Fraud  May  be  Waived.  If  the  juiy  believe,  from  the  evi- 
dence, that  after  the  giving  of  the  note  in  question  the  defendant 
learned  all  the  facts  regarding,  etc.,  and  that  after  discovering  such 
facts,  and  at  or  about  the  time  the  note  came  due,  he  requested  the 
plaintiff  to  give  him  time  to  pay  it,  stating  that  he  would  pay  it,  and 
that  the  plaintiff,  in  pursuance  of  such  request,  did  give  him  addi- 
tional time  after  the  note  came  due  in  which  to  pay  it,  then  the 
defendant  thereby  waived  the  alleged  fraud,  and  he  will  now  be 
liable  on  the  note,  although  at  the  time  he  asked  for  time  to  pay  it 
he  did  not  know  that  the  facts,  now  set  up  as  a  defense,  would  make 
a  defense  in  law.^'' 

8  2150.  Defendant  Inducing  Plaintiflf  to  Buy  Note — Estoppel,  (a) 
If  you  believe  from  the  evidence  that  the  defendant,  T.,  induced  the 
plaintiff  to  buy  or  purchase  the  note  or  bond  described  by  the  de- 
fendant in  his  testimony,  then  your  verdict  must  be  for  the  plaintiff, 
notwithstanding  the  note  may  have  been  without  consideration,  not- 

24— Ross  V.  Doland,  29  Ohio  St.  473;  Nebecker  v.  Cutsinger,  48  Ind. 
473.  436. 

25- Latham  v.  Smith,  45  111.  25;  27— Rindskopf  v.  Doman,  28  Ohio 
Butler  V.  Cams,  37  Wis.  61.  St.   516. 

26— Ross  V.   Doland,    29    Ohio  St. 


§2151.]  NEGOTIABLE  INSTRUMENTS.  1417 

withstanding  the  note  may  have  been  procured  by  fraud  and  misrep- 
resentations, and  notwithstanding  the  fact  that  there  may  have  been 
irregularities  in  the  transfer  of  the  note  from  R.  to  S. 

(b)  If  you  believe  from  the  evidence  that  the  defendant  induced 
the  plaintiff  to  buy  or  purchase  the  note  or  bond  described  in  the 
evidence  of  defendant,  T.,  then  you  must  find  j'our  verdict  for  the 
plaintiff,  even  though  the  evidence  should  show  that  the  article  sold 
by  R,  to  T.  was  not  in  fact  patented. 

(c)  If  the  jury  believe  from  the  evidence  that  the  defendant,  T., 
requested  or  induced  the  plaintiff,  G.,  to  buy  or  purchase  the  note 
or  bond  described  by  the  defendant  in  his  testimony,  your  verdict 
must  be  for  the  plaintiff,  provided  you  further  find  that  plaintiff  did 
buy  the  note  or  bond  for  value. 

(d)  Gentlemen  of  the  juiy,  if  you  find  from  the  evidence  that 
the  defendant,  T.,  induced  S.  to  buy  the  note  or  bond  described  in 
the  testimony  of  the  defendant,  T.,  and  he  (plaintiff)  parted  with 
value  for  the  note  or  bond,  then  your  verdict  must  be  for  the  plaintiff. 

(e)  If  the  jurs'  believe  from  the  evidence  that  the  defendant 
procured  or  induced  the  plaintiff  to  buy  the  note  or  bond  desci'ibed 
by  defendant,  T.,  in  his  testimony,  and  you  further  find  that  the 
plaintiff  parted  with  value  for  the  said  note  or  bond,  then  the 
defendant  is  estopped  from  setting  up  any  kind  or  character  of 
defense  to  this  action  which  may  have  existed  at  the  time  the  plaintiff 
purchased  the  note,  and  your  verdict  must  be  for  the  plaintiff.-^ 

§  2151.  Duress — Threats  of  Imprisonment,  (a)  Under  the  ad- 
missions and  allegations  made  in  these  pleadings  the  only  issue  which 
you  are  called  upon  to  try  is  this:  Were  the  notes  set  out  in  plaintiff's 
petition  given  by  the  defendant  by  reason  of  the  threats  of  imj^rison- 
ment  of  the  said  C.  W.  N.  made  by  the  plaintiff  or  its  agents  to  the 
defendant  at  the  time  said  notes  were  given. 

(b)  The  burden  of  proof  in  this  case  is  upon  the  defendant,  and 
after  admitting  the  signing  and  execution  of  the  notes  before  he  can 
avoid  the  payment  thereof,  he  must  prove  by  a  preponderance  of 
the  evidence  that  said  notes  were  not  given  voluntarily  by  him  but 
were  obtained  from  him  by  such  threats  and  duress  as  to  overcome 
his  will  and  understanding. 

(e)  You  are  instnicted  that  duress,  in  order  to  avoid  the  pajTuent 
of  these  notes,  must  be  such  an  influence  exerted  by  the  plaintiff 
upon  the  defendant  as  to  overcome  his  will  and  compel  a  formal 
assent  to  an  undertaking  when  he  really  does  not  agree  to  it,  and 
make  that  appear  to  be  his  free  act,  which  is  not  his  but  is  another's, 
imposed  upon  him  through  fear  which  deprives  him  of  self  control. 
And  in  this  case,  if  you  find  that  the  defendant  has  proved  by  a  pre- 
ponderance  of  the   evidence   that  he   signed   these  notes  wholly  and 

28 — Tapscott  v.  Gibson,  129  Ala.  request  properly  applied  to  the  evi- 
503,  30  So.  23  (26).  dence    a    familiar    principle    in    the 

"The  charges  given  at  plaintiff's    law  of  estoppel." 


1418  FORMS  OF  INSTRUCTIONS.  [§  2152. 

entirely  on  account  of  the  fear  which  the  plaintiff  had  created  in 
his  mind  that  his  son-in-law,  C.  W.  N.,  would  be  sent  to  the  peni- 
tentiary unless  the  same  were  signed,  and  that  N.  would  not  be 
sent  there  if  he  did  sign  them,  and  the  fear  was  such  as  to  deprive 
the  defendant  of  his  understanding  and  deprive  the  transaction  of 
its  voluntaiy  character,  then  you  are  instructed  that  such  notes  would 
be  void,  and  your  verdict  should  be  for  the  defendant.  If,  however, 
you  believe  that  the  defendant  has  failed  to  prove  that  his  mind  was 
so  overcome  by  such  threats  that  he  was  deprived  of  reason  and 
understanding  then  you  will  return  a  verdict  for  the  plaintiff  for  the 
full  amount  of  said  notes  sued  on.^^ 

(d)  Duress  in  the  making  of  a  contract  exists  when  the  person 
making  it  is  induced  to  make  it  by  reason  of  being  put  in  fear  by 
means  of  threats  of  aiTesting  him  and  unlawfully  charging  him  with 
crime,  when  the  threats  and  the  fear  induced  thereby  are  such  as 
would  influence  a  man  of  reasonable  courage  and  prudence,  and  do 
deprive  the  party  making  the  contract  of  the  exercise  of  free  will  in 
making  it.  The  threatened  arrest,  however,  must  be  wrongful  and 
unlawful,  and  apparently  about  to  be  enforced.^'* 

§  2152.  Duress — Abuse  of  Criminal  Process — Lawful  Imprison- 
ment not  Duress,  (a)  The  court  instructs  the  jury,  that  if  they 
believe,  from  the  evidence,  that  the  note  sued  upon,  in  this  case,  was 
obtained  from  the  defendant  through  a  wrongful  perversion  or  abuse 
of  criminal  process,  as  explained  in  these  instructions,  then  such  note 
is  void  in  the  hands  of  the  payee,  or  in  the  hands  of  any  person  taking 
it  after  maturity,  or  with  notice  of  the  manner  in  which  it  was  ob- 
tained.^^ 

29— Nebraska  Mut.  Bond  Ass'n  v.  81  N.  W.  495-501,  47  L.  R.  A.  417,  76 

Klee,  70  Neb.  383,  97  N.   W.  476-8.  Am.    St.    912.     Under    this    view    of 

"This  state  has  already  taken  its  the  law  the  jury  is  properly  direct- 
place  in  line  with  the  more  ad-  ed  to  inquire  into  the  mental 
vanced  position  upon  this  subject  capacity  of  the  defendant,  and 
and  that  position  is  accurately  set  whether  the  threats,  whatever  they 
forth  in  the  instructions  given.  To  were,  probably  deprived  him  of  his 
constitute  duress  sufficient  to  avoid  free  will,  inducing-  him  to  make  a 
a  contract  in  this  state  the  means  contract  that  he  would  not  other- 
adopted  need  only  be  of  a  character  wise  have  made,  rather  than  to  the 
necessary  to  overcome  the  will  and  particular  threats  made  to  see 
desire  of  the  injured  party,  wheth-  whether  they  meet  with  an  arbl- 
er  that  person  be  above  or  below  trary  standard  which  may  or  may 
the  average  person  in  firmness  and  not  be  applicable  to  the  person  in- 
courage,  and  whether  the  means  jured.  The  trial  court  committed 
employed  come  clearly  within  the  no  error  in  giving  the  instructions 
common  law  definition  of  duress  or  relative  to  the  plea  of  duress." 
otherwise.  In  other  words  the  law  30 — Kennedy  v.  Roberts,  105  la. 
extends  its  protection  to  an  indi-  521,  75  N.  W.  363-5. 
V'dual  without  reference  to  wheth-  "Several  objections  are  lodged 
er  he  is  strong  or  weak  intellect-  against  it,  none  of  which  are  of 
uallv,  and  refuses  to  measure  his  sufficient  importance  to  justify 
rights  by  an  arbitrary  yardstick  separate  consideration.  The  in- 
avowedly  applicable  only  to  men  struetion  is  an  accurate  definition 
of  ordinary  intellect,  firmness  and  of  duress.  See  Bish.  Cont.  §715;  6 
murage.  First  National  Bank  v.  Am.  &  Eng.  Enc.  p.  64,  and  cases 
Hargeant,  65  Neb.  594,  91  N.  W.  595,  cited;  Baker  v.  Morton,  12  Wall 
59  Jj.  R.  A.  296  and  cases  cited;  150." 
Galuaha   v.   Sherman,   105   Wis.  263,  31— Bowen    v.    Buck,    28    Vt.    309; 


§2153.]  NEGOTIABLE  INSTRUMENTS.  1419 

(b)  The  jury  are  instructed,  that  a  lawful  imprisonment  is  not 
such  duress  as  will,  alone,  enable  a  party  to  avoid  a  note  made,  while 
so  imprisoned,  on  the  ground  of  duress.  And,  in  this  case,  although 
the  jury  may  believe,  from  the  evidence,  that  the  notes  in  question 
were  Executed  and  delivered  while  the  defendant  was  under  arrest,  still, 
if  the  jury  further  believe,  from  the  evidence  and  under  the  instruc- 
tions of  the  court,  that  such  arrest  was  legal,  then  such  arrest  alone 
will  not  render  the  said  notes  void.^- 

§  2153.  Duress — Ratification  of  Voidable  Note.  It  is  claimed  by 
the  defendant  that  the  plaintiff,  after  the  execution  of  said  note,  rati- 
fied the  execution  of  same  in  the  summer  of .   A  contract  that  is 

fraudulent  by  reason  of  same  having  been  procured  by  means  of 
duress  may  be  ratified  and  confirmed  by  the  maker  thereof  if  his  sub- 
sequent acts,  with  knowledge  of  all  of  the  facts,  are  such  as  to  fully 
indicate  that  he  intends  to  then  agree  to  and  confirm  said  contract. 
If  it  appears  from  the  evidence,  by  the  letter  written  by  plaintiff  to 
his  daughter  concerning  the  note  in  question  after  same  w'as  executed, 
and  by  plaintiff's  statements  concerning  the  note  and  its  payment  by 
him  to  the  officers  of  the  R.  N.  Bank,  that  the  plaintiff  intended  at  the 
time  of  making  said  statements  to  assent  to  and  confirm  the  contract 
made  in  said  note,  and  pay  the  defendant,  then  such  state  of  fact 
would  amount  to  a  ratification  of  said  note  by  plaintiff,  and  would 
prevent  plaintiff  from  subsequently  claiming  that  said  note  was  ob- 
tained from  him  by  duress.  But,  to  amount  to  a  ratification  of  said 
note,  the  plaintiff's  acts- must  have  been  such  as  to  fully  indicate  an 
intention  on  his  part  at  that  time  to  assent  to  and  confinn  the  con- 
tract contained  in  said  note.  If  the  plaintiff's  purpose  in  writing  to 
his  daughter  and  in  making  statements  to  the  officers  of  said  bank 
was  to  get  and  keep  the  note  within  the  jurisdiction  of  this  court, 
so  that  he  could  replevin  same  from  defendant,  and  not  to  confirm 
the  contract  contained  in  said  note,  then  said  acts  and  statement 
would  not,  in  any  event,  amount  to  a  ratification  of  the  note.  If 
said  note  was  obtained  by  duress,  to  overcome  such  duress  the  bur- 
den rests  with  defendant  to  show  that  plaintiff  ratified  said  note,  by 
a  preponderance  of  the  evidence. ^^ 

§  2154.  Want  of  Consideration,  (a)  It  is  contended  on  the  part 
of  the  defendants  that,  if  the  said  A.  executed  said  note  to  the 
plaintiff,  he  did  it  ujwn  consideration  that  the  plaintiff  would  quit 
the   patent-right   business,   go   home   and   stay   with   his   family,  and 

Fay  v.   Oatley,   6   Wis.   42;    Cappell  may  be   by  express   consent   or   by 

V.    Hall,    7    Wall.    538;    Schenk    v.  conduct  inconsistent  with  any  other 

Phelps,  6  Brad.    (111.)  612;   Joyce  on  hypothesis    than    that    of   approval. 

Comm.    Paper,   Sec.   lOS-109.  Intention    to    ratify,    either    explicit 

32 — Heaps  v.   Dunham,  95  111.  583;  or  presumed,    is   at   the   foundation 

Joyce  on  Comm.    Paper,   Sec.  108.  of   the   doctrine   of   waiver    or   rati- 

33— Kennedy  v.  Roberts,  105  Iowa  fication.     As  applied  to  the  facts  of 

521,  75  N.  W.  363   (365).  this  case,  we  think  the  instruction 

"Ratification    is    the    adoption    or  was  correct." 
confirmation  of  a  voidable  act.     It 


1420  FORMS  OF  INSTRUCTIONS.  [§2155. 

sell  no  more  patent-rights  or  gates  as  long  as  A.  lived;  but  the  de- 
fendants further  contend  that  the  consideration  of  said  note  has 
failed,  and  that  the  plaintiff  after  making  of  said  note  sold  patent- 
rights  and  gates,  and  therefore  said  note  is  void.  The  burden 
of  proof  is  on  the  defendants  to  prove  this  contention  by  a  prepon- 
derance of  the  evidence.  In  order  to  defeat  the  collection  of  said 
note  under  this  branch  of  the  defendants'  contention,  the  defend- 
ants must  prove  by  a  preponderance  of  the  evidence  that  all  said 
consideration  failed.  If  all  the  consideration  of  said  note  did  not 
fail,  then  the  note  is  valid,  so  far  as  the  consideration  is  concerned.^* 

(b)  If  you  find  from  the  evidence  that  the  note  in  suit  was  exe- 
cuted by  decedent,  and  that  the  sole  consideration  was  that  he  would 
quit  the  patent-right  business,  and  not  sell  any  more  patent-rights 
so  long  as  X.  should  live,  and  go  home  and  stay  with  his  family,  and 
sell  no  more  patent-rights  so  long  as  said  X.  lived;  and  if  you  further 
find  from  the  evidence  that  after  the  execution  of  said  note,  and 
during  the  lifetime  of  said  X.,  said  X.  failed  to  keep  his  promise, 
and  during  said  period  did  not  quit  the  patent-right  business,  and 
did  not  go  home  and  stay  with  his  family,  but  during  said  period 
did  engage  in  the  patent-right  business,  did  sell  or  attempt  to  sell 
patent-rights,  either  on  his  own  account  or  as  partner,  assistant 
or  agent  of  another, — then  I  instruct  you  the  consideration  of  the 
note  failed,  and  you  should  find  for  the  defendants.^^ 

(e)  The  court  charges  the  jury,  that,  if  they  believe  from  the 
evidence,  that  B.  told  the  plaintiff  that  S.  had  bought  stock  in  the 
patent-right;  or  that  S.  was  going  into  the  same;  that  such  repre- 
sentations were  false,  fraudulent  and  material  to  the  contract  in  this 
case;  and  that  R.  induced  and  controlled  thereby,  took  stock  in  said 

patent-right, — then  R.  is  not  liable,  and  the  note  for  $ to  H.  and 

transferred  to  B.,  cannot  be  offset  against  plaintiffs.'^'' 

§2155.  "Worthless"  and  "Doubtful"  Notes,  (a)  In  passing 
upon  this  question  as  to  Avhether  the  notes  were  doubtful  or  worth- 
less, you  are  entitled  to  take  into  consideration  all  the  evidence  intro- 
duced before  you  with  reference  to  the  property,  financial  standing, 
and  credit  of  the  several  signers  of  the  notes,  and  the  words  "doubt- 
ful" and  "worthless"  are  to  be  understood  by  you  as  used  in  or- 

34 — Ray    v.    Moore,    24    Ind.    App.  second    charge    given    for   plaintiff. 

480,   56  N.   E.  937-8,   citing-  Hinshaw  It  liypotliesized  tlie  facts  set  up  in 

v.  State.  147  Ind.  387,  47  N.   E.  157;  the  fourth  replication,  and  instruet- 

Anderson   v.    State,   147   Ind.   451,  46  ed  the  jury  to  lind  for  plaintiff  as 

N.  E.  901.  to  the  matter  involved  in  the  third 

35 — Ray  v.  Moore,  supra.  plea,    if    they    believed    the     facts 

"It  puts  upon  appellees  the  bur-  averred  in  said  replication.  Wheth- 

den  of  proving  the  entire  failure  of  er     the     patent     was     valuable     or 

appellant     to     perform     his     entire  worthless   was  not   averred   in   this 

promise.   Nor  can   it  be  fairly   said  replication,    and    the    plaintiff    was 

that  it  tells  the  jury  that  they  may  entitled     to    recover  on    the    facts 

estimate   the   damages     of    an    at-  which  were  averred  in  it.  if  proved, 

tempt  to  sell  a  patent-right."  wholly  regardless  of  the  considera- 

36 — Rnmar  v.  Resser,  123  Ala.  641,  tion    that    the   property     for    which 

26  So.  510.  plaintiff    gave    his   note    to    H.    was 

"And    so    with     respect     to     the  valuable  or  of  no  value." 


§2156.]  NEGOTIABLE  INSTRUMENTS.  1421 

dinary  business  transactions  among  men  of  ordinary  business  ca- 
pacity.^''^ 

(b)  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence, that  the  patent-right  sold  to  R.  is  worthless,  then  B.  cannot 
offset   the  note   for  $ .^^ 

§  2156.  Settlement  of  Old  Debt— Consideration.  If  H,  owed  to 
the  plaintiff  the  amount  of  the  note  sued  upon,  and  if  the  property 
of  H.  was  in  the  control  of  the  defendant,  and  if,  at  the  request  of 
H.,  the  defendant  gave  to  the  plaintiff  the  note  sued  upon  in  satis- 
faction of  the  debt  of  H.  to  the  plaintiff,  and  the  plaintiff  accepted 
the  note  as  such  satisfaction,  then  the  note  was  given  upon  suf- 
ficient consideration,  and  the  plaintiff  is  entitled  to  recover  the 
amount  due  upon  the  note.  What  are  the  facts,  the  jury  must  de- 
termine from  the  evidence,  and  from  that  alone,  and  nothing  in  any 
instruction  is  to  be  taken  as  any  intimation  by  the  court  as  to  what 
any  of  the  facts  are.^^ 

§  2157.  Illegal  Consideration,  (a)  If  the  jury  are  reasonably 
satisfied  from  the  evidence  that  the  only  or  any  material  part  of 
the  consideration  which  defendant  received  for  signing  the  notes  sued 
on  was  an  agreement  or  promise  of  F.,  the  plaintiff,  to  keep  secret  the 

misuse  or  misapproijriation  of dollars  of  F. 's  money  by  S.,  and 

S.  admitted  in  the  i^resence  of  F.  and  defendant  that  he  had  misused 

or  misappropriated  $ of  F.'s  money,  then  the  jury  should  find 

for  defendant. 

(b)  If  the  jury  are  reasonably  satisfied  from  the  evidence  that 
the  agreement  between  F.  and  the  defendant  was  that  the  notes 
were  to  be  made  due  and  payable  one  and  two  years  after  date,  and 
that  F.  went  off  and  wrote  the  notes,  and  came  back  to  where  S. 
was  and  said  to  defendant,  S.,  ''Here  are  the  notes  made  out  ac- 
cording to  the  agreement,"  and  defendant,  S.,  relaying  upon  the  truth 
of  F.'s  statement  signed  the  two  notes  believing  that  they  were  due 
one  and  two  years  after  date  respectively,  the  jury  must  find  for 
the  defendant. 

37 — McCormick   H.    Mach.    Co.    v.  fendant    could    not    recover   on   his 

Carpenter    (unof.),    1    Neb.    273,    95  plea  of  setoff;  and  there  can  be  no 

N.  W.  617  (618).  doubt    of    the    correctness    of    that 

"The    instruction    actually    given  proposition.      If    defendant    desired 

by   the   court  was   not  in   itself  er-  to   rely  upon   purchase  of  the   note 

roneous,   but  should   have  been   ac-  for    value    without    notice,    etc.,    he 

companied      with      an      instruction  should   have  rejoined   to  this   repli- 

plainly  telling   the  jury   the   mean-  cation  instead  of  taking  issue  upon 

ing  of  the  contract  upon  the  points  it." 

in  dispute."  39— Harris    v.    Harris.    180   111.    157 

38— Bomar  v.  Rosser,  123  Ala.  641,  (158),  affg.  80  111.  App.  310    54  N    E 

26  So.  510.  180.                                  ft'         ,            .      . 

"The  charge  given  for  the  plaintiff  "We   think   it   clear   that   the   in- 

asserts   that   if  there   was   no   con-  struction  lays  down  a  correct  prop- 

sideration    for   the   $100   note,    or   in  osition    of    law.      In    Underwood    v 

other  words,  that  if  the  patent  right  Hossack.  38  111.  208,  it  was  held  that 

for  which  the  note  was  given,  was  an    extension   of   time   for   the   per- 

worthless,   the   defendant  could   not  formance    of   an    agreement    or    for 

set     it    off     against     plaintiff's     de-  the  payment  of  a  debt  is  sufficient 

mand.     This   was  only  to  say  that  consideration     to    support    a    con- 

if   the   replication    of   want   of  con-  tract." 
sideration    had    been     proved,     de- 


1422  FORMS  OF  INSTRUCTIONS.  [§  2158. 

(e)  If  the  jury  are  reasonably  satisfied  from  the  evidence  that 
F.   agreed   with   and   promised   S.,   that   if  he   would   sign   the   notes 

sued  on,  he  would  keep  secret  the  misuse  of  the  $ ,  and  this  was 

a  material  part  of  the  consideration  which  caused  defendant  to  sign 
the  notes  sued  on,  the  jury  must  find  for  the  defendant.*^ 

§  2158.  Void  Consideration — Sale  of  Liquor  on  Sunday — Note  Ex- 
ecuted on  Sunday,  (a)  The  court  instructs  the  jury  that  it  is  the 
duty  of  the  jury  to  examine  the  books  offered  in  evidence  in  con- 
nection with  the  almanac  to  ascertain  if  any  items  charged  against 
the  defendant  were  sold  on  Sunday,  and  if  the  jury  believe  from 
the  evidence  that  any  item  in  defendant's  account  was  sold  on  Sun- 
day to  defendant,  then  they  will  find  the  verdict  for  the  defendant. 

(b)  If  the  juiy  believe  from  the  evidence  that  any  item  in  de- 
fendant's account  was  sold  to  him  on  Sunday,  then  the  jury  will 
find  for  the  defendant,  whether  the  plaintiffs  kept  open  doors  at  the 
time  of  the  sale  or  not.'*^ 

(e)  The  juiy  are  instructed  that,  to  this  complaint  the  defend- 
ant has  answered  by  sevei-al  paragraphs.  First,  he  denies  the  execu- 
tion of  the  note;  second,  he  says  he  has  paid  it;  third,  that  it  was 
without  consideration.  In  the  fourth,  fifth  and  sixth  paragraphs 
he  sets  up  against  the  note  as  a  perfect  defense  that  the  note  was 
executed  on  Sunday  by  himself,  X.,  as  surety  for  Y,  and  it  was  de- 
livered by  him  on  that  day  to  his  co-defendant,  and  that  is  as  far 
as  he  has  any  knowledge  of  the  note,  and  that  he  had  received  no 
consideration  for  the  note.  I  hold  upon  that  subject  the  law  to  be 
as  follows:  That,  before  the  defendant  can  successfully  make  out 
that  defense,  he  should  have  pleaded  in  writing,  as  well  as  proved 
by  a  fair  preponderance  of  the  evidence,  that  he  not  only  executed 
the  note  on  Sunday,  but  that  it  was  delivered  and  accepted  by  the 
plaintiff  on  Sunday.  The  defendant,  before  he  can  avail  himself 
of  or  properly  make  out  the  defenses  to  prevent  a  recovery  on  the 
note  at  the  hands  of  the  plaintiff,  either  upon  the  fourth,  fifth  or 
sixth  paragraphs  of  answer,  must  have  proven  by  fair  preponderance 
of  the  evidence  that  this  particular  note  in  suit  was  executed  by 
him  upon  Sunday,  and  that  it  was  delivered  by  him  upon  that  day, 
or  some  one  representing  him,  to  the  plaintiff  in  this  case.  If  the 
plaintiff  then  accepted  the  note,  knowing  these  facts,  then  she  stands 
in  equal  respect  of  the  law  as  being  guilty  of  a  violation  of  the  crim- 
inal statutes  of  this  state.  It  is  against  the  law  to  do  common 
labor  on  the  Sabbath  day  or  the  first  day  of  the  week,  commonly 
called  Sunday.  If  a  note  is  executed  upon  the  Sabbath  day  (I  mean 
by  execution  signed),  and  it  was  afterwards  delivered  upon  a  Sab- 
bath day,  the  plaintiff  knowing  the  fact, — delivered  to  the  plaintiff 

40— Folmar  v.   Siler,   132  Ala.   297,  states   to   mean    more   than   a   pre- 

?,!  So.  719  (720).  ponderance    of     the     evidence     and 

Editor's  note. — The  term  "reason-  therefore  erroneous. 

ably  satisfied"  in  the  three  preced-  41 — Wadsworth    v.     Dunnam,     117 

ing   instructions,   are   held   in   some  Ala.    661,    23    So.    699    (701). 


§2159.]  NEGOTIABLE  INSTRUMENTS.  1423 

on  the  Sabbath  daj^, — then  these  facts  being  proven  by  a  fair  pre- 
ponderance of  the  evidence,  the  plaintiff  could  not  recover  in  tho 
case.^2 

§  2159.  Consideration — Forbearing  Suit  on  Note,  It  is  sufficient 
in  this  case  for  the  plaintiff  to  prove  a  promise  to  forbear  bringing 
suit  upon  the  note  in  question  for  a  reasonable  time  in  considera- 
tion of  the  undertaking  of  M.  to  secure  the  signature  on  the  said 
note  of  the  two  defendants,  and  the  actual  return  of  the  note  to 
the  plaintiff  bearing  the  signatures  of  the  defendants,  and  that  she 
thereafterwards  actually  forbore  to  bring  suit  for  such  reasonable 
time.  This  makes  out  a  prima  facie  case  for  the  plaintiff  and  suf- 
ficiently supports  the  declaration  to  maintain  a  judgment  unless 
overcome  by  the  testimony  on  the  part  of  the  defendants.*^ 

§  2160.  Consideration — Settlement  of  Criminal  Charge,  (a)  The 
jury  are  instructed,  that  to  render  the  forbearance  of  a  claim,  or  an 
agreement  not  to  enforce  an  alleged  claim,  a  sufficient  consideration 
for  a  promissory  note,  it  is  essential  that  the  claim  itself,  if  well 
founded,  be  sustainable,  either  at  law  or  in  equity,  in  favor  of  the 
person  for  whose  benefit  the  note  is  given ;  and  the  court  instructs 
the  jury  that  a  claim  based  upon  the  settlement  of  a  criminal  charge 
cannot  be  sustained,  either  at  law  or  in  equity,  and  if  the  jury  believe, 
from  the  evidence,  that  the  note  in  question  was  given  in  settlement 
of  a  criminal  charge,  then  it  is  without  consideration.** 

(b)  If  the  jury  believe,  from  the  evidence,  that  at  the  time 
the  note  was  given,  the  payee  of  the  note,  in  good  faith,  claimed 
to  have  a  lien  upon  said  lands,  for  the  payment  of  a  debt  due 
him,  or  some  right  or  interest  in  or  to  the  land,  and  that  the 
note  was  given  in  consideration  of  his  giving  up  and  abandoning 
such  claim,  and  that  he  did  thereupon  give  up  and  abandon  said 
claim,  that  would  be  a  sufficient  consideration  for  the  note,  and 
it  would  not  matter,  in  such  case,  whether  his  claim  was  a  valid 
one  in  law  or  not.*^ 

(c)  A  note  given  to  settle  an  embezzlement  or  a  shortage  of  an 
agent  is  valid  and  good,  if  it  was  given  to  settle  the  indebtedness 
or  shortage,  and  if  there  is  no  agreement  to  stifle  the  prosecution 
for   the   embezzlement.*® 

§  2161.  Accommodation  Paper.  If  the  jury  believe  that  the 
promissory  notes  sued  on  were  given  by  the  defendant  to  H.,  the 

42 — Conrad  v.  Kinzie,  105  Ind.  281,  Parsons  v.   Pendleton,   etc.,  59  Ind. 

4  N.   E.  863  (864).  36;   Tucker  v.  Rank,  42  la.  80;  O.  & 

"When    the   instruction   quoted   is  C.  Rd.  Co.  v.  Potter,  5  Ore.  228. 

considered  as  an  entirety,  we  think  45 — 1  Chitty  on  Con.,   29;    Hindert 

it  was  impossible  for  the  jury  to  be  v.  Schneider,  4  111.  App.  203. 

misled    thereby,    or    to    infer   there-  46— Wolf    v.    Troxell's    Estate,    94 

from      what      appellant's      counsel  Mich.  573,  54  N.  W.  383. 

claim  was  implied   therein."  "Under  the  facts  of  this  case,  no 

43— McMicken   v.    Safford,    197   111.  question    of    deceit    being    involved, 

540    (543),   aff'g  100  111.   App.   102,   64  this     was    a     proper     request,     and 

N.  E.  540.  should  have  been  given." 

44— Heaps  v.  Dunham,  95  111.  583; 


1424  FORMS  OF  INSTRUCTIONS.  [§2162. 

decedent,  for  money  due  to  said  H.  by  him,  or  for  money  lent  by 
said  H.  to  defendant,  then  the  plaintiff  is  entitled  to  recover.  But, 
if  the  jury  believe  that  no  money  was  due  by  the  defendant  to  said 
H.,  and  that  said  notes  were  accommodation  paper,  given  to  said  H. 
in  order  that  he  might  raise  money  on  them  for  his  own  purposes, 
or  for  some  enterprise  in  which  both  were  jointly  interested,  then 
the  plaintiff  is  not  entitled  to  recover.^' 

§  2162.  Payment — Burden  of  Proof,  (a)  The  burden  of  proof 
as  to  payment  is  on  defendants,  and,  if  the  evidence  is  evenly 
balanced,  your  verdict   on   this   point  should  be  for  the  plaintiff.*^ 

(b)  You  are  instructed  that  the  burden  of  proof  is  on  the 
plaintiff  to  show  by  preponderance  of  the  evidence  that  the  note 
was  not  paid  as  shown  by  the  indorsement  thereon,  and  that  he 
purchased  the  same  as  alleged  in  his  petition,  and  did  not  pay 
the  same  according  to  the  said  indorsement  thereon. 

(c)  If  you  find  from  the  evidence  that  the  plaintiff  paid  the 
money  on  the  note  in  controversy  to  the  bank,  and  that  the  bank 
thereupon  marked  it  "Paid,"  and  that  plaintiff  accepted  the  same, 
and  that  nothing  was  said  on  the  part  of  the  bank  about  selling 
the  same  to  plaintiff',  then  and  in  that  event  you  will  find  for 
defendant.'*^ 

§  2163.  Payment — Deception  as  to  Ownership  of  Note.  If  you 
find  from  the  evidence  that  plaintiff  was  at  any  time  ready  and 
willing  to  pay  off  the  note,  and  that  he  so  notified  defendant,  asd 
if  you  further  find  from  the  evidence  that  the  defendant  was  at 
the  time  of  receiving  such  notice  the  owner  of  said  note,  then  it 
was  defendant's  duty  to  act  in  good  faith  with  plaintiff  in  his 
endeavor  to  pay  same;  and  if  you  further  find  that  defendant 
made  any  false  statement  to  plaintiff  in  reference  to  the  ownership 
or  whereabouts  of  the  note,  for  the  purpose  of  deceiving  him  and 
preventing  or  delaying  the  payment  thereof,  and  that  plaintiff  was 
deceived  thereby,  and  was  ready  and  willing  to  pay  the  same  at  all 
times  until  the  note  was  finally  paid,  and  that  he  used  all  rea- 
sonable endeavors  to  pay  the  same;    and  if  you  further  find  from 

47— McCarthy    v.    Harris,    93    Md.  the  plaintiff,   and   in   the  giving   of 

741,  49  All.  414.  it  the  court  below  did  not  err." 

48— Turrentlne      v.     Grigsley,    118  49— Riddle   v.    Russell,   108  la.   591, 

Ala.  380.  23  So.  666-7.  79  N.  W.  363. 

"A   party   pleading  or   relying  on  "It   wa.s    error    to     refuse    these, 

payment    has   the   burden   of   proof  The  first  is  specific  as  to  the  burden 

resting   upon    him,    for,    if  the   fact  of  proof,    and    the  other  announces 

exists,   it  lies  peculiarly  within   his  a    rule    of    law    about    which    there 

knowledge.    In    all   civil   causes,    if  can  be  no  dispute,  and  which  is  not 

the   testimony    be   evenly    balanced,  contained    in   the   charge   as   given, 

or   in     efiuillbrium,     which     is     the  The    cancellation      stamp    on     this 

same  thing,   then   the  verdict  must  note   was   presumptive   evidence   of 

bo  against   the  party  on  whom   the  payment.    Thomasson  v.  "Van  Wyn- 

burdf-n  of  proof  rests.  Vendevent^er  gaarden,  65  Iowa  6S7,  22  N.  W.  927. 

v.   Ford,    60  Ala.     610;     Lehman     v.  Without  regard  to  where  the  money 

McQueen,  65  Ala.   570.      This   is   the  was    obtained    that    was    given    for 

proposition  underlying  the  first  in-  this   paper,    or   how   it   came   to   be 

.itructlon   given   at   the   instance   of  paid,    the    burden   was   on   plaintiff 

to   overcome   this   presvimption." 


§  2164.]  NEGOTIABLE  INSTRUMENTS.  1425 

the  evidence  that  by  reason  of  the  foregoing  state  of  facts  plaintifE 
was  compelled  to,  and  did,  pay  a  greater  amount  of  interest  in 
paying  off  the  note  than  he  otherwise  would  have  done, — then  you 
will  find  the  issues  for  the  plaintiff,  and  assess  his  damages  at  a 
sum  equal  to  the  amount  of  such  increased  interest,  not  to  exceed 
the  amount   sued  for,  that  is,   $ .^° 

§  2164.  Protest — Demand  of  Payment,  (a)  As  a  matter  of  law, 
if  the  holder  of  negotiable  paper  neglects  to  have  it  protested  for 
non-payment  by  the  maker,  he  thereby  makes  the  paper  his  own 
and  releases  the  indorser ;  and  it  makes  no  difference  whether  the 
maker  was  insolvent  at  the  time  the  note  came  due,  or  that  the 
indorser  will  sustain  no  injury  from  want  of  notice  of  non-payment 
by   the  maker.^^ 

(b)  Demand  of  payment  from  the  maker  and  notice  of  non- 
payment of  a  promissory  note  may  be  waived  by  the  indorser  by 
any  act  of  his  calculated  to  put  the  holder  off  his  guard  and  pre- 
vent him  from  treating  the  note  as  he  otherwise  would  have  done 
in  regard  to  such  demand  and  notice,  and  in  this  case,  if  the  jury 
believe,  from  the  evidence,  that  shortly  before  or  about  the  time 
the  note  came  due,  plaintiff  saw  the  defendant  and  spoke  to  him 
in  reference  to  the  payment  of  the  note,  and  that  defendant  then 
stated  (it's  all  right,  I  indorsed  the  note  expecting  to  pay  it  when 
due,  and  will  call  in  and  see  about  it),  this  would  amount  to  a 
waiver  of  a  demand  on  the  maker  for  payment  and  of  notice  to 
the  defendant  of  non-payment. ^^ 

(e)  Any  conduct  on  the  part  of  an  indorser,  towards  the  holder 
of  negotiable  paper,  calculated  to  put  a  person  of  reasonable  pru- 
dence off  his  guard  and  to  induce  him  to  omit  demand  of  payment 
from  the  maker  or  to  give  notice  of  the  dishonor  of  the  paper, 
will  dispense  with  the  necessity  for  taking  these  steps.  And  in 
this  ease,  if  the  jury  believe,  from  the  evidence,  that  the  defendant 
shortly  before,  and  about  the  time  the  note  became  due  (requested 
the  plaintiff  not  to  protest  the  note)  or  (that  he  said  to  the  plaintiff 
that  arrangement  for  the  payment  of  the  note  was  about  being 
made,  and  to  hold  on,  etc.),  this  would  amount  to  a  waiver  of 
demand  on  the  maker,  for  the  payment  of  the  note  and  of  notice 
of  non-payment.^^ 

§  2165.  Notes  Given  in  Payment  for  Property.  The  gi^^ng  of  ne- 
gotiable promissory  notes  on  the  purchase  of  property  may  well  be 
treated  as  payments.  The  notes  given  by  the  plaintiff  to  N.  &  Co. 
on  the  purchase  of  the  goods  in  controversy,  being  negotiable,  can 
be  enforced  in  the  hands  of  innocent  purchasers.^* 

50 — Rhodes    v.    Dickerson,    95    Mo.  53 — Boyd  v.  Bank,  32  Ohio  St    5''6- 

395,  69  S.  W.  47  (48).  30  Am.   Rep.   624. 

51— Whitten    v.    Wright,    34    Mich.  54 — Pickard    v.    Bryant,    92    Mich 

92.  430.    52   N.    W.   7S8    (790),   31   Am.    St. 

52— Love    V.    Vining.    7    Met.    212;  606. 
Hale  v.  Danforth,  46  Wis.  554. 

90 


1426  FORMS  OF  INSTRUCTIONS.  [§2166. 

§  2166.  Assignee  After  Maturity.  An  assignee  of  a  promissory 
note,  who  takes  it  after  maturity,  is  supposed  to  have  notice  of  any 
defense  that  exists  against  it;  and  such  defense  may  be  made  as 
effectually  against  the  note  in  the  hands  of  such  assignee  as  if  the 
suit  had  been  brought  by  the  original  jDayee  of  the  note.^^ 

§  2167.  Assignee  with  Notice  of  Suspicious  Facts,  (a)  The 
court  instructs  the  jury,  that  where  a  person  takes  an  assignment 
of  a  promissory  note  for  a  valuable  consideration,  before  due,  and 
is  not  guilty  of  bad  faith,  even  though  he  may  be  guilty  of  gross 
negligence,  he  will  hold  it  by  a  title  valid  against  all  the  world,  and 
it  will  not  be  subject  to  the  defense  of  a  failure  of  consideration  in 
his  hands. ^° 

(b)  A  party  who  takes  commercial  paper,  by  indorsement  before 
due,  without  knowledge  of  any  defects  of  title  or  defense  to  it,  and 
for  a  valuable  consideration,  will  take  a  good  title  unaffected  by  any 
defense  going  to  the  consideration.  Suspicion  of  the  defect  of  title, 
or  knowledge  of  circumstances  which  would  excite  suspicion  in  the 
mind  of  a  prudent  man,  will  not  defeat  his  title,  or  let  in  a  defense 
not  otherwise  admissible  against  it  in  his  hands.  That  result  can 
only  be  produced  by  bad  faith  on  his  part.^''' 

(c)  Although  the  assignee  of  a  note  may  have  reason  to  know, 
or  may  actually  know,  when  he  buys  it,  for  what  the  note  was 
given,  that  fact  alone  will  not  make  him  chargeable  with  knowledge 
of  special  defenses  to  it;  and  in  this  case,  although  the  jury  may 
believe,  from  the  evidence,  that  the  plaintiff  knew  when  he  pur- 
chased the  note  that  it  was  given  for,  etc.,  yet,  if  the  jury  further 
believe,  from  the  evidence,  that  he  had  no  notice  of  the  special  de- 
fense now  set  up  by  the  defendant,  and  had  no  reason  to  suspect  it, 
he  will  not  be  chargeable  with  notice  of  the  same;  nor  can  he  be 
effected  with  such  defense  in  this  suit;  provided,  the  evidence  shows 
that  the  said  note  was  assigned  to  him  in  good  faith  for  a  valuable 
consideration,  before  the  maturity  of  the  note.^^ 

(d)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff, 
before  he  purchased  said  note,  knew,  or,  as  an  ordinarily  prudent 
man,  had  reason  to  believe,  from  circumstances  brought  to  his 
knowledge,  before  he  purchased  it,  that  the  defendant  had,  or 
claimed  to  have,  a  defense  to  said  note,  or  to  some  part  of  it,  then 
the  plaintiff  is  not  an  innocent  holder  of  said  note.'*^ 

§  2168.  What  Constitutes  Innocent  Holder,  (a)  The  notes  sued 
on  in  this  case  are  negotiable  instruments,  the  execution  of  which 
is  admitted  by  the  defendant.  You  are  instructed  that  a  holder 
of  negotiable  paper,  who   takes  it  before  maturity,  for  a  valuable 

55— Davis  V.  Neleigh,  7  Neb.  78.  How.  343-363;   Farrell  v.  Lovett,   68 

."■je— L-afayotte     Sav.     Bk.     v.     St.  Me.  32fi,  28  Am.  Rep.  59. 

I.ouiH,  4  Mo.  App.  276.  .58— Borden  v.  Clark,  26  Mieh.  410. 

57— Comstr.ok    v.    Hannah,    76    111.         59—1  Pars,  on  N.  &  B.,  258;  Edwd. 

531;  Goodman  v.  Harvey,  4  A.  &  E.  on  B.  &  N.  320. 

870;      Goodman      v.      Simojicls,      20 


§  2169.]  NEGOTIABLE  INSTRUMENTS.  1427 

consideration,  in  the  usual  course  of  trade,  without  knowledge  of 
facts  which  impeach  its  validity,  between  antecedent  parties,  holds 
it  by  a  good  title.  To  defeat  his  recovery  thereon,  it  is  not  suffi- 
cient to  show  that  he  took  it  under  circumstances  which  ought  to 
excite  suspicion  in  the  mind  of  a  prudent  man.  To  have  that  effect, 
it  must  be  shown  that  he  took  the  paper  under  circumstances  show- 
ing bad  faith  or  want  of  honesty  on  his  part.  The  burden  is  on  the 
.defendant  to  establish  by  a  preponderance  of  evidence  that  plain- 
tiff is  not  a  bona  fide  holder  of  the  note  sued  on,  as  defined  in  this 
instruction.^^ 

(b)  A  holder  of  negotiable  paper,  who  takes  it  before  maturity, 
for  a  valuable  consideration,  in  the  usual  course  of  business,  without 
knowledge  of  facts  which  impeach  its  validity,  as  between  ante- 
cedent parties,  is  deemed  a  bona  fide  holder.''^ 

(c)  In  order  to  defeat  a  promissory  note  in  the  hands  of  a  bona 
fide  holder,  it  is  not  enough  to  show  that  he  took  it  under  circum- 
stances calculated  to  excite  suspicion.  To  defeat  the  note  in  his 
hands  it  must  appear,  by  a  preponderance  of  evidence,  that  he  was 
guilty  of  a  want  of  honesty,  or  of  bad  fa-i-th  in  acquiring  it.''- 

(d)  The  jury  are  instructed,  that  a  party  about  to  take  an  assign- 
ment of  a  promissory  note,  is  under  no  obligation  to  call  upon  the 
maker  and  make  inquiry  as  to  possible  defenses,  which  he  may  have, 
but  of  which  the  purchaser  has  no  notice,  either  from  something 
appearing  on  the  face  of  the  paper,  or  from  facts  communicated  to 
him  at  the  time.''^ 

§  2169.  Bona  Fide  Holder— What  Vitiates  Note  in  His  Hands, 
(a)  The  note  sued  upon  is  in  the  form  of  a  negotiable  instrument, 
and  a  holder  of  negotiable  paper  who  takes  it  before  maturity,  for  a 
valuable  consideration  in  the  usual  course  of  business,  without 
knowledge  of  facts  which  impeach  its  validity  as  between  antecedent 
parties,  is  deemed  a  bona  fide  holder. 

(b)  In  order  to  defeat  a  promissoiy  note  in  the  hands  of  a 
bona  fide  holder,  it  is  not  enough  to  show  that  such  note  was  without 
consideration,  nor  is  it  sufficient  to  show  that  su*eh  purchaser  took  it 
under  circumstances  calculated  to  excite  suspicion.  To  defeat  such 
note  in  the  hands  of  a  bona  fide  holder,  it  must  appear  by  a  pre- 
ponderance of  the  evidence,  that  such  purchaser  was  guilty  of  a 
want  of  honesty,  or  of  bad  faith  in  acquiring  it.  A  party  pur- 
chasing a  promissory  note  is  under  no  obligation  to  call  upon  the 
maker,  and  make  inquiry  as  to  possible  defenses  which  he  may  have, 
but  of  which  the  jDurchaser  had  no  notice,  either  from  something 
appearing  on  the  face  of  the  paper,  or  from  facts  communicated  to 

60— First  Nat.  Bank.  v.  Carson,  30  374;    Shreeves   v.    Allen,    79   111.    553; 

Neb.   104,  46  N.  W.   276   (277).  Hamilton    v.     Marks,     63     Mo.     167; 

61 — Crosby  v.   Tanner,    40   la.   136;  Moorehead     v.     Gilmore,     77    Penn. 

Twitchell    v.    McMurtrie,    77    Penn.  St.    US,    18   Am.    Rep.    435. 

St.   383.  63— Houry    v.    Eppinger,    34    Mich. 

62— Johnson  v.   Way,   27   Ohio  St.  29;  Murray  v.  Beckwith,  81  111.  43. 


1428  FORMS  OF  INSTRUCTIONS.  [§  2170. 

him  at  the  time,  nor  to  make  inquiry  as  to  the  identity  of  the  in- 
dorser,  in  order  to  recover  from  the  maker  of  such  note. 

(c)  If  you  believe  from  the  evidence  that  the  defendant  executed 
and  delivered  the  note  in  question  as  alleged,  and  you  further  find 
from  the  evidence  that  the  plaintiff  purchased  the  same  before 
maturity  in  the  usual  course  of  business,  and  for  a  valuable  con- 
sideration, without  knowledge  of  any  facts  which  might  impeach  its 

validity  as  between  said  and   the  person  to  whom  the 

note  was  given,  then  the  plaintiff  is  entitled  to  recover,  although 
you  may  believe  from  the  evidence  that  said  never  re- 
ceived any  consideration  for  said  note. 

(d)  If  you  find  from  the  evidence  that  defendant  executed  and 
delivered  the  note  in  suit,  and  that  the  plaintiff  purchased  the  same 
before  maturity  for  a  valuable  consideration,  and  without  a  knowl- 
edge of  facts  which  might  impeach  its  validity,  as  between 

and  the  person  to  whom  the  note  was  given,  the  plaintiff  is  entitled 
to  recover  in  this  suit,  although  you  may  believe  from  the  evidence 
that  the  defendant  was  swindled  in  the  transaction,  and  received  no 
consideration  for  said  note ;  and  the  plaintiff  if  he  purchased  the  note 
as  aforesaid,  was  not  required  in  law  to  call  upon  and  inquire  of 
the  defendant  if  he  had  a  defense  to  said  note,  but  might  rely  upon 
the  genuineness  of  the  maker's  signature  to  the  note  as  a  right  to 
recover  thereon. 

(e)  If  you  find  that  he  did  so  execute  said  note  as  aforesaid, 
he  must  suffer  the  loss,  if  any,  he  has  sustained  thei'eby;  because 
it  is  a  maxim  of  the  law  that^  where  one  of  two  persons  must  be 
made  to  suffer  from  the  fraud  or  misconduct  of  another,  the  one 
who  placed  it  within  the  power  of  such  person  to  perpetuate  the 
fraud  or  to  do  the  wrong  must  bear  such  loss.*^* 

§  2170.  Assignee  with  Notice  from  an  Assignee  without  Notice, 
(a)  The  court  instructs  the  jury,  that  if  a  note  is  assigned  before 
maturity,  for  value,  to  a  bona  fide  purchaser,  without  notice,  the 
assignee  will  be  protected  against  any  defense  by  the  maker;  and 
a  subsequent  purchaser  of  the  note  from  such  assignee,  even  with 
notice,  will  succeed  to  his  rights  in  the  same  condition  he  held 
them.  A  defense  to  the  note  having  been  once  cut  off  by  its  transfer 
to  an  innocent  holder,  will  not  be  revived  by  a  subsequent  assign- 
ment to  a  person  with  notice  of  such  defense.*'^ 

(b)  The  law  is,  that  the  holder,  for  value,  of  a  negotiable  note, 
may  recover  on  the  note,  though  he  was  fully  informed,  when 
he  received  it,  that  it  was  obtained  from  the  maker  by  fraud;  pro- 
vided, such  holder  obtains  it  from  a  person  who  took  the  note, 
in  the  usual  course  of  business,  in  good  faith  and  for  value.^^ 

§  2171.  Innocent  Purchaser — Taken  as  Security  for  Pre-existing 
Debt.     1'lie  court  instructs  the  jury,  that  the  indorsee  of  a  promis- 

C4 — Thf   above   series    of    instruc-        65 — Woodworth  v.  Huntoon,  40  111. 
tlons  ii])prov(icl  in   Crosby  v.  Ritch-     131,  89  Am.   Dec.   540. 
ey,  56  Neb.  336,  76  N.  W.  895  (896).        66— Riley    v.    Shawacker,    50    Ind. 


§  2172.]  NEGOTIABLE  INSTRUMENTS.  1429 

sory  note,  before  its  maturity,  taking  it  as  security  for  a  pre-existing 
debt,  in  the  ordinary  course  of  business  and  without  any  express 
agreement,  is  deemed  a  holder  for  a  valuable  consideration,  and 
he  will  hold  the  note  free  from  defenses  on  the  part  of  the  maker, 
of  which  he  had  no  notice  at  the  time  of  taking  it.*''' 

§  2172.  Note  Taken  in  Payment  or  Part  Payment.  If  the  jury 
believe,  from  the  evidence,  that  before  the  alleged  transfer  of  the 
note,  the  said  A.  B.  (payee)  was.  indebted  to  the  plaintiff,  and  that 
the  said  note  was  assigned  to  the  plaintiff  by  the  said  A.  B.  in 
(part)  payment  of  such  an  indebtedness,  then  the  plaintiff  is  what 
is  known  in  law  as  an  innocent  purchaser  of  the  note;  provided, 
the  jui-y  further  believe,  from  the  evidence,  that  he  took  the  note  in 
good  faith  before  it  became  due,  and  without  any  notice  of  the  al- 
leged  defense   thereto.®^ 

§  2173.  Evidence  Necessary  to  Overcome  Presumption.  A  person 
questioning  the  good  faith  of  the  assignment  of  a  note  in  the  hands 
of  an  assignee,  in  order  to  defeat  a  recovery,  must  prove,  by  a 
preponderance  of  evidence,  that  the  assignment  was  made  after  the 
maturity  of  the  note,  or  that  it  was  not  made  for  value,  or  that 
the  transaction  was  for  some  fraudulent  purpose;  or  that  the  as- 
signee took  the  note  with  notice  of  the  defense  interposed  by  the  de- 
fendant.*'^ 

§  2174.  Note  Stolen,  or  Wrongfully  Obtained,  (a)  If  the  jury 
believe,  from  the  evidence,  that  the  defendant  signed  the  note  in 
question,  in  this  ease,  knowing  that  it  was  a  note,  and  they  also 
believe,  from  the  evidence,  that  the  note  was  assigned  to  the  plain- 
tiff, for  a  valuable  consideration,  before  the  maturity  of  the  note, 
in  the  regular  course  of  business,  and  that  the  plaintiff,  at  the  time 
of  such  assignment,  had  on  notice  that  the  note  was  not  properly 
put  into  circulation,  then  the  plaintiff  will  have  a  right  to  recover, 
even  though  the  jury  may  further  believe  that  the  note  was  obtained 
from  the  maker  by  fraud  (or  that  it  was  stolen  from,  etc.,)  or 
otherwise  wrongfully  put  into  circulation.^" 

(b)  That,  although  the  jury  may  believe,  from  the  evidence,  that 
the  note  in  question  was  lost  by  the  defendant  (or  stolen  from  him), 
or  otherwise  wrongfully  put  into  circulation,  still,  if  the  jury 
further  believe,  from  the  evidence,  that  the  plaintiff  took  the  same, 
in  the  regular  course  of  business,  in  good  faith,  for  a  valuable  con- 
sideration, and  before  maturity,  and  without  any  knowledge  of  the 

\ 
592;    Bunker    on    Neg.    Instruments    93;    Cook     v.    Helms,     5    Wis.     107' 
113.  Grimm  v.  "Warner,  45  la.  106. 

67_Bowman    v.     Millison,    58    111.        68— Clary  v.   Sarrency,  58  Ga.  83. 
36;  Bunker  on  Neg.  Instruments  72;         69— Cook    v.    Helms.    5    Wis.    107; 
Carlisle    v.    Wishart,    11    Ohio    172;     Depuy  v.  Schuyler,  45  111.  306. 
Outwrite    v.    Porter,    13    Mich.    5.33;         70— Clark   v.    .Johnson.   54    111.    296; 
Stevens   v.    Campbell,    13   Wis.    375;     Barsen  v.  Huntington,  21  Mich.  415, 
Contra:  Stalker  v.  McDonald,  6  Hill     4   Am.    Rep.    497;    Joyce   on   Comm, 

Paper,  sec.  394. 


1430  FORMS  OF  INSTRUCTIONS.  [§  2175. 

manner  in  which  it  got  into  circulation,  then  the  plaintiff  is  entitled 
to  recover  on  the  note.'^^ 

(c)  The  court  instructs  the  jury,  that  in  order  to  defeat  the  title 
of  the  purchaser,  for  value,  before  maturity,  of  stolen  negotiable 
promissory  notes,  the  circumstances  proved  must  be  such  as  to  lead 
the  jury  to  believe,  from  the  evidence,  that  the  purchase  was  made 
in  bad  faith,  or  with  notice  of  the  want  of  title  in  the  seller;  mere 
proof  of  negligence  or  want  of  caution  on  the  part  of  such  a  pur- 
chaser, is  not  alone  sufficient  to  defeat  his  title  or  right  to  re- 
covery.'^- 

§  2175.  Endorsement  in  Blank.  A  note  is  said  to  be  indorsed  in 
blank  when  the  indorser's  name  is  written  on.  the  back,  leaving  a 
blank  over  the  name  for  the  insertion  of  the  name  of  an  indorsee,  or 
person  to  whom  it  is  indorsed.  And  when  the  indorsement  remains 
in  blank,  the  note  may  be  passed  from  person  to  person  by  mere 
delivery,  and  the  last  holder  has  the  right  to  fill  in  his  own  name  as 
indorsee,  and  bring  suit  on  the  note  in  his  own  name,  as  though  it 
had  been  indorsed  directly  to  him  in  the  first  instance. ^^ 

§  2176.  Endorsement  Before  Maturity — Innocent  Holder,  (a)  The 
court  instructs  the  jury  that  it  is  the  law  that  when  a  note  is  as- 
signed before  maturity  for  a  valuable  consideration,  and  without 
actual  notice  to  the  purchaser  of  facts  and  circumstances  which 
might  constitute  failure  of  consideration  or  fraud  and  circumven- 
tion in  the  procuring  the  execution  of  said  note,  then  the  defendant 
is  not  allowed  to  plead  such  failure  of  consideration  or  such  fraud 
and  circumvention  in  the  procuring  the  execution  thereof,  and  your 
verdict  should  be  made  without  regard  to  such  defense. '^^ 

(b)  In  order  to  defeat  a  promissory  note  in  the  hands  of  a 
bona  fide  holder,  it  is  not  enough  to  show  that  he  took  it  under 
circumstances  calculated  to  excite  suspicion.  To  defeat  the  note  in 
his  hands  it  must  appear  by  a  preponderance  of  evidence  that 
he  was  guilty  of  a  want  of  honesty  or  bad  faith  in  acquiring  it. 
Where  a  person  takes  an  assignment  of  a  promissory  note,  for  a 
valuable  consideration  before  due,  and  is  not  guilty  of  bad  faith, 
even  though  he  may  be  guilty  of  gross  negligence  he  will  hold  it  by 
a  title  valid  against  the  world,  and  it  will  not  be  subject  to  the 
defense   of  failure   of   consideration   in   his   hands. 

(c)  The  indorsement  of  a  negotiable  promissory  note  before  ma- 
turity, taking  it  as  payment  or  security  for  a  pre-existing  debt,  and 
Avithout  any  express  agreement,  is  deemed  a  holder  for  valuable 
consideration,  in  the  ordin'ary  course  of  trade,  and  holds  it  free  from 
latent  defenses  on  the  part  of  the  maker. '^^ 

71— Franklin,    etc.,    v.    Heinsman,  73—2  Parsons  on  Notes  and  Bills, 

1   Mo.   App.   336;    Shiply   v.   Carroll,  19,   20;    Palmer  v.    Marshall,   60   111. 

4r,    111.   285;     Murry    v.     Lardner,     2  289. 

"Wall.    110;    Gavagan   v.    Bryant,   83  74— Snively    v.     Meixsell,     97     111. 

III.  376.  App.  365  (367). 

72— Duchess   Co.   Mutual   Ins.   Co.  7r>— Webber  v.  Indiana  Nat.  Bank, 

V.  Hachneld,  73  N.  Y.  226.  4D  111.  App.  336  (341,  342). 


2177. 


NEGOTIABLE  INSTRUMENTS. 


1431 


§  2177.  Indorsement — Intention — Liability.  The  jury  are  in- 
structed, that  it  is  immaterial  in  this  ease  what  idea  the  defendant 
had  as  to  his  liability  as  the  indorser  of  the  note ;  such  liability  is 
fixed  by  law.  And  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  sold  and  indorsed  the  note,  then  he  is  liable,  in  law,  as 
the  indorser,  whatever  may  have  been  his  intention  or  understanding 
at   the   time.'^® 

§  2178.  Liability  of  Endorser — Due  Diligence — Bringing  Suit. 
(a)  Due  and  reasonable  diligence  means  such  diligence  as  a  care- 
ful, diligent  and  prudent  man  would  ordinarily  exercise  in  the  con- 
duct of  his  own  aft'airs.'^'^ 

(b)  The  jury  are  instructed,  that  when  the  indorsee  seeks  to  re- 
cover against  the  indorser  of  a  promissory  note,  upon  the  ground 
that  a  suit  against  the  maker  would  have  been  unavailing,  the  fact, 
if  proved,  that  the  maker  was  solvent  when  the  note  came  due,  will 
not  affect  the  liability  of  the  indorser,  if  it  appears,  from  the  evi- 
dence, that  such  solvency  did  not  continue  until  a  suit  against  the 
maker  could  have  been  made  availing. 

If  the  jury  believe,  from  the  evidence,  that  on  or  about,  etc.,  the 
defendant  sold  to  the  plaintiff  the  note  shown  in  evidence,  and 
then  and  there  assigned  the  same  to  him  by  writing  his  name  on 

an  incidental  assumption  without 
discussion  that  such  was  the  rule,' 
and  that,  'we  find  nothing  in 
previous  decisions  which  should 
conclude  us  from  adopting-  what, 
upon  investigation,  we  are  satisfied 
is  the  correct  doctrine  in  principle, 
and  the  prevailing  rule  of  law." 
See  also  Shreeves  v.  Allen,  79  111. 
553,  and  Murray  v.  Beckwith,  81  111. 
43,  which  last  case  holds  that  'the 
maker,  who  alone  is  responsible  for 
the  paper  becoming  an  article  of 
commerce,  can  not  be  permitted  to 
defeat  payment  unless  he  can  es- 
tablish the  fact  that  the  holder 
purchased  with  notice.  The  sale  and 
transferring  of  promissory  notes 
enter  largely  into  the  commerce  of 
the  country,  and  public  policy  re- 
quires that  an  innocent  purchaser 
should  be  protected.'  The  doctrine 
of  the  Comstock  case  is  approved 
in  the  case  of  Siegel  v.  Chicago  T. 
&  S.  B.,  131  111.  569  (574),  23  N.  E. 
417.  7  L.  R.  A.   537,   19  Am.    St.  51. 

"It  is  clear  from  these  authorities, 
the  general  doctrine  that  notice  of 
facts  that  should  excite  inquiry  in 
the  minds  of  a  reasonably  prudent 
person  is  notice  of  the  ultimate 
fact  which  such  inquiry  would  have 
disclosed,  is  not  applicable  to  the 
assignment  before  maturity  of  such 
commercial    paper  as   notes." 

76— Hawkinson  v.  Olson,  48  111. 
277. 

77— Judson  v.  Gookins,  37  III.  286. 


"The  Supreme  Court  in  the  case 
of  Comstock  V.  Hannah,  76  111. 
530,  say:  'We  accept  the  doctrine 
of  cases  as  correct  in  principle 
which  assert  the  law  on  this  sub- 
ject to  be,  "when  the  bill  has  passed 
to  the  plaintiff  without  any  proof 
of  bad  faith  in  him  there  is  no  ob- 
jection to  his  title,"  and  "suspicion 
of  defect  of  title,  or  the  knowledge 
of  circumstances  which  would  ex- 
cite such  suspicion  in  the  mind  of 
a  prudent  man,  or  gross  negligence 
on  the  part  of  the  taker  at  the  time 
of  the  transfer,  will  not  defeat  his 
title.  That  result  can  only  be  pro- 
duced by  bad  faith  on  his  part." 
And  the  duty  of  active  inquiry  does 
not  rest  on  the  purchaser  of  com- 
mercial paper  to  avert  the  imputa- 
tion of  bad  faith.  The  rights  of 
the  holder  are  to  be  determined 
by  the  simple  test  of  honesty  and 
good  faith,  and  not  by  a  specula- 
tive issue  as  to  his  diligence  or 
negligence.'  The  counsel  for  plain- 
tiffs in  error  cite  cases  of  the  Su- 
preme Court  decided  at  an  earlier 
date  than  the  Comstock  case,  ap- 
parently supporting  their  conten- 
tion that  notice  of  facts  that  would 
excite  inquiry,  are  of  themselves, 
in  the  eye  of  the  law,  notice  of  the 
ultimate  fact  which  such  inquiry 
would  have  disclosed  as  to  an  as- 
signee of  a  note  before  maturity; 
yet  in  the  above  case  it  is  said, 
'there   never   has   been   more    than 


1432  FORMS  OF  INSTRUCTIONS.  [§  2178. 

the  back  thereof,  and  that  at  the  time  when  the  note  came  due  the 
said  makers,  and  each  of  them,  was  insolvent,  and  have  ever  since 
remained  so,  and  that  a  suit  against  them  would  have  been  unavailing, 
then  the  jury  should  find  the  issues  for  the  plaintiff,  and  assess  the 
damages  at  the  amount  due  on  said  note.'^^ 

(e)  Due  diligence  does  not  consist  in  merely  instituting  a  suit 
against  the  maker  and  prosecuting  it  to  judgment,  but,  in  order 
to  show  this  diligence,  the  assignee  must  show,  by  a  preponderance 
of  evidence,  that  within  the  county  where  the  suit  was  commenced 
he  had  used  all  the  means  that  the  law  has  furnished  him  with  to 
enforce  the  collection  of  the  moneyJ^ 

(d)  The  law  does  not  require  that  the  assignee  of  a  promissory 
note  shall  resort  to  the  extraordinary  process  of  attachment  against 
the  maker  before  he  can  hold  the  indorser  liable.  If  the  jury  be- 
lieve, from  the  evidence,  that  before  the  maturity  of  the  note  in 
question  the  maker  of  the  note  had  removed  from  this  state  and 
was  residing  out  of  this  state  when  the  note  became  due,  then  the 
plaintiff  had  a  right  to  proceed  at  once  against  the  defendant  and 
hold  him  responsible  for  the  payment  of  the  note.^° 

(e)  The  court  instructs  the  jury,  that  in  order  to  hold  the  in- 
dorser of  a  note  liable  on  his  indorsement,  it  is  not  necessary  that 
the  holder,  in  his  attempts  to  collect  the  note  of  the  maker,  should 
have  used  the  greatest  possible  degree  of  diligence.  He  is  only 
required  to  use  such  diligence  as  is  ordinarily  used  by  careful,  vigi- 
lant and  prudent  men  in  the  conduct  of  their  own  affairs.^^ 

(f)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  in- 
stituted a  suit  on  the  note  in  question,  against  the  maker,  in  the 
circuit  court  of  the  county  in  which  the  maker  resided,  at  the  first 
term  of  said  court  after  the  note  became  due,  and  prosecuted  said 
suit  to  final  judgment,  with  all  reasonable  diligence,  and,  after  the 
judgment  was  obtained,  with  all  reasonable  diligence  caused  an  exe- 
cution to  issue  thereon,  and  placed  the  same  in  the  hands  of  the 
sheriff  of  said  county;  and  if  the  jury  further  believe,  from  the 
evidence,  that  the  shei-iff  at  no  time  during  the  life  of  the  execution, 
was  able  to  find  property  of  the  defendant  in  the  execution  to  satisfy 
the  same,  or  any  part  thereof,  and  that  at  the  expiration  of  (ninety) 
days  from  its  issue  he  returned  the  execution,  no  property  found, 
then  the  plaintiff  is  entitled  to  recover  in  this  suit  the  amount  of 
said  note  and  interest,  provided  the  juiy  further  believe,  fi-om  the 
evidence,  that  during  the  time  the  sheriff  so  held  the  execution,  and 
ever  since  that  time,  said  A.  B.  has  had  no  property,  out  of  which 

78— McClurg  v.  Fryer,  15  Penn.  St.  29  Wis.  649;  Craig  v.  Perkins,  40  N. 

293;  Grllligham  v.  Bordman,  29  Me.  Y.  181,  100  Am.  Dec.  469. 

79;    Bull   V.   Bliss,  30  Vt.   127;    Stone  79— Holbrook  v.  Vibbard.  2  Scam. 

V.    Rochefcller,     29     Ohio     St.     625;  46r);  Wilson  v.   Binford,  54  Ind.  569. 

Miles  V.  Liniioll,  97  Muss.  298.     But  80— Titus  v.   Seward,   68  Ind.   456. 

sf;o  Bosman  v.  Akorly,  39  Mich.  710,  81—2   Pars,   on   N.   &  B.,  141. 
33  Am.  Rep.   447;   Frank  v.   Marsh, 


§  2179.]  NEOOTIABLE  INSTRUMENTS.  1433 

the  said  execution,  or  any  part  thereof,  could  have  been  made  by 
the  exercise  of  ordinary  diligence  on  the  part  of  the  plaintiff.^^ 

(g)  The  court  further  instructs  the  jury,  that  the  fact  that  a 
suit  against  the  maker  would  have  been  unavailing,  may  be  proved 
by  any  other  legal  testimony,  as  well  as  by  the  return  of  an  execu- 
tion against  him  unsatisfied.  To  entitle  the  plaintiff  to  recover,  it 
is  only  necessary  for  the  jury  to  believe,  from  the  evidence,  that  such 
suit  would  have  been  unavailing.^^ 

§  2179.  Return  of  the  Oflacer  not  Conclusive.  The  court  instnicts 
the  jury,  tliat  the  executions,  introduced  in  evidence  with  the  re- 
turns thereon  indorsed  of  no  property  found,  are  not  alone  conclu- 
.sive  evidence  that  the  maker  of  the  note  was  at  the  time  insolvent, 
or  that  due  diligence  against  him  would  have  been  unavailing.^* 

§  2180.  Extension  of  Time,  (a)  An  agreement  to  extend  the 
time  of  payment  of  a  note,  after  its  maturity,  made  between  the 
holder  and  the  principal  maker,  to  have  the  effect  to  release  the 
indorser,  must  be  a  valid  agreement,  upon  a  sufficient  consideration, 
and  one  that  the  maker  could  enforce  as  against  the  payee  or  holder 
of  the  note.  An  agreement  to  continue  to  pay  usury  (or  an  agTce- 
ment  to  continue  to  pay  interest  at  the  rate  mentioned  in  the  note) 
would  not  be  such  an  agreement,  and  it  would  not  release  the  in- 
dorser.®^ 

(b)  In  this  case  the  defendant  A.  B.  is  sued  as  an  indorser  or 
guarantor  of  the  note  in  question,  and  if  the  jury  believe,  from  the 
evidence,  that  at  or  about  the  time  the  note  became  due,  the  plain- 
tiff, without  the  knowledge  or  consent  of  the  defendant,  made  an 
agreement  with  the  maker  of  the  said  note  to  extend  the  time  of 
payment  of  the  same  for  the  period  of,  etc.,  provided  the  maker  of 
the  said  note  would  pay  interest  thereon  in  advance  for  such  exten- 
sion, at  the  rate  of,  etc.,  and  that,  in  pursuance  of  such  agreement, 
such  advance  interest  was  then  and  there  paid,  then  such  agreement 
to  extend  the  time  of  payment  of  said  note  would  release  the 
defendant  from  all  liability  thereon.^'' 

§  2181.  Endorsement  Constitutes  Prima  Facie  Liability.  This  is 
an  action  brought  by  the  plaintiff'  against  the  defendant  upon  an 
endorsement  made  on  a  certain  promissory  note.  It  is  admitted  that 
this  endorsement  by  the  defendant  constitutes  a  prima  facie  liability 
of  the  defendant  to  the  plaintiff  for  the  amount  of  the  note,  or  the 
balance  due  thereon.**^ 

§  2182.  New  Party — New  Consideration.  That  where  one  becomes 
a  party  to  a  note,  after  it  has  once  been  delivered,  and  the  eonsid- 

82— Judson  v.  Gookin,  37  111.  286.  Wis.    325;    Fawcett   v.    Freshwater, 

S3— Roberts  v.  Haskell,  20  III.  59.  31  Ohio   St.  637. 

84— Roberts  v.   Haskell,  20  111.   59.  86— Randolph  v.  Flemming,  59  Ga. 

85— Stewart  v.  Parker,  55  Ga.  G56;  776. 

White     V.     Whitnev,     51     Ind.     124;  87— First   Nat'l   Bk.   v.   Anderson, 

Mvers    V.     First    Nat.    Bk.,    78    111.  5  Ind.  T.  118,  82  S.  W.  693   (694). 
257;    Weed    &   Co.   v.    Oberreich,   38 


1434  FORMS  OF  INSTRUCTIONS.  [§  2183. 

eration  passed,  he  will  incur  no  liability  unless  there  is  a  new  con- 
sideration for  his  promise  and  a  re-delivery  of  the  note.^^ 


GUARANTORS  AND  SURETIES. 

§  2183.  Gnarantor — ^Liahility  Generally.  The  jury  are  instructed, 
that  a  guarantor  of  a  promissory  note  cannot  be  made  liable  beyond 
the  express  terms  of  his  contract  or  undertaking.  He  has  a  right  to 
prescribe  the  terms  and  conditions  upon  which  he  will  assume  a  re- 
sponsibility, and  no  other  person  has  a  right  to  change  those  terms, 
not  even  with  the  design  of  diminishing  the  probabilities  of  ultimate 
loss  by  the  guarantor;  and  it  is  wholly  immaterial  whether  the 
change  is  advantageous  to  him  or  not.^^ 

§  2184.  When  an  Endorser  Becomes  a  Guarantor — ^Illinois.  The 
court  instructs  you  that  where  the  name  of  a  person,  not  the  payee 
of  a  note,  is  indorsed  on  it,  before  delivery,  in  the  absence  of 
evidence  to  the  contrary,  he  indorses  it  as  a  guarantor.^" 

§  2185.  Guarantor  Liable  Until  Note  is  Paid— Delay  Will  Not 
Release,  (a)  That  the  liability  of  the  guarantor  of  a  note  con- 
tinues until  the  note  is  paid  or  barred  by  the  statute  of  limitations, 
and  he  is  not  discharged  by  a  mere  delay  in  bringing  suit  against 
the  maker."^ 

(b)  That  mere  delay,  on  the  part  of  a  creditor,  to  proceed  against 
the  principal  debtor,  does  not  discharge  the  surety;  all  that  the 
surety  has  a  right  to  require  is  that  the  creditor  should  do  no 
affirmative   act   to  its  prejudice.^- 

§  2186.  Release  of  Guarantor — Extending  Time — Surety,  (a) 
The  court  instructs  the  jury,  that  a  valid  agreement  between  the 
payee  or  holder  and  the  principal  maker  of  a  promissory  note,  for 
an  extension  of  the  time  of  payment  of  the  note  for  a  definite  and 
fixed  period  of  time,  after  its  maturity,  will  release  the  guarantor 
(or  surety),  unless  he  consents  to  the  agreement  at  the  time  it  is 
made,  or  afterwards  ratifies  it.®^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
A.  B.  signed  the  note  in  question  merely  as  surety  and  for  the 
accommodation  of  the  other  makers  of  said  note,  and  that  this  fact 
was  known  to  the  plaintiff  when  the  note  was  given,  and  that  at  or 
about  the  time  that  the  note  came  due,  the  plaintiff,  without  the 
ktH)\vledge  or  consent  of  said  A.  B.,  made  an  agreement  with  the 
other  makers  of  said  note  to  extend  the  time  of  payment  of  the 
same   for   the   period    of    (sixty    days),   in   consideration   that    such 

88— Williams  v.   Williams,   67  Mo.  91— Parkhurst  v.  Vail,   73  III.  343. 

661;   Briffgs  v.  Downing,  48  la.  550.  92— Villars   v.   Palmer,   67   111.    204. 

89— Ryan   v.    The  Tru.stees,   14   111.  93— Danforth    v.    Simple,     73     111. 

20.  170;   Tracey  v.   Quillon,  65  Ind.   249; 

90— Glickauf  v.    Kaufmann,  73  111.  Barron  v.  Cadv,  40  Mich.  259;  Kittle 

37.  v.  Wilson,  7  Neb.  76. 


§2187.]  NEGOTIABLE  INSTRUMENTS.  1435 

other  makers  of  said  note  would  pay  interest  thereon,  in  advance, 
for  such  extension,  at  the  rate  of,  etc.,  and  that  in  pursuance  of 
such  agreement  such  advance  interest  was  then  and  there  paid,  then 
such  agreement  to  extend  the  time  of  payment  of  said  note  would 
release  the  defendant  A.  B.  from  all  liability  thereon.^* 

(c)  In  this  case  the  defendant  A.  B.  is  sued  as  an  indorser  or 
guarantor  of  the  note  in  question,  and  if  the  juiy  believe  from  the 
evidence,  that  at  or  about  the  time  the  note  became  due,  the  plain- 
tiff, without  the  knowledge  or  consent  of  the  defendant,  made  an 
agreement  ^vith  the  maker  of  the  said  note  to  extend  the  time  of 
pa\Tnent  of  the  same  for  the  period  of,  etc.,  provided  the  maker  of 
the  said  note  would  pay  interest  thereon  in  advance  for  such  exten- 
sion, at  the  rate  of,  etc.,  and  that,  in  pursuance  of  such  agreement, 
such  advance  interest  was  then  and  there  paid,  then  such  agreement 
to  extend  the  time  of  payment  of  said  note  would  release  the  de- 
fendant from  all  liabilitj'  thereon.^^ 

§  2187.  Consideration  for  Guaranty,  (a)  The  jury  are  instructed, 
as  a  matter  of  law,  that  to  render  a  contract  of  guaranty  binding, 
it  must  be  vipon  a  good  or  valuable  consideration.  If  a  guaranty  is 
placed  upon  the  back  of  a  note,  at  the  time  of  its  execution  or  before 
its  deliveiy  to  the  jDayee,  so  as  to  form  a  part  of  the  original 
transaction,   then  no  other  consideration  need  be  shown. 

(b)  But  w^hen  the  name  of  a  guarantor  is  written  on  the  back  of 
a  note,  after  its  delivery  to  the  payee,  then,  to  make  the  guarantor 
liable,  the  jury  must  believe,  from  the  evidence,  that  there  was  some 
new   consideration   for   such   guaranty.^*^ 

§  2188.  Insolvency  May  be  Proved  by  Other  Evidence — Return  of 
Officer  not  Conclusive,  (a)  The  court  further  instructs  the  jury, 
that  the  fact  that  a  suit  against  the  maker  would  have  been  unavail- 
ing, may  be  proved  by  any  other  legal  testimony,  as  well  as  by  the 
return  of  an  execution  against  him  unsatisfied.  To  entitle  the  plain- 
tiff to  recover,  it  is  only  necessaiy  for  the  jury  to  believe,  from  the 
evidence,  that  such  suit  would  have  been  unavailing. '*^ 

(b)  The  court  instructs  the  juiy,  that  the  executions,  introduced 
in  evidence  with  the  returns  thereon  indorsed  of  no  property  found, 
are  not  alone  conclusive  evidence  that  the  maker  of  the  note  Avas 
at  the  time  insolvent,  or  that  due  diligence  against  him  would  have 
been  unavailing."^ 

§  2189.  Guaranty — Acceptance — Knowledge  Thereof.  If  the  guar- 
anty was  in  fact  accepted  by  the  plaintiif,  and  knowledge  of  such 
acceptance  of  it  was  in  fact  brought  home  to  the  defendant,  it  is 
sufficient  without  proof  of  notice  from  the  guarantee.  If  the  jury 
find   that   defendant   had  knowledge   of  the   acceptance,  if   an}',   of 

94_ir'awcett      v.     Freshwater,      31  96— Joslyn  v.  Collinson,  26  111.  61; 

Ohio    St.    637;    T\''inne    v.    Colorado  Ware  v.  Adams,  24  Me.  177;  White 

Springs  Co.,  3  Col.  155.  v.  White,  30  Vt.  33S. 

95— Randolph  v.  Flemming,  59  Ga.  97— Roberts  v.  Haskell,  20  111.  59. 

776.  98 — Roberts   v.   Haskell,   supra. 


1436  FORMS  OF  INSTRUCTIONS.  [§  2190. 

the  saiaranty,  no  special  notice  of  the  acceptance  of  the  guaranty  or 
the  offer  of  guaranty  was  necessary.^" 

§  2190.  Co-Sureties — Partners.  You  are  instructed  by  the  court 
that  if  you  find  from  a  prei^onderance  of  all  the  evidence  that  on 
March  20,  1899,  the  plaintiff  and  defendant,  as  co-sureties  and  the 
only  sureties  for  S.  Bros.,  signed  the  note  for  $2,000  to  G.,  and  that 
thereafter  the  said  note  was  wholly  paid  out  of  the  proceeds  of  the 
property  of  plaintiff,  and  that  defendant  paid  no  part  of  the  same, 
and  that  after  the  making  of  said  note  plaintiff  bought  from  S.  his 
interest  in  the  firm  of  S.  Bros.,  you  must  find  for  plaintiff  and 
against  defendant  for  an  amount  equal  to  one-half  of  the  amount 
paid  to  satisfy  the  said  G.  note,  together  with  interest  on  said  amount 
of  one-half  from  date  of  such  payment  at  7  per  cent  per  annum 
until  this  time;  unless  you  further  find,  from  a  preiDonderance  of 
all  the  evidence,  that  plaintiff  at  the  time  of  purchase  of  said  S. 's 
interest,  or  thei'eafter,  made  a  special  promise  to  assume  as  a 
partner  the  indebtedness  of  said  firm  of  said  G.^°° 

§  2191.  Lien  of  Surety— Title  to  Goods,  (a)  If  you  find  from 
the  evidence  that  0.  became  surety  for  R.  &  J.  to  the  Bank  of  N. 
for  $350.00  and  that  he  was  to  have  a  lien  upon  the  cotton  that 
was  ginned  by  R.  &  J.  in  case  the  said  note  became  due  and  0.  had 
to  pay  it,  this  would  not  prevent  a  recovery  of  the  cotton  in  contro- 
versy by  the  interveners  and  the  L.  Cotton  Company  unless  you 
further  find  that  said  L.  Cotton  Company  bought  said  cotton  with 
notice  of  said  lien. 

(b)  If  you  find  from  the  evidence  that  the  plaintiff  was  not  the 
absolute  owner  of  the  cotton  in  controversy,  but  was  to  hold  the 
same  or  proceeds  thereof  until  he  was  made  safe  or  repaid  for  ad- 
vances made  by  him,  such  would  not  be  sufficient  but  the  cotton 
must  have  been  actually  delivered  to  him,  and  if  you  find  the  cotton 
in  controversy  was  bought  and  ginned  in  the  ordinary  course  of 
business  and  the  same  was  never  delivered  to  0.,  he  cannot  sustain 
his  action  against  the  interveners,  and  you  will  find  for  the  inter- 
veners.^ 

§  2192.    Lien  of  Surety— Bills  of  Lading  Held  by  Title  to  Goods. 

(a)  If  you  find  from  a  preponderance  of  the  evidence  hei'ein,  the 
defendant  requested  0.  to  become  their  surety  to  the  bank  and  the 
defendants  further  gave  him  certain  sums  of  money  and  it  was  fur- 
ther agreed  he  should  hold  the  money  and  dislnu'se  the  same  for  seed 
cotton,  for  them,  and  hold  the  bills  of  lading  therefor  and  collect 
the  proceeds  of  sale  and  repay  bis  advances  and  was  later  on  to 
receive  compensation  for  services  rendered,  such  an  arrangement 
would  not  bo  sufficient  to  give  such  a  title  to  the  plaintiff  as  would 

99— Mosaic  Tile  Co.  v.  Chiera,  133  1— O'Neal  v.   Richardson,   78  Ark. 

Mlfh.  497,  95  N.  W.  537  (538).  132,   92   S.   W.   1117. 

100— Stricklor  v.   Gitchel,  14  Okla. 
523,  78  Pac.  94  (96). 


§2193.]  NEGOTIABLE  INSTRUMENTS.  1437 

entitle  him  to  recover  in  this  suit  and  you  should  find  for  the  inter- 
veners. 

(b)  If  you  find  from  a  preponderance  of  the  evidence  herein  in 
order  to  secure  the  means  to  run  their  gin,  the  defendants,  R.  &  J., 
induced  the  plaintiff  to  go  upon  their  notes  to  the  bank  for  mone}' 
and  to  make  advances  to  them  from  time  to  time,  they  agreed  the 
plaintiff  should  hold  all  funds  received  by  defendants,  and  all  cotton 
shipped  or  sold  by  them  was  delivered  to  plaintiff  by  the  deliveiy 
of  the  bills  of  lading  therefor,  and  the  plaintiff  was  to  be  repaid  for 
his  advances  and  for  the  money  borroAved  on  his  name,  and  he  was 
to  receive  a  compensation  therefor,  such  an  arrangement  would  not 
confer  the  title  of  the  cotton  upon  the  plaintiff.^ 

§  2193.  Possession  of  Personal  Property  Evidence  of  Ownership, 
(a)  The  court  instructs  the  jury,  that  when  one  person  sells  per- 
sonal property  to  another,  and  retains  possession  of  it,  the  property 
would  be  subject  to  levy  under  an  execution  against  the  seller,  so 
long  as  it  remains  in  his  jDOssession,  such  a  sale  being,  in  law,  fraud-, 
ulent,  as  against  subsequent  purchasers  in  good  faith,  and  execution 
creditors  of  the  seller.^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  M.,  the  maker  of 
the  note,  was  in  possession  of,  and  had  under  his  control,  personal 
property  during,  etc.,  such  possession  is  presumptive  evidence  that 
he  owned  said  property  and  unless  ^the  jury  believe,  from  the  evi- 
dence, that  some  one  else  owned  the  property,  the  presumption  would 
be  that  it  really  belonged  to  the  said  M.'* 

2 — O'Neal  v.   Richardson,  78  Ark.        3 — Bump   on   Fraud.   Con.,   60. 
132,  92  S.  W.  1117.  4— Roberts  v.  Haskell,  20  111.   59. 


CHAPTER   LXXIV. 


NUISANCES. 


See  Erroneous  Instructions,  same  chapter  head,  "Vol.  III. 


§  2194.  Nuisance — Maintenance  of 
factory — Injury  to  resi- 
dence    neighborhood. 

§  2195.  Nuisance — Injury  to  adjoin- 
ing- property  through  smoke 
and  soot  from  stationary 
steam  engine. 

§  2196.  Nuisances — Liability  of  own- 
er for  maintaining-  danger- 
ous pit. 


§  2197.  Nuisance — Damage  to  church 
property  throug-h  establish- 
ment of  railroad  shops  iu 
neigliborhood. 

§  2198.  Nuisance — Polluting  stream 
— Depositing  coal  refuse 
from  mine  into  stream — 
— Admonishing  jury  to 
render  verdict  according  to 
the  evidence  and   law. 


§  2194.  Nuisance — Maintenance  of  Factory — Injnry  to  Residence 
Neighborhood.  If  the  jury  find  from  the  evidence  that  the  defendant 
conducted  his  factory  in  the  ordinary  business  way,  and  in  a  locality 
where  there  are  other  factories,  then  the  w^rong  complained  of  must 
be  naturally  productive  of  actual  physical  discomfort  to  i3ersons  of 
ordinary  sensibilities  and  of  ordinary  tastes  and  habits  to  entitle  the 
plaintiff  to  recover,  and  the  injury  complained  of  must  be  material 
and  direct  from  conduct  of  the  defendant,  without  the  operation  of 
the  other  factories  and  manufacturing  establishments,  situate  in  the 
neighborhood  of  the   dwelling  of  the  plaintiff.^ 

§  2195.  Nuisance — Injury  to  Adjoining  Property  Through  Smoke 
and  Soot  from  Stationary  Steam  Engine,  (a)  Even  if  the  jury 
shall  find  from  the  evidence  that  defendant  erected  on  his  premises 
a  stationary  steam  engine,  and  used  it  in  connection  with  his  busi- 
ness of  making  cigar  and  other  light  wooden  boxes,  such  erection  and 
use  is  not  in  itself  a  nuisance,  and  the  plaintiff  is  not  entitled  to 
recover,  if  the  jury  believe  defendant  caused  to  be  constructed  and 
used,  in  connection-  with  the  machinery  on  his  said  premises,  the 
best  appliances  to  prevent  the  escape  of  smoke,  steam,  cinders,  soot 
and  dust  from  his  said  premises,  and  that  said  appliances  did  pre- 
vent such  escape  to  the  extent  of  not  seriously  interfering  with  the 
plaintiff  in  the  comfortable  enjoyment  of  his  property  or  substan- 
tially damaging  the  same,  and  no  unreasonable  noise  or  vibration 
was  caused  by  defendant's  engine  or  machinery  on  his  said  i^remises. 

(b)  If  the  jury  find  from  the  evidence  that  defendant  did  not 
vvrongfully  cause  to  issue  from  the  smokestack  on  his  premises  large 
quantities  of  offensive  and  unwholesome  smoke,  soot,  and  other  mat- 
ter,  which    fell    upon    the    ground    and    penetrated    the   pi^emises   of 

1— Lurssen    v.    Lloyd,    76   Md.    360,     25  Atl.   294  (295). 

1438 


§2196.]  NUISANCES.  1439 

plaintiff,  and  that  defendant  did  not,  by  noise  and  disturbing  vibra- 
tion pi'oduced  on  his  premises,  render  the  rooms  in  plaintiff's 
dwelling-  unfit  for  habitation,  and  -did  not  cause  plaintiff  to  lose 
tenants,  and  the  plaintiff  was  not  unable  to  use  the  yard  on  his 
premises  for  laundrying  and  other  purposes,  by  reason  of  the  causes 
above  mentioned,  and  the  defendant  by  use  of  the  steam  engine  and 
machineiy  on  his  premises,  and  the  manner  he  conducted  his  busi- 
ness, did  not  othei'wise  materially  or  substantially  injure  plaintiff's 
property  or  seriously  interfere  with  his  comfort  or  enjoyment  thereof, 
then  defendant,  under  the  pleadings  and  evidence  in  this  case,  is 
entitled  to  a  verdict  in  his  favor.^ 

§  2196.  Nuisances — Liability  of  Owner  for  Maintaining  Dangerous 
Pit  Adjoining  Highway.  The  jury  are  instructed  that  the  owner  of 
property  adjoining  a  highway  is  bound  to  use  his  property  so  as  to  do 
no  hann  to  persons  lawfully  traveling  upon  the  highway,  and  if  he  digs 
a  pit  near  a  sidewalk,  so  that  one,  in  passing,  falls  in,  and  is  thereby 
injured,  he  is  liable  for  damages  to  the  person  injured,  provided  said 
pit  or  cellar  was  not  properly  guarded,  and  such  pit-falls  or  cellars,  if 
contiguous  to  the  public  street,  are  nuisances  for  which  the  ow-ner  of 
the  land  is  liable.^ 

§  2197.  Nuisance — Damage  to  Church  Property  Through  Estab- 
lishment of  Railroad  Shops  in  Neighborhood,  (a)  The  suit  is 
brought  by  a  congregation  duly  incorporated,  and  they  have  brought 
an  action  to  recover  damages  for  their  inconvenience  and  discom- 
fort in  consequence  of  the  acts  of  the  defendant.  It  is  the  personal 
discomfort  more  than  anything  else  which  is  to  be  considered  in 
regard  to  the  assessment  of  damages.  Now,  I  can  very  easily  imagine, 
and  it  may  often  happen,  that  the  construction  of  an  improvement 
such  as  this  might  increase  the  value  of  property  in  the  vicinity,  and 
I  am  not  sure  at  all  that  the  erection  of  this  workshop  in  that 
neighborhood  may  not  really  have  increased  the  intrinsic  value  of 
the  property  belonging  to  this  congregation.  The  evidence  in  the 
ease  does  not,  as  it  seems  to  me,  show  that  this  property  has  been 
depreciated  by  the  construction  of  that  workshop.  We  can  imagine, 
and  it  is  not  a  far-fetched  imagination  either,  that  the  effect  of  such 
a  workshop  in  that  neighborhood  might  be  to  collect  a  population 
around  it,  and  thus  increase  the  population  in  that  neighborhood, 
and  really  enhance  the  value  of  property;  and  yet  the  congregation 
would  be  entitled  to  recover  damages  (although  their  property  might 
have  increased  in  value)  because  of  the  inconvenience  and  discom- 
fort they  have  suffered  from  the  use  of  the  shop.  The  congregation 
has  the  same  right  to  the  comfortable  enjoyment  of  its  house  for 
church  purposes  that  a  private  gentleman  has  to  the  comfortable 
enjoyment  of  his  own  house,  and  it  is  the  discomfort  which  is  the 
primary  consideration  in  allowing  damages. 

■(b)     If  you  find  all  these  facts,  then,  this  shop  is  a  nuisance,  and 

2— Lurssen   v.   Lloyd,    supra.  3— Cannon  v.  Lewis,  18  Mont.  402. 

45  Pac.  572  (574). 


1440  FORMS  OF  INSTRUCTIONS.  [§  2197. 

a  special  annoyance  to  the  congregation  that  worship  in  this  church. 
Every  man  has  a  right  to  the  comfortable  enjoyment  of  his  own 
house,  in  which  enjoyment  a  neighbor  cannot  molest  him;  and  no 
grant  conferred  by  proper  authority  upon  any  corporation  to  con- 
struct a  railroad  along  the  public  streets,  or  to  build  shops,  can  be 
construed  as  authorizing  that  company  to  construct  a  nuisance.  If 
the  work  is  of  such  a  necessary  kind  that  the  company  must  have 
it,  if  the  shop  is  of  that  character,  and  yet  is  a  nuisance  in  the 
neighborhood,  they  must  find  some  other  place  to  put  it.  No  legis- 
lature has  a  right  to  establish  a  private  nuisance. 

(c)  If  the  jury  find  from  the  evidence  that  the  engine  house  of 
the  defendant  is  used  for  receiving  its  engines  when  they  come  into 
the  city  after  a  trip;  that  after  coming  into  said  engine  house  such 
engines  more  or  less  frequently  blow  off  their  steam,  and  that  such 
blowing  off  of  steam  makes  a  loud  and  disagreeable  noise,  and  that 
such  engines  are  put  in  the  stalls  in  said  house,  and  emit  the  smoke 
from  their  fires  through  the  chimneys  of  said  house,  and  that  the 
said  engine  house  is  used  for  the  purpose  of  a  shop  in  which  to  make 
a  certain  class  of  repairs  upon  the  engines  and  ears  of  the  de- 
fendant, and  that  a  loud  noise  of  hammering  is  created  in  making 
such  repairs,  and  that  said  engine  house  is  also  used  to  receive  coal 
for  coaling  the  engines  of  defendant  before  going  out,  and  that  they 
are  all  coaled  therein  and  also  get  up  their  fire  and  steam  therein, 
and  further  find  that  said  house  is  located  so  near  the  church  of 
the  plaintiff  that  the  noises  from  said  engine  house  can  be  distinctly 
heard  inside  of  said  church,  and  also  that  the  chimneys  of  said 
engine  house  are  so  constructed  that  the  tops  thereof  are  not  as 
high  as  the  tops  of  the  windows  of  said  church,  and  shall  further 
find  that  the  smoke  from  said  chimneys  is  thrown  through  said  win- 
dows into  said  church  in  such  quantities  and  so  generally  as  to  be  a 
common  annoyance  and  inconvenience  to  the  congregation  worship- 
ping therein,  and  that  said  noises  in  said  yard  of  blowing  off  steam 
are  of  daily  and  nightly  occurrence,  and  are  so  distinctly  heard  in 
said  church  on  Sundays,  as  well  as  the  days  of  the  week,  as  to 
annoy,  harass,  and  inconvenience  the  congregation  when  engaged  in 
divine  worship  therein,  and  that  they  disturb  and  greatly  incon- 
venience the  congregation  in  the  enjoyment  of  said  building  as  a 
church,  then  the  plaintiff  is  entitled  to  recover,  provided  the  jury 
find  that  said  church  was  located  upon  the  spot  where  it  now  is 
before  the  defendant  established  its  engine  house  in  its  present  posi- 
tion, and  provided  the  jury  further  find  that  the  annoyance  and 
inconvenience  to  said  congregation  from  the  smoke  and  noises  above 
mentioned  occurred  within  three  years  before  the  date  at  which  this 
suit  was  brought,  and  provided  further  that  said  noises  and  smoke 
depreciated  the  value  of  the  property  of  the  plaintiff  within  the 
period  from  April  1st,  1874,  to  March  22d,  1877.' 

4— Baltimore    &  Potomac    R.    R.    Co.  v.  Fifth  Bap.  Church,  108  U.  S. 
317  (322),  2  S.  Ct.  719. 


§  2198.]  NUISANCES.  1441 

§  2198.  Nuisance— Polluting  Stream— Depositing  Coal  Refuse 
from  Mine  into  Stream — Admonishing  Jury  to  Render  Verdict  Ac- 
cording to  the  Evidence  and  Law.  (a)  Jurors  in  the  trial  of  cases 
of  this  kind  are  apt  to  allow  their  feelings  of  sympathy  on  one 
side,  or  their  feelings  possibly  of  prejudice  upon  the  other,  to  induce 
them  to  render  verdicts  which  the  law  does  not  consider  proper, 
because  those  verdicts  are  frequently  contrary  to  the  law  and  con- 
trary to  the  evidence  in  the  case.  Therefore  verdicts  rendered  in 
that  way  come  to  naught.  They  have  to  be  set  aside  by  this  court, 
or,  by  an  act  of  Assembly.  Now,  a  higher  court  can  reduce  the  ver- 
dicts where  they  are  improper  and  not  according  to  the  evidence. 
The  court  of  last  resort  has  said  in  discussing  these  cases  that  the 
trial  judge  (myself  in  this  case  would  be  the  trial  judge)  sits  in 
some  respects  as  a  thirteenth  juror,  and  it  is  his  duty  to  see  that  the 
verdict  rendered  by  a  jury  should  be  in  accordance  with  the  law 
and  in  accordance  with  the  weight  of  evidence  in  the  case,  and  not 
contrary  to  both  or  either.  In  a  veiy  recent  case  the  Supreme  Court 
has  used  this  language  in  discussing  a  question  of  that  kind.  'It  is 
the  clear  duty  of  the  court,  in  peremptory  language,  to  hold  the  jury 
down  to  lawful  damages,  and,  if  they  disregard  the  instructions  of 
the  court  to  set  aside  their  verdict. '  You  see  what  my  duty  is,  unless 
you,  in  reaching  a  verdict,  are  governed  by  the  evidence  and  the  law. 
If  the  court — the  trial  judge — ^in  its  instruction  as  to  the  law,  makes 
a  mistake  or  an  en-or,  in  its  view  of  the  law,  there  is  a  remedy. 
Either  side  can  appeal  to  the  higher  court,  and  whatever  error  the 
trial  judge  has  been  guilty  of  can  be  corrected  by  the  Superior 
court  or  the  Supreme  court  of  this  Commonwealth,  reversing  the 
court  below.  You  are  the  judges  of  the  fact  under  the  law.  And  if 
you  render  a  verdict  contrary  to  the  evidence  and  contrary  to  the 
law,  under  the  peremptory  instructions  which  the  Supreme  Court 
has  laid  down  to  us,  it  becomes  my  duty  to  set  aside  your  verdict. 
Well,  neither  you  nor  the  court  want  such  a  conclusion  of  a  trial 
which  has  occupied  now  eight  days.  Therefore,  knowing  the  ten- 
dency of  jurors  to  allow  their  s\Tnpathies  and  their  feelings  to 
sway  them  in  rendering  verdicts,  I  have  thought  proper  to  draw 
your  attention  to  your  duty  under  the  evidence,  and  to  our  duty  if 
you  disregard  your  duty,  as  we  have  been  told  it  is  our  duty  to  do 
by  our  courts  of  last  resort. 

(b)  The  Supreme  Court  of  this  state  has  said:  "There  is  no 
doubt  that  the  owner  of  coal  lands  may  mine  and  remove  his  coal  in 
a  proper  manner.  If  the  drainage  from  the  mines  falls  into  and 
pollutes  a  stream  of  water,  and  injuriously  affects  lower  riparian 
owners,  this  fact  alone  does  not  impose  liability  upon  the  owner  of 
the  coal."  Bear  that  in  mind:  that  if  the  drainage  of  the  mines 
falls  into  and  pollutes  a  stream  of  water,  and  injuriously  affects 
lower  riparian  owners — in  this  case  the  plaintiff  was  a  lower  riparian 
owner,  owing  property  below  where  the  Panther  Creek  emptied  into 
91 


1442 


FORMS  OF  INSTRUCTIONS. 


[§  2198. 


the   Little    Schuylkill   river — that    this   fact    alone   does   not   impose 
liability  upon  the  owner  of  the  colliery. 

(c)  It  is  apparent  to  all  of  us  that  the  mining  operation  of 
Schuylkill  county  are  important  not  only  to  the  owners  of  the  col- 
lieries, but  to  all  who  live  in  this  county;  that,  if  you  were  to  shut 
up  the  mines  of  the  county  and  stop  mining  operations,  it  might  work 
a  great  deal  of  injury  to  most  all  other  persons  or  all  other  property 
situated  within  the  county.  The  great  industiy  of  the  northern  part 
of  the  county  is  its  mining  operations,  and,  practically  speaking, 
without  those  mining  operations  in  the  upper  end  of  the  county  a 
gi'eat  deal  of  that  territory  would  be  useless,  possibly  almost  unin- 
habitable. Therefore,  when  you  come  to  pass  upon  the  negligence 
of  the  defendant  and  upon  the  rights  of  the  plaintiff,  it  is  your 
duty  to  bear  in  mind  that  the  defendant  company  has  a  legal  right 
to  mine  its  coal  upon  its  own  land.  The  very  fact  of  there  being 
collieries  in  this  county  is  an  important  thing  to  the  people  who 
live  in  those  neighborhoods.  It  is  right  for  you  to  take  that  into 
consideration,  with  the  evidence  in  the  case.^ 


5— Bachert  v.  Lehigh  Coal  &  Nav- 
igation Co.,  208  Pa.  362,  57  Atl.  765 
(766). 

"The  main  objection  urged  to  the 
charge  is  that  it  tended  unduly  to 
lead  and  control  the  jury,  and  was 
prejudicial  to  the  plaintiff.  In  the 
part  objected  to,  the  learned  judge 
told  the  jury  that  their  verdict 
should  be  founded  on  the  evidence, 
and  cautioned  them  not  to  be  in- 
fluenced by  sympathy  or  prejudice, 
and  in  clear  and  distinct,  but  tem- 
perate, language,  admonished  tliem 
that  a  disregard  of  this  instruction 
might  lead  to  a  setting  aside  of 
their  verdict.  This  was  followed  by 
a  statement  of  tlie  rights  of  each  of 
the  parties,  the  ground  of  the  de- 
fendant's liability,  if  any  existed, 
and  the  measure  of  damages  in  tlie 
event  of  a  recovery.  It  was  the 
right  of  the  judge  to  give  this  cau- 
tion, and,  in  view  of  the  passions 
and  prejudices  that  grew  out  of  the 
labor  troubles  in  the  anthracite 
coal  regions  in  1902,  and  which  ex- 
isted at  the  time  of  the  trial,  it 
may  be  said  to  have  been  his  duty 
to  charge  as  he  did.  In  the  recent 
casf>  of  Stfivenson  v    Eb«rvale  Coal 


Co.,  203  Pa.  316,  52  Atl.  201,  it  was 
said:  'It  was  the  clear  duty  of  the 
court  below  in  peremptory  lan- 
guage to  hold  the  jury  down  to  the 
lawful  damages,  and,  if  they  dis- 
regarded the  instruction,  to  set 
aside  the  verdict.  What  the  plain- 
tiff had  a  riglit  to  ask  was  that  he 
be  made  whole,  not  rich.  It  was 
the  dutj'  of  the  court  to  see  that 
this  result,  and  this  alone,  was 
reached.  This  is  always  the  rule. 
It  was  much  better  to  reach  a 
proper  result  by  an  instruction  in 
advance  of  the  verdict  than  by 
granting  a  new  trial  after  it  had 
been  rendered.  No  question  of  fact 
was  taken  from  the  jury,  and  there 
was  no  attempt  to  control  them, 
except  by  pointing  out  their  plain 
duty,  and  advising  them  that  their 
action  was  subject  to  review,  and 
that  it  was  not  in  the  power  of  a 
jury  to  plunder  at  will.'  The  charge, 
as  a  whole,  was  a  very  clear  and 
able  presentation  of  the  questions 
involved,  and  of  the  law  applicable 
to  them,  and  we  see  no  valid 
ground  of  objection  to  any  part  of 
it." 


CHAPTER  LXXV. 


PARTNERSHIP. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2199.  Who   are  partners   in   fact. 

§  2200.  Partnership — How     formed. 

§  2201.  As  to  third  persons — Holding 
oneself  out   as   partner. 

§  2202.  One  cannot  be  made  partner 
against  his  will. 

§  2203.  Articles  not  originally  em- 
braced in  co-partnership 
added   subsequently. 

%  2204.  Power  of  partner  to  bind  the 
firm. 

§  2205.  Partner  borrowing  money, 
signing  note   in  firm  name. 

§  2206.  Partner  engaging  in  out- 
side transaction — Liability 
of  other  partners. 

§  2207.  What  acts  do  not  bind— 
Partner  using  partnership 
credit  or  effects. 

§  2208.  Note  given  by  one  partner — 
Presumption  —  Burden  of 
proof.  ' 


§  2209.  Acts  beyond  the  scope  of 
partnership   business. 

§  2210.  Whether  individual  or  part- 
nership funds — Amount  of 
indebtedness  of  firm. 

§  2211.  Liability  of  particular  part- 
ner— Credit  extended  on  ac- 
count of  partnership  in 
firm — Dissolution   notice   of. 

§  2212.  Sale  of  partnership  interest 
Misrepresentation — Fact  or 
opinion. 

§  2213.  Bound  by  ratification. 

§  2214.  When  fraud  of  one  partner 
binds  the  other. 

§  2215.  Notice  of  dissolution  neces- 
sary, when — Sufficiency  of 
notice. 

§  2216.  Action  for  accounting — When 
may  sue  at  law. 


§  2199.  Who  are  Partners,  in  Fact.  The  court  instructs  the  .jury, 
that  to  constitute  a  partnership,  as  to  the  alleged  partners  them- 
selves, it  is  only  necessary  that  each  of  them  contributes  either 
capital,  labor,  credit  or  skill  and  care,  or  two  or  more  of  these,  and 
that  all  the  contributions  are  put  together  into  a  common  stock  or 
common  enterprise,  to  be  used  for  the  purpose  of  carrying  on  busi- 
ness for  the  common  benefit.^ 

§  2200.  Partnership — How  Formed.  A  partnership  can  only  exist 
as  between  the  parties  themselves,  in  pursuance  of  an  express  or  an 
implied  ag-reement,  to  which  the  minds  of  the  parties  have  assented; 
the  intention,  or  even  belief,  of  one  party  alone  cannot  create  a  part- 
nership without  the  assent  of  the  others. ^ 

§  2201.  As  to  Third  Persons— Holding  Oneself  Out  as  Partner, 
(a)  Persons  may  be  co-partners,  as  to  third  persons,  and  brought 
within  all  the  liability  of  partners,  as  to  third  persons,  who  are 
not  partners  as  between  themselves;  and  they  will  be  so  regarded,  as 
to  third  persons,  if  they  voluntarily  and  knowingly  so  conduct  them- 
selves as  to  reasonably  justify  the  public,  or  pei"sons  dealing  with 
them,  in  believing  that  they  are  partners.^ 


1 — Mechem  on  Part.  §  1;  Pars,  on 
Part    54 

2— Phillips  v.  Phillips,  49  111.  437; 
Mechem  on  Part.  §  3. 


3— Speer    v.    Bishop,    24    Ohio    St. 
598;   Dailey  v.  Coous,  64  Ind.  545. 


1444  FORMS  OF  INSTRUCTIONS.  [§  2202. 

(b)  The  court  instructs  the  jury,  that  if  a  person  voluntarily  and 
knowingly  holds  himself  out,  by  his  acts  or  language,  to  the  public 
or  to  third  persons,  as  the  partner  of  another,  and  a  third  person 
deals  with  that  other  on  the  faith  of  an  existing  partnership,  then 
the  person  so  holding  himself  out  will  be  liable  as  a  partner  to  the 
person  so  dealing,  notwithstanding  there  was,  in  fact,  no  such 
pai'tnership.'^ 

(e)  When  persons  hold  themselves  out  to  the  world  by  their  acts 
or  declarations  as  partners,  they  will  be  liable  as  such,  whether  such 
relation  really  exists  between  them  or  not.  If  they  knowingly  permit 
their  names  to  appear  in  the  style  of  the  firm  in  the  business  cards, 
notices  or  advertisements  of  the  firm,  they  cannot  escape  liability 
for  debts  contracted  in  the  name  of  the  firm.^ 

§  2202.  One  Cannot  be  Made  Partner  Against  His  Will.  A  person 
cannot  be  made  a  partner  against  his  will;  so  that  if  one  does  not 
consent  to  become  a  partner,  and  does  not  permit  his  or  her  name 
to  be  used  as  a  partner,  there  can  be  no  ground  of  liability  as  such.*^ 

§  2203.  Articles,  not  Originally  Embraced  in  Co-partnership, 
Added  Subsequently.  The  court  instructs  you  as  law  that,  if  you 
should  believe  from  the  evidence  in  this  case  that  the  business  of 
steam  fitters'  supplies  is  not  embraced  in  the  articles  of  co-partner- 
ship in  evidence,  and  that  A.,  without  the  knowledge  or  consent  of 
the  defendant  B.,  purchased  and  sold  steam  fitters'  supplies  in  the 
name  of  said  firm  of  A.  &  Co.  to  such  an  extent  and  for  such  a  length 
of  time,  openly  and  publicly,  that  the  dealing  in  steam  fitters'  sup- 
plies became  a  business  within  the  apparent  scope  of  the  business 
conducted  by  A.  &  Co.,  then  and  in  that  case  the  defendant  B  Avould 
be  bound  for  the  contracts  made  by  said  firm  in  that  line  of  business 
precisel}'  the  same  as  if  it  had  been  embraced  in  the  articles  of 
partnership,  as  to  third  parties  dealing  with  the  firm  in  good  faith, 
without  knowledge  of  the  terms  of  the  articles  of  partnership.'^ 

§  2204.  Power  of  Partner  to  Bind  the  Firm.  Every  partner  pos- 
sesses full  and  absolute  authority  to  bind  all  the  partners,  by  his 
acts  or  contracts,  in  relation  to  the  business  of  the  firm,  in  the  same 
manner,  and  to  the  same  extent,  as  if  he  held  full  power  of  attorney 
from  them;  and  as  between  the  firm  and  third  parties,  who  deal 
with  it,  in  good  faith  and  without  notice,  it  is  a  matter  of  no  conse- 
quence whether  the  partner  is  acting  fairly  with  his  co-partners,  in 
the  transaction,  or  not,  if  he  is  acting  within  the  apparent  scope  of 
his  authority,  and  professedly  for  the  firm.^ 

4— Smith  v.  Knight,  71  111.  148,  22  Browning,  70  S.  C.  148,  49  S.  E.  325 

Am.   Rop.   94;    Peck  v.   Lusk,   38  la.  (326). 

93;   Story  on  Part.   §  64;   Jenkins  v.  7 — Crane    Co.    v.    Tierney,    75    111. 

Crane,     G4    Wis.     253;     Mechem     on  App.    3.'")4    (3.57),   reversed  175  III.    79, 

Part.    S  69.  51  N.  E.   715. 

.■"j^Ellis   v.   Bronson,    40    111.    455;  Note. — The  above  instruction  was 

P.ainett,    etc.,    v.    Blackmar,    53   Ga.  approvod  by  both  the  Appellate  and 

98;  Dfidd  v.  Bishop,  30  La  An.  Part  Supreme  Courts.     The  reversal  was 

2d,  1178.  on  other  points  in  the  case. 

6— Providence       Mach.       Co.       v.  8— Pahlman  v.  Taylor,  75  111.  629; 


§  2205.]  PARTNERSHIP.  1445 

§  2205.     Partner  Borrowing  Money,   Signing  Note  in  Firm  Name. 

(a)  The  court  instructs  the  jury  that,  if  the  phiintilf  has  failed  to 
prove,  by  a  preponderance  of  the  evidence,  that  F.  &  L.  received 
money,  and  if  the  jury  further  believe  from  the  evidence  that  the 
money  was  loaned  to  L.  personally,  then  in  such  case,  the  jury  should 
find  a  verdict  for  the  defendant  F.,  and  that  should  be  the  verdict  of 
the  jury  although  it  may  appear,  from  the  evidence,  that  L.  at  each 
of  the  times  of  making  the  several  loans  as  security  therefor  gave 
to  the  plaintiff  a  note  signed  F.  &  L. 

(b)  The  court  instructs  the  juiy  that,  before  the  plaintiff  can 
recover  in  the  case,  he  must  prove  by  preponderance  of  the  evidence 
either  one  or  both  of  the  following:  First,  that  the  firm  of'F.  & 
L.  actually  received  his  money;  second,  that  he  actually  loaned  it  in 
good  faith  to  the  firm  of  F,  &  L.,  and  in  good  faith  received  their 
note  therefor,  the  law  being  that,  if  the  money  was  not  received  by 
the  firm,  and  the  money  was  loaned  to  L.  personally,  then  the  plain- 
tiff cannot  recover,  although  at  the  time  of  making  such  loans  the 
plaintiff  as  security  for  his  loans  took  from  L.  a  note  or  notes  sitrned 
by  F.  &  L.9  " 

§  2206.  Partner  Engaging  in  Outside  Transaction — Liability  of 
Other  Partners,  (a)  If  a  partnership,  as  such,  engages  in  any 
transaction  outside  of  its  regular  business,  the  acts  and  declarations 
of  one  partner,  if  proved,  with  respect  to  that  transaction,  bind  the 
firm  as  much  as  though  they  were  made  with  respect  to  some  matter 
in  the  course  of  its  ordinary  and  customary  business.^*' 

(b)  The  court  instructs  the  jury  that  one  partner  cannot,  with- 
out authority  from  the  other  members  of  the  firm,  bind  the  firm  on 
an  implied  contract,  not  in  any  way  connected  with  the  business,  or 
for  its  benefit;  provided,  that  if  the  partner  declared  when  he  hired 
the  horse  that  it  was  for  the  benefit  of  the  partnership,  then  the  firm 
would  be  responsible.^^ 

§  2207.  What  Acts  do  not  Bind — Partner  Using  Partnership  Credit 
or  Effects.  The  jury  are  instructed,  that  one  partner  has  no  right 
to  apply  the  funds  or  securities,  or  other  effects  of  the  partnership, 
in  payment  of  his  own  private  debts,  without  the  consent  of  his  co- 
partners; and  if  he  does  so,  the  creditor  dealing  with  such  partner, 
if  he  knows  the  circumstances,  will  be  deemed  to  have  acted  in  bad 
faith,  and  in  fraud  of  the  other  partners,  and  the  transaction  will  be 
void  as  to  them.^^ 

First  Natl.  Bank  v.  Carpenter,  41  "was  within  the  scope  of  the  part- 
la.  518;  Lindley  on  Part.  (2nd  Am.  nership  busines.s,  and  one  partner 
Ed.)  124.                                                          '  is  the  agent  of  his  co-partner  in  all 

9— Funk   v.    Babbitt,     156    111.    408  matter.s    within    the    .scope    of    the 

(413),  affi'g  55  111.  App.  124,  41  N.  E.  partnership      business.        As      such 

166.  ag-ont.     his     declarations     are     suf- 

10 — Sandilands  v.   Marsh,   2  B.   &  ficient     to     bind      his      co-partner, 

Aid.  673;  Roardman  et  al.  v.  Adams  whether    in     accordance    with     the 

et  al.,  5  la.  224.  fact  or  not." 

11— Sweet    v.    Wood,   18   R.    I.    386,  12— Pars,    on   Part.    Ill;    Story   on 

28  Atl.  335.    The  hiring-  of  the  horse  Part.   §  132. 


1446  FORMS  OF  INSTRUCTIONS.  [§  2208. 

§  2208.  Note  Griven  by  One  Partner— Presumption— Burden  of 
Proof.  You  are  further  instructed  that,  when  a  note,  or  other  se- 
curity, is  given  in  the  name  of  the  firm,  by  one  partner,  in  payment 
of  his  own  individual  debt,  the  law  raises  a  presumption  that  it  was 
done  without  the  knowledge  or  consent  of  the  other  partners,  and 
the  burden  of  proving  such  knowledge  and  consent,  is  upon  the 
party  alleging  it.^^ 

§  2209.  Acts  Beyond  the  Scope  of  Partnership  Business.  The 
court  instructs  the  jury,  that  each  member  of  a  firm  is  presumed 
to  have,  and  has,  authority  to  bind  the  firm  within  the  scope  of  the 
partnership  business;  but  in  order  to  bind  the  firm  in  matters  outside 
of  or  beyond  the  apparent  scope  of  the  partnership  business,  the 
authority  of  one  partner  to  act  for  the  firm,  must  be  shown,  precisely 
the  same  as  if  any  other  pei'son  had  performed  the  aet.^^ 

§  2210.  Whether  Individual  or  Partnership  Funds — Amount  of 
Indebtedness  of  Firm,  (a)  The  court  charges  the  jury  that  if  the 
money  deposited  by  the  plaintiff  with  R.  &  Co.  was  the  individual 
money  of  the  plaintiff,  and  was  not  taken  frona  the  partnership 
business  of  W.  &  Co.,  then  defendant  was  not  interested  therein,  and 
acquired  no  right  therein,  or  on  account  thereof,  against  the  plaintiff. 

(b)  The  court  charges  the  jury  that  whether  they  believe  what 
Mr.  H.  says  about  the  amount  of  indebtedness  is  a  question  for  the 
jury,  and  if,  from  all  the  facts  and  circumstances  in  the  case,  they 
are  not  reasonably  satisfied  what  he  says  about  the  amount  is  correct, 
they  may  find  that  he  has  not  shown  a  reasonable  certainty  what 
the  indebtedness  of  the  firm  was.^^ 

§  2211.  Liability  of  Particular  Partner — Credit  Extended  on  Ac- 
count of  Membership  in  Firm — Dissolution,  Notice  Of.  The  jury  are 
instructed  to  find  for  the  plaintiff  if  they  find  from  the  evidence  that 
R.  was  a  member  of  the  firm  of  P.,  R.  &  Co.  at  the  time  that  firm 
commenced  business,  or  afterwards  before  the  indebtedness  sued  on 
was  incurred,  and  the  plaintiff  extended  the  credit  for  the  claim 
sued  on  in  the  faith  of  his  belief  that  R.  Avas  such  a  partner,  then 
and  in  that  event  the  said  R.  would  be  liable  for  the  amount  of  the 
note  sued  on  and  interest,  unless  he  gave  actual  notice  to  the  plain- 
tiff, or  gave  notice  generally  by  advertisement  in  some  newspaper 
published  in  the  locality  or  county,  of  the  dissolution  of  the  partner- 
ship before  said  indebtedness  was  ineui-red.'" 

§  2212.  Sale  of  Partnership  Interest — Misrepresentation — Fact  or 
Opinion,      (a)     The    court    chai-ges    the   jury    that    a   statement   that 

13 — Mechem  on  Part.   §  174;   Story  "This  instruction  covers  the  tes- 

on  Part.,    §  133.  timony  on  both  sides  and  substan- 

14— McNair    v.    Piatt,    46    111.    211;  tially   states    the    law.      Simonds   v. 

P>oardman     v.     Adams,     5     la.     224;  Strong-,   24  Vt.  642;  Amidown  v.  Os- 

Lindlev  on  Part.  (2nd  Am.  Ed.)  124.  sood,   24   Vt.   278,    58   Am.    Dec.    171; 

15— Hooper  v.  Whitaker,   130  Ala.  Meyer  v.  Krohn,  114  111.  574,  2  N.  E. 

324,  30  So.  355   (356).  495;   Moline  Wagon  Co.  v.  Rummell 

16— Rector  v.  Robins,  74  Ark.  437,  (C.    C),    12    Fed.    658;    Kennedy    v. 

86  S.  W.  667.  Bohannon,  11  Mon.  B.  (Ky.)  118." 


§  2213.]  PARTNERSHIP.  1447 

there  was  belonging  to  the  finn  a  stock  of  goods  amounting  to 
$ ,  was,  if  majde,  the  statement  of  a  fact,  and  not  the  state- 
ment of  an  opinion. 

(b)  The  court  charges  the  jury  that  a  statement  that  there  was 
enough  mone}'  in  the  bank  to  pay  the  debts  of  the  firm  was,  if  made, 
the  statement  of  an  opinion. 

(e)     The   court  charges   the  juiy  that  if  W.  'told  H.  the  finn  of 

W.  &  Co.  owned  a  $ stock  of  goods,  and  if  there  was  only 

$ of  goods  in  the  stock,  and  if  H.  was  ignorant  of  the  truth 

of  this  matter,  and  in  ignorance  thereof,  if  H.  acted  on  the  belief 
that  the  statement  was  true  and  made  the  purchase,  then  the  defend- 
ant would  not  be  entitled  to  have  the  duebill  credited  with  one-half 
the  diiSerence  between  $ and  $ .^'^ 

§  2213.  Bound  by  Ratification.  The  jury  are  instructed,  that 
while  one  partner  cannot  rightfully  appropriate  partnership  funds 
to  the  pajyment  of  his  individual  debts,  yet,  if  he  does  do  so,  his 
acts,  when  they  come  to  the  knowledge  of  the  other  members  of  the 
firm,  should  be  clearly  and  promptly  repudiated ;  and  if,  when  such 
knowledge  comes  to  the  other  members  of  the  firm,  they  do  not, 
within  a  reasonable  time  thereafter,  repudiate  the  transaction,  they 
will  be  deemed  to  have  ratified  it,  and  will  be  bound  to  the  same  extent 
as  though  they  had  expressly  authorized  it  in  the  first  instance. 
Whether,  in  this  case,  the  debt  in  question  was  paid  out  of  partner- 
ship funds  by  the  said  A.  B.,  and  whether  the  other  partners  had 
knowledge  of  that  fact,  and  whether  they  did  repudiate  the  trans- 
action, and  notify  the  said   ■ ,  of  that  fact,  as  soon  as  it  could 

reasonably  be  done,  are  all  questions  to  be  detennined  by  the  jury, 
from  a  consideration  of  all  the  evidence  in  the  ease.^^ 

§  2214.  When  Fraud  of  One  Partner  Binds  the  Other.  The  court 
instructs  the  jury,  that  if  a  fraud  is  committed  by  one  partner,  in 
the  name  of  the  firm,  in  the  course  of  the  partnership  business,  it 
will  bind  the  firm,  even  though  the  other  partners  had  no  knowledge 
of  the  fraud,  or  participation  in  the  transaction  to  which  it  relates.^^ 

§  2215.  Notice  of  Dissolution  Necessary,  When — Sufficiency  of 
Notice,  (a)  The  court  instructs  the  jury,  that  the  law  is,  that  when 
a  partnership  is  dissolved,  and  one  of  the  partners  continues  the 
business  as  before,  the  retiring  partner,  to  protect  himself  from  fu- 
ture liabilities,  should  see  that  public  notice  of  such  dissolution,  or 
of  his  retirement,  is  given  in  some  manner,  so  as  fairly  and  reasonably 
to  notify  the  public  of  the  fact  of  his  withdrawal  from  the  firm; 
and  if  he  does  not  do  so,  persons  dealing  with  the  partner  who  con- 
tinues the  business,  without  actual  notice  of  the  dissolution,  will  have 
a  right  to  rely  on  the  credit  of  the  original  fimi.-^ 

17— Hooper  v.  Whitaker,   130  Ala.        19— Lindley    on    Part.     (2nd     Am. 

324,  30  So.  355  (356).  Ed.)   147;   Story  on  Part.    §  131. 

18— Marine  Co.,  etc.,  v.  Carver,  42        20— Mechem  on  Part.   §  260;   Pars. 

111.   66;    Evans  v.   Howell,   84  N.   C.  on  Part.  410. 
460;  Lindley  on  Part.  (2nd  Am.  Ed.) 
143. 


1448  FORMS  OF  INSTRUCTIONS.  [§  2216. 

(b)  When  one  partner  withdraws  from  the  firm,  and  the  business 
is  continued  by  the  other  partners,  the  retiring  partner  should  see 
that  persons  who  have  formerly  dealt  with  the  firm  have  reasonable 
notice  of  such  retirement,  or  else  those  who  continue  to  deal  with  the 
firm,  without  actual  notice  of  his  withdrawal,  can  hold  him  liable 
as  a  member  of  the  finn.^i 

(c)  The  court  instructs  the  jui*y  that  whether  sufficient  notice 
had  been  given  of  the  dissolution  is  a  question  for  you  to  determine; 
that  defendant  was  not  bound  to  publish  notice  in  any  of  the  C. 
papers;  he  was  only  bound  to  give  actual  notice  to  such  parties  there 
as  had  dealt  with  the  partnership.  But  defendant  was  bound  to  use 
all  fair  means  to  publish  as  widely  as  possible  the  fact  of  a  dissolu- 
tion. Publication  in  a  newspaper  is  one  of  the  proper  means  of  giving 
notice,  but  it  is  not  absolutely  essential ;  and  the  question  for  you  to 
determine  is  whether  the  defendant  gave  such  notice  of  the  dis- 
solution as  under  the  cii'cumstances  was  fair  and  reasonable.  If  he 
did,  then  he  is  not  liable  on  the  note;  if  he  did  not,  he  would  still 
continue  liable.^- 

§  2216.  Action  for  Accounting — When  May  Sue  at  Law.  Although 
the  juiy  may  believe,  from  the  evidence,  that  the  plaintiff  and  de- 
fendant were  formerly  partners,  and  that  the  account  sued  on  grew 
out  of  their  partnership  business,  and  is  claimed  by  the  plaintiff  as 
the  balance  due  to  him,  upon  a  settlement  of  such  business,  still,  if 
the  jury  further  believe,  from  the  evidence,  that  the  partnership  had 
been  dissolved,  and  'the  partnership  business  settled  between  the 
parties,  and  a  balance  struck  and  agreed  upon  as  the  amount  due  to 
the  plaintiff',  before  the  commencement  of  this  suit,  then  the  plaintiff 
can  maintain  a  suit  for  such  balance.^^ 

21 — Holtgreve  v.  Wintker,  85  111.  mine  for  all  cases  what  shall  be 
470;  Davis  v.  Willis,  47  Tex.  154;  sufBcient  notice  and  what  shall  not 
Haynes  v.  Carter,  12  Heisk.  (Tenn.)  be;  the  question  must  necessarily 
7,  27  Am.  Rep.  749;  Austin  v.  be  one  of  fact.  Publication  of  no- 
Holland,  69  N.  Y.  571,  25  Am.  Rep.  tice  of  dissolution  in  a  local  news- 
246;   Gilcrist  v.  Brande,  58  Wis.  184.  paper  is  common,  but  it  is  not  the 

22— Solomon      v.      Kirkwood,      55  only    method    in    which   notice    can 

Mich.  256,  21  N.  W.  336.  be  given." 

"The  in.struction  respecting  notice  23 — Wycoff  v.   Parnell.  10  Ta.   332; 

was  correct.     No  court  can  deter-  Ridgway  v.  Grant,  17  111.  117. 


CHAPTER   LXXVI. 


REAL  ESTATE— MISCELLANEOUS. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


!  2217.  Whether  fixtures  are  person- 
al or  real  property. 

( 2218.  Building    personal    property, 
when. 

i  2219.  Growing     crops — When     per- 
sonal   property. 

!  2220.  Sale   of  land— Title  to  grow- 
ing crops. 

i  2221.  Sale     of     real     estate— With- 
drawal of  offer. 

i  2222.  Conveyance   of   real   estate — 
Valuable   consideration. 

i  2223.  Assumpsit  for  value  of  party 
wall. 

2224.  Falling  of  party  wall— Duty 
of  owner  to  protect  and 
maintain. 

i  2225.  Widow's  title  to  real  estate- 
Separation   of  spouses  dur- 
ing life. 
2226.  Title     to     real     estate— Pur- 
chase by  father  with  money 
of  children. 


§  2227.  Oral  contracts  of  real  estate 
— What  must  be  shown  to 
take  it  out  of  Statute  of 
Frauds. 

§  2228.  Notice  of  defect  in  title- 
Heirs — Facts  calling  for  in- 
quiry. 

§  2229.  Drains— Duty  to  keep  open 
and  free  from  obstructions. 

§  2230.  Special  assessment — Railroad 
company  restricted  in  the 
use  of  its  right  of  way. 

§  2231.  Special  assessment — What 
may  be  considered  in  de- 
termining special  benefits. 

§  2232.  Taxation — Fixing    valuation. 

§  2233.  Accretions  defined— Riparian 
proprietoi''s  right. 

§  2234.  Homestead— Place  of  resi- 
dence —  Ejectment  —  Meas- 
ure  of   damages— Series. 


§  2217.  Whether  Fixtures  Are  Personal  or  Real  Property.  The 
court  instructs  the  juiy  that  one  of  the  material  issues  of  this  ease 
is,  whether  the  boiler  and  fittings  in  question  passed  by  deed  of  the 
real  estate  to  the  defendants  as  fixtures  to  the  real  estate,  or  were, 
at  the  time  of  the  execution  and  delivery  of  such  deeds,  personal 
property  only.  If  the  jury  believe,  from  the  evidence  in  this  case, 
under  the  instructions  given  you,  that  the  boiler  and  fittings  in 
question  were  not  so  attached  to  the  said  real  estate  as  to  become 
fixtures  thereto,  but  wei'e  personal  property  only,  then  the  same  do 
not  pass  by  conveyance  of  the  real  estate.^ 

§  2218.  Building  Personal  Property,  When,  (a)  The  court  in- 
sti-uets  the  jury,  that  where  a  building  is  owned  by  one  person,  and 
the  land  on  Avhich  it  stands  is  owned  by  another,  then  the  building 
is  personal  property;  and  it  will  always  remain  personal  property 
until  the  ownership  of  the  land,  and  that  of  the  building,  unite  in  the 
same  person. ^ 

(b)  Where  one  wTongfully  places  a  building  on  the  land  of  an- 
other, in  such  a  way  as  to  attach  it  to  the  ground,  the  building  will 

1— Hacker  v.   Munroe  &  Son,   176       2— Crippin   v.   Morrison,   13   Mich. 
111.   384   (394),   aff'g  61   111.    App.   420,     23. 
52  N.  E.  12. 

1449 


1450  FORMS  OF  INSTRUCTIONS.  [§  2219. 

belong  to  the  owner  of  the  land;  but  where  one  rightfully  and  law- 
fullj'  places  his  building  on  the  land  of  another,  without  any  inten- 
tion of  having  it  belong  to  the  owner  of  the  land,  then  it  will  not 
belong  to  such  owner,^ 

(e)  If  the  jury  believe,  from  the  evidence,  that  R.  was  the  owner 
of  the  land  on  which  the  building  in  question  stands,  and  that  M.,  as 
the  tenant  of  R.,  placed  the  building  on  the  land  with  R.'s  consent, 
and  with  the  understanding  or  agreement  with  R.  that  M.  might 
remove  the  same  at  the  expiration  of  his  lease,  then  the  building 
would  be  personal  property,  and  it  would  not  be  conveyed  by  a  con- 
veyance of  the  land,  so  long,  at  least,  as  M.  and  those  holding  under 
him  continued  in  possession  of  the  property,  under  the  lease.* 

(d)  If  the  jury  believe,  from  the  evidence,  that  before  the  house 
in  question  was  built,  the  plaintiff  and  defendant  entered  into  a 
contract,  by  which  defendant  agreed  to  purchase  the  land  where  the 
house  was  built  from  the  plaintiff,  and,  under  that  contract,  went 
into  possession  of  the  land  and  erected  the  house  thereon,  with  the 
intention  of  having  it  remain  there  as  a  permanent  fixture  to  the 
land,  then  the  house,  as  soon  as  it  was  built,  became  a  part  of  the 
real  estate,  and  in  law  belonged  to  the  owner  of  the  land,  and  any 
alleged  contract  authorizing  the  defendant  to  remove  the  house  there- 
from, would  have  to  be  in  writing  to  be  binding  on  the  plaintiff.^ 

§  2219.  Growing  Crops — ^When  Personal  Property.  The  court  in- 
structs the  jury,  that  growing  crops,  in  law,  are  regarded  for  some 
puiT^oses  as  personal  property,  and  for  some  purposes  as  a  part  of 
the  real  estate  upon  which  the  crops  are  growing.  As  between  seller 
and  purchaser  of  real  estate,  they  are  regarded  as  belonging  to  the 
real  estate,  and  will  pass  with  the  conveyance  of  the  land  to  the 
purchaser,  unless  they  are  expressly  reserved  in  writing." 

§  2220.  Sale  of  Land — Title  to  Growing  Crops.  The  court  instructs 
you  that  upon  the  (|uestion  of  ownership  of  growing  wheat  while  it 
is  growing  upon  the  land,  I  instruct  you  that  a  sale  or  transfer  of 
the  title  to  the  land  carries  with  it  the  ownership  in  the  crops  grow- 
ing thereon  at  the  time  of  the  transfer  of  the  title  to  the  land.^ 

§  2221.  Sale  of  Real  Estate— Withdrawal  of  Offer.  The  plain- 
tiffs alk'ge  that  A.  j)i-()posed  to  buy  tlie  property  jirovided  an  abstract 
of  title  and  deeds  conveying  the  property  to  him  from  plaintiffs 
were  furnished  prior  to  -.  Now,  if  you  believe  from  the  evi- 
dence that  prior  to  ,  said  A.  withdrew  his  offer  to  buy  the 

property,  and  that  the  failure  of  plaintiffs  to  furnish  an  abstract 
of  title  to  the  property,  and  to  execute  a  deed  from  them  to  A. 
before   • ,   was    not    the    reason   A.    withdrew    his   offer   before 

3— Coolcy  on  Torts  307;  Adams  v.  5— Crum  v.   Hill,  40  la.  506;  Groff 

CodfhirrJ.  48  Me.  212.  v.  O'Connor,  16  III.  421. 

4 — f;o()l(;y  on  Torts  306;  Barnes  v.  6— Carpenter  v.  Jones,  63  111.   517. 

narnoH.  6  Vt.  388;  Smith  v.  Benson,  7— Abbott  v.  Abbott,  68  Kan.  822, 

1  Hill.  176.  75  Pac.   1040. 


§2222.]                 REAL    ESTATE— MISCELLANEOUS.  1451 
,  but  that  A.  withdrew  his  offer  before  ,  for  some  other 


reason,  then  I  charge  j'ou  your  verdict  must  be  for  defendant.^ 

§  2222.  Conveyance  of  Real  Estate — Valuable  Consideration. 
The  court  instructs  the  jury  that  if  they  believe  that  W.  as  a  con- 
sideration for  the  deed  from  C.  and  wife  to  him,  conveyed  to  them, 
or  either  of  them,  other  land  of  value,  or  executed  his  negotiable 
pi'omissoiy  note  to  them,  then  such  consideration  is,  within  the  mean- 
ing of  the  law,  a  valuable  consideration.^ 

§  2223.  Assumpsit  for  Value  of  Party  Wall.  The  court  instructs 
the  jury  that  notice  of  the  existence  of  a  party  wall  agreement  given 
to  an  agent  of  a  purchaser  operates  as  a.  notice  to  such  purchaser, 
and,  if  the  jury  believe,  from  the  evidence,  that  J.  M.  conducted  the 
negotiations  for  the  purchase  and  conversance  of  lot  9  in  Higgins 
subdivision,  etc.,  one  of  the  lots  testified  about,  for  and  in  behalf  of 
his  brother,  A.  M.,  and  with  his  consent;  and,  if  the  jury  further 
believe,  from  the  evidence,  that  said  J.  M.  at  the  time  of  the  pur- 
chase of  said  lot  had  notice,  actual  or  constructive,  of  the  existence 
of  a  party  wall  agi'eement,  then  such  notice  operated  as  a  notice  to 
A.  M.  of  the  existence  of  such  agreement  and  contents  thereof,  if,  by 
reasonable  enquiry,  he  could  have  learned  of  its  contents.^*' 

§  2224.  Falling  of  Party  Wall— Duty  of  Owner  to  Protect  and 
Maintain,  (a)  The  court  instructs  the  jury  that  under  and  by  the 
terms  of  said  party  wall  contract  between  the  said  plaintiff,  K.,  and 
the  said  B.,  the  said  B.  and  his  heirs  were  the  sole  owners  of  the 
entire  east  wall  of  said  burned  building,  and  had  the  sole  and  exclu- 
sive control  thereof  until  such  time  as  the  said  plaintiff,  K.,  exercised 
her  right  to  pay  for  and  use  some  portion  of  said  wall,  and  that 
prior  to  the  times  the  said  K.  exercised  her  right  to  pay  for  and  use 
portions  of  said  wall  she  had  no  right,  title  or  interest  in  said  wall 
or  any  part  thereof. 

(b)  The  court  instniets  the  jury  that  under  the  terms  of  the 
party  wall  contract  introduced  in  evidence  between  the  plaintiff, 
K.,  and  B.,  deceased,  the  said  B.  was,  during  his  lifetime,  and  his 
heirs  were  after  his  death,  the  sole  and  exclusive  owners  of  the  por- 
tion of  the  east  wall  of  said  burned  building  not  paid  for  by  the  said 
plaintiff.  K.,  and  that  as  to  such  portion  of  said  east  wall  of  said 
burned  building  as  you  find  from  the  evidence  was  not  paid  for  by 
the  said  K.  under  such  party  wall  contract,  the  said  defendants  are 
charged   with   the   same   responsibility   for   the   protection,   care   and 

8— Cohen    v.    Cohen,    26    Tex.    Civ.  conducting-     negotiations      for     the 

App.   315,  63  S.  W.   544  (546).  purchase  of  real  estate  is  not  notice 

9 — Phoenix    Ins.    Co.    v.    Neal,    23  to    his    principal.      The    authorities 

Tex.  Civ.  App.  427,  56  S.  W.  91  (92).  cited  by  counsel  are  not  applicable 

10 — McChesney    v.    Davis,    86    111.  to  this  case,  nor  to  the  instruction 

App.  380  (383).  in    question.      The    general    rule    is 

"The  contention  of  appellant  that  that  notice  to  the  principal,   if  the 

the   instruction   given   by   the  court  knowledge  of  the  facts  is  acquired 

was  erroneous  is  not  tenable.     It  is  while   the  agent   is    acting    for   his 

argued  in  this  action  that  notice  of  principal.     Williams   v.   Tatnall,    29 

a  fact  affecting  the  title  to  an  agent  111.  553." 


1452  FORMS  OF  INSTRUCTIONS.  [§  2225. 

maintenance  that  tliey  -would  have  been  charged  with  if  there  had 
been  no  party  wall  contract  entered  into  between  said  K.  and  said 
B.  deceased, 

(c)  The  court  instructs  the  jury  that  under  the  terms  of  said 
contracts  between  said  plaintiff  and  said  B.,  the  said  plaintiff,  K.,  did 
not  have  any  control  over  or  right  to  use  any  portion  of  said  east 
wall  of  said  burned  building  until  she  had  paid  therefor,  and  that 
the  fact  that  she  had  paid  for  and  used  portion  of  said  wall  gave 
her  no  rights  in  or  control  over  the  remainder  of  said  wall,  and 
that  at  no  time  did  said  K.  have  the  right  to  go  onto  or  touch 
the  portion  of  said  wall  not  paid  for  by  her  for  the  purpose  of 
bracing,  staying  or  protecting  the  same,  to  keep  it  from  falling. 

(d)  The  court  instructs  you  that  if  you  believe  from  the  evidence 
that  the  portion  of  said  east  wall  of  said  burned  building,  which 
was  owned  by  said  defendants,  was  above  and  to  the  rear  of  the 
portion  of  said  wall  which  had  been  paid  for  and  used  by  said 
plaintiff,  and  that  the  portion  of  said  wall  which  was  owned  by 
said  defendants  was  by  them  negligently  permitted  to  lean,  sag  and 
fall  over,  and  that  said  portion  of  said  wall  owned  by  said  defendants 
in  its  fall  pulled  over  a  part  of  the  portion  of  said  wall  which  said 
plaintiff  had  paid  for  and  was  using,  and  that  the  portion  of  said 
wall  which  was  paid  for  was  used  by  said  plaintiff  would  not  have 
fallen  if  the  portion  of  said  wall  owned  by  said  defendants  had  not 
forced  it  over,  then  you  should  find  said  defendants  guilty,  and 
assess  the  said  plaintiff's  damages  at  such  an  amount  as  you  believe 
from  all  the  evidence  and  the  instructions  of  the  court,  she  was 
damaged  by  the  falling  of  said  wall. 

(e)  The  court  instructs  the  jury  that  as  a  matter  of  law  the 
plaintiff  has  no  right  to  go  on  or  touch  the  portion  of  said  east  wall 
of  said  building  not  paid  for  by  her,  for  the  purpose  of  preventing 
the  same  from  falling,  or  for  any  other  purjDose.^^ 

§  2225.  Widow's  Title  to  Eeal  Estate — Separation  of  Spouses  Dur- 
ing Life.  The  court  instructs  you  that  the  fact  that  this  widow  (the 
plaintiff)  may  not  have  been  living  with  him  (her  husband)  for  some 
time  previous  to  his  death  would  make  no  difference  if  she  had  not 
been  divorced  or  he  had  not  been  divorced  from  her;  she  would  be 
entitled  to  all  the  rights  of  a  wife.^- 

§  2226.  Title  to  Real  Estate— Purchase  by  Father  With  Money  of 
Children.  The  court  instructs  the  jury  that  if  the  defendants  were 
niiiiors  at  the  time  they  worked  and  made  the  money,  the  money  be- 
longed to  their  father,  (and)  although  he  may  have  taken  that  money 
while  they  were  in  their  minority,  and  purchased  the  property,  the 
title  thereto  would  nevertheless  vest  in  their  father.^^ 

11 — The    above    instructions    were  "This   instruction   was   in   perfect 

approvffl    in    Beidler    v.    Kin^,    108  accord    with    the     decision     of     this 

111.   ApD.   2:!   (32-3),  aff'd  209  111.  302,  court  in  Farris  v.  Battle,  SO  Oa.  187. 

70  X.  K.  713,  101  Am.  St.  246.  7  S.  E.  262,  which  is  controlling  up- 

12— Smith  V.  Smith,  112  Ga.  351,  37  on  the  question  now  raised." 

S.  E.  407.  13— Smith  v.   Smith,   supra. 


§2227.]  REAL    ESTATE— MISCELLANEOUS.  1453 

§  2227.  Oral  Contract  of  Real  Estate— What  Must  Be  Shown  to 
Take  it  Out  of  Statute  of  Frauds,  (a)  The  jury  are  instructed  that 
if  they  believe  from  the  testimony  that  the  defendant  and  W,  S. 
entered  into  a  contract  for  the  sale  and  purchase  of  the  land  in  con- 
troversy, and  that  such  contract  was  oral  and  not  in  writing,  then, 
in  order  to  take  such  contract  out  of  the  statute  of  frauds  by  reason 
of  the  possession  of  the  defendant  it  must  appear  from  the  evidence 
that  the  defendant  took  possession  of  said  property  solely  under  the 
contract  and  in  reference  exclusively  to  it. 

(b)  If  you  find  that  the  defendant  entered  into  a  verbal  contract 
for  the  purchase  of  the  land  in  question,  and  took  possession  of  it 
under  the  contract,  and  solely  in  reference  to  it,  these  facts  take 
the  case  out  of  the  statute  of  frauds,  and  the  conti-act  is  as  good 
to  prove  the  sale  as  if  it  was  in  writing,  and  if  you  find  that  the 
defendant,  while  continuing  in  possession,  made  the  pajTuent  agreed 
upon,  his  title  became  perfect,  and  is  good  against  the  claim  of  the 
plaintiff,  although  he  has  no  deed  or  other  written  evidence  of  title.^* 

§  2228.  Notice  of  Defect  in  Title— Heirs— Facts  Calling  for  In- 
quiry, (a)  Actual  notice  is  where  a  party  to  be  affected  by  notice 
either  has  knowledge  of  the  fact  or  is  conscious  of  having  the  means 
of  knowledge,  although  he  may  not  use  them.  Therefore,  when  the 
party  to  be  charged  is  shown  to  have  knowledge  of  such  facts  and 
circumstances  as  would  lead  him,  by  the  exercise  of  due  diligence  to 
a  knowledge  of  the  principal  fact  sought  to  be  established,  it  would 
be  actual  notice.  Whatever  is  notice  enough  to  excite  attention  and 
put  a  party  on  his  guard  and  call  for  inquii-y,  is  also  notice  of  every- 
thing to  which  it  is  afterwards  found  that  such  inquiry  might  have 
led,  although  it  was  not  knoAvn  for  want  of  investigation.  Any  fact 
or  circumstance  that  would  put  a  prudent  man  upon  inquiry,  which, 
if  pursued  would  lead  to  a  knowledge  of  all  the  facts  pertaining  to 
the  matter  inquired  about  is  notice.  The  registration  of  a  deed  in 
the  county  where  the  land  is  situated,  properly  authenticated  is  no- 
tice to  eveiy  one  of  its  contents  as  shown  by  such  record, 

(b)  A  purchaser  who  buys  property  from  the  heirs  of  one  who 
is  dead  is  bound  to  take  notice  cf  who  all  the  heirs  of  the  dead 
person  are.^^ 

(e)  The  court  instructs  the  jury,  that  whatever  is  sufficient  to  put 
a  purchaser  of  land  upon  inquiry,  as  to  the  existence  of  an  unre- 
corded deed,  is  sufficient  notice  of  such  deed.  That  in  general,  where 
notice  is  required  to  affect  the  rights  of  parties,  a  knowledge  of  such 
facts  as  ought  to  put  an  ordinarily  prudent  person  upon  inquiiy,  is 
deemed  in  law  equivalent  to  notice  of  the  facts,  to  the  knowledge  of 
which  such  inquiries  would  have  led.^*' 

14— Fox  v.    Spears,   78  Ark.  71,   93  Forbes    v.    How,    102    Mass.    427,    3 

S    "W.  560  (561).  Am.    Rep.   475;    Heaton   v.    Prather, 

'l5— Root  v.  Baldwin,  —  Tex.  Civ.  84  111.   330;    Rice  v.   Melendy,  41  la. 

App.   — .   52  S.    W.   586   (587).  395. 

16— Bump    on    Fraud.    Con.    232; 


1454  FORMS  OP  INSTRUCTIONS.  [§  2229. 

(d)  The  court  instructs  you,  that  to  charge  a  person  with  notice, 
on  the  ground  that  he  had  knowledge  of  such  facts  as  ought  to 
have  put  him  upon  inquiry,  it  must  appear,  from  the  evidence,  that 
the  infoi-mation  he  had  received  Avas  of  that  character  that  it  was 
calculated  to  excite  the  attention  of  an  ordinarily  prudent  person, 
and  that  such  person,  by  the  exercise  of  reasonable  and  ordinary 
diligence,  could,  upon  inquiry  and  investigation,  arrive  at  the  knowl- 
edge of  the  fact  with  which  he  is  sought  to  be  charged.^'^ 

(e)  Whatever  is  notice  enough  to  excite  attention,  and  put  a 
party  on  his  guard,  and  call  for  inquiry,  is  notice  of  everything  to 
which  such  inquiry  might  have  led;  and  every  unusual  circumstance 
is  ground  of  suspicion,  and  prescribes  inquiry.^^ 

§  2229.    Drains — Duty  to  Keep  Open  and  Free  From  Obstructions. 

If  you  find  from  the  evidence  in  this  cause  that  the  plaintiffs,  who  are 
the  petitioners  for  the  construction  of  the  proposed  ditch,  permitted 
the  ditch  now  existing  across  their  lands  to  be  trampled  in  by  stock, 
or  otherwise  to  become  filled  up  and  in  need  of  cleaning,  and  you 
find  that  the  exclusive  benefits  to  be  derived  from  the  construction 
of  the  ditch  in  question  here  would  be  to  clean  out  and  put  in  proper 
condition  said  ditch  now  existing,  and  you  further  find  that  said 
filling  up  of  said  existing  ditch  was  caused  by  neglect  or  fault  of 
the  plaintiffs  alone,  then  you  would  be  authorized  to  find  that  the 
proposed  ditch  is  not  of  public  utility,  as  a  person  cannot  allow  a 
ditch  on  his  own  premises  through  his  own  fault  or  neglect  to  become 
out  of  repair  and  then  call  upon  his  neighbors  or  parties  owning  land 
along  the  route  of  the  proposed  ditch  to  help  him  pay  for  necessary 
cleaning  of  the  same,  and  if  you  find  such  facts  to  exist,  it  would 
then  be  your  duty  to  find  for  the  defendants.^^ 

§  2230.  Special  Assessment — Railroad  Company  Restricted  in  the 
Use  of  Its  Right  of  Way.     The   court  instructs   the  jury   that   the 

right  of  way  of  the  Railroad  Company,  which  is  assessed 

for  the  improvement  of  M.  avenue,  is  held  by  said  .company  only 
for  railroad  purposes  and  uses,  and  the  said  company  cannot  law- 

17— City  of  Chicago  v.  Witt,  75  111.  by  the  township  trustees,  and  the 

211.  instructions  given  at  the  request  of 

18 — Russell  V.  Rauson,  76  111.  167.  appellees  is  incorrect  in   so  declar- 

19— Berry  v.  Driver,  —  Ind.  — ,  76  ing  the  law.  It  is  equally  plain  that 

N.  E.  9U8.  such    land    owners    may   not    negli- 

"If  any  part  of  such  ditch  shall  gently  suffer  or  cause  a  ditch  to 
be  obstructed  by  the  negligence  of  become  filled  up  and  obstructed, 
the  owner  or  occupant  of  any  land,  and  under  the  guise  of  constructing 
or  by  his  stock,  he  must,  under  the  a  new  work  compel  others  to  con- 
provisions  of  section  5639,  remove  tribute  to  the  expense  of  removing 
sur'h  obstructions  at  his  own  ex-  such  obstructions,  where  the  ex- 
pense before  the  31st  day  of  August  isting  ditch,  if  properly  cleaned 
of  each  year.  In  view  of  these  and  repaired,  would  effectually 
statutory  provisions  it  cannot  be  drain  their  lands  and  dispense  witii 
said  that  the  owner  of  lands  the  necessity  for  the  proposed  im- 
chargff]  with  the  maintenance  of  provement.  It  follows  that  the  in- 
allotted  portions  of  a  ditch  are  un-  struction  tendered  by  appellants 
der  no  legal  duty  to  free  the  same  should  have  been  given." 
of  obstructions  except  as  required 


§2231.; 


REAL   ESTATE— MISCELLANEOUS. 


1455 


fully  apply  said  right  of  way  to  any  otlier  use  or  purpose  than  such 
as  is  neeessai';^'  for  the  operation  and  maintenance  of  its  railroad.-*' 
S  2231.  Special  Assessment — What  May  Be  Considered  in  Determ- 
ining Special  Benefits.  The  jury  are  instructed  that  the  only  special 
benefits  to  the  property  they  can  consider  in  this  ease  are  those  that 
will  come  to  the  property  assessed  from  the  making  of  the  improve- 
ment provided  for  in  the  ordinance,  and  it  is  not  proper  for  them 
to  assume  that  any  other  improvements  will  be  put  into  the  street 
before   the  building  of  the  pavement  provided  for.-^ 

§  2232.  Taxation — Fixing  Valuation,  (a)  Gentlemen,  you  will 
not  pay  any  attention  to  what  the  tax  assessor  did,  nor  what  the 
county  board  of  revenue  did,  but  you  will  fix  the  valuation  of  the 
defendant's  property  from  the  evidence  solely,  as  if  no  valuation  had 
been  made  by  the  tax  assessor,  or  any  one  else,  as  the  case  is  now 
tried  de  novo. 

(b)  "What  the  assessor  did  with  the  assessment  of  the  defendant's 
property  has  nothing  to  do  with  this  case  as  it  is  now  tried  de  novo.^^ 


20—1.  C.  R.  R.  Co.  V.  Chicago, 
141  111.  509  (513),  30  N.  E.  1036,  17  L. 
R.  A.   530. 

"The  first  section  of  the  Act  of 
Congress  of  September  20th,  1850, 
which  granted  lands  to  the  state  of 
Illinois  to  aid  in  the  construction 
of  Illinois  Central  Railroad,  gave 
to  the  state  the  right  of  way 
through  the  public  lands  for  the 
construction  of  a  railroad,  the  right 
of  way  over  the  public  lands  being 
a  strip  of  land  two  hundred  feet 
wide.  (9  U.  S.  Statutes  at  Large, 
p.  466).  Following  the  act  of  Con- 
gress, the  act  of  February  10th, 
1851,  incorporating  the  Illinois  Cen- 
tral Railroad  Company,  was 
passed.  Section  15  of  the  act  con- 
tains the  following:  'The  right  of 
way  over  and  through  lands  owned 
by  the  state  is  hereby  ceded  and 
granted  to  said  corporation  for  the 
only  and  sole  purpose  of  survey- 
ing, locating,  constructing,  com- 
pleting, altering,  maintaining  and 
operating  said  road  and  branches 
as  in  this  act  provided.  Here  is  a 
particular  specified  use  fixed  by 
law,  which  is  beyond  the  power  of 
the  owner  to  change,  "^^here  such 
is  the  case,  what  is  the  correct  rule 
in  ascertaining  whether  a  tract  of 
land  is  benefited  by  an  improve- 
ment? 

"■^'hen  land  is  held  by  an  individ- 
ual, the  benefits  are  not  to  be  de- 
termined alone  by  the  market  value 
of  the  property  for  the  use  to  which 
it  v/as  then  devoted  by  the  owner, 
but  the  market  vnlue  may  be 
shown  for  any  use  for  which  the 
property  may  properly  be  used,  as 


the  owner  may  change  the  use  of 
the  pi;operty  at  any  time  at  his 
own  will  or  pleasure.  But  in  a 
case  like  the  one  under  consider- 
ation, where  the  law  has  devoted 
the  property  permanently  to  a 
particular  use,  it  would  seem 
that  it  could  only  properly  be 
benefited  to  the  extent  that  its 
fitness  to  that  particular  use 
was  increased  and  enlarged.  In  a 
proceeding  to  condemn  land  for 
public  purposes,  where  the  lands 
are  restricted  by  statute  or  the  in- 
strument under  which  the  owner 
holds  the  title  to  a  particular  use, 
the  measure  of  compensation  to  the 
owner  for  the  lands  taken  will  be 
their  value  to  him  for  the  special 
use  to  which  the  lands  are  restrict- 
ed. This  doctrine  was  announced 
in  Railroad  Co.  v.  Catholic  Bishop, 
119  111.  529,  10  N.  E.  372.  So  also  in 
C.  &  N.  W.  Ry.  Co.  V.  Chi.  &  Evan- 
ston  R.  R.  Co.,  112  111.  590,  where 
it  was  held:  'Where  in  the  nature 
of  things  there  can  be  no  market 
value  of  a  piece  of  property  by 
reason  of  it  being  used  in  connec- 
tion with  and  as  a  part  of  some 
extension  business  or  enterprise,  its 
value  must  be  determined  by  the 
uses   to  which   it   is  applied.'  " 

It  was  held  to  be  reversible  error 
to  refuse  to  give  the  above  in- 
struction. 

21— Holdom  v.  Chicago,  169  111, 
109   (111),  48  N.  E.  164. 

The  court  held  that  the  refusal  to 
give  the  above  instruction  was  re- 
versible error. 

22— Stahmer  v.  State,  125  Ala.  72. 
27  So.  311. 


U56  FORMS  OF  INSTRUCTIONS.  [§2233. 

§  2233.  Riparian  Proprietors'  Rights — Accretions  Defined,  (a) 
The  court  instructs  the  jury  that  under  the  law  of  this  state  that 
pei"sous  owning  land  on  or  bounded  by  the  Mississippi  river  own  to 
the  water's  edge,  and  when  the  water  recedes  gradually  the  land  is 
made  thereby,  the  owner  of  the  land  bounded  by  the  river  is  owner 
of  the  land  so  made,  and  such  owner's  rights  to  such  made  land 
remain  equal  to  his  river  front,  and  such  riparian  rights  cannot  be 
encroached  upon  by  adjoining  owners  so  running  their  boundary  lines 
as  to  diminish  such  river  front  or  accretions. 

(b)  The  court  instructs  the  juiy  that  the  term  ''accretion,"  as 
used  in  the  instructions  in  this  case,  means  portions  of  soil  added  to 
that  already  in  possession  of  the  owner  by  gradual  deposit  caused 
by  a  change  in  tjhe  bed  of  the  river,  and  that  accretion  belongs  to 
the  owner  of  the  land,  and  it  makes  no  difference  whether  the  accre- 
tions were  formed  before  or  after  the  ownership  has  accrued,  and 
that  ownership  may  be  acquired  by  adverse  possession  as  well  as  by 
deed.2^ 

§  2234.  Homestead — Place  of  Residence — Ejectment — Measure  of 
Damages — Series.  Plaintiff's  Instructions,  (a)  The  jury  are  in- 
structed that  the  widow  of  a  deceased  person  is  entitled  to  the 
possession  of  the  mansion  house,  and  plantation  used  in  connection 
therewith,  of  her  deceased  husband,  from  the  time  of  his  death  until 
her  dower  shall  be  assigned  her,  and  the  fact  that  said  widow  may 
have  lived  separate  and  apart  from  her  said  husband  before  and 
at  the  time  of  his  death  cannot  defeat  her  of  her  rights  to  the 
])ossession  of  the  said  premises.  And  the  jury  are  further  instnicted 
that  the  mansion  house  of  a  person  is  his  chief  place  of  residence, 
and  the  residence  of  a  person,  when  once  established,  remains  until 
it  is  abandoned,  and,  in  order  to  constitute  abandonment,  it  is  not 
enough  that  he  should  at  times  absent  himself  from  it,  or  lease  it 
out,  if  he  intends  at  the  time  he  so  absents  himself  or  m'akes  such 
lease  to  return  to  such  homestead  and  make  it  his  home,  and  that 
this  absence  shall  be  temporary.     And  if  the  jury  shall  believe  from 

the  evidence  that  in  the  fall  of  the  deceased,  K.,  lived  upon 

the  place  known  as  ''Peabody"  with  his  family,  and  that  said  place 

"It  appears  that  this  was   not   a  action.     Sullivan  v.   State,  110  Ala. 

proceeding  on  appeal  to  the  circuit  95,  20  So.  452.  But,  when  the  assess- 

court   to   correct   the   action   of   the  ment    has    been    made    by    the    tax 

board  of  equalization  of  the  county  commissioner   as    here,    the   assess- 

for   raising   the   assessment   of   de-  ment  by  him  supersedes  that  of  the 

feiidant's  property  as  made  by  the  assessor,     and    the    assessment     by 

tax  assessor,  which  he  seeks  to  re-  the  latter,  when  introduced  in  evi- 

viow,  but  to  correct  the  assessment  dence,  would  not  be  entitled  to  this 

as   made  by  the  tax   commissioner  prima    facie    presumption    of    cor- 

of  the  county.     In  a  proceeding  on  rectness,  and  the  principle  invoked 

nppcal  to  correct  the  action  of  the  in  the  case   referred   to,  is  without 

board    of   equalization    in    the   trial  application." 

In  the  circuit  court  in  a  case  of  the  23 — Benno  v.   Miller  et  al.,  149  Mo. 

fli-st    named     character,     we      have  228,  50  S.  W.  824  (826). 

hf-retofore  held  that  the  assessment  "The    instructions    given    for   de- 

of   the   tax   assessor   should   be   re-  fondants,  defining  the  term  'accre- 

trardfd      as     prima     facie     correct,  tions'      and     riparian      proprietors' 

wholly    regardless    of    the    board's  right  to  such,  were  correct." 


§2234.]  REAL    ESTATE— MISCELLANEOUS.  1457 

was  his  home,  then  the  chief  house  on  said  premises  was  the  mansion 
house  of  said  K.  And  even  though  you  should  believe  from  the  evi- 
dence that  there  was  a  separation  of  said  K.  and  his  wife,  and  that 
his  wife  and  younger  children  did  not  remain  at  "Peabody, "  and 
that  said  K.  leased  said  house  and  some  of  the  land  on  said  place 

to  his  son  J.  for  the  period  of  years,  and  that  said  K.  was 

at  times  absent  from  s'aid  place,  yet  if  you  shall  further  believe  from 
the  evidence  that  said  K.  at  the  time  he  made  said  lease  and  at  the 
time  he  left  said  premises  intended  to  return  to  the  same  as  his 
home,  and  that  he  had  not  in  his  own  mind  left  said  place  with  the 
intention  of  remaining  away  from  the  same  permanently,  then  said 
place  continued  as  his  homestead,  and  you  will  find  a  verdict  for 
the  plaintiff. 

(b)  Although  the  jury  may  believe  from  the  evidence  that  said 
K.  made  a  lease  of  the  Peabody  house  and  a  part  of  the  lands  ad- 
jacent to  the  same  to  his  son  J.  for  the  term years,  and  that  he 

went  to  E.  for  his  health,  recreation  or  business,  but  that  said  K. 
intended  at  the  times  of  leaving  said  premises,  and  when  he  made 
said  lease  intended,  to  be  absent  from  said  premises  only  temporarily, 
and  to  return  to  the  same  as  his  home,  then  said  K.  had  not  aban- 
doned said  homestead,  and  your  verdict  must  be  for  the  plaintiff. 

(c)  The  court  instructs  the  jui-y  that  'the  lease  to  the  defendant, 

J.,  of  the  lands  in  said  lease  described  having  expired  on  the  

day  of  ,  and  before  the  death  of  K.,  said  K,  was,  from  that 

time  up  to  the  time  of  his  death,  entitled  to  the  possession  of  said 
lands. 

(d)  Although  the  juiy  may  believe  from  the  evidence  that  K. 
went  to  the  state  of  California  for  the  purpose  of  establishing  a 
domicile  there  for  the  pui-pose  of  instituting  a  suit  for  divorce  against 
his  wife,  but  that  it  was  the  intention  of  said  K.  at  the  time  he  left 
Peabody,  and  all  the  time,  to  finally  return  to  Peabody  farm  to  live 
upon  the  same  as  his  home,  then  the  said  K.  had  not  abandoned  said 
Peabody  as  a  homestead,  and  your  finding  must  be  for  the  plaintiff. 

(e)  If  the  jui-y  find  for  the  plaintiff,  they  will  find  that  she  is 
entitled  to  the  possession  of  all  the  lands  that  were  a  part  of  the 
home  farm  of  said  K.,  and  by  him  managed  and  operated  as  one 
farm  or  plantation;  and  also  assess  her  damages  at  such  sum  as 
they  may  believe  fi-om  the  evidence  was  the  value  of  the  rents  and 
profits  of  the  premises,  that  the  jury  may  determine  the  plaintiff  is 

entitled  to,  from  ,  to  this  date;  except  that  if  you  shall  find 

plaintiff  entitled  to  the ,  amounting  to acres,  in  estimat- 
ing the  damages  on  that  land  for  the  year you  shall  estimate 

such  damages  for  that  year  at  $ per  acre;  and  the  jury  will 

further  find  the  monthly  value  of  the  rents  and  profits  of  such  of  the 
premises  as  the  juiy  shall  find  the  plaintiff  entitled  to  the  pos- 
session of. 

(f)  The  jury  are  instructed  that  there  is  no  evidence  in  this  case 
that  K.  Sr.  acquired  a  domicile  in  the  city  of  St.  L. 

92 


1458  FORMS  OF  INSTRUCTIONS.  [§  2234. 

Defendant's  Instructions: 

(g)  The  court  instructs  the  jui-y  that  in  this  case  the  burden  of 
proof  rests  upon  the  plaintiff,  and  it  devolves  upon  the  plaintiff 
to  prove,  by  a  preponderance  of  the  evidence,  that  at  the  time  of 
the  death  of  K.  he  resided  upon  the  land  desei'ibed  in  the  petition, 
and,  unless  the  jury  tind  and  believe  from  the  evidence  that  the 
plaintiff  has  so  proven,  then  your  verdict  will  be  for  the  defendant. 

(h)  The  jury  are  instructed  that  the  right  of  plaintiff  to  dower 
in  her  husband's  land,  of  which  he  died  seised,  is  not  denied  or 
brought  into  question  in  this  case,  and  that  her  dower  rights  cannot 
be  determined  in  this  suit. 

(i)  Notwithstanding  the  jury  may  believe  from  the  evidence  that 
K.  went  to  C.  for  the  purpose  of  instituting  a  suit  for  divorce  against 
his  wife,  or  that  he  went  there  for  the  purpose  of  improving  his 
health,  or  that  he  went  there  for  both  of  said  purposes,  yet  if  the 
jury  believe  from  the  evidence  that  he  went  there  with  the  intention 
of  making  C.  his  home,  and  with  no  fixed  purpose  of  returning  to 
Peabody  and  making  that  place  his  home,  the  verdict  must  be  for 
the  defendant. 

(j)  The  jury  are  instructed  that  K.  had  the  right  to  change  his 
residence  at  any  time  independent  of  his  wife's  wishes  in  that  re- 
gard ;  and  if  you  believe  from  the  evidence  that  the  said  K.  leased 
the  premises  theretofore  occupied  by  him  as  a  home,  and  left  said 
premises  with  the  intention  of  not  returning  thereto  to  make  it  his 
residence,  and  you  further  find  and  believe  that  said  K.  died  while 
residing  at  another  place,  then  your  verdict  must  be  for  the  defendant. 

(k)  If  the  jury  believe  from  the  evidence  that  K.  abandoned  the 
premises  in  dispute,  as  his  residence,  and  removed  from  the  same, 
with  the  intention  not  to  return  and  make  said  premises  his  residence, 
and  was  not  residing  thereon  at  the  time  of  his  death,  then  your 
verdict  must  be  for  the  defendant;  although  you  may  further  believe 
from  the  evidence  that  said  K.,  by  such  removal  or  abandonment, 
intended  to  deprive  his  wife  of  any  right  of  quarantine  which  she 
would  have  had  if  he  had  continued  to  occupy  the  same. 

(1)     The  court  tells  the  jury  that  the  effect  of  the  written  lease  in 

evidence,  bearing  date  ,  was  to  convey  and  let  to  J.  all  of  the 

lands  described  therein,  and  the  exclusive  use  and  control  of  the 
mansion  house,  and  all  buildings  appurtenant  to  the  same,  situated 
thereon,  during  the  continuance  of  said  lease ;  and,  if  you  believe 
from  the  evidence  that  said  J.  was  in  possession  of  said  premises 
under  said  lease,  then  said  K.  had  no  right  to  interfere  with  said  J.  's 
possession  and  exclusive  control  of  said  premises;  and  although  you 
may  believe  from  the  evidence  that  said  K.  made  frequent  and  re- 
peated visits  to  his  son,  and  remained  there  as  his  guest  for  greater 
or  less  periods  of  time,  such  fact  did  not  give  the  said  K.  any  right 
to  occupy  said  mansion  house  as  a  residence. 

(rn)  The  right  of  plaintiff  to  recover  in  this  case  depends  upon 
the  question  as  to  whether  or  not  the  deceased  K.  was  occupying  the 


§2234.]  REAL    ESTATE— MISCELLANEOUS.  1459 

mansion  house  on  the  premises  sued  for  as  his  home  at  the  time  of 
his  death.  If  he  was  so  occupying  the  same  as  his  home,  plaintiff 
should  recover;  but,  on  the  other  hand,  if  he  had  left  the  same  with- 
out the  intention  of  returning,  and  left  defendant  in  the  possession 
of  the  same,  then  the  verdict  must  be  for  defendant,  notwithstanding 
the  jury  may  believe  from  the  evidence  that  before  his  death  he  did 
form  the  intention  of  returning  to  and  occupj'ing  said  premises  as 
his  home,  but  was  prevented  by  death  from  carrying  out  said  last- 
named  intention. 

(n)     If  the  jurj'  believe  from  the  evidence  that  deceased,  K.,  in 

the  year  ,  left  the  state  of  M.,  and  went  to  the  state  of  C, 

with  the  intent  to  change  his  domicile  from  the  state  of  M.  to  the 
state  of  C,  and  tliat  while  in  the  state  of  C.  he  determined  to  make 
that  state  his  home,  and  never  again  to  reside  in  the  state  of  M., 
and  that  on  account  of  sickness  or  for  business  reasons  he  returned 
to  M.  without  the  intention  of  remaining,  but  with  the  intention  of 
returning  to  C.  and  make  that  state  his  permanent  home,  and  that  he 
was  prevented  by  sickness  from  going  back  to  C,  but  died  in  M.,  then 
the  verdict  must  be  for  defendant,  notwithstanding  you  may  further 
believe  from  the  evidence  that  said  K.  did  not  establish  any  residence 
or  home  while  he  was  in  C,  and  it  makes  no  difference  in  this  ease 
how  long  he  remained  in  C. 

(o)  If  the  jury  find  for  the  defendant,  they  may  return  their 
verdict  in  the  following  form:  "We,  the  jury,  find  the  issues  for  the 
defendant.       ,   Foreman." 

(p)  By  the  words  "preponderance  of  the  evidence,"  as  used  in 
the  instructions  given,  is  meant  the  greater  weight  of  the  credible 
testimony.2* 

24 — King  v.   King,  155  Mo.  406,   56  having  no  proper  place  in  the  case, 

S.  W.  534  (535-6-7).  and    its    tendency    to    mislead    and 

Comment  by  the  court:  confuse  the  jury.     By  this  instruc- 

"The  first  and  second  instructions  tion    the    jury    were    told    that,    the 

given    on   the    pai't    of   plaintiff   are  lease  to  the  defendant  of  the  lands 

criticised,    upon    the     ground     that  in  question   having  expired   on   the 

they,  in  effect,  told  the  jury  that,  if  first    day    of    March,    1894,    K.    was 

K.,  at  the  time  he  made   the  lease  from    that    time    entitled    to    their 

to  defendant,  intended  to  be  absent  possession.      This    condition    might 

only    temporarily,    and    intended   at  have  more  merit,  if  it  were  not  for 

the  time  to  return  to  Peabody  farm  the   sixth    instruction   given    at   his 

as  his  home,  that  he  had  not  aban-  instance,  in  which  the  jury  were,  in 

doned  said  homestead,  and  directed  substance,    told    that    the    effect' of 

the  jury,   upon  the  finding  of  that  this   same   lease   was   to   convey   to 

fact    alone,    to    find    a    verdict    for  defendant   the    lands   and    house   in 

plaintiff.     While  we  think  these  in-  question,  and  the  exclusive  use  and 

structions     are     subject     to    verbal  control    thereof,    during    its    contin- 

criticism,   for  the  reason  stated  by  uance,    and    that    K.    had   no   right, 

defendant,  when  considered  in  con-  during  the  existence   of  said  lease, 

nection  with  the  facts  disclosed  by  to  occupy  said  mansion  house  as  a 

the   record,    and   the  other  instruc-  residence.     Conceding,  for  the  sake 

tions  in  the  case  as  they  should  be,  of  the  argument,  that  the  criticism 

they  are  not  subject  to  serious  ob-  upon    plaintiff's   instruction   is  just, 

jection.     .     .     .  when  the  instruction   is  considered 

"Plaintiff's    third     instruction     is  in      connection      with      defendant's 

challenged  on  the  ground  that  it  is  sixth    instruction,    with    regard    to 

a  mere  abstract  proposition  of  law^  precisely    the    same    matter,    it    is 


1460 


FORMS  OF  INSTRUCTIONS. 


[^2234. 


impossible  to  see  how  the  jury 
could  have  been  misled  thereby,  nor 
do  we  think  that  it  was. 

"It  is  also  claimed  that  plaintiff's 
fourth  instruction  is  erroneous,  up- 
on the  ground  of  the  improper  use 
of  the  word  'domicile.'  But  when 
this  instruction  is  taken  in  connec- 
tion with  defendant's  third,  in  re- 
gard to  the  same  matter,  the  con- 
tention seems  to  be  without  merit. 
By  plaintiff's  fourth  instruction  the 
jury  were  told,  if  K.  went  to  C.  for 
the  purpose  of  establishing  a  domi- 
cile there  for  the  purpose  of  insti- 
tuting a  suit  against  his  wife  for 
divorce,  but  that  it  was  his  inten- 
tion at  the  time  he  left  P.,  and  all 
the  time,  to  finally  return  to  P.  to 
live  upon  the  same  as  his  home, 
while  defendant's  third  instruction 
told  them  that,  if  he  went  to  Cali- 
fornia for  the  purpose  of  institut- 


ing a  suit  for  divorce,  yet  if  he 
went  there  with  the  intention  of 
making  California  his  home,  and 
with  no  fixed  purpose  of  returning 
to  Peabody  and  making  that  place 
his  home,  the  verdict  must  be  for 
defendant.  These        instructions 

were  both  with  respect  to  the  pur- 
pose of  K.  in  going  to  California, 
one  saying  to  make  it  his  domicile 
to  enable  him  to  sue  his  wife  in  the 
courts  of  that  state  for  divorce, 
while  the  other  said  to  make  it  his 
home.  There  is  no  substantial  dif- 
ference between  the  meaning  of 
the  two  words  'home'  and  'domi- 
cile,' and  even  if  the  use  of  the 
word  'domicile'  was  improper,  it 
would  not,  under  the  circumstances, 
authorize  a  reversal  of  the  judg- 
ment on  that  ground;  for,  clearly. 
It  was  not  prejudicial." 


CHAPTER  LXXVII. 
REPLEVIN. 


See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


§  2235.  Plaintiff  need  not  own  the 
property. 

§  2236.  Replevin  by  mortgagee  after 
default. 

§  2237.  No  demand  necessary  when 
defendant   claims   title. 

§  2238.  Demand  necessary  when 
plaintiff  consented  to  de- 
fendant's  possession. 

§  2239.  Demand  not  necessary  when 
defendant's  possession  tor- 
tious. 


§  2240.  Demand  necessary  when 
plaintiff  loaned  property  to 
defendant. 

§  2241.  Demand  necessary  where 
property  seized  under  proc- 
ess. 

§  2242.  Burden  of  proof  on  plaintiff. 

§  2243.  Burden  of  proof — Issue  of 
detention. 

§  2244.  Levy  on  crops  and  taking 
possession. 

§  2245.  Property  attached  to  and 
part  of  real  estate  not  sub- 
ject to   replevin. 


§  2235.  Plaintiff  Need  Not  Own  the  Property,  (a)  That  it  is  not 
essential  to  a  recovery  by  the  plaintiff  in  this  suit,  that  he  should 
have  been,  at  any  time,  the  absolute  owner  of  the  property;  it  is 
sufficient  if  the  proof  shows  that,  before  and  at  the  time  of  the  com- 
mencement of  this  suit,  the  plaintiff  was  entitled  to  the  possession  of 
the  property;  that  he  demanded  the  same  of  the  defendant,  before 
commencing  the  suit,  and  after  the  plaintiff  became  entitled  to  such 
possession,  and  that  the  defendant  refused  to  surrender  the  property 
to  the  plaintiff  upon  such  demand.^ 

(b)  The  jury  are  instructed  that  before  the  plaintiff  can  recover 
in  this  action  he  must  prove,  by  a  preponderance  of  evidence,  that  at 
the  time  of  the  commencement  of  this  suit  he  was  the  owner  of  the 
property  in  question,  or  that  he  was  then  entitled  to  the  immediate 
possession  of  the  same,  and  he  must  also  further  prove,  by  a  pre- 
ponderance of  the  evidence,  that  the  defendant  wrongfully  took  the 
property  in  question,  or  else  that  he  wrongfully  detained  it  from  the 
plaintiff,  after  a  demand  made  upon  him  by  the  plaintiff  for  the 
property. - 

§  2236.  Replevin  by  Mortgagee  After  Default,  (a)  The  court  in- 
structs the  jury  that,  if  you  believe  from  the  evidence  that  the 
defendant  executed  the  note  and  chattel  mortgage  in  evidence  and 
that  she  has  made  default  in  the  payment  of  the  money  as  provided 
in  the  mortgage,  and  that  the  plaintiff  before  the  commencement  of 
this  suit  made  demand  for  the  possession  of  the  property  described 


1— Campbell  v.  Williams,  39  la 
G46;  Noble  v.  Epperly,  6  Ind.  414 
Loomis  V.  Youle,  1  Minn.  175 
Bramwell  v.   Hart,   12   Heisk.   356. 

1461 


2— Bardwell  v.  Stubbut.  17  Neb. 
485.  23  N.  W.  Rep.  344;  Cobbey  on 
Replevin    (2nd  ed.),  sec.  533. 


1463  FORMS  OP  INSTRUCTIONS.  [§  2236. 

in  the  mortgage,  which  was  refused,  then  the  plaintiff  would  have 
the  right  to  seize  said  property  by  writ  of  replevin,  and  sell  the  same 
at  public  or  private  sale,  and  out  of  the  proceeds  of  the  sale  pay 
and  satisfy  the  balance  due  them  on  said  note  and  chattel  mortgage, 
and  render  the  surplus,  if  any,  to  the  defendant.^ 

(b)  The  jury  are  instructed  by  the  court  that  plaintiff  brought  an 
action  in  replevin  claiming  to  have  been  entitled  to  the  immediate 
possession  of  the  cattle  in  controversy  at  the  time  of  the  commence- 
ment of  this  action  by  virtue  of  a  chattel  mortgage  which  plaintiff 
claims  corresponds  with  the  purported  copy  given  to  you  in  evidence, 
claiming  that  said  chattel  mortgage  was  a  valid  existing  mortgage 
remaining  unsatisfied  at  the  time  of  the  commencement  of  this 
action,  and  that  in  the  giving  of  said  mortgage  it  was  intended  by 
the  makers  of  said  mortgage  and  i^laintiff  bank  that  a  lien  or  mort- 
gage be  thereby  created  upon  the  cattle  in  controversy  herein  to  secure 
the  payment  of  the  promissory  note  given  to  you  in  evidence.  De- 
fendant denies  the  right  of  the  plaintiff  to  a  lien  upon  the  cattle  in 
controversy  for  any  reason  whatever,  and  denies  that  the  cattle  in 
controversy  were  mortgaged  by  the  said  R.  Bros,  to  plaintiff  bank. 

(c)  On  the  issues  formed,  to  entitle  plaintiff'  to  recover,  the  burden 
of  proof  rests  upon  the  plaintiff  to  convince  you,  by  a  preponderance 
of  all  the  evidence,  first,  that  said  note  given  in  evidence  was  given 
for  the  loan  of  money  as  plaintiff  claims,  and  that  said  note  was 
unsatisfied  at  the  time  of  the  commencement  of  this  action;  second, 
that  the  chattel  mortgage  as  claimed  by  plaintiff  was  given  upon  the 
cattle  in  controversy  or  upon  any  portion  thereof  for  which  you 
might  find  a  verdict  for  plaintiff,  and  remaining  unsatisfied  at  the 
commencement  of  this  action.  If  plaintiff  has  so  made  out  a  case, 
then  your  verdict  should  be  for  plaintiff  that  at  the  time  of  the  com- 
mencement of  this  action  it  (the  bank)  was  entitled  to  the  immediate 
possession  of  the  cattle  in  controversy;  if  the  evidence  be  equally 
balanced  as  to  plaintiff's  right  to  recover,  or  if  it  preponderates  in 
defendant's  favor,  then  you  could  not  find  for  plaintiff,  and  your 
verdict  should  be  for  defendant. 

(d)  The  jury  are  instructed  by  the  court  that  the  plaintiff  must 
prove  by  a  preponderance  of  the  evidence  that  R.  Bros,  owned  the 
cattle  described  as  the  N.  cattle  at  the  time  the  alleged  chattel  mort- 
gage was  given,  before  it  could  recover  any  of  such  cattle  in  this 
suit,  and  unless  the  plaintiff  has  so  made  out  its  cause,  you  must 
find  for  the  defendant  as  to  all  the  cattle  taken  on  the  order  of 
replevin  herein.* 

3— John  L.  Jones  &  Co.  v.  Cham-  dence    introduced    to    warrant    this 

berlaln,   97   111.   App.    328-30.        Held  addition    to    the   in.struetion,    as    an 

that   a   modification   by   adding-  the  executed    parole    agreement    could 

word.s    "unless    you    believe,    from  not  change  the  terms  of  a  contract 

the    evidence,    that    the    conditions  under    seal. 

or    terms    in    the    mortgag-e    were  4— Thayer    Co.    Ranlt    v.    Huddle- 
changed    by    agreement    of    parties  son,  1   Neb.    (Unoff.)   261,   95  N    W 
thf-reto"   was   erroneous,    the   court  471. 
said    there   was   no   competent   evi- 


§  2237.J  REPLEVIN.  1463 

§  2237.  No  Demand  Necessary  When  Defendant  Claims  Title. 
The  court  instructs  the  jury  that,  by  this  plea  in  this  case,  the  de- 
fendant claims  title  to  the  property  in  himself  (and  in  one  A.  B.), 
and  denies  the  right  of  property  and  of  possession  in  the  plaintiff; 
and  although  the  jury  may  believe,  from  the  evidence,  that  the  de- 
fendant came  rightfully  into  possession  of  the  property,  still,  under 
the  pleadings  in  this  ease,  it  is  wholly  unnecessary  for  the  plaintiff 
to  prove  a  demand  and  refusal  before  commencing  the  suit,  to  entitle 
him  to  a  verdict  of  wrongful  detention ;  provided,  the  jury  further 
believe,  from  the  evidence,  under  the  instructions  of  the  court,  that 
the  plaintiff  was  entitled  to  the  possession  of  the  property  at  the 
time  of  the  commencement  of  the  suit.^ 

§  2238.  Demand  Necessary  When  Plaintiff  Consented  to  Defend- 
ant's Possession.  If  the  jury  believe,  from  the  evidence,  that  the 
property  in  question  came  into  the  possession  of  the  defendant  with 
the  knowledge  and  consent  of  the  plaintiff,  then,  before  the  plaintiff 
could  properly  commence  this  suit,  he  would  have  to  make  a  demand 
on  the  defendant  for  a  return  of  the  property,  and  unless  it  appears, 
from  a  preponderance  of  the  evidence,  that  he  did  make  such  demand, 
the  jury  should  find  for  the  defendant,  unless  the  jury  further  be- 
lieve, from  the  evidence^  that  the  defendant,  before  the  commence- 
ment of  this  suit,  had,  by  his  conduct  or  language,  or  by  both, 
manifested  an  intention  to  disregard  and  repudiate  any  claim  of 
right  or  title  in  the  property  by  the  plaintiff.*' 

§  2239.  Demand  Not  Necessary  When  Defendant's  Possession  Tor- 
tious, (a)  If  the  jury  believe,  from  the  evidence,  under  the  instruc- 
tion of  the  court,  that  the  plaintiff  was  the  owner  of  the  property, 
and  entitled  to  the  possession  of  it,  and  that  the  defendant  took 
the  property  wrongfully  from  the  possession  of  the  plaintiff,  then  a 
demand  and  refusal  before  the  commencement  of  this  suit  is  not 
necessary  to  be  proved,  under  the  issues  in  this  case,  to  entitle  the 
plaintiff  to  recover.'^ 

(b)  When  property  is  wrongfully  taken  from  the  possession  of 
the  party  legally  entitled  thereto,  then  no  demand  for  the  property  is 
necessary  to  enable  the  person  so  entitled  to  the  possession  to  bring 
his  suit  in  replevin.  And  in  this  case,  if  the  jury  believe  from  the 
evidence  that  the  plaintiff  was  the  owner  of  the  heifer  in  question, 
and  that  defendant  went  to  plaintiff's  pasture  and  took  the  heifer 

5 — Seaver   v.    Dingley,   4   Greenlf.  The  effect  of  failure  to  make  de- 

306;    Lewis    v.    Masters,    8    Blaclcf.  mand,     wiien     necessary,     will     at 

244;    Smith   v.    McLean,    24    la.    322;  least  prevent  the  recovery  of  costs, 

Lewis  V.  Smart,  67  Me.  206;  Cobbey  but  in  any  event  plaintiff  can  dis- 

on    Replevin    (2nd    ed.),    sees.    447,  miss,    make    proper    demand,    and 

510.    So  a  plea  of  title  in  defendant  bring   another   action.     Cobbey   on 

waives    demand.      Cobbey    on    Re-  Replevin   (2nd  ed.),  sec.  447. 

plevin   (2nd   ed.).   sec.   448.  7 — Dickson    v.    Randal,    19    Kans. 

6— Lewis  v.  Ma.sters,  8  Blackf.  212;  Jones  v.  Ward,  77  N.  C.  337, 
244;  Cobbey  on  Replevin  (2nd  ed.),  24  Am.  Rep.  447;  Cobbey  on  Re- 
sec.   447.  plevin   (2nd   ed.),   sees.   447,   453. 


1464  FORMS  OF  INSTRUCTIONS,  [§  2240. 

therefrom  without  plaintiff's  permission,  and  against  his  will,  then 
no  demand  was  necessary  before  commencing  this  suit.^ 

(e)  The  court  instructs  the  jury  that  if  you  find,  from  the  evi- 
dence, that  the  S.  L.  Co.  never  sold  the  lumber  in  question  to  0.,  but 
that  0.  was  to  dry  said  lumber  and  deliver  the  same  to  a  certain 
building,  then  said  S.  L.  Co.  is  entitled  to  recover  in  this  suit,  and 
it  makes  no  difference  whether  S.  K.  ^Co.  and  Smith  knew  of  the 
arrangement  between  the  S.  L.  Co.  and  0.^ 

§  2240.  Demand  Neces:sary  When  Plaintiff  Loaned  Property  to  De- 
fendant. That  if  the  jury  believe,  fr'>m  the  evidence,  that  the  de- 
fendant borrowed  the  property  in  controversy  from  the  plaintiff  for 
a  temporary  use  or  purpose,  giving  the  plaintiff  to  understand  that 
he  would  return  the  property  whenever  the  plaintiff  should  desire  it, 
then  the  plaintiff  would  not  be  entitled  to  commence  this  suit  until 
after  he  had  first  demanded  the  property  from  the  defendant;  and 
if  the  plaintiff  has  failed  to  show  such  demand  and  refusal,  by  a 
preponderance  of  evidence,  then  the  jury  should  find  for  the  de- 
fendant; provided,  the  jury  further  find,  from  the  evidence,  that 
before  the  commencement  of  this  suit,  the  defendant  had  done  no 
act  inconsistent  with  the  plaintiff's  right  to  the  property,  or  show- 
ing an  intention  to  rejDudiate  the  same.^° 

§  2241.  Demand  Necessary  Where  Property  Seized  Under  Process. 
(a)  The  jury  are  instructed,  that  if  they  believe,  from  the  evidence, 
that  the  defendant  A.  B.  was  an  acting  constable  in  and  for  the  county 
of  C,  and  that  as  such  constable,  the  execution  shown  in  evidence 
came  into  his  hands,  to  be  executed  by  him,  and  that  while  the  prop- 
erty in  dispute  was  in  the  possession  and  under  the  control  of  one  or 
both  of  the  defendants  in  said  execution,  and  said  constable  levied 
the  execution  upon  the  property  in  controversy,  as  the  property  of 
one  or  both  of  the  defendants,  such  taking  and  levy  would  not  be 
unlawful  as  to  the  plaintiff,  and  in  such  case,  unless  the  jui-y  believe, 
from  the  evidence,  that  a  demand  for  the  property  was  made  before 
bringing  this  suit,  then  the  defendant  would  not  be  guilty  of  a 
wrongful  taking,  or  of  a  wrongful  detention.^^ 

8 — Gilchrist    v.     Moore,    7    la.    9;  Dec.   401;   Bruner  v.   Dyball,   42   111. 

Newman     v.     Jenne,     47     Me.     520;  36;    Hardy    v.     Keeler,    56    111.    152; 

Stlllman    v.    Squire,    1    Denio    327;  Tuttle    v.     Robinson,    78    111.    332-4; 

Hhoades  v.   Drummond.   3   Col.   374.  Oswald  v.   Hutchinson,  26  111.  App. 

9 — Schwamb       Lumber       Co.       v.  273;    Trudo    v.    Anderson,    10    Mich. 

Schnar,  94   111.    App.   544   (545).  357-67,    81   Am.    Dec.   795;   Rosum   v. 

"In     order     to     sustain     replevin  Hodges,    1    So.   Dak.    308,    47   N.    W. 

where    the    possession    is    wrongful,  140,   9  L.   R.   A.   817-9." 

a    previous    demand    of    possession  10 — Simpson     v.     Wrenn,     50     111. 

Is    unneces.sary.      Clark    v.    Lewis,  222,    99    Am.    Dec.    511;    Cobbey    on 

35    Hi     418-23;    Stock    Yards    Co.    v.  Replevin    (2nd    ed.).    sees.    458.    462. 

Mallory,   157   III.    .563.    41    N.    E.    888,  11— Tuttle  v.  Robinson,  78  111.  332. 

48    Am.    St.    341;    5th    Am.    &    Eng.  Rut   if  the  officer  acts  without  au- 

Enoy.  of  Law,   528  I  (1st  ed.);   Gal-  thority,   or  levies  upon  property  of 

vin    V.    Bacon,    11    Me.    28    (2   Fair-  one  not  named  in  the  writ,  no  de- 

neld  Rep.),  25  Am.   Dec.  258;  Wells  mand  Is  necessary.    Cobbey  on  Re- 

on      Repl.,     sec.      365;     Butters    v.  plevin  (2nd  ed.),  sec.  497. 
Houghwout,    42    111.    18-24,    89    Am. 


§2242.]  REPLEVIN.  1465 

(b)  The  jury  are  instructed  that,  as  regards  the  defendants,  C, 
D.,  and  E.  (the  officer  and  plaintiffs  in  execution),  the  indorsements 
and  return  of  the  officer  upon  the  execution  read  in  evidence,  are 
prima  facie  proof  of  the  time  when  the  execution  came  into  the  hands 
of  the  officer,  the  time  of  the  levy,  upon  what  property  the  same 
was  levied,  and  what  became  qt  the  property.^- 

§2242.  Burden  of  Proof  on  Plaintiff,  (a)  The  court  instructs  the 
jury  that  this  is  an  action  of  replevin  commenced  by  the  plaintiffs 
by  the  filing  of  an  affidavit,  wherein  they  claimed,  under  oath,  that 
they  are  entitled  to  the  possession  of  certain  diamonds  described 
therein.  Before  the  plaintiffs  can  recover  under  their  claim,  they 
must  establish,  by  a  preponderance  of  the  evidence,  that  the  diamonds 
which  they  took  from  the  possession  of  H.  L.  under  the  replevin 
Avrit  issued  upon  the  strength  of  said  affidavit  for  replevin,  were 
and  are  the  diamonds  which  were  originally  sold  and  delivered  by 
the  plaintiffs  to  H.  L. ;  and  upon  this  issue  it  is  the  duty  of  the 
plaintiffs  to  prove  the  facts  by  a  preponderance  of  the  evidence,  and 
if  they  have  not  done  so,  then  the  plaintiffs  cannot  recover,  and  the 
verdict  of  the  jury  should  be  for  the  defendants. ^^ 

(b)  The  burden  of  proof  is  on  the  plaintiffs  to  prove  the  issues 
and  claims  made  by  them  by  a  prejDonderance  of  the  evidence;  that 
is,  that  they  are  the  owners  of  said  cattle,  and  are  entitled  to  the 
immediate  possession  thereof.  But  by  the  terms  of  the  contract  the 
defendants  are  to  assume  the  burden  of  proof,  and  prove  that  all 
cattle  which  have  died  during  the  time  said  cattle  were  in  their  pos- 
session were  lost  from  causes  other  than  from  want  of  proper  feed- 
ing.i* 

(c)  The  burden  rests  upon  the  plaintiff,  S.,  to  make  out  his  case 
by  a  preponderance  (that  is,  by  a  greater  weight)  of  the  evidence. 
Unless  he  has  done  so,  your  verdict  should  be  in  favor  of  the  de- 
fendant, M.  If  you  shall  believe  from  the  evidence  that  at  the  time 
of  the  commencement  of  this  suit  the  heifer  in  controversy  was  the 
property  of  the  plaintiff,  you  Avill  return  a  verdict  in  his  favor.  On 
the  other  hand,  if  you  shall  believe  from  the  evidence  that  at  the 
time  of  the  commencement  of  this  suit  said  heifer  was  not  the  prop- 
erty of  the  plaintiff,  you  will  return  a  verdict  in  favor  of  the  de- 
fendant, and  also  find  the  present  value  of  said  heifer.^^ 

12 — Phillips  v.  Elwell,  14  Ohio  St.  tiff  to  make  out  his  case  by  a  pre- 

240;   Harper  v.    Mofflt  et  al.,   11   la.  ponderance    (that   is,    by   a   greater 

527.  weight)     of     evidence,     and     if     it 

13 — Chicago     Title     &    Trust    Co.  should    believe    from    the    evidence 

v.     Goldsmith,     173     111.     326     (330),  that  at  the  time  of  the  commence- 

affg   69   111.    App.    22,    50    N.    E.    676.  ment    of    the    suit    the    heifer    was 

14 — Farrar  et  al.  v.  McNair  et  al.,  not  his  property  it  should  find  for 

65   Kas.    147,    69   Pac.    167    (168).  the     defendant;     it    was     fully    in- 

15— Bright  v.   Miller,  95  Mo.   App.  structed,   in   effect,    that  the   plain- 

270.  68  S.  W.  1061   (1062).  tiff    could    only    recover    upon    the 

The  court  said:     "When  the  jury  strength   of  his  own   title,   and   not 

was    told    in    said    instruction   that  upon   the  weakness   of  defendant's 

the  burden  rested  upon  the  plain-  title." 


1466  FORMS  OF  INSTRUCTIONS.  [§  2243. 

§  2243.  Burden  of  Proof — ^Issue  of  Detention.  The  court  instructs 
the  jury  that,  to  entitle  the  plaintiff  to  recover  upon  the  issue  of 
detention,  it  is  incumbent  upon  the  plaintiff  to  establish,  by  a  pre- 
ponderance of  evidence,  that  the  goods  and  property  replevied  were 
in  the  possession  of  the  defendant^  or  under  his  control,  and  that 
he  detained  the  same  from  the  plaintiff  at  the  time  the  suit  was  com- 
menced; and  unless  the  jury  believe,  from  the  evidence,  that  the 
property  in  question  was  in  the  possession  of  the  defendant,  or  subject 
to  his  control  at  the  time  the  suit  was  commenced^  and  that  he  then 
detained  the  same  from  the  plaintiff,  then,  as  to  the  issue  of  wrong- 
ful detention,  the  jury  should  find  for  the  defendant. ^"^ 

§  2244.  Levy  on  Crops  and  Taking  Possession.  Although  the  law 
requires  an  officer,  in  levying  on  personal  property,  to  take  the  same 
into  his  possession,  yet,  in  the  case  of  growing  crops,  or  other  bulky 
or  heavy  articles,  it  only  requires  him  to  take  such  possession  thereof, 
as  the  article,  from  its  nature,  will  reasonably  admit  of;  and  if  the 
juiy  believe,  from  the  evidence  in  this  ease,  that  the  officer,  in  at- 
tempting to  make  the  levy  in  question,  went  to  the  fi.elds  of  grain 
levied  on,  and  had  the  same  in  his  immediate  view  and  presence, 
and  notified  the  defendant  in  the  execution  that  he  had  taken  the 
crops,  under  the  execution  inti'oduced  in  evidence,  this  would  be  a 
sufficient  levy  on  the  property  in  question. i'^ 

§  2245.  Property  Attached  to  and  Part  of  Real  Estate  Not  Subject 
to  Replevin.  The  jury  are  instructed  that  property  which  has  been 
attached  to  and  become  a  part  of  the  real  estate,  is  not  the  subject 
of  replevin;  and  if  the  juiy  believe,  from  the  evidence  in  this  case, 
that,  at  the  time  of  the  issue  and  service  of  the  writ  of  replevin 
herein,  the  defendants  were  the  owners  and  in  the  actual  possession 
of  block  18  .  .  .  and  that,  prior  to  that  time,  the  property  in 
controversy,  or  any  part  thereof,  had  become  attached  to  and  made 
a  part  of  such  real  estate,  then  as  to  such  property  so  attached  and 
made  a  part  of  the  real  estate,  the  jury  will  find  in  favor  of  the 
defendant.^^ 

1&— Reynolds    v.     McCormick,    62        17— Pierce  v.   Roche,  40   111.   292. 
111.    412.      On    burden    of    proof,    see        18 — Hacker  v.   Munroe  &  Son,  176 

al.so  Cohbey  on  Replevin  (2nd  ed.),  111.   384   (395),   aff'g   61  III.  App.   420, 

sees.  1005,  1006.  52   N.   E.   12. 


CHAPTER  LXXVIII. 


SALES. 


See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


§  2246.  Sale    defined. 

§  2247.  Sale  completed  between  par- 
ties— When  agreement 
made. 

§  2248.  When  the  title  passes— Dif- 
ference between  a  sale  and 
an    agreement  to   sell. 

§  2249.  Same — Consideration  paid  in 
installments. 

§  2250.  Sale  upon  condition  that 
price  is  paid  in   full. 

§  2251.  Completion  of  sale — Delivery 
— Consideration  a  past  in- 
debtedness —  Ascertaining 
price  of  measurement  and 
inspection. 

§  2252.  Same— Transfer  of  bill  of 
lading. 

§  2253.  Subject  matter  pointed  out 
— Quantity  to  be  subse- 
quently ascertained  by 
measurement. 

§  2254.  Installments  of  payments 
whether  considered  as  rent 
or   not — Sale   intended. 

§  2255.  Subject  matter  of  sale  de- 
stroyed before  delivery — 
Question  of  title  at  time  of 
destruction. 

§  2256.  A  thief  acquires  no  title  and 
can  convey  none. 

§  2257.  Sale  by  sample — Rejection 
by  a  real  and  substantial 
difference — Resale  in  good 
faith. 

§  2258.  Refusal  to  take  residue  or- 
dered— Resale  without  no- 
tice. 

§  2259.  Ready  and  willing  to  deliver 
as  required — Failure  to  ac- 
cept. 

§  2260.  Refusal  to  accept — Excuse 
for  non-delivery. 

§  2261.  Delivery— Duty  to  protect 
the   goods   from   rain. 

§  2262.  Time  of  payment— When  in- 
terest would  begin  to  run. 


§  2263.  Market  value  defined. 

§  2264.  Coming  up  to  test  required 
— W^aiver. 

§  2265.  Grapes  shipped  to  be  re- 
sold— Merchantable  condi- 
tion   when    loaded. 

§  2266.  Sale  by  assignee — Guaranty 
—  Trust  property  —  Agree- 
ment  to   buy   back. 

§  2267.  Contract  for  sale  of  mining 
claims  —  Condition  prece- 
dent  to   marking  of   claim. 

§  2268.  Construction  according  to 
order  of  vendee  and  under 
the  superintendence  of 
vendee's    agent. 

§2269.  Contract  of  sale— Goods  to 
be  of  a  specific  quality, 
quantity  and  description — 
Mingled  with  other  goods 
— Delivery  —  Accepta.nce  — 
Refusal  and  tender  back — 
Sale  for  benefit  of  vendee 
— Series. 

WARRAXTY. 

§  2270.  Warranty  —  What  consti- 
stutes. 

§  2271.  Warranty  of  title  by  vendor. 

§  2272.  Warranty  by  agent — Ratifi- 
cation of  agent's  acts. 

§  2273.  Acceptance  waives  implied 
warranty. 

§  2274.  Reliance  on  representations 
necessary  to  constitute  a 
warranty. 

§  2275.  Implied  warranty  of  manu- 
factured article. 

§  2276.  Purchaser  to  give  trial  and 
notice — Provision  of  return- 
ing  machine. 

§  2277.  In  absence  of  special  con- 
tract— Purchaser  buys  at 
his  own  risk — Contract  to 
purchase  machinery  in- 
stalled  on    trial. 

§  2278.  Burden  of  proof. 


§  2246.  Sale  Defined.  The  court  instructs  you  that  in  law  a  sale 
is  the  as:reed  transfer  of  property  having  some  value  to  another  for 
a  valuable  consideration.    A  sale  may  be  shown  by  facts  and  eireum- 

1467 


1468  FORMS  OF  INSTRUCTIONS.  [§  2247. 

stances  as  well  as  by  direct  proof.  The  valuable  consideration  above 
mentioned  may  not  he  in  money,  but  may  be  any  article  of  value.^ 

§  2247.  Sale  Completed,  Between  Parties — When  Agreement  Made. 
(a)  The  jury  are  instructed  that,  as  between  the  parties  themselves, 
the  title  to  personal  property  passes  without  delivery  whenever  the 
sale  is  completed,  and  the  parties  intend  it  as  such.  An  agreement 
to  sell  an  article  by  weight  or  measure,  where  the  article  is  selected 
and  identified,  and  the  price  agreed  upon,  may  be  a  completed  sale 
without  delivery,  if  the  parties  intend  it  as  such.^ 

(b)  As  between  the  parties,  delivery  is  not  essential  to  the  com- 
pletion of  a  sale  of  chattels.  If  the  sale  is  completed  and  nothing 
remains  to  be  done  but  to  deliver  the  property,  then  the  purchaser 
may  take  the  goods  at  any  time  after  the  sale,  provided  he  takes 
them  before  any  lien  attaches  in  the  hands  of  the  vendor  and  the 
transaction   is   conducted  in  good  faith. ^ 

§  2248.  When  the  Title  Passes — Difference  Between  a  Sale  and  an 
Agreement  to  Sell.  The  jury  is  instructed  that  there  is  a  difference 
between  a  sale  of  personal  property  and  an  agreement  to  sell;  under 
a  mere  agreement  to  sell  no  title  passes;  but  whenever  parties  have 
agreed  upon  the  terms  of  a  sale  and  the  precise  property  sold  is  identi- 
fied and  nothing  remains  to  be  done  but  to  deliver  it,  and  it  appears, 
from  the  evidence,  that  the  parties  understood  and  intended  the  title 
to  pass  wtihout  actual  delivery,  then  the  title  will  pass  w^ithout  such 
delivery;  but  where  anything  remains  to  be  done,  by  way  of  selecting 
out  or  separating  the  property  from  other  property  of  the  same  kind, 
for  the  purpose  of  identifying  the  property  sold,  then  no  title  will 
pass  until  the  property  has  been  so  selected  and  identified.* 

§  2249.  Same — Consideration  Paid  in  Installments.  The  court  in- 
structs the  jury  that  if  they  believe,  from  the  evidence,  that  the 
plaintiffs  delivered  the  property  in  question  to  the  said  P.  under  an 
agreement  bv  which  P.  was  to  hold  the  same  as  the  property  of  the 

plaintiffs  until  he  paid  them  the  sum  of  $ ,  in  weekly  installments 

of  $ per  week,   and  that  the   said  P.   has  never  fully  paid  the 

said  sum  of  .$ ,  but  did  attempt  to  sell  the  said  property  to  the 

defendant,  and  that  the  defendant  took  the  property  in  good  faith, 
i?till  the  defendant,  in  such  case,  acquires  no  better  title  to  the  prop- 
erty than  the  said  P.  himself  had,  and  the  jury  should  find  the  right 
of  property  in  the  plaintiff.'^ 

1— John.son  v.  State,  —  Tex.  Crim.  3— Cruikshank  v.  Cog-swell,  26  111. 

App.  — ,  55  S.  W.  968,  citing  Black  366. 

Intox.   LIq.   §  403.  4— Robinson     v.     Hirshfelder,     59 

2--Jilddlft  V.  Varnum.  20  Pick.  280;  Ala.    503;    Smith    v.    Sparkman,    55 

Rofcl   V.   Burges.s,   34   111.   193;   Pres-  Miss.  649,  30  Am.  Rep.  537;  Fletcher 

cott  V.  Locke,  51  N.  H.  94;   Russell  v.  Ingram,  46  Wis.  191;  Hahn  et  al. 

V.  Carrlnglon,   42  N.  Y.  118;   Morse  v.   Fredericks,   30  Mich.  223. 

V.    Shf-rnian,   106   Mass.   430;    Lester  5— Sanders    v.     Keber    et    al.,    28 

V.    Knst,    49   Tnd.    588;    Wilkinson   v.  Ohio   St.   630. 

Holiday,  33  Mich.   386;   McClung  v.  Compare   Orr  et   al.   v.   Farmers' 

Kelley,   21   la.   508.  Alliance   Warehouse   and   Commis- 


§  2250.]  SALES.  1469 

§  2250.  Sale  upon  Condition  that  Price  is  Paid  in  Full.  If  the 
jury  believe  from  the  evidence  that  the  plaintiff  sold  the  machine  in 
question  to  A.  B.  at  an  agreed  price  to  be  paid  at  a  future  time,  and 
then  delivered  the  said  machine  to  the  said  A.  B.,  but  upon  the  ex- 
press condition  and  agreement  that  no  title  should  pass  to  him  until 
after  the  purchase  price  was  paid  in  full,  and  that,  in  the  meantime, 
the  title  should  remain  in  the  plaintiff,  then,  if  the  jury  further  be- 
lieve, from  the  evidence,  that  the  purchase  price  has  never  been  paid 
in  full,  the  machine  still  remains  the  property"  of  the  plaintiff.*' 

§  2251.  Completion  of  Sale — Delivery — Consideration  a  Past  In- 
debtedness— Ascertaining  Price  by  Measurement  and  Inspection,  If 
the  jury  believe,  from  the  evidence,  that  at  the  time  of  the  alleged 

sale,  A.  was  indebted  to  B.  in  the  sum  of  $ ,  and  that  A.  turned  out 

and  sold  the  lumber  in  question  to  B.,  under  an  agreement  between 
them  that  the  same  should  be  applied  in  payment  or  in  part  payment 
of  such  indebtedness,  and  that  they  then  put  the  lumber  in  charge  of 
one  C,  and  that  he  agreed  to  take  charge  of  the  same  and  look  after 
it  for  B.,  then  such  transaction  amounted  to  a  completed  sale  and 
transfer  of  the  title,  although  the  jury  may  further  believe,  from  the 
evidence,  that  the  amount  of  the  lumber  was  to  be  ascertained  by 
future  measurement,  and  the  purchase  price  to  be  determined  by 
future  inspection,  the  purchaser  to  pay  any  excess  of  the  purchase 
price  over  his  debt,  and  the  seller  to  make  good  any  deficiency,  your 
verdict  should  be  for  B.''^ 

§  2252.  Same — Transfer  of  Bill  of  Lading.  The  jury  are  instructed, 
as  a  matter  of  law,  that  the  transfer  of  a  bill  of  lading  in  good  faith 
in  the  ordinary  course  of  business  and  for  valuable  consideration 
operates  to  transfer  to  the  holder  thereof  the  title  to  the  goods  men- 
tioned or  eovered  by  the  bill  of  lading.® 

sion    Co.,    97   Ga.   241,    22   S.    E.   937  paid   on   each   identical  lot.    If  the 

(938).  defendants    have  failed  to   do    this. 

Where  the  court  held  it  was  not  then  there  should  be  a  verdict  for 

required    to    prove   the   application  the  plaintiff." 

of  specific  installments  of  pay-  6 — Jowers  v.  Blandy,  58  Ga.  379; 
xnents  and  said  that  the  action  Bradshaw  v.  Warner,  54  Ind.  58. 
herein  being-  upon  a  check  given  But  compare  Shafer  v.  Russell, 
by  the  defendants  to  the  plaintiff  28  Utah  444.  79  Pac.  559  (561). 
as  a  partial  payment  on  account  Where  the  court  instructed  the 
for  various  lots  of  cotton  sold  by  jury  "that  where  the  chattels  are 
the  latter  to  the  former,  and  the  sold  to  a  vendee  on  condition  that 
defense  in  part  being  that  the  the  title  to  said  property  is  not  to 
plaintiff  had  damaged  the  defend-  pass  to  the  vendee  until  the  pur- 
ants  by  a  failure  to  deliver  ac-  chase  price  is  fully  paid,  all  pay- 
cording  to  its  contract  certain  por-  ments  made,  whether  in  property 
tions  of  these  several  lots  of  cot-  or  money,  prior  to  the  default  of 
ton,  it  was  error  to  charge:  "Cer-  the  vendee  become  forfeited  to  the 
tain  checks  have  been  introduced  vendor,"  and  the  instruction  was 
in  evidence  by  defendants,  show-  considered  as  an  incorrect  state- 
ing  payments  on  these  cottons.     It  ment  of  law. 

is    the   duty   of   the    defendants   to  7 — Colwell   v.   Keystone  Iron   Co., 

show    which    special    checks    were  36    Mich.    51. 

paid  on  each  lot  of  cotton.  The  8 — Davis  v.  Russell,  52  Cal.  611, 
defendants  must  go  further,  and  28  Am.  Rep.  647;  Cochrane  v.  Rip- 
show    which    identical    check    was  ly,  13  Bush  495;   Cent.  Sav.  Bk.  v. 


1470  FORMS  OF  INSTRUCTIONS.  [§  2253. 

§  2253.  Subject  Matter  Pointed  Out — Quantity  to  be  Subsequently- 
Ascertained  by  Measurement.  The  jury  is  instructed  that  if  they  be- 
lieve, from  the  evidence,  that  the  lumber  which  the  plaintiff  claims  to 
have  bought  was  standing  in  a  pile  by  itself,  and  that  the  plaintiff  and 
the  said  A.  B.,  upon  the  occasion  in  question,  were  speaking  of  that 
particular  lot  of  lumber  and  the  plaintiff  said,  I  will  take  the  lumber 
at  $20  per  1,000,  and  the  said  A.  B.  replied,  you  can  have  it  (or  the 
lumber  is  yours),  this  would  constitute  a  valid  sale  and  sufficient  to 
pass  the  title  at  that  time  to  the  plaintiff,  although  the  quantity  of 
lumber  in  the  pile  was  then  unknown,  and  it  was  necessary  to  measure 
the  lumber  to  ascertain  the  quantity  or  the  amount  of  money  to  be 
paid  therefor,  your  verdict  should  be  for  the  plaintiff.^ 

§  2254.  Installments  of  Payments  Whether  Considered  as  Rent  or 
Not — Sale  Intended.  The  court  instructs  the  jury  that,  although  the 
written  contract  introduced  in  evidence  in  terms  speaks  of  the  said 
machines  as  having  been  rented  from  the  said  plaintiff  to  the  said  P. 
and  calls  for  installments  of  payments  to  be  paid  as  rent,  still,  if  the 
jury  believe,  from  the  evidence^  and  from  all  the  facts  and  circum- 
stances proved  on  the  trial,  that  a  sale  was,  in  fact,  intended  between 
the  parties,  and  that  stipulated  payments  were  in  reality  understood 
to  be  payments  upon  the  purchase  money,  and  that  the  machine  was 
delivered  by  the  said  plaintiff  to  the  said  P.  under  such  contract, 
and  if  the  juiy  further  believe,  from  the  evidence,  that  the  defendant 
afterwards  purchased  the  said  machine  from  the  said  P.  in  good  faith, 
relying  upon  his  possession  and  apparent  ownership,  and  paid  him  for 
the  same,  and  without  any  knowledge  that  the  plaintiff  had  not  been 
paid  in  full  therefor  or  that  he  set  up  any  claim  to  the  said  machine, 
then  the  jury  should  find  the  right  of  property  in  the  defendant.^*^ 

?  2255.  Subject-Matter  of  Sale  Destroyed  Before  Delivery — Ques- 
tion of  Title  at  Time  of  Destruction.  If  you  believe  from  all  the  evi- 
dence that  defendant  contracted  with  plaintiff  and  J.  J.  R.  to  take  fifty 
cords  of  wood  at  $2.50  per  cord,  and  that  defendant  would  furnish  a 
barge  to  load  it  upon  and  you  further  find  that  J.  J.  R.  sold  or  sur- 
rendered his  intei-est  in  said  contract  to  plaintiff,  and  that  plaintiff 
complied  with  the  contract  so  made,  if  you  find  it  was  made,  and  you 
further  find  that  defendant  broke  the  contract  by  failing  to  furnish 
the  barge,  and  you  find  that  the  wood  was  burned  up  without  the 
fault  of  plaintiff,  then,  if  you  believe  these  facts,  if  facts  they  be, 
the  plaintiff  is  entitled  to  a  verdict.^^ 

Garrison,   2   Mo.   App.   58;   Price  v.  "Let     the      following     principles 

Wisconsin,    etc.,    Ins.    Co.,    43    Wis.  eroverninR-  this  case  be  first  stated: 

267.  'The  doing  of  a  thing  pursuant  to 

9— Burrows    V.    Whitaker,    71    N.  an   offer   may  be  both   an   accept- 

Y.   291,   27  Am.   Rep.   42.  ance     and     performance.      If     one 

10— Ooor  V.   Churrrh,  13  Bush  430;  makes   an    offer   to   another,    or    to 

<Ky.)     Domestic     Rowing     Machine  all    persons    in    general,    nnd    does 

To.  V.  Andfrson,  23  Minn.  r>T.  not    withdraw    it    while    the    other 

11 — American  Oak  Extract  Co.  v.  person  in   the  former  case,  or  any 

Uyan,  104  Ala.  267.  15  So.  807  (809).  one    In    the    latter,    goes    forward 


§  2256.  J  SALES.  1471 

§  2256.    A  Thief  Acquires  No  Title  and  Can  Convey  None.     The 

court  instructs  the  jury  that  by  a  larceny  of  goods,  a  thief  acquires 
no  title  to  them,  and  if  he  attempts  to  sell  the  goods,  he  cannot  con- 
vey any  title  to  them  as  against  the  person  from  whom  they  were 
stolen.  But  whether,  in  this  case,  the  horse  formerly  belonged  to  the 
plaintiff,  and  whether  the  said  A.  B.  stole  the  horse  from  him,  etc., 
etc.,  are  all  questions  of  fact  to  be  determined  by  the  juiy  from  the 
evidence  in  the  case.^^ 

S  2257.  Sale  by  Sample — Rejection  for  a  Real  and  Substantial  Dif- 
ference— Resale  in  Good  Faith,  (a)  If  the  jury  believe  from  the 
evidence  that  the  flour  delivered  was  materially  and  substantially 
equal  in  quality  to  the  samples,  and  that  the  plaintiffs  exercised  good 
faith  and  reasonable  diligence  in  reselling  the  flour  in  bulk  in  the  0. 
market,  then  the  plaintift's  should  recover, 

(b)  If  the  defendants  P.  &  Co.  made  no  demand  for  notice  of  the 
time  and  place  of  the  resale,  then  the  plaintiffs  were  not  required  to 
give  such  notice  to  the  defendants. 

(e)  If  the  flour  shipped  by  plaintiffs  to  defendants  was  equal  in 
quality  to  the  sample  by  which  it  was  sold,  then  defendants  had  no 
right  to  reject  said  flour,  and  in  order  to  authorize  the  defendants  to 
reject  said  flour,  there  must  have  been  a  real  and  substantial  differ- 
ence between  said  flour  and  the  samples,  and  not  an  imaginary,  fanci- 
ful difference. 

(d)  If  the  plaintiffs,  in  making  the  resale,  acted  in  such  manner 
as  to  obtain  the  highest  cash  price,  under  the  circumstances,  for  the 
entire  lot  of  flour  in  the  0.  market,  they  faithfully  performed  their 
trust  in  conducting  the  resale. ^^ 

and  does  the  thing,  such  perform-  fer  by  the  party  offered,  before 
ance  carries  with  it  an  acceptance  proceeding  to  carry  it  out,  is  un- 
of  the  offer;  and  the  person  who  necessary.  Bank  v.  Watkins,  154 
made  it  must  pay  or  do  what  he  Mass.  387,  28  N.  E.  275;  1  Pars, 
promises.  Bish.  Cont.  §§  329,  330.  Cont.  493;  3  Am.  &  Eng.  Enc.  Law 
In  unilateral  contracts,  it  is  often,  847,  and  authorities  cited.  Where 
if  not  generally,  the  case,  that  a  contract  does  not  specify  a  par- 
acceptance  of  the  offer  is  only  to  ticular  time  for  its  performance, 
be  inferred  from  the  performance  the  presumption  is  that  the  parties 
of  the  consideration.  If  this  is  per-  intended  performance  within  a  rea- 
formed  in  accordance  with  the  sonable  time.  And  this  is  some- 
terms  of  the  offer;  a  contract  is  times  a  question  of  fact,  and  at 
thereby  formed  without  notifying  others  one  of  law.  When  it  de- 
the  offerer  of  the  intention  to  per-  pends  upon  facts  extrinsic  of  the 
form,  or  of  the  completion  of  the  contract  which  are  matters  of  dis- 
performance.'  1  Pars.  Cont.  492.  pute,  it  is  a  question  of  fact;  but 
note  1  and  authorities.  So  too,  it  when  it  depends  upon  a  construc- 
has  been  held,  that  if  one  offers  to  tion  of  a  contract  in  writing,  or 
another  to  do  something,  if  that  upon  undisputed,  extrinsic  facts,  it 
other  will  do  something  else,  and  is  matter  of  law.  Cotton  v.  c'ot- 
the  party  to  whom  such  offer  is  ton,  75  Ala.  346;  Howard  v.  Rail- 
made  acts  upon  it,  either  to  the  road  Co.,  91  Ala.  269,  8  So.  868." 
advantage  of  the  offerer,  or  to  his  12 — Breckenridge  v.  McAfee.  55 
own      disadvantage,      such      action  Ind.  141. 

makes    the   contract    complete   and        13 — Penn.    et   al.    v.    Smith   et  al 

notice  of  the  acceptance  of  the  of-  104  Ala.  445,  18  So.  38  (39).  '' 


1472  FORMS  OF  INSTRUCTIONS.  [§  2258. 

(e)  The  court  instructs  you  that  if  defendants,  by  themselves  or 
their  agent  thereto  authorized,  examined  said  macadam,  or  had  full 
opportunity  to  examine  said  macadam,  before  they  purchased,  then 
in  such  case  the  defendants  became  and  were  liable  to  pay  to  the 
plaintiff  for  all  said  macadam  so  delivered  to  and  received  by  de- 
fendants under  said  contract,  provided  the  same  was  such  macadam 
as  had  been  exhibited  to  the  said  defendants  or  to  their  said  agents 
prior  to  the  making  of  the  contract.^* 

§  2258.  Refusal  to  Take  Residue  Ordered — Resale  Without  Notice. 
If  you  believe,  from  the  evidence,  that  the  defendants  agreed  to  re- 
ceive and  pay  for pictures,  and  that  before  all  of  said  pic- 
tures had  been  delivered,  defendants  refused  to  receive  the  residue  of 
said  pictures,  and  told  plaintiffs  that  they  might  do  what  they 
pleased  with  the  residue  of  said  pictures,  then  plaintiffs  might  re- 
sell the  residue  of  said  pictures  without  giving  defendants  any  notice 
of  the  sale.^^ 

§  2259.  Ready  and  Willing  to  Deliver  as  Required — Failure  to  Ac- 
cept. The  court  instructs  the  jury  that  in  a  suit  by  a  seller  of  per- 
sonal property  to  be  delivered  at  a  certain  time  and  place,  in  order 
to  recover  damages  for  not  receiving  it,  it  is  necessary  for  the  plaintiff 
to  prove  that  it  was  ready  and  willing  to  deliver  the  same  at  such 
time  and  place,  and  on  the  terms  agreed  upon.^^ 

§  2260.  Refusal  to  Accept — Excuse  for  Non-delivery.  If  you  find 
from  the  evidence  that  the  oranges  which  were  last  offered  by  the  de- 
fendants to  the  agent  were  in  fact  of  the  sizes  and  quality  required 
by  the  contract,  and  if  you  further  find  that  the  agent  refused  to  ac- 
cept the  oranges,  or  stated  that  his  firm  would  not  accept  them,  then 
that  would  be  a  sufficient  excuse  for  the  defendants'  omission  to  de- 
liver or  tender  the  oranges  at  Milwaukee. ^'^ 

§  2261.  Delivery — Duty  to  Protect  the  Goods  from  Rain,  (a) 
You  are  instructed  that  if  you  believe  from  the  testimony  that  the 
goods  were  put  upon  the  wharf  when  it  was  not  raining,  and  that  the 
defendants  had  been  previously  notified  that  they  were  to  be  unload- 
ed upon  the  wharf,  then  it  was  the  duty  of  the  defendants  to  take 
the  goods  and  to  provide  means  for  protecting  them  if  a  reasonable 
time  was  given  so  to  do.  And  if  you  believe  from  the  testimony  that 
the  weather  was  threatening  at  the  time  the  goods  were  put  upon  the 

14 — Moore  v.  Barber  Asphalt  Pay.  There  may  be,  and  doubtless  are, 

Co.,  118  Ala.  563,  23  So.  798  (800).  cases   where    the    vendor  would   be 

15 — Wrlpley  v.    Cornelius,   162  111.  required  to  give  the  vendee  notice 

92  C.t't).  aff g    61  111.  App.  279,  44  N.  before  making-  a  sale,  but  the  con- 

E.   406.  duct    of    the    vendee    may    be    such 

The  court  paid   in  comment   that  that  notice  will  he  waived." 

the  "law  Is  well  settled  that,  where  16 — Iroquois  Furnace  Co.  v.  Hard- 

the  vendee  refuses  to  receive  goods  ware  Co.,  201  111.  297  (300),  aff'g    102 

purchased,   the  vendor  may   re-sell  111.  App.  68,  66  N.  E.  257. 

thn  ponds,  and  sue  for  the   difference  17— Seefeld    v.    Thacker,    93    Wis, 

hot  ween  the  contract  price  and  the  518,  67  N.  W.  1142  (1143). 
amount      received      upon      re-sale. 


§2262.]  SALES.  1473 

wharf,  then  defendants  should  have  used  greater  diligence  in  pro- 
tecting the  goods. 

(b)  If  you  find  from  the  evidence  that  the  plaintiffs  or  their 
agents  discharged  the  oats  in  question  upon  the  wharf  in  the  rain,  the 
defendants  would  not  be  required,  under  such  circumstances,  to  ac- 
cept them,  if  they  were  injured  by  the  rain  in  consequence. 

(c)  If  you  find  from  the  evidence  that  through  the  fault  of  the 
plaintiffs  or  their  agents,  a  considerable  portion  of  the  oats  were  dam- 
aged before  delivery,  to  defendants,  then  defendants  had  a  right  to 
reject  all.^^ 

§  2262.  Time  of  Payment— When  Interest  Would  Begin  to  Run.  The 
court  instructs  the  jury  that,  if  all  those  bills  for  these  goods  were  in 

this  form,  teiTQs  stated  at  days,  and  the  party  took  the  goods 

with  that  upon  it,  and  made  no  objection  to  that  in  any  way,  it  would 
be  an  implied  agreement  that  that  was  the  time  within  which  the 
goods  were  to  be  paid  for,  and  that,  if  they  were  not  paid  for,  after 
that  interest  would  begin  to  run  by  way  of  damages  from  the  ex- 
piration of  the days.^^ 

S  2263.  Market  Value  Defined.  The  market  value  of  goods  is  the 
price  at  which  the  owner  of  the  goods,  or  the  producer,  holds  them 
for  sale ;  the  price  at  which  they  are  freely  offered  in  the  market  to  all 
the  world;  such  price  as  dealers  in  the  goods  are  willing  to  receive, 
and  purchasers  are  made  to  pay,  when  the  goods  are  bought  and  sold 
in  the  ordinary  course  of  trade.  You  will  perceive,  therefore,  that  the 
actual  cost  of  the  goods  is  not  the  standard.-** 

§  2264.  Coming  up  to  Test  Required — Waiver,  (a)  To  entitle 
the  plaintiff  to  recover  for  the  "melting  furnaces,"  so  called,  and 
the  gas-producing  machine  connected  therewith,  he  must  satisfy  the 
jurj'  by  a  fair  preponderance  of  evidence  that  such  melting  furnace 
and  gas-producing  machine  so  constructed  by  him  operated  in  the 
several  tests  and  in  the  work  of  melting  iron  to  the  satisfaction  of 
the  defendant  company,  or  that  the  defendant  company  actually 
waived  said  trial,  and  accepted  the  same. 

(b)  To  entitle  the  plaintiff  to  recover  for  the  gas-producing  ma- 
chine made  to  furnish  fuel  for  the  defendant's  boilers  and  annealing 

18 — Heinberg  et  al.  v.   Cannon  et  proposition    in   the   defendant's   fa- 

al.,  36  Fla.  601,  18  So.  714  (716).  vor;   and   if  he   made   no   objection, 

19 — Lambeth    Rope    Co.    v.    Brig--  his    assent    would    be    implied,    and 

ham,    170    Mass.    518,    49   N.    E.   1022  he  would  be  bound  by  the  contract. 

(1023).  The  fact  that  in  subsequent  state- 

The  court   said  that   in  the  "ab-  merits  interest  was  not  charg-ed  was 

sence  of  any  agreement,   the  price  evidence     that     the     plaintiff     was 

of  the  g-oods  would  be  payable  on  then     willing-    to    waive     its    legal 

delivery.     The    parties    could    make  rig-ht    to    interest;    but    in    the    ab- 

any  agrreement   about   it   that   they  sence    of    a    settlement    upon     the 

chose  to  make.     If  the  plaintiff  no-  statement,   it   would   not   deprive  it 

tified    the    defendant    that    it    was  of  its  rig-ht  in   this  suit   to  recover 

willing  to   give   him   a  credit  of  —  interest   according  to   the  terms  of 

days    on    each    bill,    and    that    the  the   original   contract." 

price  would  be  payable  at  the  ex-  20 — Watson  v.   Loughran,  112  Ga. 

piration    of    that    time,    it    was    a  837,  38  S.  E.  82  (84). 


1474  FORMS  OP  INSTRUCTIONS.  [§  2265. 

ovens,  the  jury  must  be  satisfied  by  a  fair  preponderance  of  the  evi- 
dence cf  one  of  the  following  propositions:  First,  that  such  machine 
was  furnished  by  the  plaintiff  to  the  defendant  without  the  condition 
that  it  was  to  do  the  work  for  which  it  was  constructed  satisfactorily ; 
second,  that  the  trial  or  test  thereof  was  made  which  was  satisfactory 
to  the  defendant;  third,  that  by  or  through  the  fault  of  the  defendant, 
to  which  the  plaintiff  neither  contributed  nor  assented,  such  trial  or 
test  was  not  made  within  the  time  contemplated  by  the  parties.^i 

§  2265.  Grapes  Shipped  to  be  Resold — ^Merchantable  Condition 
When  Loaded.  In  determining  whether  the  grapes  were  in  a  mer- 
chantable condition  when  loaded  into  the  car  at  Portland,  N.  Y.,  you 
should  take  into  consideration  the  condition  in  which  the  grapes  were 
when  loaded  into  said  ear,  the  length  of  time  merchantable  grapes 
will  keep  when  properly  loaded  into  cars  used  for  the  purpose  of 
canying  grapes,  the  length  of  time  the  grapes  were  in  transit,  the 
manner  in  which  the  grapes  were  loaded  into  said  car,  with  all  the 
facts  and  circumstances  in  evidence,  and  from  all  the  facts  and  cir- 
cumstances in  evidence  say  whether  the  grapes  were  or  were  not  in 
a  merchantable  condition  when  loaded  in  the  car  at  Portland,  N.  Y.^^ 

§  2266.  Sale  by  Assignee — Guaranty — Trust  Property — Agreement 
to  Buy  Back,  (a)  The  court  instructs  you  that  if  M.  authorized  R.  to 
assure  L.  that  a  purchaser  would  be  found  for  him  (L.)  for  certain  of 
the  assets  which  he  (L.)  did  not  want,  if  such  was  the  ease,  and  if  you 
find  that  the  object  and  pui-pose  of  M.  in  having  such  assurance  made 
to  L.,  if  such  assurance  was  made,  was  to  enable  him  (M.)  to  there- 
after become  the  purchaser  fx'om  said  L.  of  said  assets,  or  any  part 
thereof,  and  that,  in  furtherance  of  such  object  and  purpose,  M.  did 
thereafter  become  the  purchaser  from  said  L.,  then  you  are  instructed 
that  such  sale  was,  and  as  to  said  M.  is,  invalid,  and  this  notwith- 
standing L.  may  not  have  been  aware  of  the  object  and  purpose  of  M. 
in  having  him  so  assured.^^ 

21— Turner  v.  Muskegon  Machine  the      trustee's      wrongful      intent. 

&  Foundry  Co.,  97  Mich.  166,  56  N.  Perry    on    Trusts,    paras.    222,    830- 

W.  356  (359).  Ellis  v.   Singletary,   45  Tex.  41. 

22— Truschel  v.  Dean,  77  Ark.  546,         "While     the     refused     instruction 

92  S.   W.   782.  might    have   been   so   framed   as   to 

2.3— Nabours  v.  McCord,  36  Tex.  present  the  question  more  definite- 
Civ.  App.  504,  75  S.  W.  827  (834).  ly,   it  embodied   a  correct  principle 

"Courts  of  equity  are  so  rigid  in  of  law  applicable  to  a  phase  of 
requiring  good  faith,  honesty,  and  the  case  presented  by  the  testi- 
Integrlty  on  the  part  of  trustees,  mony  and  not  covered  by  the  main 
that  when  they  fall  short  in  these  charge,  and  which  it  was  the  right 
re.spofts,  In  purpose  or  intent  only,  of  plaintiffs  in  error  to  have  sub- 
though  no  actual  harm  results,  if  mitted  to  the  jury.  In  other  words, 
they  reacquire  the  property  which  if  M.  resorted  to  the  alleged  prom- 
they  hnve  rllsposerl  of  with  such  ise  of  guaranty,  not  for  the  pur- 
fraudulent  Intent,  it  will  be  reim-  pnse  of  securing  a  fair  price  for 
nrossprl  with  the  trust,  althoueh  the  property,  but  as  a  scheme  on 
tho  purchaser  to  whom  it  has  been  his  part  to  enable  him  to  finnlly 
sold,  -inrl  from  whom  the  trustee  acquire  it,  f^en.  in  mv  judgment, 
has  acnii'vocl  it.  mnv  not  hi-i'o  v-e^n  he  should  not  be  permiH-^d  to  hold 
a   party  to,    or  hnd   knowled<7e   of,  it  as  against  the  pl-^in  +  i'^s." 


§  2267.]  SALES.  1475 

(b)  The  court  instructed  you  that  an  assignee  is  not  permitted  by 
law  to  sell  to  himself,  either  directly  or  indirectly,  the  property  of 
the  assigned  estate.  So  if  you  believe  from  the  evidence  that  on  or 
about  May  5,  1897,  the  assignees,  H.  and  M.,  made  to  L.  a  transfer  of 
the  properties  herein  sued  for,  and  then  belonging  to  the  assigned  es- 
tate of  said  C.  and  C.  and  the  Bank,  or  any  of  said  properties, 

and  you  believe  that  it  was  either  expressly  or  impliedly  agreed  or 
understood  at  the  time  on  the  part  of  said  M.  and  L.  that  said  trans- 
fer should  not  be  an  absolute  sale  of  said  property  to  said  L.,  but 
that  it  was  either  expressly  or  impliedly  understood  at  the  time  of  or 
prior  to  said  sale  to  L.  that  the  said  M.  should  have  the  right  and 
privilege  of  purchasing  all  or  any  part  of  said  property  from  the  said 
L.,  and  that  the  said  L.  would  sell  the  same  to  said  M.,  and  you 
believe  that  after  said  transfer  to  said  L.,  said  M.,  whether  for  him- 
self or  for  other  persons,  did  purchase  said  property,  or  any  part 
thereof,  either  in  his  own  name,  or  in  the  name  of  other  persons  for 
his  own  benefit,  then  you  are  instructed  that  said  sales  and  trans- 
fers of  so  much  of  said  property  as  was  included  within  said  agree- 
ment between  M.  and  L.  were  invalid,  and  that  the  title  to  such  por- 
tion of  said  property  did  not  pass  by  said  sale  from  the  said  as- 
signees, and  you  will  find  for  plaintiffs  as  to  such  property. 

(c)  If  you  believe  from  the  evidence  that  L.  purchased  the  as- 
signed property  from  H.  and  M.  absolutely,  without  any  promise, 
agreement  or  understanding,  either  express  or  implied,  with  M.  that 
he  (M.)  should  have  any  interest  in  said  purchase,  or  that  he  should 
be  permitted  to  purchase  it,  then  you  'will  find  for  defendants.-* 

§  2267.  Contract  for  Sale  of  Mining  Claims — Condition  Precedent 
to  Marking  of  Claim.  The  court  instructs  the  jui-y  that  the  existence 
of  a  mining  location  as  contemplated  by  the  United  States  law  (that 
is,  discovery  of  a  mineral-bearing  lode  in  j^Jace,  and  the  marking  and 
staking  upon  the  ground  of  the  claim)  for  the  claims  described  in  the 
contract  herein,  and  to  be  conveyed  by  such  deed  as  is  provided  for, 
is  a  condition  precedent  for  plaintiff's  rights  to  recover  the  contract 
price.  And  if  you  find  that  the  plaintiff  did  not  have  all  the  claims 
so  properly  located  at  the  time  of  the  making  of  the  contract  and  the 
execution  of  the  deed,  then  plaintiff  is  not  entitled  to  recover.^^ 

§  2268.  Construction  According  to  Order  of  Vendee  and  Under 
the   Superintendence  of  Vendee's  Agent,     (a)     The   court  instructs 

24— Ibid.  court   at    the   very   outset  told   the 

25 — La  Grande  Inv.  Co.  v.   Shaw,  jury    that    the    burden    of    proving 

44  Ore.  416,  72  Pac.  795.  the   alleg-ed    fraudulent    representa- 

"Now,    while    there    is    no    refer-  tions  was  with  the  defendant,  cou- 

ence    made    in    this    particular    in-  pled   with    a   clear   definition    as    to 

struction    to    any    fraudulent    pur-  what      would      constitute      such     a 

pose,  it  must  be  read  in  connection  fraud   and    deceit    as   would   relieve 

with    the   general    charge.     In   real-  the   defendant    of    his   alleged    obli- 

ity  all   these   instructions   are   con-  gation.     The    exceptions,    therefore, 

ditioned    upon    the    proof    of   fraud  to    this    instruction    were   not   well 

in     connection     therewith,     as    the  taken." 


1476  FORMS  OF  INSTRUCTIONS.  [§  2269. 

the  jury  that  if  MeC,  with  appellant's  knowledge  and  consent,  direct- 
ed the  kind  of  material  to  be  used,  and  superintended  the  construc- 
tion of  the  machines,  and  that  they  were  constructed  according  to  his 
order,  then  the  appellees  should  not  be  held  responsible  for  defective 
material. 

(b)  The  juiy  is  instructed  that  if  McC,  as  the  appellant's  agent, 
requested  the  appellees  to  employ  J.  as  their  moulder,  and  to  have 
charge  of  the  castings,  etc.,  and  he  was  employed  at  such  request,  and 
MeC.  recommended  him  as  a  competent  man  to  do  the  work,  that  this 
was  a  guarantee  on  appellant's  part  that  he  was  a  competent  man, 
and  appellant  was  estopped  to  claim  that  he  did  his  work  improperly 
or  inefficiently,  or  claiming  damages  for  reason  of  his  want  of  skill. 

(c)  The  jury  is  instructed  that  if  McC,  as  agent,  etc.,  without 
appellees'  consent,  interfered  with  the  construction  of  the  machine 
by  reason  of  which  the  machines  were  improjDerly  put  together  with- 
out appellees'  fault,  then  appellees  were  not  barred  of  recovery  of 
the  contract  price,  if  the  machines  failed  to  work  on  account  of  such 
interference,  and  the  material  was  first  class. 

(d)  The  jury  is  instructed  that,  though  there  were  defects  in  the 
machine  and  workmanship,  yeit  if  the  jury  believe  from  the  evidence 
that  such  defects  could  with  reasonable  prudence  have  been  seen  by 
the  defendant  or  his  agent,  and  that  the  defendant  or  his  agent  had 
sufficient  opportunity  to  examine  such  machines  before  accepting  the 
same,  then  it  was  the  duty  of  defendant  or  his  agent  to  have  rejected 
said  machines,  or  to  have  called  the  attention  of  the  plaintiffs  to  such 
defects  and  given  them  an  opportunity  to  correct  the  same,  therefore 
if  the  juiy  believe  from  the  evidence  that  defendant  or  his  agent  ac- 
cepted said  machines  in  a  defective  condition,  or  having  sufficient 
opportunity  to  know  that  they  were  defective  in  workmanship  or 
material,  without  giving  plaintiffs  opportunity  to  correct  the  same, 
then  defendant  is  estopped  from  now  setting  up  said  defects  as  a  de- 
fense to  this  action,  and  plaintiff's  are  entitled  to  recover  whatever  the 
evidence  may  show  to  be  due  them  under  the  contraet.^^ 

§  2269.  Contract  of  Sale — Goods  to  Be  of  a  Specific  Quality,  Quan- 
tity and  Description — Mingled  with  Other  Goods — Delivery — Accept- 
ance— Refusal  and  Tender  Back — Sale  for  Benefit  of  Vendee — Series. 
(a)  The  court  instructs  the  jury  that  under  an  executory  contract 
for  the  purchase  of  goods  of  a  certain  quality  and  description,  to  be 
shipped  to  the  buyer  at  a  distant  place,  if  the  seller  mingle  with  the 
goods  sold,  and  include  in  the  same  shipment,  with  general  freight 
charges  on  all  the  goods,  additional  goods,  which  have  not  been  or- 
dered or  purchased,  and  insists  on  payment  of  the  whole,  including 
the  charge  for  the  additional  goods,  he  cannot  compel  the  buyer  to 
accept  and  pay  for  the  whole,  or  to  select  from  the  whole  so  many 
of  the  goods  as  were  in  fact  ordered. 

(b)     If   the  jury  believe   from   the  evidence   tliat   the   defendants, 

26 — These    Instructions    approved    in   Davidson   v.   Clark,   36  111.   App. 

313  (315). 


§  2269.]  SALES.  1477 

through  their  agent,  made  a  contract  with  the  plaintiff,  in for  the 

purchase  of  goods  of  certain  specific  quality,  quantity,  and  descrip- 
tion, to  be  prepared  and  shipped  by  plaintiff  from to  defendants' 

address,  at  M.,  and  there  was  no  agreement  or  understanding  that 
the  delivery  of  the  goods  to  the  carrier  at  C.  should  be  taken  as  an 
acceptance  by  the  defendants,  then  the  mere  delivery  to  the  carrier 
would  not  operate  as  such  acceptance ;  and,  on  arrival  of  the  goods 
at  M.,  the  defendants  were  entitled  to  reasonable  time  and  oppor- 
tunity to  inspect  the  goods,  to  ascertain  whether  they  conformed  to 
the  contract,  and  this  included  the  further  right,  within  a  reasonable 
time,  to  refuse  to  acce]>t  the  goods  if  they  did  not  conform  to  the 
contract  of  purchase ;  and  what  is  a  reasonable  time  is  a  question 
of  fact  to  be  determined  by  the  jury,  from  a  consideration  of  the 
situation  and  business  relations  of  the  parties  and  all  the  other  cir- 
cumstances in  evidence. 

(c)  It  was  a  condition  precedent  to  the  sale  in  this  ease  that 
plaintiff  deliver  goods  of  the  kind  and  quality  ordered,  and  the  quan- 
tity ordered ;  and  if  the  jury  believe  from  the  evidence  that  de- 
fendants gave  plaintiff  an  order  to  ship  them  only  those  goods  listed 
in  the  memorandum  exhibited  by  witness,  H.  C.  S.,  and  for  the  aggre- 
gate price  of  $ ,  as  therein  stated,  and  that  plaintiff  shipped  and 

invoiced  them  the  goods  listed  in  plaintiff's  bill  of  particulars,  ag- 
gregating in  price,  $ ,  and  that  several  pieces  shipped  were  ma- 
terially different  in  quality,  and  inferior  in  value,  to  that  ordered, 
then  defendants  were  not  bound  to  accept  any  of  the  goods. 

(d)  If  the  jury  from  the  evidence,  and,  under  the  other  instruc- 
tions in  the  ease,  find,  that  the  goods  delivered  to  defendants  did  not 
correspond  with  the  contract,  it  was  the  right  of  the  defendants  to 
promptly  notify  plaintiff  of  their  refusal  to  accept  the  goods,  and  to 
tender  them  back,  and  after  waiting  a  reasonable  time,  and  learning 
of  plaintiff's  refusal  to  take  back  the  goods,  then  to  store  them  for 
plaintiff,  or,  if  exj^ensive,  to  keep  and  care  for  them;  then  to  sell 
them  to  the  best  advantage  for  plaintiff's  account;  and  in  such  case, 
if  the  goods  were  stored,  then  the  defendants  have  the  right  to  claim 
reimbursement  for  all  freight  paid,  necessary  and  reasonable  storage 
charges,  insurance  and  drayage,  and  expense  of  repacking,  properly 
incurred  in  keeping  and  earing  for  said  goods  until  they  could  be  sold 
to  advantage;  and  the  reasonableness  of  such  charges  is  for  the  jury, 

(e)  In  this  case,  if  the  juiy  believe  from  the  evidence  that  the 
plaintiff,  in  a  substantial  or  material  matter  or  matters,  failed  to 
comply  with  the  contract  of  sale  which  is  sued  upon,  and  that  de- 
fendants refused  to  accept  the  goods,  and  notified  the  plaintiff  that 
the  same  would  be  held  or  disposed  of  for  its  account,  then  the  jury 
will  not  consider  any  of  the  evidence  as  to  the  amount  of  money  re- 
ceived by  defendants  or  the  S.  Co.  on  afterwards  disposing  of  the 
goods,  except  as  bearing  upon  the  question  whether  the  defendants 
voluntarily  ratified  the   shipment  after  knowing  all   the  facts. 


1478  FORMS   OP  INSTRUCTIONS,  [§2270. 

(f)  It  is  a  cardinal  rule  that  one  party  seeking  to  enforce  an  ex- 
ecutory contract  must  show  a  compliance  with  all  conditions  on  his 
part.  If  the  juiy  believe  from  the  evidence  that  the  defendants, 
through  their  agent,  made  a  contract  with  the  plaintiff  in  Chicago,  for 
the  purchase  at  a  certain  price  of  certain  goods,  of  a  specified  quality 
and  descrii^tion,  to  be  thereafter  shipped  by  plaintiff  from  C.  to  de- 
fendants' address  at  M.,  and  that  plaintiff  shipped  goods  of  a  quality 
substantially  different  from  those  ordered,  and  of  less  value,  and 
included  also  in  the  same  shipment,  and  mingled  with  the  other  goods, 
additional  goods, — that  is  to  say,  furniture  that  was  never  ordered  or 
purchased  by  defendants, — then  the  defendants  had  the  right,  on  dis- 
covering these  facts,  to  reject  the  shij^ment.^''' 


WARRANTY. 

§  2270.  Warranty — ^What  Constitutes.  The  court  instructs  you 
that  to  constitute  a  warranty,  no  particular  words  or  expressions 
are  necessary,  nor  need  the  words  "warrant"  or  "warranty"  be 
used.  Any  distinct  representation  or  affirmation  of  the  condition  or 
quality  of  the  article  or  thing  sold,  made  by  the  seller  at  the  time  of 
the  negotiations  for  the  sale,  which  he  intended,  and  from  Avhich  the 
purchaser  at  the  time  had  reasonable  grounds  to  suppose  and  believe 
were  intended  by  him,  to  effectuate  the  sale,  that  the  purchaser,  in 
fact,  did  so  believe  in  making  the  purchase,  relied  thereon,  and  on 
the  truth  thereof,  and  which  were  operative  in  effecting  the  sale,  is  a 
warranty.  It  is  not  necessary  to  show  that  the  seller  at  the  time  in- 
tended to  cheat  or  deceive  the  purchaser  in  the  sale,  nor  is  the  plain- 
tiff required  to  show  that  the  seller  at  that  time  knew  the  representa- 
tions to  be  false ;  but  he  has  the  right  to  rely  upon  the  representations 
or  affirmations  so  made.  The  mere  praise  of  the  property  sold,  or  a 
bare  affirmation  of  its  soundness,  at  the  time  when  it  was  exposed  for 
the  purpose  of  inspection,  does  not,  of  itself,  constitute  a  warranty; 
or,  if  the  purchaser  had  determined  to  purchase  without  such  repre- 
sentations or  affirmations,  and  formed  his  own  opinion,  and  relied 
upon  his  own  judgment,  and  did  not  rely  upon  the  representations  or 
affirmations,  if  any  were  made,  then  there  is  no  warranty.  In  this 
case,  if  you  find  from  the  evidence  that  the  defendant,  at  the  time 
of  and  just  before  the  beginning  of  the  sale  of  the  hogs,  made  the 
statements  to  the  persons  there  assembled  for  the  purpose  of  bidding 
on  the  hogs  then  to  be  sold,  that  the  hogs  were  all  right,  which  he 
intended,  and  from  which  plaintiff  had  reasonable  grounds  to  sup- 
j)ose  and  believe  that  the  defendant  intended,  thereby  to  effectuate  a 
sale  of  the  hogs,  and  did  in  fact  so  suppose  and  believe,  relied  there- 
on, and  upon  the  truth  thereof,  and  that  such  representations  were 
operative  in  making  the  sale;  that  in  fact  said  hogs  were  all  right, 

27 — Approved      as     a     series     in    Strauss   v.   Nat'l   Furniture   Co.,   76 
Miss.  343,  24  So.  703  (704). 


§  2271.]  SALES.  1479 

but  were  diseased  with  swine  plague,  hog  cholera,  or  other  infectious 
disease,  then  the  plaintiff  will  be  entitled  to  recover  upon  the  first 
count  of  his  petition.  If  you  fail  to  so  find,  you  must  find  for  the 
defendant  thereon.^^ 

§  2271.  Warranty  of  Title  by  Vendor.  The  court  instructs  the 
juiy  that  where  a  vendor  in  possession  of  personal  property,  either 
by  himself  or  agent,  sells  the  same  to  a  purchaser  who  buys  in  good 
faith,  believing  he  is  obtaining  a  clear  title  to  the  property,  there  is 
an  implied  warranty  of  title  by  the  vendor;  and  if,  in  such  case, 
there  is  an  outstanding  claim  of  title,  evidenced  by  a  duly  filed  chattel 
mortgage  on  the  property  sold,  and  the  mortgagee  takes  possession 
of  said  property  under  a  writ  of  replevin,  thereby  depriving  the  pur- 
chaser of  the  possession  of  said  property,  and  upon  the  trial  of  the 
reple\'in  suit  the  judgment  for  the  possession  of  the  property  is  for 
the  mortgagee,  then  and  in  that  case  the  purchaser  of  said  property 
would  be  entitled  to  recover,  against  the  vendor  of  the  same,  damages 
by  reason  of  the  failure  of  the  vendor's  title.-^ 

§  2272.  Warranty  by  Agent — Ratification  of  Agent's  Acts,  (a) 
The  testimony  shows  that  the  machine  in  question  was  bought  from 
one  0.  It  is  further  shown  that  said  0.  received  his  agency  to  sell 
the  machine  in  question  from  one  G.  &  J.,  who  were  the  agents  of  the 
plaintiff  herein.  You  are  therefore  instructed,  as  a  matter  of  law, 
that  if  you  find,  from  a  preponderance  of  the  evidence,  that  said  0. 
took  defendants'  order  for  said  machine,  and  gave  defendants  a  writ- 
ten wai'ranty  for  said  machine,  and  you  further  find  fi'om  the  evi- 
dence that  plaintiff  delivered  said  machine  ui^on  said  order  and  ac- 
cepted defendants'  notes  on  said  order,  they  thereby  ratify  the  war- 
ranty made  by  0.  and  are  bound  thereby. 

(b)  If  you  find  from  the  evidence  that  the  plaintiff's  agent  did 
warrant  the  machine  as  represented,  and  that  it  failed  to  answer  its 
warranted  character,  the  measure  of  defendants'  damages  is  the  dif- 
ference in  the  condition  it  actually  was  at  the  time  of  the  sale,  and 
what  it  would  have  been  had  it  answered  its  warranted  character.^'' 

§  2273.  Acceptance  Waives  Implied  Warranty,  (a)  The  court 
instructed  the  jury  substantially,  that,  if  they  found  it  to  be  as  al- 
leged by  the  plaintiff,  there  was  an  implied  wai-ranty  that  the  ma- 
chine was  suitable  for  the  work  it  was  intended  to  do;  and,  if  not 

28— Powell    V.    Chittick,    89    Iowa  tion    complained    of   properly  sub- 

513,  56  N.  W.  652  (653).  mitted  to  the  jury  the  question  of 

29— Hartwig    v.    Gordon,    37   Neb.  the  ratification  of  O.'s  acts  by  the 

657,   56  N.   W.   324   (325).  plaintiff.     Esterly    v.   Van   Slyke,   21 

30— Esterly  Harvesting-Mach.  Co.  Neb.    616,    33   N.    "W.    209;   Sycamore 

V.   Frolkey,   34  Neb.   110,   51  N.   W.  Marsh    Harvesting    Co.    v.    Sturm, 

594   (596).  13    Neb.    210,    13    N.    W.    Rep,    202; 

The  court  held  that  "it  woi'ld  be  Chariton  Plow  Co.  v.  Davidson,  16 

unjust  to  permit  plaintiff  to  adopt  Neb.    377,   20   N.   W.   256;   Manufac- 

that  part  of  the  contract  made  by  turing  Co.  v.  Wagoner,  25  Neb.  443, 

its  agent  as  is  beneficial  to  it.  and  41  N.  "W.  2S7;  Rogers  v.  Hardware 

reject  the  remainder.    The  instruc-  Co.,  24  Neb.  655,  39  N.  W.  844." 


1480  FORMS  OP  INSTRUCTIONS.  [§  2274. 

suitable  therefor,  defendant  had  the  right  to  return  it  to  plaintiff 
within  reasonable  time  after  discovering  its  defects, 

(b)  If  the  jury  find  that  the  defendant,  after  he  knew  or  ought  to 
have  known  from  the  test  he  made  that  this  machine  was  an  un- 
satisfactory machine  on  ,  and,  after  determining  that  he 

was  not  satisfied  with  it^  nevertheless  went  on  and  worked  with  it  on 

,  for  the  purpose  of  completing  his  harvest,  the  law  would 

consider  that  an  acceptance  of  the  machine. 

(c)  The  court  further  instructed  the  jury  that,  if  they  found  de- 
fendant's version  of  the  contract  the  correct  one,  he  had  the  right  to 
return  the  machine  if  not  satisfied  with  it,  unless  he  had  theretofore 
accepted  it  under  the  rule  of  acceptance  above  stated;  and,  if  he  did 
thus  accept  it,  the  right  to  return  it  was  lost.^^ 

§  2274.  Reliance  on  Representations  Necessary  to  Constitute  a 
Warranty,  (a)  The  court  further  instructs  the  jury  to  entitle  the 
plaintiff'  to  recover  in  the  suit,  it  is  not  only  necessary  for  the  jury  to 
find  from  the  evidence  that  the  defendant  warranted  the  animal  in 
question  as  alleged  in  the  petition,  but  it  must  further  appear  from 
the  evidence  that  the  plaintiff  relied  upon  said  warranty  in  making 
the  purchase  of  the  horse,  and  was  induced  to  make  said  purchase  by 
said  warranty,  and  it  must  also  appear  from  the  evidence  that  the 
horse  was  not  as  warranted  at  the  time  of  the  sale;  and,  unless  all  of 
these  facts  appear  fi-om  the  evidence,  the  jury  should  find  for  the 
defendant.^2 

(b)  That  if  the  jury  shall  find  from  the  evidence  that  the  agent  of 
the  plaintiff's,  in  making  sale  of  the  fertilizer  sued  for  in  this  case, 
represented  the  same  to  be  as  good  a  fertilizer,  and  as  well  adapted 
to  raising  potatoes,  beans,  cabbage,  and  other  vegetables,  as  any 
other  in  the  market  of  like  price,  and  also  represented  that  the  said 
fertilizer  was  as  good  a  potato  special  as  any  other  in  the  market,  as 
is  set  out  in  the  defendant's  first  special  plea,  and  was  authorized  to 
do  so  by  the  said  plaintiffs,  such  representations  will  not  amount  in 
tliemselves  to  a  warranty,  unless  the  jury  shall  further  find  that  the 
said  representations,  when  so  made  by  the  plaintiff's  agent,  were  in- 
tended by  him  to  cause  the  sale;  and,  furthermore,  that  the  said  de- 
fendant understood  the  said  representations  to  be  a  warranty  of  said 
fertilizers,  and  was  induced  thereby  at  the  time  to  become  the  pur- 
chaser thereof. 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  plaintiff's  fertilizers  wei'c  first  introduced  into  this 
community  for  sale  ,  and   the  spring  of  ,  and  further 

^1— Palmer   v.    Banfield,  8G   Wis.  property  must  have  relied  upon  the 

441.  56  N.  W.  1090  (1092).  statements   of  the  seller  as  to  the 

32— Watson     v.     Roode,  30    Neb.  quality  of  the  article  sold,  in  order 

264,  46  N.  W.  491  (494).  to  make  the  representations  a  war- 

"Thc  law  urifloubtcdly  is,  and  ranty,"  citing,  Little  v.  Wood- 
has  been  so  doclarod  by  this  court,  worth,  5?  Neb.  281;  Halliday  v, 
that     the     purchaser     of  personal  Briggs,  15  Neb.  219,  18  N.  E.  55. 


§  2275.]  SALES.  1481 

believe  that  it  was  the  custom  or  usage  of  the  farmers  of  this  section 
not  to  buy  any  fertilizer  -when  first  introduced,  upon  the  analysis 
thereof,  but  to  require  a  warranty  that  the  said  fertilizer  be  as  good 
as  any  other  fertilizer  on  the  market,  dollar  for  dollar,  as  crop-pro- 
ducing, and  if  they  further  believe  that  S.  warranted  the  fertilizers 
which  he  sold  to  the  defendant,  as  alleged  in  his  plea,  then  they  are 
instructed  that  the  plaintiffs  are  bound  by  such  warranty,  although 
they  may  further  believe  that  he  was  restricted  from  making  such 
warranty  by  any  contract  entered  into  between  the  plaintiffs  and  said 
S.,  unless  they  further  find  from  the  evidence  that  the  said  written 
restriction  was  known  to  the  said  B.  at  the  time  he  made  the  said 
purchase. 

(d)  If  the  jury  believe  from  the  evidence  that  S.  was  authorized 
by  the  plaintiffs  orally  to  warrant  to  the  iDurehasers  of  their  fertil- 
izers, that  they  were  as  good  as  any  other  in  the  market  of  like  price, 
and  that  he  warranted  to  the  defendant,  B.  when  making  sale  of  said 
fertilizers,  that  the  said  fertilizers  were  as  good  as  any  other  in  the 
market  for  the  same  price,  dollar  for  dollar,  and  they  further  find  from 
the  evidence  that  the  said  fertilizers  were  not  as  waiTanted,  then  they 
should  find  for  the  defendant  such  damages  as  have  resulted  natural- 
ly from  the  breach  of  the  said  warranty.^^ 

§  2275.  Implied  Warranty  of  Manufactured  Article.  As  to  the 
regular  boxes,  you  are  instructed  that  if  you  believe  from  the  evi- 
dence that  the  defendant  submitted  to  the  plaintiff  a  design  for  said 
boxes,  and  informed  the  plaintiff  of  the  use  to  which  they  were  in- 
tended to  be  put,  and  the  conditions  they  must  meet  in  order  to  per- 
form the  intended  service,  then  the  plaintiff  in  undertaking  to  make 
and  sell  such  boxes  in  accordance  with  such  design,  impliedly  war- 
ranted their  sufficiency  for  and  adequacy  to  the  service  for  which  it 
was  intended  they  should  be  put,  under  the  necessary  conditions  of 
that  service,  unless  you  find  from  the  evidence  that  the  plaintiff  ob- 
jected to  such  design  as  inadequate,  or  protested  against  it,  or  other- 
wise relieved  itself  from  responsibility  therefor.^* 

§  2276.  Purchaser  to  Give  Trial  and  Notice — Provision  of  Return- 
ing Machine,  (a)  The  jury  are  further  instructed  that  in  no  case 
would  the  defendant,  under  the  terms  of  the  article  or  contract  given 
in  evidence,  be  entitled  to  damages,  even  if  the  juiy  find  from  the  evi- 
dence that  the  machineiy  in  question  did  not  fulfill  the  waiTanty. 
For,  by  the  terms  of  the  contract  it  was  his  duty  to  give  the  machin- 
ery such  trial  as  the  contract  contemplates,  and  if  it  failed  to  fulfill 
the  warranty  to  give  such  notices  and  retui'n  the  machinery,  as  the 
contract  provides,  and  if  he  neglected  to  give  the  notice  or  return  the 
machinery  in  the  manner  provided  by  the  contract,  but  continued  to 

33— Reese  et  al.  v.  Bates,  94  Va.  mie  Falls  Power  Co.,  29  Wash.  292, 
321,  26  S.  E.  865  (870).  69  Pac.  759  (764). 

34 — Moran  Bros.   Co.   v.   Snoqual- 


1482  FORMS  OF  INSTRUCTIONS.  [§  2277. 

keep  and  use  it,  even  to  his  own  detriment,  he  is  not  entitled  to  any 
damages  either  as  a  set-off  against  the  notes  or  otherwise. 

(b)  The  jury  are  further  instructed  that  the  provisions  of  the 
warranty  clause  contained  in  the  order  or  agreement  given  in  evidence 
concerning  the  purchase  of  the  machinery  in  question  in  this  suit, 
that  the  defendant  should  ''inside  of  five  days  from  the  day  of  the 
first  use  by  him  of  said  machinery"  give  notice  of  any  failure  of  said 
juaehinery  to  fulfill  the  warranty  to  the  plaintiff  and  to  the  local 
agent  of  whom  he  purchased  it,  and  that  the  continued  use  of  said  ma- 
chinery after  the  expiration  of  said  time  should  evidence  a  fulfillment 
of  the  warranty  and  satisfaction  to  the  defendant,  is  just  as  binding 
and  conclusive  upon  the  parties  as  any  other  provision  of  the  contract, 
and  the  jury  cannot  lawfully  find  that  the  same  has  been  waived  or 
released,  unless  they  believe  from  the  evidence  that  there  is  a  pre- 
ponderance of  all  the  evidence  in  the  case  that  the  same  has  been  re- 
leased or  waived.^^ 

§  2277.  In  Absence  of  Special  Contract — Purchaser  Buys  at  His 
Own  Risk — Contract  to  Purchase  Machinery  Installed  on  Trial,    (a) 

The  jury  are  instructed  that  there  is  no  special  warranty  or  guaranty 
in  the  written  contract  that  the  property  should  be  of  any  quality, 
and  in  the  absence  of  such  warranty  or  guaranty  the  pi'esumption  is 
the  plaintifi:  was  buying  at  his  own  risk,  and  relying  on  his  own 
judgment.^® 

(b)  I  instruct  you  that  by  this  written  contract  the  plaintiff  did 
not  warrant  his  furnace  or  gas-producing  machine  to  do  any  particu- 
lar class  or  quality  of  work  or  service.  He  simply  offered  to  put  his 
melting  furnace  and  gas  producer  into  the  defendant's  works  on  a 

trial  of  — ; days;  and  if  the  defendant,  after  such  trial  of  thirty 

days,  was  satisfied  with  the  furnace  and  producer,  it  was  to  accept 
and  pay  for  them ;  and  it  lay  solely  with  the  defendant  to  say  wheth- 
er it  was  satisfied  or  not.  If  it  said  it  was  not  satisfied,  it  had  a 
right  to  reject  the  property,  and  it  owed  the  plaintiff  nothing;  but  I 
chaj-ge  you  that,  if  the  plaintiff  constructed  the  works  within  a 
reasonable  time  after  the  proposal  and  acceptance  thereof,  and  at  the 
place  required  by  the  defendant,  and  that  the  defendant  had  notice 
of  the  completion  of  the  same,  and  that  the  same  were  completed 
ready  for  use  and  trial,  according  to  the  contract,  and  as  understood 
by  the  parties,  and  if  you  further  find  from  the  testimony  in  the  case 
that  the  parties  to  the  contract  understood  that  the  trial  of  the  fur- 

"5 — C.   Aultman   &  Co.   v.    Wykle,  was    no    warranty,    and    the    pur- 

36  III.  App.  293  (299).  chaser  bought  at  his  own  risk  and 

36— W.    St.    L.    and    P.   Ry.   Co.  v.  on     his     own     judgment,     and     the 

Jaggcrman,  115  111.  407,  4  N.  E.  641.  contract    being    in    writing,    it    was 

The  court  said  that  in  this  case  the  duty  of  the  court  to  construe 
the  written  contract  containing  no  it  and  instruct  the  jury  it  con- 
warranty,  and  there  being  an  ex-  tained  no  warranty,  citing  Walker 
pre.ss  contract,  no  contract  of  v.  Rrown,  28  111.  378.  81  Am.  Dec 
warranty  could  exist  by  implica-  287;  Ogden  v.  Kirby,  79  111.  555. 
tion;   the  law   must  presume   there 


§  2278.]  SALES.  1483 

nace  and  gas-producer  was  to  take  place  immediately  after  they  were 

complete  and  ready  for  use  and  trial,  then  the  defendant  had  

days  after  such  completion  and  notice  to  make  the  trial ;  and  if  de- 
fendant was  not  satisfied  with  the  furnace  and  producer  after  such 
trial,  it  was  the  duty  of  defendant  to  so  notify  the  plaintiff.  But  if 
the  defendant  failed  to  make  such  trial  or  failed  within  a  reasonable 

time  after  the  expiration  of  said  days  to  notify  the  plaintiff 

that  the  proj^erty  was  not  satisfactory,  then  the  law  conclusively 
presumes  that  the  defendant  was  satisfied,  and  had  accepted  the  prop- 
erty, and  imposes  upon  the  defendant  the  liability  to  pay  therefor 
the  contract  price,  unless  you  are  satisfied  from  the  testimony  that 
the  plaintiff  assented  and  agreed  to  some  delay  or  postponement  of 
the  time  of  trial,  or  that  further  trial  might  be  made. 

(c)     As  to  the  melting  furnace,  I  fui'ther  charge  you  that  if  the 

defendant  by  its  authorized  agent  on  ,  agreed  with  the  plaintiff 

to  give  the  furnace  another  trial  of  days  on  malleable  iron,  to 

commence  the  trial  as  soon  as  possible  from  such  time,  and,  if  the 
furnace  worked  all  right,  to  accept  it,  and  if  you  find  that  the  de- 
fendant  did  not  attempt   to  give   the  furnace   another  trial   of  

days,  commencing  as  soon  as  possible  after  ,  then  I  charge 

you  that  the  defendant  is  liable  to  the  plaintiff  for  the  furnace  and 
producer  used  with  it,  and  you  will  accordingly  find  in  favor  of  the 
plaintiff  for  the  contract  price  of  the  same.^^ 

§  2278,  Burden  of  Proof.  The  burden  of  proof  is  upon  the  plaint- 
iffs in  the  first  instance  to  satisfy  you  by  a  preponderance  of  the  testi- 
mony that  the  material  sued  for  in  this  action  was  delivered  in  the 
quantities  and  of  the  quality  provided  for  in  the  agreements  between 
the  parties,  but,  if  the  defendants  claim  that  there  was  a  guaranty 
made  by  the  plaintiffs  that  any  specific  description  of  the  material 
should  be  of  a  certain  quality,  the  burden  of  proof  is  upon  the  de- 
fendants to  satisfy  you,  by  a  preponderance  of  the  testimony,  that 
such  guaranty  was  given. ^* 

37 — Turner  v.   Muskegon  Machine        .38 — Clarke  v.  Van  Court    34  Neb 
and   Foundry   Co..   97   Mich.   166.    56     154.  51  N.  W.  756  (758). 
N.  W.  856. 


CHAPTER  LXXIX. 


SLANDER  AND  LIBEL. 


See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


§  2279.  Words  must  be  proved  as 
charged — "Sets   of  Words." 

§  2280.  Proof  of  actionable  words — 
All  the  words  need  not  be 
proved. 

§  2281.  Presumption  of  good  reputa- 
tion— Burden  of  proof  on 
defendant. 

§  2282.  Words  presumed  to  be  used 
in  their  ordinary  meaning. 

§  2283.  Malice  and  damage  pre- 
sumed from  speaking  ac- 
tionable words. 

§  2284.  Words  not  spoken  malicious- 
ly. 

§  2285.  Publication  of  proceedings  in 
good  faith  or  with  design 
and  intent  to  injure — Ques- 
tion for  jury. 

§  2286.  Defendant  subject  to  criti- 
cism— Bona  fide  belief  that 
publication  of  proceedings 
of  Board  of  Trustees  nec- 
essary in  defense  of  char- 
acter— Jury  inay  judge  of 
truth  of  charges. 


§  2287.  What  jury  are  to  consider 
on  question  of  malice. 

§  2288.  Anger  no  justification — In 
mitigation,  when. 

§  2289.  Plea  of  justification— How 
proved. 

§  2290.  Plea  of  justification  in  good 
faith. 

§  2291.  Not  an  aggravation  of  dam- 
ages, when. 

§  2292.  Repeating   report. 

§  2293.  Charge  of  fornication  or 
adultery — Effect  of  retrac- 
tion. 

§  2294.  Charge  of  dishonesty. 

§  2295.  Privileged    commumications. 

§  2296.  Definitely  pointing  out  per- 
son libeled. 

2297.  Libel— Truth  of  words— De- 
fense. 


§2279.    Words  Must  be  Proved  as  Charged— "Sets  of  Words." 

(a)  Tlinn.s'li  the  ,]'urv  may  believe,  from  the  evidence,  that  the  de- 
fendant spoke  words  which  are  equivalent  to  the  words  charged  in  the 
declaration,  and  which  convey  the  same  meaning',  still,  if  the  jury 
further  believe,  from  the  evidence,  that  the  words  proved  are  not, 
substantially,  the  same  words  as  those  charged  in  the  declaration, 
then  the  plaintiff  is  not  entitled  to  recover.^ 

(b)  The  plaintiff  is  not  entitled  to  recover  upon  the  proof  of  the 
speaking  of  words  which  are  only  similar  to,  or  have  the  same  mean- 
ing as,  the  words  charged  in  the  declaration,  but  are  not  the  same 
words.  She  can  only  recover  upon  proving  the  speaking  of  the  ma- 
terial words  of  some  one  or  more  of  the  slanderous  statements  charged 
in  the  declaration,  precisely  as  therein  charged.- 


1— Fllnn    V.    Barlow,    16    111.     39;  2— Wallace   v.    Dixon,    82    111.    202; 

Ransom  v.  McCurley,  140  111.  626,  31  lies  v.  Swank,  202  111.  453,  66  N.  E. 

N.     E.    119:    Roborts    v.    Lamb.    93  1042. 
Ten II.  343,  27  S.  W.  668. 

1484 


§  2280.]  SLANDER  AND  LIBEL.  1485 

(c)  The  court  instructs  the  jury  for  the  defendant,  that  before  the 
plaintiff  is  entitled  to  recover  any  verdict  in  this  case,  he  must  prove 
by  a  preponderance  of  the  evidence  that  the  defendant  uttered  and 
spoke  of  and  concerning  the  plaintiff  some  one  or  more  of  the  sets  of 
alleged  slanderous  words  mentioned  in  the  declaration,  and  that  such 
words  were  spoken  by  the  defendant,  in  the  presence  and  hearing  of 
some  person  or  persons  other  than  the  plaintiff.  By  "sets  of  words" 
is  meant  the  groups  of  words  as  thej  ai'e  embraced  within  the  quota- 
tion marks  in  the  declaration.  The  court  further  instraots  the  jury 
that  proof  of  equivalent  words  will  not  be  sufficient,  but  they  must 
prove  the  words  alleged  in  the  declaration  as  alleged  in  the  declara- 
tion, or  some  one  set  of  words.^ 

§  2280.  Proof  of  Actionable  Words— All  the  Words  Need  Not  be 
Proved,  (a)  The  court  instructs  the  juiy  that  while  it  is  necessary, 
to  entitle  the  plaintiff  to  recover  in  an  action  of  slander,  that  she 
should  prove  the  slanderous  words  alleged  in  the  declaration  or  some 
count  thereof,  still  it  is  not  necessary  to  prove  all  the  words  that  are 
charged  to  have  been  spoken.  It  is  sufficient  to  prove  substantially 
any  set  of  words  in  some  one  or  more  of  the  statements  of  slanderous 
words  contained  in  the  declaration,  and  the  different  counts  thereof.* 

(b)  To  authorize  a  verdict  for  the  plaintiff  in  an  action  of  slander, 
it  is  not  necessary  that  all  the  slanderous  words  alleged  in  the  declar- 
ation should  be  proved,  unless  it  takes  them  all  to  constitute  the 
slander  charged;  and,  in  this  case,  if  the  jurj'-  believe,  from  the  evi- 
dence, that  a  sufficient  number  of  the  words  charged  in  the  declara- 
tion to  amount,  in  their  common  meaning,  to  a  charge  of'  (larcenj') 
against  the  plaintiff,  have  been  proved  to  have  been  spoken  by  the 
defendant,  as  charged  in  the  declaration,  then  the  jury  should  find  the 
issues  for  the  plaintiff.^ 

§  2281.  Presumption  of  Good  Reputation — Burden  of  Proof  on  De- 
fendant. You  are  instructed  that  the  law  presumes,  in  the  absence 
of  evidence  to  the  contrary,  that  plaintiff  possesses  a  good  character 
and  reputation,  and  that  she  is  innocent  of  the  crimes  charged;  and 
you  are  instructed  that  she  is  entitled  to  recover  in  this  case,  unless 
the  defendant  has  proven  by  a  preponderance  of  the  evidence  all  the 
elements  necessary  to  convict  plaintiff  of  prostitution  and  abortion. 
The  burden  of  proof  is  upon  defendant  to  show  the  plaintiff  guilty  of 
the  commission  of  these  crimes.^ 

3— Finnell  v.  Walker,  48  111.  App.  words  actionable  per  se.     Ransom 

331   (333).  v.    McCaiiey,   140   111.    626,    31    N.    E. 

Note. — Some    states    hold    that    it  119;  Thomas  v.  Fischer,  71  111.  576." 

Is    sufficient    to    prove    the    words  5 — Baker  v.  Young,  44  111.  42;  Du- 

substantially      as      charged.        See  fresne   v.    Weise,   46  Wis.   290,   1   N. 

Oooley    on    Torts    (3d   ed.)    419,    and  W.    59;    Boldt    v.    Budwig,    19    Neb! 

cases   cited.  739,   28   N.    W.   280   (282);   Posnett   v 

4— lies  v.  Swank.  202  111.  453,  aff'g  Marble,    62   Vt.    481.    20   Atl     813    22 

105  111.  App.  9,  66  N.  E.  1042.  Am.    St.   126,   11   L.   R.   A.    162. 

"This   instruction   was   proper,   as  6— T\Tiiting   v.    Carpenter.    4    Neb. 

all   the   counts   charged   slanderous  (Unof.)  342,  93  N.  W.  926  (927). 


1486  FORMS  OF  INSTRUCTIONS.  [§  2282. 

§  2282.    Words  Presumed  to  be  Used  in  Their  Ordinary  Meaning. 

The  jury  are  instructed,  that  when  one  person  utters  slanderous  words 
eoneerning  another,  which,  in  their  ordinary  and  common  signification, 
impute  the  crime  or  offense,  of,  etc.,  it  must  be  presumed  it  was  in 
that  sense  they  were  used,  and  understood  by  the  bystanders  who 
heard  them,  unless  other  words  are  used  at  the  same  time  which  limit 
or  qualify  the  ordinaiy  meaning  of  the  slanderous  words  used;  and 
a  defendant,  when  sued,  cannot  excuse  his  guilty  conduct  by  an  ex- 
planation in  his  testimony,  that  he  did  not  use  the  words  to  impute 
the  crime  or  offense  thereby  indicated;  provided,  the  jury  believe, 
from  the  evidence,  that  the  defendant  spoke  the  words,  as  charged.'^ 

§  2283.  Malice  and  Damage  Presumed  from  Speaking  Actionable 
Words.  All  the  plaintiff  is  bound  to  prove  on  his  part  to  entitle  him 
to  recover  in  this  case  is  the  speaking,  by  the  defendant,  of  enough  of 
the  slanderous  words  charged  in  the  declaration  to  amount  to  a 
charge  of  (stealing  or  larceny)  against  the  plaintiff;  and  if  the  jury 
believe,  from  the  evidence,  that  the  defendant  is  guilty  of  the  speak- 
ing of  the  slanderous  words,  charged  in  the  declaration,  of  and  con- 
cerning the  plaintiff,  then  express  malice  or  ill-will  need  not  be  proved. 
Malice,  in  its  legal  sense,  means  a  wrongful  act,  done  intentionally, 
without  just  caiise  or  excuse.^ 

§  2284.  Words  Not  Spoken  Maliciously.  If  the  jury  believe,  from 
the  evidence,  that  the  defendant  in  speaking  the  words  charged,  was 
not  actuated  by  malice,  but  simply  repeated  them  as  something  he 
had  heard  from  others,  and  without  any  malice  towards  the  plaintiff, 
and  did  not  intend  to  be  understood  as  imputing  any  offense  to  her, 
then  the  jury  should  find  for  the  defendant.  And  it  is  a  question  for 
the  juiy  to  determine  from  all  the  facts  and  circumstances  proved, 
and  from  all  the  evidence  in  the  case,  whether  the  defendant  did  thus 
repeat  the  words,  and  whether  he  acted  maliciously  in  so  doing.^ 

§  2285.  Publication  of  Proceedings  in  Good  Faith  or  with  Design 
and  Intent  to  Injure — Question  for  Jury,  (a)  If,  however,  the  de- 
fendants published  in  good  faith,  for  the  reason  claimed  by  them, 
actuated  solely  by  a  desire  to  protect  the  college,  and  give  its  patrons 
coiTeet  and  full  information  of  the  entire  proceedings,  in  such  case 
there  would  be  no  malice,  and  the  jury  should  answer  the  third  issue 
"Ko." 

(b)  If  these  defamatory  statements  were  false,  and  defendants 
published  them  with  a  design  and  intent  to  injure  the  plaintiff,  or 
because  they  were  mad  at  him  for  testifying  against  the  president  of 
the  college, — if  that  was  the  motive,  or  one  of  the  motives,  that  in- 
duced the  publication, — it  would  be  malicious,  and  you  will  answer 
the  issue  "Yes."i« 

7— Miller  v.  Johnson,  79  Til.  58.  ton  v.  Meeks,  46  Mo.  217;  Indian- 
8 — Smart  v.   Blanchard,   42  N.   H.     apolis,  etc.,  v.  Horrel,  53  Ind.  527. 

137;  Lick  v.  Owen,  47  Cal.  252;  Wil-        9— Cummerford  v.  McAvoy,  15  111 

son    V.    Nooniin,    35   Wis.    321;    Rea-     311. 

rick  V.  Wilcox,  81   111.   77;  Penning-         10— Gattis  v.   Kilgo,  128  N    C    402 

38   S.    E.   931    (933). 


§2286.]  SLANDER  AND  LIBEL.  1487 

§  2286.  Defendant  Subject  to  Criticism — Bona  Fide  Belief  that 
Publication  of  Proceedings  of  Board  of  Trustees  Necessary  in  De- 
fense of  Character — Jury  May  Judge  of  Truth  of  Charges,  (a)  The 
jmy  are  instructed  that  if  the  jury  believe  from  the  evidence  that 
the  defendant  K.  had  been  subject  to  criticism  and  adverse  comment 
and  attacks  in  the  press  (from  another  than  the  plaintiif),  and  he 
bona  fide  believed  that  the  publication  of  the  proceedings  before  the 
board  of  trustees  was  necessaiy  in  defense  of  his  character  and  stand- 
ing, and  he  published  the  speech  as  part  of  the  proceedings,  in  order 
that  the  whole  investigation  might  be  laid  before  the  public,  that  it 
might  judge  of  the  truth  of  the  charges  against  him,  then  the  jury 
should  answer  the  third  issue   (as  to  malice)  "No"  as  to  said  K. 

(b)  A  man  first  assailed  in  public  prints  has  a  right  to  defend 
himself,  and,  if  the  facts  stated  in  prayer  are  true,  and  the  publication 
was  made  by  defendant  K.  in  good  faith,  and  solely  for  the  reasons 
given,  there  would  be  no  malice  as  to  him,  and  the  juiy  should,  by 
their  verdict,  excuse  defendant  K.  on  the  third  issue. ^^ 

§  2287.  What  Jury  Are  to  Consider  on  Question  of  Malice.  On 
the  question  whether  there  was  malice  in  the  publication  of  the  words 
complained  of,  you  have  a  right  to  consider  the  words  of  the  libel 
itself,  and  the  circumstances  attending  its  publication.^^ 

§  2288.  Anger  No  Justification— In  Mitigation  When,  (a)  The 
court  instructs  the  jury,  that  anger  is  not  a  justification  for  the  use 
of  slanderous  words,  and  it  ought  not  to  be  considered,  even  in  miti- 
gation of  damages,  unless  the  auger  is  provoked  by  the  very  person 
against  whom  the  slanderous  words  are  used.^^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoke  in  the  presence  and  hearing  of  others,  of  and  concerning  the 
plaintiff,  the  slanderous  words  charged  in  the  declaration,  then  it  is 
immaterial  whether  the  words  were  uttered  with  or  without  auger  or 
passion  on  the  part  of  the  defendant,  unless  the  jury  further  believe, 
from  the  evidence,  that  such  passion  was  wrongfully  caused  or  pro- 
voked by  the  plaintiff;  and  even  in  such  case,  anger  or  passion  would 
be  no  justification,  it  eould  only  be  considered  by  the  juiy  in  mitiga- 
tion of  damages,  in  case  they  find  the  plea  of  justification  not  estab- 
lished by  a  preponderance  of  testimony,  and  find  the  defendant 
guilty.i*^ 

(c)  The  jury  are  instructed,  that  while  it  is  true,  that  anger  or 
passion  is  not  a  justification  for  the  use  of  slanderous  words,  or  even 
a  mitigating  circumstance,  unless  provoked  by  the  person  against 
whom  the  slanderous  words  are  spoken,  yet,  if  the  party  complaining 
does  wrongfully  provoke  such  anger,  the  fact  may  be  taken  into  ac- 

11 — Gattis  V.  Kilgro,  supra.  considered   by   the  jury,   as   in   the 

12 — Gattis  v.  Kilgo,  supra.  case  of  Ramsev  v.  Cheek,  109  N.  C. 

"If    the    words    of    the    libel    are  270,   13  S.   E.   775." 
clearly   malicious, — that    is,    if   they         13 — Janch   v.  Janch.  50  Ind.   135. 
show  clear  evidence  of  actual  mal-         14 — Boldt  v.  Budwig,  19  Neb.  739, 

ice    on    their    face,    they    may    be  28  N.  W.  280  (282). 


1488  FORMS  OP  INSTRUCTIONS.  [§2289. 

count  and  considered  by  the  juiy  in  fixing  the  amount  of  their  ver- 
dict, in  case  they  find  the  defendant  guilty.^^ 

§  2289.  Plea  of  Justification — How  Proved,  (a)  The  court  in- 
structs the  juiy,  as  a  matter  of  law,  that  where  a  plea  of  justification, 
in  an  action  for  slander,  accuses  the  plaintiff  of  a  crime,  the  defend- 
ant, in  order  to  sustain  the  plea,  must  prove  the  guilt  of  the  plaintiff, 
as  charged  in  the  plea,  beyond  a  reasonable  doubt.  So  far  as  the 
degree  of  proof  is  concerned,  the  plaintiff  occupies  the  same  position 
as  if  he  were  on  trial  upon  an  indictment  for  the  offense  charged. ^^ 

(b)  The  court  instructs  the  jury,  that,  in  this  case,  the  plea  of 
justification  alleges  that  the  plaintiff  was    guilty    of    the    crime    of 

(perjuiy),  and  to  prove  the  truth  of  that  plea,  it  is  incumbent  upon 
the  defendant  to  prove  everything  requisite  to  constitute  the  crime 
of  (perjury)  beyond  a  reasonable  doubt. ^" 

(c)  In  order  to  sustain  the  plea  of  justification,  it  is  not  neces- 
sary that  the  defendant  should  establish  the  truth  of  that  plea  be- 
yond a  reasonable  doubt;  it  is  sufficient  if  it  is  established  by  a  pre- 
ponderance of  the  evidence.^^ 

§  2290.  Plea  of  Justification  in  Good  Faith,  (a)  The  court  in- 
structs the  jury,  that,  although  they  should  find,  from  the  evidence, 
that  the  defendant  in  this  case  has  not  sustained  his  plea  of  justifica- 
tion, still,  the  fact  that  he  has  filed  such  plea  must  not  of  itself  be 
regarded  by  the  jury  as  evidence  of  malice  on  the  part  of  the  de- 
fendant.^^ 

(b)  And  in  this  case^  the  fact  that  defendant  has  filed  a  plea  jus- 
tifying the  speaking  of  the  words  charged,  does  not  relieve  the  plain- 
tiff from  the  necessity  of  proving  the  speaking  of  the  words  alleged. 
The  plea  of  justification  cannot  be  used  to  convict  the  defendant;  he 
is  not  bound  to  make  his  defense  till  there  is  evidence  showing  his 
guilt.2o 

§  2291.  Not  an  Aggravation  of  Damages,  When.  The  filing  of  a 
plea  of  justification  in  this  case  does  not  necessarily  aggravate  the 

15— Freeman    v.    Tinsley,    50    111.  26    Ohio    St.    2;    Riley    v.    Norton. 

494;   McCliiitock  v.   Crick,  4  la.  453.  supra. 

16 — Merk   v.    Gelzhaenser,   50   Cal.  Note. — See    Cooley    on    Torts    (3(J 

631;  Corbley  v.  Wilson,  71  111.  209.  ed.)     417,     418.     for    cases    cited     In 

17 — Barton    v.    Thompson,    46    la.  support  of  both  doctrines,  viz.,  that 

30;    Mott    v.    Dawson,    46    la.    533;  it  is  sufficient  to  prove  a  crime  in 

Tucker  v.  Call,  45  Ind.  31.  a  civil   suit   of  slander   or   libel  by 

Above    Iowa    cases    overruled    in  a    preponderance    of    the    evidence, 

Riley   v.    Norton,   65   la.    306,    21    N.  and  contra  that  it  must  be  proved 

W.    649.      In    the    latter    case    the  beyond  a  reasonable  doubt. 

court   holds    that    such    proof   need  19 — Harver  v.   Harver,   78  111.  412. 

only   be  made   by  a   preponderance  Contra,   that   a  plea   of  justifica- 

of   the  evidence.  tion  not   proven   is  evidence  of  ex- 

18 — Cooley   on   Torts   (3d   ed.)   417,  press  malice,   see  Coffin   v.   Brown, 

Elliott   V.   Van   Buren,   33  Mich.  49,  94   Md.   190,   50  Atl.    567,   89  Am.   St. 

20    Am.    Rep.    668;    Blaeser    v.    Mil-  422,    55   L.    R.   A.    732. 

wnukpo,    etc.,    .37    Wis.    31.    19    Am.  20— Farnan    v.    Childs,    66   111.    544. 

Rep.    747;    Knowlea    v.    Scribner,    57  In    some    states    an    unsuccessful 

Me.    49.';    Rothschild    v.    Am.    Cent,  attempt   to  justify   may  be  consid- 

Ins.   Co.,   62   Mo.  356;   Burr  v.  Wll-  ered    in    ag-gravation    of    damages. 

»on,  22  Minn.  206;  Jones  v.  Graves,  See   Cooley    on    Torts   (3d    ed.)    418, 

*2.^.  a.nd  cases  eited. 


§  2292.]  SLANDER  AND  LIBEL.  1489 

damages,  even  though  the  juiy  find  that  it  has  not  been  proved;  pro- 
vided, the  juiy  further  believe,  from  the  evidence,  that  defendant 
filed  such  plea,  believing  in  good  faith  that  it  was  true,  and  that  he 
could  prove  it.^^ 

§  2292.  Repeating  Report.  If  the  jury  believe,  from  the  evidence, 
that  the  defendant  is  guilty  of  speaking  the  slanderous  words  charged 
in  the  declaration,  then  the  fact,  if  proved,  that  defendant  gave  the 
statement  as  a  report  in  the  neighborhood,  and  mentioned  his  author- 
ity for  the  statement,  would  not  exonerate  him  from  liabilit}'.-- 

§  2293.  Charge  of  Fornication  or  Adultery — Effect  of  Retraction, 
(a)  The  court  instructs  the  jury,  that  words,  which,  in  their  common 
acceptation,  amount  to  a  charge  of  fornication  or  adultery,  if  spoken 
in  the  presence  of  others,  and  not  spoken  under  privileged  circum- 
stances, or  for  justifiable  ends,  as  explained  in  these  instructions,  are 
slanderous  and  actionable  in  themselves^  and  the  law  will  imply  malice 
from  the  mere  speaking  of  such  words.^^ 

(b)  Now  I  think  this  is  a  good  case  to  submit  to  twelve  men  in 
S.  county,  to  say  what  damages  a  plaintiff  shall  have  who  has  been 
treated  as  X.  has.  Has  he  been  injured,  or  has  the  defendant  pursued 
a  proper  and  justifiable  course  in  which  to  treat  a  citizen,  who  is  a 
man  of  good  character,  and  where  the  defendant  does  not  set  up  the 
truth  ?  Or  has  the  defendant,  while  the  plaintiff  is  away,  tried  to  find 
out  what  the  truth  is,  and  then  published  the  libel  with  the  truth, 
with  the  allegation  of  the  wife?  Now,  you  will  have  this  article  be- 
fore you.  It  is  put  in  the  declaration  exactly  I  understand  as  it  was 
printed,  and  the  first  question  is:  Do  you  find  that  to  be,  as  I  have 
suggested, — that  paragraph  with  the  whole  article, — to  be  practically 
a  charge  of  adultei-y  ?  If  it  is,  and  it  is  not  true, — and  it  is  not  claimed 
to  be  true, — then  the  plaintiff  is  entitled  to  whatever  damages  you 
think  a  man  is  entitled  to,  who  has  a  good  character,  and  who  is 
above  reproach,  who  is  accused  in  a  public  journal  like  the  B. 
Journal  of  that  crime,  and  sent  out  under  the  circumstances  which 
this  was;  because  you  are  to  take  in  mitigation,  if  there  is  anything 
in  mitigation  of  it, — you  are  to  take  into  consideration  that  the  de- 
fendant had  published  what  was  published  in  N.  Y.,  that  the  article 
was  not   true,  so  that,  when  the  defendant  published  this  article,  it 

had  not  only  the  fact  that  Mrs.  but  that  also  denies  that 

there  was  any  truth  in  that  accusation.  But  still  the  defendant  pub- 
lished it  with  their  denial.  Now,  it  is  for  you  to  say  whether  the 
defendant  is  justified  in  doing  that,  or  whether,  when  the  defendant 
found    out    both    from    the    plaintiff    and    his    wife,    acting    sep- 

21 — Thomas   v.    Dunaway,    30    111.  igate   damages.      Cooley   on    Torts, 

373.  supra. 

Compare  with  previous  section.  23 — Srhmisseur  v.  Kreilich.  92  111. 

22— Fowler  v.   Chichester.  26  Ohio  347;  Diifresne  v.  Weise.  46  Wis.  290, 

St.  9;   Blocker  v.   Schoff,  83  la.  265,  1    N.    W.    59;    Boldt   v.    Budwig,    19 

48  N.  W.  1079;  Cooley  on  Torts  (M  Neb.  739,  28  N.  W,  280  (282). 
ed.)  458,  and  cases  cited.    May  mit- 
94 


1490  FORMS  OF  INSTRUCTIONS.  [§2294. 

arately  and  from  different  sources^  that  there  was  not  a  word  of  truth 
in  the  article,  that  it  was  a  gross  libel,  whether  the  defendant  can 
go  on  and  publish  it,  and  then  set  up  as  an  excuse  that  the  defendant 
consulted  both  ithe  plaintiff  and  his  wife,  and  that  they  both  said  that 
it  was  not  true.  And,  if  you  say  it  is  a  libel  under  the  rules  I  have 
given  you,  you  are  to  say  what  the  damages  are.^* 

§  2294.  Charge  of  Dishonesty.  If  the  jury  believe,  from  the  evi- 
dence, that  at  or  about  the  time  charged  in  the  declaration,  the 
plaintiff  was  engaged  in  the  business  of,  etc.,  and  that  the  defendant, 
in  a  conversation  with  the  plaintiff,  in  the  presence  and  hearing  of 
other  persons,  within  (one  year)  before  the  commencement  of  this 
suit,  said  to  the  plaintiff,  ''You  are  a  rascal;  you  have  put  your  prop- 
erty out  of  your  hands  to  cheat  your  creditors  out  of  their  pay,"  and 
that  this  was  said  with  an  intent  to  charge  the  plaintiff  with  having 
fraudulently  conveyed  his  property  with  intent  to  defraud  his  credit- 
ors, or  to  hinder  or  delay  them  in  the  collection  of  their  just  debts, 
then  the  jury  should  find  the  defendant  guilty,  and  assess  the  plaint- 
iff's damages  at  what  they  think  is  just  and  right,  under  the  evidence 
in  this  case.^^ 

§  2295.  Privileged  Communications.  The  jury  are  instructed  that 
the  people  of  our  town  and  cities  have  a  right  to  know  how  their 
municipal  affairs  are  being  conducted,  and  how  the  duties  of  their  of- 
ficers are  being  performed,  and  that  it  is  one  of  the  privileges  of 
newspapei's  to  give  the  people  this  information,  and  that,  if  the  in- 
formation so  given  is  true,  or  if  the  publishers  believe  it  to  be  true, 
and  have  reasonable  and  probable  cause  for  so  believing,  the  law 
protects  them;  that  the  press  must  not  be  muzzled;  that  the  public 
good  requires  that  it  be  allowed  to  speak;  and  that  all  which  the  law 
requires  of  its  editors  and  publishers  is  good  faith  and  an  honest 
belief  that  their  statements  are  true,  and  that  such  belief  be  founded 
on  reasonable  and  probable  grounds. ^"^ 

§  2296.  Definitely  Pointing  Out  Person  Libeled,  (a)  I  charge 
you  that,  in  order  for  him  to  recover  in  this  suit,  he  must  prove  by 
evidence,  to  your  satisfaction,  that  the  effect  of  the  article,  as  it  ap- 
peared in  the  newspaper,  was  to  point  to  him,  and  to  no  other  person 
by  the  name  of  "John  Finnegan. "  A  written  or  printed  publica- 
tion of  a  person  is  libelous  on  its  face,  and  therefore  actionable  per  se. 

24— Bishop  V.  Journal  N.  Co.,  168  236;    Phillips   v.    Hoefer,    1    Pa.    St. 

Mass.  .'{27.  47  N.  E.  119  (120).  62;      Fltzgerrold      v.      Redfield,      51 

"Thf!   tone   of  a   charge   is   not   a  Barb.    484;   Orr  v.    Skofield,   56   Me. 

HL'hjcft    of    exception,     unless     the  483. 

(•ff<-ct  of  the  charge  is  to  cause   a  26— In  an  action  agninst  a  news- 

mistrlal    or    a    failure    of    justice,  paper   for   a   libel    upon    the   plain- 

Bffil    V.     Railway     Co.,     157    Mass.  tiff,    who  was  a   public   officer  and 

411,     32     N.     E.     653.       We    do     not  falsely  charged  with  cruelty  to  an 

think  that  such  was  the  case  here,  insane   pauper,    the   above   instruc- 

The     defendant     did     not     contend  tlon  wns  held   correct  in  O'Rourke 

that  the  charges  were  true."  v.     Lewiston    D.     S.     Pub.     Co.^    89 

25— Nelson   v.    Borchenius,    52   111.  Me.   310,   36  Atl.   398   (399). 


§  2297.]  SLANDER  AND  LIBEL.  1491 

when  it  charges  him  with  the  commission  of  a  crime,  or  induces  the 
belief  that  he  has  committed  a  crime,  or  tends  to  bring  him  into  pub- 
lic disgrace,  or  imputes  something  disgraceful  to  him,  or  throws  odium 
upon  him,  or  induces  an  ill  opinion  of  him  in  the  community.  Such 
publication  is  presumed  to  be  both  false  and  malicious.  Whether  the 
article  complained  of  relates  to  the  plaintiff,  or  was  calculated  to  in- 
jure the  plaintiff,  is  a  question  for  you  alone  to  determine,  by  the 
facts  and  circumstances  of  this  case.  If  the  article  related  to  the 
plaintiff,  and  was  calculated  to  injure  him  in  respect  to  his  reputation 
or  standing  in  the  community,  then,  as  to  him,  it  is  libelous. 

(b)  I  charge  you  that  identity  of  name  is  evidence  of  identity  of 
person.  If  the  article  related  to  the  plaintiff,  and  Avas  calculated  to 
injure  him  in  respect  to  his  reputation  and  standing  in  the  com- 
munity, then  as  to  him  it  is  libelous. 

(c)  And  right  here  let  me  state  to  you,  gentlemen,  that  you  have 
heard  the  article  which  was  published  by  the  defendant  two  days 
after  the  libel  was  published,  and,  if  j-ou  believe  it  was  intended  as 
an  apology,  you  may  consider  it  as  bearing  upon  the  question  of  dam- 
ages.^^ 

§  2297.  Libel— Truth  of  Words  a  Defense.  The  court  instructs 
the  jury,  that  if  the  defendant  has  established  the  truth  of  the  words 
set  out  in  the  fourth  count  of  the  declaration  herein,  by  a  preponder- 
ance of  evidence,  then  the  plaintiff  cannot  recover  as  to  such  fourth 
count.2* 

27 — "I   have    been   unable   to   dis-  to   be  libelous,   to   have  been   used 

cover  any  error  in  either  of  these  ironically,    and    as    to    this    count, 

paragraphs    as    they    stand    in    the  appellee  properly  justified  that  the 

charge    as     given."      Finnegan    v.  words   were   true   in   the   sense   im- 

Detroit    Free    Press,    78    Mich.    659,  puted    to    them.      The    innuendo,    if 

44   N.   W.   5S5   (590).  properly    applied,    is    a    substantial 

28 — Lodge    v.     Hampton,    116    111.  part    of   the    libel    charg-ed.      Proof, 

App.     414     (420).       "By    appropriate  therefore,  of  the  truth  of  the  mere 

allegation   of   extrinsic    matter   and  words    does    not    satisfy   a    plea    of 

innuendoes,    the     fourth     count    of  justification    averring   the   truth   of 

the    declaration    averred     some    of  the    words    in    the    sense    in.puted 

the    words    in    the    article    alleged  by   the    innuendo." 


CHAPTER  LXXX. 

TRESPASS. 
See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


TO   PERSONAL  PROPERTY. 

§  2298.  One  rightfully  in  possession 
may    sue   for. 

§  2299.  Justification— B  u  r  d  e  n  of 
proof    upon    defendant. 

§  2300.  Ratification  of  wrongful 
levy— Refusing  to  release 
property    taken. 

§2301.  Ratification  of  wrongful 
distress. 

§  2302.  No  levy  without  officer  tak- 
ing  possession. 

TO    REAL   ESTATE. 

§  2303.  Trespassers  are  jointly  and 
severally   liable. 

§  2304.  Meaning  of  terms— "Break 
and  enter" — "Force  and 
arms." 

§  2305.  One  holding  title  to  land  and 
possession  of  part  may 
recover   for   trespass. 

§  2306.  Where  both  plaintiff  and  de- 
fendant have  title  to  the 
land. 

§  2307.  Proof  of  title  in  third  per- 
son no  protection  to  one 
who  has  no  title  against 
suit   for   damages. 

§  2308.  Trespass  upon  the  posses- 
sion   under   rightful   title. 

§  2309.  Unlawful   cutting   of   timber. 

§  2310.  Purchaser  at  tax  sale  cut- 
ting  timber. 


§  2311. 
§  2312. 
§  2313. 
§  2314. 

§  2315. 
§  2316. 
§  2317. 
§  2318. 

§  2319. 


Cutting   trees    for    telephone 

system. 
Entry   upon  land  obtained  by 

fraud. 
Right   to  eject  trespassers  by 

force. 
When    defendant    liable    for 

act  of  independent  contrac- 
tor. 
Trespass     to     land — Writ     of 

sequestration. 
Damages    to    real    property — ■ 

No  effort  to  prevent  it. 
Trespass  on  sub-let  premises 

as   trespass   against   lessor. 
Adverse    claim    of    title    will 

not  excuse  trespass  in  face 

of     a     warning     from     the 

legal    owner. 
Settlement  of  disputed  fence 

line   by    arbitration. 


BY    ANIMALS. 


lands — No 


in     division 


on     govern- 


i  2320.  Cattle— Adjacent 
division   fence. 

!  2321.  Cattle— Defects 

fence. 
2322.  Cattle— Grazing 
ment    land. 

!  2323.  Cattle   on   highway   with   at- 
tendant   not    "at    large." 

\  2324.  Cattle— Failure      to      furnish 
attendant.  ^ 

;  2325.  Cattle— Party       takmg       up 
must   care  for. 


TO  PERSONAL  PROPERTY. 

§  2298.  One  Rightfully  in  Possession  May  Sue  For.  (a)  The 
court  instrufts  tlie  jury  that  a  trespass  to  jicrsonal  property  consists 
in  the  unlawful  disturbance,  by  force,  of  another's  possession  of  such 
proijcrty,  and  in  order  to  sustain  the  action  it  is  only  necessary  that 
the  plaintiff  show  that,  at  the  time  of  the  alleged  trespass,  he  was 
the  general  owner  of  the  property,  and  then  in  the  actual  possession 
of  it,  either  by  himself,  his  agent  or  servant,  and,  further,  that  the 
dffendant  unlawfully  interfered  with  the  property,  either  by  injuring 
it,  or  by  taking  it  and  carrying  it  away  without  lawful  right,  and 
against  the  will  of  such  owner.^ 

1— Scott    V.    Bry.son,    74    111.    420;   Addison    on    Torts,    442;    Miller    v. 
Clay,    57    Ala.    162. 

1492 


§2299.]  TRESPASS.  1493 

(b)  In  order  to  maintain  an  action  for  trespass  to  personal  prop- 
erty, it  is  sufficient  if  the  evidence  shows  that  the  plaintiff  had  what 
is  called  a  special  property  therein,  together  with  the  actual  pos- 
session of  the  property,  and  a  right  to  such  possession;  and  that  the 
defendant  unlawfully,  and  without  right,  interfered  with  or  dis- 
turbed such  possession,  either  by  injuring  the  property  or  by  taking 
it  and  carrying  it  away,  against  the  will  of  the  person  so  in  posses- 
sion.2 

(c)  That  a  person  who  is  in  the  actual,  peaceable  and  exclusive 
possession  of  personal  property,  without  showing  any  other  right,  has 
a  sufficient  title  in  the  propertj'  to  maintain  trespass  against  one  who, 
with  force,  intermeddles  with  such  possession  without  showing  any 
right  or  title  to  the  property,  or  to  the  possession  thereof.^ 

§  2299.  Justification — Burden  of  Proof  Upon  Defendant.  The  law 
is,  that  when  the  rights  of  private  property  are  invaded  by  one  whose 
acts  would  constitute  a  trespass,  unless  he  is  protected  by  legal  au- 
thority, then  it  is  incumbent  upon  such  person  to  show,  by  a  pre- 
ponderance of  evidence,  that  he  was  justified,  by  legal  authority,  to  do 
the  acts  complained  of;  and  if  he  is  unable  to  do  this,  he  must 
be  regarded  as  a  trespasser.  It  is  not  enough  that  such  a  person 
intended  to  perform  an  official  duty,  but  authority  of  law  for  the 
act  complained  of  must  exist,  or  he  will  be  a  trespasser.* 

§  2300.  Ratification  of  Wrongful  Levy — Refusing  to  Release  Prop- 
erty Taken,  (a)  If  the  jury  believe,  from  the  evidence,  under  the  in- 
struction of  the  court,  that  defendant  A.  B.  (the  officer),  is  guilty  of 
a  wrongful  taking  of  the  property  of  the  plaintiff  under  the  execution 
introduced  in  evidence,  and  that  after  the  property  had  been  so  taken 
the  plaintiff  went  to  the  defendant  C.  B.  (plaintiff  in  execution),  and 
requested  him  to  consent  to  a  release  of  the  property  by  the  officer, 
and  that  he  refused  to  so  consent,  then  the  jury  maj^  find  the  said 
defendants  both  guilty,  although  the  defendant  C.  D.  was  not  present 
at  the  time  of  the  taking,  and  did  not  direct  the  officer  to  levy  on  the 
particular  property  in  question.^ 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  an 
act  of  trespass  is  committed  in  the  name  of  another  person,  or  pi'o- 
fessedly  in  the  interest  of  such  other  person,  and  the  latter  subse- 
quently ratifies  the  act  by  claiming  any  benefit  under  it,  he  would  be 
bound  by  the  act  to  the  same  extent  as  if  he  had  expressly  authorized 
it  before  it  was  done.® 

§  2301.  Ratification  of  Wrongful  Distress.  The  court  instructs 
the  juiy  tliat  if  an  officer,  in  executing  a  distress  warrant,  seizes  the 
property  of  a  stranger,  and  the  landlord  ratifies  the  act,  and  retains 

2— Miller    v.     Kirby,    74    111.     242;  4— Lindblom    v.    Ramsey,    75    111. 

Cooley   on   Torts   (3d  ed.)   840.  246. 

3— Cooley    on    Torts    (3d    ed.)    S41;  5— Cook  v.    Hopper.   23   Mich.   511. 

Scott   v.    Bryson,   74   111.   420;   Miller  6— Smith  v.  Lozo,  42  Mich.  6,  3  N. 

V.   Kirby,   74   111.    242.  W.    227. 


1494  FORMS   OP  INSTRUCTIONS.  [§2302. 

tbo  property,  after  knowledge  of  the  facts,  he   will  thereby  render 
himself  liable  for  the  trespass  committed  by  the  offieer.'^ 

§  2302.  No  Levy  Without  Officer  Taking  Possession,  (a)  It  is 
not  a  sufficient  levy  of  an  execution  on  personal  property,  as  against 
third  persons,  for  an  officer  to  indorse  a  levy,  with  an  inventory  of 
the  property,  on  the  execution,  in  the  presence  of  the  judgment  debt- 
or, while  the  property  is  before  them;  the  officer  must  also  take  the 
property  into  his  possession.^ 

(b)  'The  court  further  instructs  the  jury  that,  if  property  seized, 
under  an  execution,  is  permitted  to  remain  with  the  defendant  for  an 
unreasonable  time  after  the  levy,  with  the  consent  of  the  creditor, 
the  levy  will  be  deemed  fraudulent  and  void  as  against  a  subsequent 
execution.^ 

(c)  The  law  will  not  sustain  a  levy  which  is  only  colorable,  and 
designed  to  shield  the  property  from  the  claims  of  other  parties — and, 
in  this  case,  though  the  jury  may  believe  that  the  execution  in  ques- 
tion was  levied  on  the  property  in  controversy  at  the  time  indorsed 
on  the  execution,  still,  if  the  juiy  further  believe,  from  the  evidence, 
that  such  levy  was  not  made  in  good  faith,  and  with  a  bona  fide  in- 
tention of  satisfying  the  said  execution  out  of  said  property,  but  that, 
with  the  knowledge  and  consent  of  the  plaintiffs  in  the  execution,  the 
said  levy  was  made  for  the  purpose  of  covering  up  said  property,  and 
keeping  it  for  the  benefit  of  the  said  (defendant  in  execution),  then 
such  levy  was  absolutely  void,   as  against  the  other  creditors  of  the 

said  ,  and  the  juiy  should  so  find,  in  determining  the  rights  of 

the  parties  in  this  suit.^" 


TO  REAL  ESTATE. 

§  2303.  Trespassers  Are  Jointly  and  Severally  Liable,  (a)  The 
court  instructs  the  jury  that,  in  an  action  of  trespass,  if  the  juiy  be- 
lieve, from  the  evidence,  that  a  trespass  has  been  committed,  as  al- 
leged in  the  declaration,  and  that  there  was  more  than  one  wrong- 
doer engaged  in  the  trespass,  then  such  wrong-doers  are  jointly  and 
severally  liable,  and  the  plaintiff  is  under  no  obligations  to  sue  all 
who  are  engaged  in  the  trespass — he  may,  at  his  election,  proceed 
against  any  one  or  more  of  such  wrong-doers.^^ 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  in  an 
action  of  trespass,  if  it  appears  that  a  trespass  has  been  committed, 
all  who  encouraged,  advised  or  assisted  in  the  act  of  trespass,  are 
equally  guilty,  whether  tliey  wore  present  and  took  part  in  the  act 
or  not. ^2 

7— Becker  v.  Du  Pree,  i:>  Til.  167.        10— Murphy  v.  Swadener,  33  Ohio 

8— Havely  v.  Lowry.  30  111.   446.  St.   85. 

9— Davidson    v.    Waldron,    31    111.         11— Ously   v.    Hardin,    23   111.    403. 

120.  12 — Barnes    v.     Ennenga,    53    la. 


§  2304.]  TRESPASS.  1495 

§  2304.    Meaning  of  Terms :     Break  and  Enter — Force  and  Arms. 

(a)  Now,  gentlemen,  do  not  be  misled  by  the  question  of  breaking 
and  entering.  Entering  is  simply  the  lifting  of  a  rail ;  simply  a 
lifting  of  anything,  that  is  erected  to  inclose  the  premises,  an  entry 
through  anything  put  there  to  keep  jDersons  out,  as  breaking  the 
glass,  like  breaking  into  a  house.  You  raise  a  window  that  is 
closed;  that  is  breaking.  That  is  what  the  law  means  by  breaking. 
If  he  had  no  pennission  to  remove  the  fence,  and  go  upon  the  prem- 
ises, and  dumi?  dirt,  then  damages  would  lie  for  the  damages  he 
caused  that  party;  but  if  he  had  permission,  if  he  had  authority 
to  go  there,  no  matter  how  it  was  granted  to  him,  then  he  had  a 
right  to  go,  and  he  cannot  be  held  for  what  he  did,  unless,  as  I  have 
before  said,  he  went  beyond  the  line  where  he  was  permitted  to 
go.i3 

(b)  ''Force  and  arms"  does  not  mean  actual  force  or  dangerous 
weapons,  but  that  if  the  defendants  or  their  ser\^ants  entered  upon 
plaintiff's  lands  contrary  to  his  expressed  will,  and  if  they  knew 
it  was  contrary  to  his  expressed  will,  then  the  entry  would  be  ''with 
force  and  arms",  and  that  it  was  not  necessary  that  they  should 
have  actually  broken  into  any  enclosure  or  through  any  fence. ^* 

§  2305.  One  Holding  Title  to  Land  and  Possession  of  Part,  May 
Recover  for  Trespass,  (a)  If  the  juiy  find  that  plaintiff  has  a  deed 
which  covers  the  land  in  dispute,  and  that  she  is  living  on  a  part 
of  such  land,  then  her  possession  extends  to  all  the  land  covered  by 
her  deed,  and  she  has  a  right  of  action  against  any  one  for  damages 
who   trespasses  upon  such  land. 

(b)  "Where  one  who  has  no  title  enters  upon  land  in  possession  of 
another,  who  has  color  of  title  to  the  same,  and  against  the  will  of 
such  person  cuts  down  and  removes  the  trees  and  timbers  growing 
thereon,  such  person  is  liable  in  damages  to  the  one  in  possession 
under  color  of  title.^^ 

§  2306.  Where  Both  Plaintiff  and  Defendant  Have  Title  to  the 
Land.  If,  however,  the  plaintiff  has  a  title,  and  the  defendant  has 
a  title,  both  have  titles  to  the  same  land,  then  the  party  having  the 
oldest  title  would  be  entitled  to  it;  that  is,  the  party  whose  title  is 
the  older;  that  is,  if  both  titles  cover  this  land  in  dispute.  If  the 
plaintiff's  title  covers  it,  and  the  defendant's  title  covers  the  land 
in  dispute,  both  titles  cover  it,  then  the  oldest  title  would  prevail, 
and  whichever  one  had  the  oldest  title  would  be  entitled  to  the 
possession  of  the  land.  But  if  neither  one  of  them  have  it,  if  the 
titles  of  neither  party  cover  this  land,  then  your  verdict  should  be 
for   the  defendant.     If  you  don't  think,  under  the  testimony  in  the 

497,   5   N.    W.    597.      See   Boswell    v.  190,    68    Pac.    206    (208),    98    Am.    St. 

Gates,  56  la.   143,  8  N.  W.   809.  977. 

13— McCusker   v.    Mitchell,    20    R.  15— Connor   v.    Johnson,    59    S.   C. 

I.   13,   36   Atl.   1123   (1124).  115,  37  S.    E.   240  (244). 

14— CosgrifE    v.     Miller,    10    Wyo. 


1496  FORMS  OF  INSTRUCTIONS.  [§  2307. 

case,  that  the  title  of  tlie  plaintiff  or  the  title  of  the  defendant,  either 
one,  covers  this  land,  but  it  belongs  to  somebody  else,  and  is  in 
the  possession  of  somebody  else,  then  your  verdict  should  be  for  the 
defendant,  because,  before  the  i^laintiff  can  recover,  she  must  satisfy 
you,  by  the  testimony  in  the  case,  that  she  was  in  possession  of 
this  land,  and  entitled  to  be  in  possession  of  it  by  paper  title  or 
color  of  title  when  the  trespass  was  made  'by  the  defendant,  if  any 
trespass  was  made  by  him  at  all.  If  the  defendant's  title  covers 
the  land,  if  you  believe  under  the  testimony  that  the  defendant's 
title  covers  the  land,  and  the  plaintiff's  title  does  not,  then,  of  course, 
your  verdict  would  be  for  the  defendant.^® 

§  2307.  Proof  of  Title  in  Third  Person  No  Protection  to  One  Who 
Has  No  Title  Against  Suit  For  Damages,  (a)  Proof  of  title  in 
a  third  person  will  not  protect  one  who  lias  no  title  against  a  suit 
for  damages  on  account  of  a  trespass  committed  on  land  which  is 
in  possession  of  another  under  color  of  title. ^'^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  jilaintiff  was 
in  the  open,  notorious,  exclusive  and  adverse  possession  of  the  land 
in  controversy  at  and  before  the  time  the  same  was  fenced  by  the 
defendant  and  that  the  defendant  acquired  possession  of  the  said 
land  wrongfully  and  without  the  permission  of  the  plaintiff,  and 
ousted  the  plaintiff  from  said  land,  then  the  court  instructs  you 
that  the  defendant  cannot  defeat  the  plaintiff's  recovery  in  this 
action  by  showing  an  outstanding  title  in  a  stranger,  with  which 
outstanding  title  the  defendant  has  in  no  way  connected  himself.^^ 

§  2308.  Trespass  Upon  the  Possession  Under  Rightful  Title.  The 
court  instructs  the  jury  that  it  would  not  be  legal  cause,  or  good 
excuse,  for  the  defendants  to  show  that  they  had  the  title  to  the 
property,  or  that  they  owned  it,  provided  B.  and  G.  were  in  the 
possession.  The  jury  are  instructed  not  to  consider  the  question  of 
the  title  of  the  property,  as  a  justification  to  the  defendants,  pro- 
vided B.  and  G.  had  the  possession.^* 

16— Connor  v.   Johnson,   supra.  send,  28  Cal.  219;  Enfield  v.  Permit, 

17— Connor   v.    Johnson,   supra.  8  N.  H.  512,  31  Am.  Dec.  207;  Jack- 

18— Sullivan   v.    Eddy,   164  111.   391  son   v.   Schauber,  7   Cow.  187;  Fisher 

(396),   45   N.   E.   837.  v.     Philadelphia,     75     Pa.     St.     392; 

"We    think    the    instruction    lays  Page    v.     Campbell,    25    Wis.     618; 

down   a  correct   rule   of   law.     The  Hardin  v.  Forsythe,  99  111.  312." 

substance   of  the  charge   is  that  a        19 — Withers   v.   State,  117  Ala.  89, 

mere    intruder   upon   the   notorious,  23  So.  147  (148). 

adverse  possession  of  another  can-  The  court  said  that  "the  charge 
not  protect  his  trespass  and  in-  given  for  the  state  correctly  stated 
trusion  under  an  outstanding  title  the  law.  This  is  not  a  proceeding 
In  a  stranger.  This  is  a  correct  for  the  trial  of  title  to  real  prop- 
pririflplf,  and  one  that  is  fully  sus-  erty.  If  B.  and  G.  were  in  posses- 
taincd  by  the  authorities.  See  sion,  as  the  evidence  shows  they 
Jackson  v.  Harder,  4  Johns.  211,  were,  defendants  had  no  right  to 
4  Am.  Dec.  262;  Japscott  v.  Cobb,  trespass  upon  the  possession,  al- 
ii Gratt.  172;  Williams  v.  Sweet-  though  in  point  of  act  they  may 
land,  10  Iowa  51;  Carlton  v.  Town-  have   been   entitled    to    the   posses- 


§  2309.]  TRESPASS.  1497 

§  2309.  Unlawful  Cutting  of  Timber,  (a)  The  court  instructs 
you  that  before  the  jury  can  find  for  the  plaintiff,  they  must  be 
satisfied  from  the  evidence  that  the  trees  and  saplings  alleged  to 
have  been  cut  were  cut  before  the  commencement  of  this  suit.^*' 

(b)  If  you  are  reasonably  satisfied,  from  all  the  evidence,  that 
the  defendant  cut  or  caused  to  be  cut  and  removed  from  the  land 
described  in  the  complaint,  the  trees,  and  can  reasonably  ascertain 
from  the  evidence  the  number  and  value  of  the  trees  so  cut  and 
removed  by  the  defendant,  you  should  find  for  the  plaintiffs.-^ 

(c)  That  if  you  believe  from  the  evidence  that  the  defendant 
willfully  and  knowingly,  and  without  the  consent  of  the  plaintiff, 
after  the  —  day  of  — ,  — ,  and  prior  to  the  commencement  of  this 
suit,  cut  down  pine  trees  on  the  —  in  —  county,  that  the  plaintiff 
was  then  the  owner  thereof,  then  the  juiy  must  find  for  the  plaintiff' 
as    to    that    portion    of   the    land    mentioned    in   the    complaint,    and 

assess   plaintiff's   damages   at  dollars   for  each   pine   tree   or 

sapling  the  evidence  shows  that  defendant  had  so  cut  on  said  land.^^ 

(d)  If  the  plaintiff  did  consent  that  the  defendant  might  go 
across  plaintiff's  land  for  the  purpose  of  hauling  timber  or  logs, 
this,  within  itself,  did  not  authoi'ize  the  defendant  to  go  upon  the 
lands  and  cut  down  trees  or  saplings. 

(e)  If  the  plaintiff  owned  the  lands  described  in  the  complaint, 
and  if  there  was  a  road  or  roads  across  the  land  or  a  portion  of  it, 
and  the  plaintiff  consented  that  the  defendant  might  go  across  his 
land,  this  was  not  a  consent  of  the  plaintiff  that  the  defendant 
might  enter  upon  the  land  and  cut  down  trees  or  saplings.^^ 

(f)  You  are  instructed  that  if  you  believe  and  find  from  the  evi- 
dence that  at  the  time  the.  timber  was  so  taken  the  defendants,  by 
themselves  or  their  tenants,  were  in  the  actual  possession  of  the  said* 
lands,  claiming  and  exercising  the  rights  of  ownership  over  the  same, 
your  verdict   should  be  for  the   defendants.-* 

§  2310.  Purchaser  at  Tax  Sale  Cutting  Timber,  (a)  If  the  jury 
believe  from  the  evidence  that  the  defendants,  W.  M.  &  M.,  bought 
at  a  tax  sale  made  by  the  tax  collector  of  G.  County,  Alabama,  in 

,  ,  the  land  described  in  the  complaint,  and  at  the  sale 

they  received  from  the  tax  collector  a  certificate  of  purchase  in  the 
usual  form,  and  under  the  certificate  they  (the  defendants),  in  good 
faith,  believing  they  had  the  legal  right  to  do  so,  went  into  the  actual 
possession  of  the  land,  and  that  they  remained  in  possession  of  the 
land,  and  that  they  were  at  the  time  they  cut  the  timber  in  the  actual 

sion    as    the    holders    of    the    title.  22— Hamilton   v.    Griffin,   123    Ala. 

Lawsoii  v.   State,  100  Ala.  7,  14   So.  600,   26  So.    243  (244). 

870."  23— Jernigan     v.     Clark,    134    Ala. 

20— Postal    Tel.    C.    Co.    v.    Brant-  313,   32  So.   686. 

ley,  107   Ala.  683,   18   So.   321    (322).  24— Holliday-Klotz    L.    &    L.    Co. 

21 — Lowery   v.    Rowland,   104  Ala.  v.   Markham,  96  Mo.  App.  51,  75  S 

420,  16  So.   88  (91).  W.  1121. 


1498  FORMS  OF  INSTRUCTIONS.  [§  2311. 

possession  of  tlie  land,  undei*  the  purchase  at  tax  sale,  and  were  in 
good  faith  claiming  and  asserting  title  to  the  land,  the  jury  should 
find  for  the  defendants. 

(b)  If,  at  the  time  the  trees  were  cut,  the  defendants  Avere  in 
possession  of  the  land  under  color  and  claim  of  title,  and  were 
bona  fide  and  in  good  faith  claiming  and  asserting  title  to  the  land, 
and  were  in  open,  adverse  possession  of  the  land,  under  color  and 
claim  of  the  title,  the  jury  should  find  for  the  defendants. 

(c)  The  court  charges  the  jury  that  if,  at  the  time  of  the  alleged 
cutting  of  the  trees  in  controversy,  the  defendants  were  in  actual, 
notorious,  adverse  possession  of  land  upon  which  the  trees  grew, 
claiming  it,  bona  fide,  as  their  own,  and  asserting  title  thereto  under 
tax  title,  then   they  should  find  for  the  defendants. ^^ 

§  2311.  Cutting  Trees  for  Telephone  System.  If  you  believe  from 
the  preponderance  of  the  credible  testimony  that  the  defendant's 
agents,  servants  or  employes  did  not  cut  any  more  limbs  and  branches 
from  the  trees  of  plaintiff's  premises  than  was  necessary  for  a 
pniper  construction  and  good  operation  of  the  telephone  system, 
which  defendant  was  constructing,  and  if  you  believe  that  such 
agents,  servants  or  employes  exercised  their  best  judgment  in  de- 
termining what  branches  and  limbs  should  be  cut  of  said  trees,  and 
acted  in  the  matter  with  a  due  regard  for  the  right  of  the  plaintiff, 
and  with  an  honest  purpose  and  desire  of  doing  as  small  amount  of 
damage  as  was  possible,  and  that  in  doing  such  cutting  they  acted 
with  reasonable  prudence  and  a  careful  observation  of  the  condi- 
tion of  affairs  existing  at  the  place  where  the  trees  were  cut,  and 
that  they  did  not  wantonly  or  without  any  reasonable  excuse  cut 
off  or  trim  the  branches  and  limbs  of  the  trees  in  question,  then  your 
verdict  should  be  for  the  defendant.-® 

§  2312.  Entry  Upon  Land  Obtained  by  Fraud.  And  in  this  ease, 
if  the  jury  believe,  from  the  evidence,  that  the  said  A.  B.,  by 
preconcert  with  the  other  defendants,  and  by  false  pretenses  or  by 
any  subterfuge,  obtained  an  entrance  into  the  dwelling-house  of  the 
plaintiff,  and  after  such  entry,  contrary  to  the  express  command,  or 
against  the  known  wishes  of  the  plaintiff's  (wife),  unbolted  and 
opened  the  door  of  said  house  for  the  purpose  of  allowing  the  other 
defendants  to  enter,  and  that  they  did  then  and  there  enter,  then 
the  entry  of  all  the  defendants  was  a  trespass,  and  the  jury  should 
find  the  defendants  guilty.-^ 

§  2313.  Right  to  Eject  Trespassers  by  Force.  If  you  find  from 
the  evidence  tluit  the  two  Ps  were  trespassers  as  herein  defined,  upon 
the  leased  i)reiiiises,  tlien  tlic  defendant  would  have  the  right  to  order 

25— White  v.  Farris,  124  Ala.  461,  of  which  contained  correct  leg-al 
27^  Ho.    2r,9    (260).  propositions." 

"We  think  the  court  erred  in  re-        26— Meyer   v.    Standard    Tel     Co 
fusing  above  written  charges,  each     122  Iowa  514,  98  N.  W.  300. 

27— Kimball  v.  Custer,  73  111.   389. 


§  2314.]  TRESPASS.  1499 

the  Ps  to  leave  the  premises,  and  if  after  being  so  ordered,  they  re- 
fused to  leave,  or  did  not  leave,  then  the  defendant  would  have  the 
right  to  eject  them  from  the  premises,  provided  he  should  use  no  more 
force  than  was  reasonably  necessary  therefor;  but  the  defendant 
would  not  have  the  right  to  arm  himself  with  a  deadly  "weapon  for 
that  purpose,  nor  would  he  have  the  right  to  use  a  deadly  weapon  for 
that   purpose. 2* 

§  2314.  When  Defendant  Liable  for  Act  of  Independent  Con- 
tractor, (a)  The  jury  are  instructed  that  if  they  believe  from  the 
evidence  that  the  defendant  let  a  contract  to  one  A.,  for  the  pulling 
down  of  certain  buildings  on  W.  Avenue,  owned  by  the  said  de- 
fendant, and  if  they  believe  from  the  evidence  that  the  natural  and 
necessary  consequences  of  the  carrying  out  of  said  contract  accord- 
ing to  its  terms  would  be  to  damage  and  injure  the  property  of  the 
plaintiffs,  which  property  you  may  find  from  the  evidence  the  plain- 
tiffs, at  that  time,  lawfully  had  in  one  of  said  buildings,  then  and 
in  that  case  the  fact  that  the  defendant  let  the  work  by  an  inde- 
pendent contract  can  not  release  him  from  liability. 

(b)     If  the  juiy  believe  from  the  evidence  that  the  defendant  told 

,    the    contractor,    that    he    must    not    interfere    with    the 

buildings  of  the  plaintiffs,  and  if  they  further  believe  from  the  evi- 
dence that  the  construction  of  the  building  occupied  by  the  plain- 
tiffs and  of  the  adjoining  buildings  was  such  as  to  permit  the 
adjoining  buildings  to  be  torn  down  without  injuring  the  building 
occupied  by  plaintiffs,  if  such  work  should  be  done  in  a  proper  and 
careful  manner,  then  the  juiy  should  find  a  verdict  for  the  defend- 
ant.-» 

§  2315.  Trespass  to  Land — Writ  of  Sequestration.  The  burden  is 
on  the  plaintiff  to  establish  his  right  to  possession  of  the  premises 
sued  for  at  the  time  of  the  filing  of  this  suit,  by  a  preponderance  of 
evidence,  and  the  burden  is  on  the  defendant  to  establish  his  in- 
juiy  by  reason  of  the  levy  of  the  writ  of  sequestration  by  a  pre- 
ponderance of  the  evidence.^'' 

28— State    v.     Mitchell,    130    Iowa  29— Florsheim    v.     Dullagha.n,     58 

697,  107  N.  W.   804   (806).  111.   App.   593  (595). 

"The  language  of  the  instruc-  30 — Freeman  v.  Slay,  —  Tex.  Civ. 
tion  is  not  criticised,  but  it  is  said  App.  — ,  88  S.  W.  404-5. 
that  it  is  erroneous,  because  it  does  "This  charge  is  objectionable  in 
not  state  that  the  defendant  'would  that  its  last  clause  seems  rather 
have  the  right  to  use  a  deadly  restrictive,  and  possibly  had  a 
weapon  in  case  the  Parkers  made  tendency  to  mislead  the  jury  as  to 
an  assault  upon  him.'  It  is  im-  the  extent  to  which  the  burden  of 
practicable  to  give  all  of  the  law  proof  was  on  appellee,  but  this  is 
governing  a  case  in  one  paragraph  not  the  precise  objection  made  to 
of  the  charge,  as  we  have  often  the  charge.  It  was  correct  as  far 
said,  and  in  other  instructions  the  as  it  went,  and  appellant  cannot 
court  very  carefully  and  fully  an-  avail  himself  of  such  error  of 
nounced  the  law  governing  the  omission  without  having  re- 
question  of  .self-defense  and  as  quested  a  charge  to  supply  it 
carefully  applied  it  to  the  peculiar  which  might  have  been  given." 
^acts  before  the  jury." 


1500  FORMS  OF  INSTRUCTIONS.  [§  2316. 

§  2316.  Damages  to  Real  Property — No  Effort  to  Prevent  It.  The 
jury  are  instructed  that  a  person  can  in  no  case  recover  for  damage 
to  Ms  business  or  property  which  he  permits  to  go  on,  knowing  that 
it  is  going  on,  and  without  making  every  reasonable  effort  and  tak- 
ing active  steps  to  prevent  it,  or  have  it  stopped.  If  you  believe, 
from  the  evidence,  that  plaintiffs  knew  their  premises  were  being 
damaged,  and  that  they  permitted  the  damage  to  continue  when,  by 
their  own  efforts,  the  damage  might  have  been  stopped,  or  prevented, 
then  the  defendants  are  not  liable  for  the  damage  so  caused,  and 
plaintiffs  cannot  recover  in  this  suit  for  any  such  damage. ^^ 

§  2317.  Trespass  on  Sub-let  Premises  as  Trespass  Against  Lessor. 
If  you  believe  that  the  defendant  at  the  time  of  the  alleged  trespass, 
was  in  the  yard  of  L.  S.,  and  if  you  believe  beyond  a  reasonable 
doubt  from  the  evidence,  that  L.  S.  occupied  the  yard  as  a  servant 
merely  of  F.,  and  under  him,  who  held  the  plantation  under  a  lease 
from  other  parties,  then  he  was  on  the  premises  of  F.,  and  is  guilty 
as  charged  in  the  indictment,  the  other  elements  above  defined  being 
established  beyond  a  reasonable  doubt. ^- 

§  2318.  Adverse  Claim  of  Title  Will  Not  Excuse  Trespass  in  Face 
of  a  Warning  From  the  Legal  Owner.  The  court  instructs  the  jury 
that  tliere  is  no  actual  occupancy  of  land,  or  such  possession  as  the 
law  determines  not  to  be  adverse,  the  law  casts  the  possession  witii 
the  legal  title.  And  in  the  face  of  direct  and  positive  warning  from 
the  legal  owner,  who  is  in  possession,  no  adverse  claim  or  color  of  title 
will  excuse  trespass,  or  the  severance  and  carrying  away  of  anything 
from  the  freehold.-''^ 

§  2319.  Settlement  of  Disputed  Fence  Line  by  Arbitration.  If 
the  juiy  believe  beyond  a  reasonable  doubt  from  the  evidence  that 
there  was  a  dispute  between  G.  and  the  defendant  as  to  where  the 
line  between  them  was,  and  that  they  agreed  to  leave  it  to  arbi- 
trators, and  the  arbitrators  established  the  C.  line  as  the  true  line, 
and  that  in  accordance  with  the  decision  the  defendant  moved  his 
fence  to  his  side  of  the  line,  and  G.  built  his  fence  on  his  side  of  the 
line,  then  each  party  owned  to  the  C.  line;  and  if  they  further  so 
believe  that  the  defendant  tore  down  G.'s  said  fence  and  left  it  down 
in  Shelby  county,  and  within  twelve  months  before  the  beginning  of 
this  prosecution,  they  should  find  the  defendant  guilty.^* 

BY  ANIMALS. 

§  2320.  Cattle— Adjacent  Lands — No  Division  Fence,  (a)  When 
two  or  more  persons  have  adjoining  lands  enclosed  in  one  common 
field  by  outside  fences,  and  have  no  division  fence,  then,  if  there  is 

31— Hartford  Dep.  Co.  v.  Calkins,        33— Boykin  v.    State,   40   Fla.   484, 

ISfi    111.   104    (106),   57   N.    E.   863.  24   So.    141    (144). 

32— M;i(]flnx  v.  State,  122  Ala.  110,         34— Shaw    v.    State,    125    Ala.    80, 

26   So.   305   (306).  28    So.    390    (391). 


§  2321.]  TRESPASS.  1501 

no  agreement  or  arrangement  between  them  to  the  contrary,  each 
person  is  bound  to  keep  his  own  stock  upon  his  own  land,  and  if  he 
does  not  do  so,  and  injury  results  therefrom  to  an  adjoining  owner, 
he  will  be  liable  in  trespass  therefor.^^ 

('b)  You  are  further  instructed  that  if  you  believe  from  the  evi- 
dence that  plaintiff  sold  defendant  certain  feed  stuff  to  be  fed  de- 
fendant's cattle  in  a  feed  lot  on  plaintiff' 's  premises,  to  be  fenced 
off  by  plaintiff  from  the  remainder  of  the  premises  with  a  fence 
sufficient  to  prevent  defendant's  cattle  from  breaking  over  into  the 
other  parts  of  said  premises,  and  plaintiff  failed  to  construct  such 
fence  as  agreed,  then,  notwithstanding  the  fact  that  defendant's 
cattle  did  break  over  into  the  other  parts  of  plaintiff's  premises  and 
eat  or  destroy  the  com  in  question  you  must  nevertheless  return  a 
verdict  for  the  defendant,  unless  you  believe  from  the  evidence  that 
the  plaintiff  or  his  agent  turned  his  cattle  into  the  lot  where  plaintiff 
was  keeping  his  fodder  in  shock.^^ 

§  2321.  Cattle— Defects  in  Division  Fence,  (a)  The  law  of  this 
state,  requiring  the  owners  of  adjoining  lands  that  are  enclosed  to 
each  build  and  maintain  his  proportion  of  the  division  fence,  is  in- 
tended exclusively  for  the  beneht  of  said  adjoining  owners;  and  in 
this  case,  if  the  juiy  believe,  from  the  evidence,  that  the  cattle  of 
the  defendant  broke  into,  or  went  upon  the  lands  of  one  A.  B.,  ad- 
joining the  lands  of  the  plaintiff,  and  from  thence  came  in  upon  the 
lands  of  the  plaintiff,  and  injured  the  crops  there  growing,  then 
the  defendant  is  liable  for  such  injury,  whether  the  fence  between 
the  plaintiff's  land  and  that  of  the  said  A.  B.  was  a  good  and  suffi- 
cient  fence    or  not.^^ 

(b)  If  the  jury  believe,  from  the  evidence,  that  at  the  time  in 
question,  there  was  a  line  fence  between  the  lands  of  plaintiff  and 
defendant,  that  a  portion  of  said  fence  was  owned  by  each  of  the 
parties,  then  each  was  bound  to  keep  in  repair  his  own  portion  of 
the  fence;  and,  if  the  juiy  further  believe,  from  the  evidence,  that 
the  plaintiff  did  not  keep  his  portion  in  good  and  sufheient  repair, 
and  that  by  reason  of  such  insufficiency,  the  animals  in  question 
came  upon  the  plaintiff's  land,  and  committed  the  trespasses  com- 
plained of,  then  the  defendant  is  not  liable  for  any  of  the  injuries 
occasioned  by  said  stock.^^ 

(c)  If  the  jury  believe,  from  the  evidence,  that  the  division  fence 
in  question,  befoi'e  the  time  of  the  alleged  trespasses  had  been  di- 
vided between  the   adjoining  owners  by  agreement,  and  the  portion 

35 — 1  Addi.  on  Torts,  §  379;  Brad-  rence   v.    Combs,    37    N.    H.    331,    72 

bury  v.   Gilford,  53   Me.   99,   87  Am.  Am.  Dec.   332;  Lord  v.  Wormwood, 

Dec.    535;    Aylesworth    v.    Herring-  29   Me.    282;    Lyons   v.    Merrick,    105 

ton,  17  Mich.  417;  CosgrlfE  v.   Miller,  Mass.    71;    Cook    v.    Morea     33    Ind 

10    Wyo.    190,    68    Pac.    206    (208),    98  497;    Aylesworth    v.    Herrington     17 

Am.   St.  977.  Mich.    417;    McManus    v.    Finan     4 

36— Ward    v.     Bass,     4    Ind.     Ter.  la.  283. 

291,  69  S.  W.  879  (881).  38— Scott  v.  Buck,  85  111.  334 

37— Cooley    on    Torts,    339;    Law- 


1502  FORMS   OF  INSTRUCTIONS.  [§2322. 

of  the  fence  to  be  kept  in  repair  by  each  had  been  assigned  to  him, 
so  that  each  had  a  designated  portion  of  the  fence  to  build  and 
keep  in  repair,  then  it  was  the  duty  of  the  defendant  to  keep  up 
such  a  fence  on  his  portion  of  the  line,  as  would  turn  his  own  stock, 
at  all  events.  And,  if  the  jury  further  believe,  from  the  evidence, 
that  the  defendant  did  not  do  so,  and  that  his  stock  got  upon  the 
plaintiff's  land,  as  charged  in  the  declaration,  through  that  portion 
of  the  fence  which  the  defendant  was  bound  to  build  and  repair, 
and  then  injured  the  plaintiff's  crops,  then  the  jury  should  find  for 
the  plaintiff.^^ 

§  2322.  Cattle — Grazing  on  Government  Land,  (a)  The  court 
instructs  the  jury  that  in  this  country  'there  is  no  such  thing  as  a 
right  of  common.  The  government  of  the  United  States  has  per- 
mitted and  does  still  permit  citizens,  owners  of  stock,  to  graze  their 
herds  upon  its  unoccupied  public  domain ;  ibut  there  is  no  right 
conferred  upon  those  who  do  so,  that  the  government  cannot  rescind 
at  any  time,  and  whenever  it  parts  with  its  title  to  any  of  its  public 
domain,  it  gives  to  the  parties  who  may  acquire  any  such  lands,  the 
right  to  enjoy  them  without  any  rights  reserved  to  others  to  graze 
thereon  with  their  flocks  and  herds,  notwithstanding  that  for  some 
time  prior,  •citizens  may  have  grazed  their  flocks  and  herds  thereon 
without  molestation  or  refusal  on  the  part  of  the  government.  It 
is  the  duty  of  all  persons  to  take  notice  of  the  stones  and  marks 
of  the  government  survey,  and  there  was  no  necessity  for  plaintiff 
to  place  any  other  or  different  marks,  monuments  or  designations 
on  his  lands. 

(b)  The  court  instructs  the  jury  that  if  they  find  from  the  evi- 
dence that  the  defendants  after  receiving  the  notice  or  notices  from 
the  plaintiff,  which  have  been  read  in  evidence,  drove  or  caused  to 
be  driven  their  sheep  upon  the  lands  of  plaintiff  mentioned  in  the 
petition  and  surrounding  lands,  without  regard  for  the  ownership 
of  said  lands,  and  that  the  defendants  had  placed  an  employe  or  em- 
ployes of  theirs,  or  herders,  in  charge  of  such  sheep,  who  could  and 
was  to  keep  such  sheep  together  in  the  flock  or  herd,  and  who  was 
to  have  a  general  control  over  such  sheep,  and  that  such  herder  or 
employe  did  remain  with  such  sheep,  and  did  exercise  a  general  con- 
trol over  them,  and  was  with  them  on  any  of  the  plaintiff's  lands 
named  in  the  petition  at  the  time  or  times  the  said  sheep  were 
grazing  on  such  lands,  or  were  regularly  bedded  or  kept  upon  the 
same  with  the  permission  of  such  herder,  and  in  pursuance  of  the 
intention  of  the  defendants  to  have  their  sheep  grazed  and  herded 
indiscriminately  on  the  lands  of  plaintiff  as  well  as  other  lands  in 
that  vicinity,  then  the  jury  must  find  for  the  plaintiff. 

(c)  The  court  instructs  the  jury  that,  after  having  received  notice 
that  the  lands  mentioned  in  the  petition  were  leased  l)v  tlie  plain- 
tiff, it  was  the  duty  of  the  defendants  to  ascertain  where  these  lands 

39— Osborn   v.  Adams,   70  111.  281. 


§2323.]  TRESPASS.  1503 

were,  and  to  prevent  their  sheep  being  driven  thereon  and  depas- 
turing the  same.'*" 

§  2323.  Cattle  on  Highway  with  Attendant  Not  "At  Large."  The 
court  instructs  the  jury  that  the  words  "at  large"  as  used  in  the 
statutes  of  this  state,  making  it  unlawful  for  any  animal  of  the 
species  of  horse,  mule,  cattle,  sheep,  goat,  swine,  or  goose  to  run  at 
large,  means  without  restraint  or  confinement  as  to  such  animals. 
And  in  this  case  if  the  jury  believe,  from  the  evidence,  that  the  cows 
of  the  defendant  were  upon  the  highway,  and  while  their  move- 
ments were  being  controlled  by  a  person  or  persons  in  charge  of 
said  cows,  then  you  are  instructed  that  the  cows  of  the  defendant 
were  not  at  large  under  the  law  of  this  state,  and  the  jury  are  in- 
structed to  find  the  defendant  not  guilty.*^ 

§  2324.  Cattle — Failure  to  Furnish  Attendant.  You  are  further 
instructed  that  if  you  believe  from  the  evidence  that  plaintiff  sold  de- 
fendant certain  feed  stuff  for  his  cattle  and  agi-eed  that  they  should 
be  fed  on  plaintiff's  premises  in  a  feed  lot  to  be  fenced  off  from  the 
remainder  of  the  place  by  plaintiff  with  a  'three-wire  fence,  and  that 
defendant  agreed  that  he  would  furnish  a  man  to  help  hold  cattle 
in  said  feed  lot;  and  if  you  further  find  that  the  plaintiff  constructed 
in  a  good  and  workmanlike  manner  a  substantial,  three-wire  fence, 
sufficient  to  turn  ordinary  three  year  old  steers,  and  defendant  failed 
to  furnish  a  man  as  agreed,  or  that  the  man  so  furnished  failed  to 
perform  his  duties  as  agreed,  and  that  defendant's  cattle  were  not 
ordinaiy  three  year  old  steers,  but  bad  and  breachy  cattle,  and  by 
reason  of  the  defendant's  failure  to  carry  out  his  part  of  the  con- 
tract, and  the  bad  and  breachy  character  of  his  cattle,  they  broke 
over  from  said  feed  lot  into  other  parts  of  plaintiff's  premises,  and 
destroyed  the  corn  and  fodder  of  plaintiff,  then  you  should  find  for 
the  plaintiff.*- 

§  2325.  Cattle — Party  Taking  Up,  Must  Care  For.  You  are  in- 
structed that  where  stock  of  any  kind  is  taken  up  for  trespass  the 
owner  thereof  is  not  required  to  look  after,  feed,  water  or  care  for 
the  same;  and,  if  any  portion  thereof  are  milch  cows,  the  owner  is 
not  required  to  milk  the  same,  but  is  justified  in  leaving  the  feeding, 
watering  and  the  caring  of  such  stock  and  the  milking  of  such  cows 
to  the  party  taking  up  the  same.  And  you  are  instructed  that  in 
this  case  the  plaintiff  was  under  no  obligations  to  feed,  water  or  care 
for  the  stock  or  to  milk  her  cows  while  in  the  possession  of  the  de- 
fendant.*^ 

40— Cosgriff    v.     Miller,    10    "Wyo.  was  correct.     The  herd  law  (chap- 

190,  68  Pac.  206  (208),  98  Am.  St.  977.  ter  2,  art.  3,  Comp.  St.  Neb.)  gives 

41 — Morgan  v.   People,  103  111.  257  to  the  owner  of  cultivated  lands  a 

(259).     Citing  Bertwhistle  v.   Good-  lien  for  hi.s  damages  upon  animals 

rich.    53    Mich.    457,    19    N.    W.    143;  trespassing   thereon,   and  authoriz- 

Parker  v.  Jones,  1  Allen  (83  Mass.)  es   him  to   take  the  stock  into  his 

270.  possession." 

42— "Ward  v.  Bass,  4  Ind.  Ter.  291,  Richardson  v.   Halstead,  44  Neb. 

69  S.   W.  879  (881).  606,  62  N.  W.  1077. 

43 — "We     think     the     Instruction 


CHAPTER  LXXXI. 


TROVER. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  Ill, 


§  2326.  Plaintiff  must  prove  general 
or    special    ownership. 

§  2327.  Maintainable  by  rightful 
possessor  of  property. 

§  2328.  Plaintiff  must  prove  right  to 
immediate  possession — Pos- 
session  of   title. 

§  2329.  Not  maintainable  by  servant 
or  agent. 

§  2330.  When  maintainable  by  buyer 
against   seller. 

§  2331.  Against  vendor  who  has  re- 
sold  the   property. 

§  2332.  Plaintiff  must  prove  conver- 
sion— What  constitutes. 

S  2333.  Conversion — ^Wrongful  intent 
must    be   proven. 

§  2334.  By   bailee   of  property. 

§  2335.  Conversion — Property  wrong- 
fully taken  and  consumed. 


§  2336.  Defendant  rightfully  in  pos- 
session accidentally  losing 
property  before   demand. 

§  2337.  Conversion  by  warehouse- 
man. 

§  2338.  Demand — No  particular  form 
necessary — May   be    verbal. 

§2339.  Demand  and  refusal— Evi- 
dence of  conversion. 

§  2340.  Demand  by  agent — ^Evidence 
■of  agency. 

§  2341.  Demand  not  necessary  where 
defendant  converted  the 
property. 

§  2342.  Tender— Effect  same  as  pay- 
ment— Not  good  if  condi- 
tional. 

§  2343.  Tender— Waiver  of  produc- 
tion  of  money. 

§  2344.  Burden  of  proof. 

§  2345.  Alleged  conversion  of  saw- 
mill  machinery — Series. 


§  2326.    Plaintiff  Must  Prove  General  or  Special  Ownership,     (a) 

That  althoug-h  tlie  law  is,  that  to  entitle  the  plaintiff  to  recover  in 
this  form  of  action^  he  must  show  that  at  the  time  of  the  alleged 
conversion  he  was  the  general  owner  of  the  property,  and  entitled 
to  the  immediate  possession,  or  that  he  had  a  special  right  or  in- 
terest in  the  property,  with  an  immediate  right  of  possession,  yet, 
in  this  case,  if  you  find,  from  the  evidence,  that  'the  general  owner- 
ship of  the  property  was  in  one  A.  B.,  but  that  the  plaintiff  had 
the  actual  possession,  charge  and  conti'ol  of  the  property  at  the  time 
of  the  alleged  conversion,  not  as  the  agent  or  servant  of  the  said  A. 
B.,  then  the  plaintiff  had  such  a  property  in  the  (animal)  as  will  en- 
able him  to  recover  in  this  suit;  provided,  you  find  the  defendant 
guilty  of  the  wrongful  conversion  of  the  property,  as  charged  in  the 
declaration.^ 

(b)  The  court  instructs  the  jury,  that  this  is  what  is  known  in 
law  as  an  action  of  trover,  or  trover  and  conversion,  and,  to  entitle 
the   plaintiff   to   recover,   the   jury  must   believe,   from   the   evidence, 


1— Cooley  on  Torts  (3d  ed.)  848; 
Stephenson  v.  Little,  10  Mich.  433; 
Owens    v.    Weedman,    82    111.    409; 


Dudley     v.     Abner,      52     Ala. 
Staples  V.   Smith,   48   Me.   470. 


572; 


1504 


§  2327.]  TROVER.  1505 

that  the  plaintiff  was  the  absolute  owner  of  the  property  in  question, 
or  else  that  he  had  some  special  interest  therein,  which  entitled  him 
to  the  possession  of  the  property  at  the  time  of  the  alleged  con- 
version.^ 

(c)  The  jury  are  instructed,  that  to  entitle  the  plaintiff  to  recover 
under  the  issues  in  this  case,  it  is  only  necessary  that  he  should 
prove,  by  a  preponderance  of  the  evidence,  that  he  was  the  owner  of 
the  property  in  question,  and  entitled  to  the  possession  of  the  same 
when  this  suit  was  commenced,  and  that  it  had  been  wi'ongfully 
taken  from  his  possession  by  the  defendant,  or  that  it  was  then 
wrongfully  detained  by  him.^ 

§  2327.  Maintainable  by  Rightful  Possessor  of  Property,  (a) 
That  when  a  person  is  in  the  rightful  and  peaceful  possession  of 
property,  and  a  stranger,  or  person  not  the  owner,  wrongfully  takes 
it  from  him,  and  converts  it  to  the  taker's  own  use,  then  the  per- 
son in  possession  can  recover  the  full  value  of  the  property  in  this 
form  of  action  for  the  wrong  done — his  possession  being  sufficient 
evidence  of  title  in  him  against  a  wrong-doer,  or  one  showing  no 
right  or  title  to  the  property.* 

(b)  If  the  juiy  believe,  from  the  evidence,  that  the  (animal)  in 
question  was  not  the  property  of  the  defendant,  but  was  the  property 
of  one  A.  B.,  and  that  the  said  A.  B.  had  placed  the  same  in  the 
possession,  and  in  the  care  and  custody,  and  under  the  control,  of 
the  plaintiff,  until  he  should  call  for  the  same,  and  that  the  plain- 
tiff, at  the  time  of  the  alleged  conversion,  was  entitled  to  the  pos- 
session of  the  (animal)  then  the  plaintiff  had  such  a  property  in  it 
as  will  enable  him  to  sustain  this  action;  provided,  the  jury  further 
find,  from  the  evidence,  that  the  defendant  wrongfully  took  said 
property  and  converted  the  same  to  his  own  use,  as  charged  in  plain- 
tiff's declaration.^ 

§  2328.  Plaintiff  Must  Prove  Right  to  Immediate  Possession — Pos- 
session Evidence  of  Title,  (a)  In  order  to  sustain  this  action,  the 
plaintiff  must  show,  by  a  preponderance  of  evidence,  that  at  the 
time  he  demanded  the  (animal)  from  the  defendant,  if  such  demand 
has  been  proved,  he  was  the  owner  of  the  property,  and  entitled  to 
the  immediate  possession  thereof,  or  that  he  had  some  right  or  in- 
terest in  the  same,  which  entitled  him  to  the  possession  of  it  at  the 
time;   and  if  you  find,  from  the  evidence,  under  the  instruction  of  the 

2_Cooley    on    Torts    (3d    ed.)    848;  850;   1   Hill,   on   Torts,  495;   Craig  v. 

Moore   v.    Walker,    124   Ala.    199,    26  Gilbreth,    47    Me.    416;    Moorman    v. 

So.  984.  Quick,  20  Ind.  67;  Bowen  v.  Fenner, 

3— Esson   V.   Tarbell,   9   Cush.   407;  40   Barb.    (N.   Y.)   383. 

Eggleston   v.    Mundy,    4    Mich.    295;  5— Cooley    on    Torts    (3d    ed.)    848; 

Fl.ntner  v.  Good.  35  Minn.  395,  29  N.  Dungan     v.     Mutual     Benefit     Life 

W.   56;    Moore   v.    Walker,    124   Ala.  Ins.  Co.,  38  Md.  242;  Atl.  Coast  Line 

199,   26  So.  984.  R.   R-  Co.  v.  Baker,   118  Ga.  809,  45 

4— Cooley    on    Torts    (3d    ed.)    849,  S.  E.  673. 

95 


1506  FORMS   OF  INSTRUCTIONS.  [§2329. 

com"t,  that  be  has  failed  to  prove  either  of  these  things,  by  a  pre- 
ponderance of  evidence,  then  you  should  find  for  the  defendant.^ 

(b)  The  court  instructs  the  juiy,  that  under  the  issues  in  this 
case,  the  burden  of  proving  property  in  himself,  so  far  as  the  right 
of  property  is  concerned,  is  upon  the  plaintiff;  and  if  possession  of 
the  property  has  been  shown  by  the  evidence  to  have  been  with  the 
said  A.  B.  at  the  time  it  is  alleged  to  have  been  levied  upon,  then 
such  possession  is   prima  facie  evidence  of  title  in  the  said  A.  B.''' 

§  2329.  Not  Maintainable  by  Servant  or  Agent.  The  juiy  are 
further  instructed,  that  when  a  person  has  personal  property  in  his 
care  and  custody,  as  the  servant  or  agent  of  the  owner,  and  the 
property  is  taken  from  the  possession  or  premises  of  the  owner  (or 
strays  away,  and  is  taken  up  by  a  person  not  the  owner),  then  the 
duty  devolving  upon  the  servant  or  agent,  as  such,  will  not  entitle 
him  to  maintain  an  action  of  trover  for  the  property.^ 

§  2330.  When  Maintainable  by  Buyer  Against  Seller.  The  court 
instructs  the  jury,  that  in  the  case  of  a  sale  of  personal  property,  at 
a  stipulated  price,  and  when  no  time  of  payment  is  agreed  upon,  the 

law  presumes  that  pa3rment  is  to  be  made  at  the  time  of  delivery; 

and  in  such  case,  until  the  purchase  price  is  paid,  no  such  title  passes 
to  the  purchaser  as  will  enable  him  to  maintain  trover  against  the 

vendor  for  the  conversion  of  the  property,  unless  there  has  been  a 

delivery  of  the  property  under  the  sale,  or  a  tender  of  full  payment 

has   been   made.^ 

§  2331.  Against  Vendor  Who  Has  Resold  the  Property.  If  you 
believe,  from  the  evidence,  that  the  defendant  bargained  and  sold 
the  (animal)  in  question  to  the  plaintiff,  at  a  given  price,  to  be  deliv- 
ered when  paid  for,  and  that  the  plaintiff  aftemvards,  and  within  a 
reasonable  time  thereafter,  and  before  the  commencement  of  this 
suit,  paid  the  purchase  price  in  full,  or  paid  a  part  thereof,  and 
tendered  to  the  plaintiff  the  remainder,  and  then  demanded  the  pos- 
session of  the  property,  and  that  defendant,  upon  such  demand, 
refused  to  deliver  possession,  and  afterwards  sold  the  (animal)  to 
another  person,  without  the  consent  of  the  plaintiff,  then  the  plaintiff 
is  entitled  to  recover  in  this  suit.^° 

§  2332.  Plaintiff  Must  Prove  Conversion— What  Constitutes,  (a) 
That  to  wan-ant  a  verdict,  in  this  case,  for  the  plaintiff,  the  jury 
must  find,  from  the  evidence,  not  only  that  the  plaintiff  was  the 
general  or  special  owner  of  the  property,  with  the  right  to  immedi- 
ate possession  at  the  time  of  the  alleged  conversion,  but  it  must  fur- 

6— Forth  V.   Pursley,  82  111.  152.  9— Benj.    on    Sales,    §677;    South- 

7— Martin    v.    Ray,    1    Black.    291;  western,    etc.,   Co.   v.   Plant,  45    Mo. 

Cooloy  oil  Torts  (.3d  ed.)  852.  517;      Scudder     v.     Bradburry,     106 

8— Cooley    on    Torts    (3d    ed.)    854;  Mass.    422;    Mich.,    etc.,    Rd.    Co     v. 

Farmers'   Bk.   v.   McKee,   2   Pa.    St.  Phillips,   60  111.   190. 


318 


10 — Mechem   on   Sales,   chap.   4. 


§  2333.]  TROVER.  15U7 

ther  appear,  from  the  evidence,  that  the  defendant  wrongfully  con- 
verted the  property  to  his  own  use.^^ 

(b)  The  court  instructs  the  jury  that  if  they  believe,  from  the 
evidence,  that  the  plaintiff  was  the  owner  of  the  property  in  ques- 
tion, and  entitled  to  the  possession  thereof,  before  and  at  the  time  of 
the  commencement  of  this  suit,  and  that  while  he  was  so  entitled  to 
such  possession,  and  before  the  commencement  of  this  suit  he  made 
a  legal  demand  of  the  defendant  for  the  property,  and  that  the 
defendant  then  had  the  property  in  his  possession,  and  refused  and 
neglected  to  surrender  the  same  to  the  plaintiff  upon  such  demand, 
this  would  be  evidence  of  the  conversion  of  the  property  by  the  de- 
fendant, and  the  juiy  should  find  for  the  plaintiff.^- 

§  2333.  Conversion — Wrongful  Intent  Must  be  Proven.  You  are 
instructed  that  a  wrongful  taking  and  canying  away  of  the  personal 
property  of  another  does  not  alone  constitute  trover,  or  trover  and 
conversion.  To  render  the  taker  liable,  it  must  further  appear  that 
the  property  was  taken  and  carried  away  by  the  person  taking  it, 
with  an  intent  to  convert  the  same  to  his  own  use,  or  that  he  has 
since  the  taking  actually  converted  it  to  his  own  use.  And  in  this 
case,  although  you  may  believe,  that  the  defendant  wrongfully  took 
and  removed  the  property  mentioned  in  the  declaration,  and  placed 
the  same  in,  etc.,  for  safe  keeping,  intending  to  then  store  it  for  the 
use  of  the  plaintiff,  and  to  hold  the  same  subject  to  his  order,  and  so 
notified  the  plaintiff,  then  the  defendant  would  not  be  guilty  of  a 
wrongful  conversion  of  the  property.^^ 

§  2334.  By  Bailee  of  Property.  The  juiy  are  instructed  as  a 
matter  of  law,  that  when  the  projDerty  of  one  person  comes  rightfully 
into  the  possession  of  another,  to  be  held  by  him  temjjorarily  for  some 
specific  purpose,  and  when  that  is  accomplished,  then  to  be  returned 
to  the  owner,  if  the  person  so  taking  possession  of  the  property 
willfully  kills  or  destroys  it,  or  sells  it,  or  otherwise  disposes  of  it, 
for  his  own  use  and  benefit,  and  so  as  to  deprive  the  owner  of  it 
without  his  consent,  this,  if  proven,  will  amount  to  a  wrongful  con- 
version of  the  property,  and  no  demand  for  the  possession  need  be 
made  by  the  owner  before  commencing  suit  to  recover  the  value  of 
the  property.^* 

§  2335.  Conversion — Property  Wrongfully  Taken  and  Consumed. 
If  you  find,  from  the  evidence,  that  before  and  at  the  time  of  the  al- 
leged conversion,  the  plaintiff  was  the  owner  of  the  property  in 
question,  and  entitled  to  the  immediate  possession  thereof,  and  that 
while  the  plaintiff  was  such  owner  and  entitled  to  such  possession,  and 
before  the  commencement  of  this  suit,  the  defendant  wrongfully  took 
the  property  into  his  possession,  and  that  while  the  property  was  so 

11— Greenl.  on  Ev..   §  636.  642.  13— Niemetz   v.    St.    Louis,    etc.,    5 

12— Puterbaugh'R   Com.    Law,   497;     Mo.  App.  59. 
Cooley  on  Torts  (3d  ed.)  859,  et  seq.        14— Cooley  on  Torts   (3d  ed.)   859, 

et  seq. 


1508  FORMS  OF  INSTRUCTIONS.  [§2336. 

in  his  possession  the  (animal)  was  killed  (or  the  goods  were  lost  or 
stolen  from  his  possession),  before  the  commencement  of  this  suit, 
this  will  constitute  a  wrongful  conversion  of  the  property,  and  you 
should  find  the  defendant  guilty;  and,  in  such  case,  it  is  wholly  im- 
material whether  the  plaintiff  made  a  demand  for  the  property  be- 
fore commencing  the  suit  or  not.^^ 

§  2336.  Defendant  Rightfully  in  Possession  Accidentally  Losing- 
Property  Before  Demand.  If  the  jury  believe,  from  the  evidence, 
under  the  instructions  of  the  court,  that  the  defendant  came  right- 
fully into  the  possession  of  the  property,  and  while  he  held  it  so  in 
possession,  and  before  any  demand  was  made  on  him  for  it,  the  (ani- 
mal) was  accidentally  killed,  without  any  willful  intention  on  the 
part  of  the  defandant  (or  that  the  said  goods  were  lost  or  stolen  out 
of  the  possession  of  the  defendant),  though  he  may  have  been  guilty 
of  negligence  in  that  behalf,  then  the  plaintiff  cannot  recover  in  this 
suit,  although  the  jury  may  believe,  from  the  evidence,  that  a  de- 
mand was  made  by  the  plaintiff'  upon  the  defendant  for  the  property 
before  the  action  was  commenced. ^^ 

§  2337.  Conversion  by  Warehouseman.  If  you  believe,  from  the 
evidence,  that  the  property  in  controversy  belonged  to  the  plaintiffs, 
and  that  they  were  entitled  to  the  possession  of  the  same,  at  the 
time  of  the  alleged  conversion  of  the  pi'oi^erty,  and,  also,  that  the 
plaintiffs  demanded  the  same  of  the  defendants  before  the  com- 
mencement of  this  suit,  and  at  the  same  time  offered  to  pay  to  them 
all  the  freight,  storage  and  other  charges  which  had  accrued  upon 
the  property  in  question,  then,  if  you  further  find,  from  the  evidence, 
that  the  defendants  refused,  upon  such  demand,  to  deliver  the  prop- 
erty to  the  plaintiffs  iinless  the  freight  and  charges  upon  other  goods, 
not  received  or  stored  by  the  defendants  at  the  same  time  with 
the  goods  in  question,  were  also  paid,  then  these  facts  would 
amount  to  a  wrongful  conversion  of  the  property  by  the  defendants 
to  their  own  use,  and  you  should  find  the  defendants  guilt3^^^ 

§  2338.  Demand — No  Particular  Form  Necessary — May  be  Verbal, 
(a)  To  constitute  a  legal  demand  of  propert}'^,  in  this  class  of  cases, 
it  is  not  necessary  for  the  demanding  party  to  make  use  of  the  word 
"demand,"  or  to  specify,  by  name  or  particular  description,  the 
property  demanded ;  but  any  language  which  makes  known  to  the 
party  on  whom  the  demand  is  made  that  the  demandant  desires  the 
possession  of  the  property,  and  informs  him,  by  reference  or  other- 
wise, what  property  he  desii'es  possession  of,  is  sufficient  to  con- 
stitute a  demand. ^^ 

(b)  The  court  instructs  the  juiy,  that  no  particular  form  of  words 
is   necessary   in   making   a   demand   for  the   possession    of  property 

1.5 — 1     Addison     on     Torts,     §471;  bourn    v.    Union    National    Bk.,    58 

Coolf-y   oil   Tnrts   (3d   ed.)   874.  Me.  273. 

Ifi— Cooley   on   Torts   (3d   ed.)   873;        17— Edwd.   on   Bail.,   §350,  351. 
Bowlln  V.  Nye,  10  Cush.  416;  Dear-        18— Cooley   on  Torts   (3d  ed.)  872; 


§  2339.]  TROVER.  1509 

before  bringing  a  suit.  If  the  jury  believe,  from  the  evidence,  that, 
before  commencing  this  suit,  the  plaintiff  had  an  interview  with  the 
defendant,  and  that,  from  the  language  then  used  by  plaintiff,  the 
defendant  understood  the  plaintiff  came  for,  and  was  asking  to 
have  the  property  in  dispute  given  up  to  him,  and  that  with  that 
understanding,  defendant  said  he  would  not  give  it,  this  in  law 
would  be  equivalent  to  a  demand  and  refusal. ^^ 

§  2339.  Demand  and  Refusal — Evidence  of  Conversion.  The  jury 
are  instn;cted,  that  when  one  person  has  property  of  another, 
whether  rightfullj'  or  wrongfullj'',  in  his  possession,  and  the  owner 
is  entitled  to  the  immediate  possession  of  the  property,  then  a  de- 
mand for  such  jDossession  by  the  owner  and  a  refusal  to  deliver  the 
property  by  the  one  so  having  it  in  possession,  is  prima  facie  evi- 
dence of  a  wrongful  conversion  of  the  property  to  his  own  use  by 
the   latter.2o 

§  2340.  Demand  by  Agent — Evidence  of  Agency.  When  a  demand 
is  made  by  an  agent,  and  the  jDerson  from  whom  the  demand  is  made 
has  reasonable  grounds  for  doubting  the  agent's  authority,  he  may 
lawfully  refuse  to  comply  with  the  demand.  The  evidence  of  agency 
should  be  such  as  an  ordinarily  prudent  man  would  feel  justified  in. 
acting  upon,  knowing  that  he  would  be  liable  for  the  value  of  the 
property  if  he  should  deliver  it  to  a  person  not  authorized  to 
receive  it.^^ 

§  2341.  Demand  not  Necessary  where  Defendant  Converted  the 
Property.  The  jury  are  further  instructed,  as  a  matter  of  law,  that 
while,  in  some  cases,  a  demand  by  the  owner,  for  the  possession  of 
property  in  the  hands  of  another,  and  a  refusal  to  deliver  the  same 
by  such  other  person,  is  prima  facie  evidence  of  a  wrongful  conver- 
sion of  the  property  to  his  own  use  by  the  person  so  having  it  ii 
his  possession,  still,  such  demand  and  refusal  are  never  essential 
before  commencing  a  suit  to  entitle  the  plaintiff  to  recover;  pro- 
vided, it  appears,  from  the  evidence,  that,  before  the  commencement 
of  this  suit,  the  defendant  had  actually  converted  the  property  to 
his  own  use,  by  intentionally  killing  or  destroying  it,  or  by  selling 
or  othenvise  disposing  of  it  for  his  own  benefit,  and  so  as  to  deprive 
the  plaintiff  of  it  without  his  consent.-^ 

§  2342.  Tender— Effect  Same  as  Payment— Not  Good  if  Condi- 
tional, (a)  The  juiy  are  instructed,  that  a  tender  of  any  amount 
of  money,  if  proved,  in  this  case,  has  the  same  effect  on  the  rights 

Badger   v.    Batavia   Paper    Co.,    70  Towne     v.     St.     Anthony     &,  .Dak. 

111.   302.  Elev.  Co.,  8  N.  D.  200,  77  N.  W.  608. 

19— Cooley   on  Torts   (3d   ed.)   872;  21— Ingalls     v.     Bulkley,     13     111, 

Edmundson   v.   Brie,  136   Mass.   189.  315;  Kime  v.  Dale.  14  111.  A:-«p.  308. 

20— Thompson    v.    Rose,    16    Conn.  22— Gottlieb    v.    Hartman,    3    Col. 

71,     41    Am.     Dec.     121;    Sturgis    v.  53;    Kenrick    v.    Rogers.    26    Minn. 

Keith,   57   111.   451,   11   Am.   Rep.    28;  344,  4  N.   W.  46. 


1510  FORMS  OF  INSTRUCTIONS.  [§2343. 

of  the  parties  as  a  payment  of  the  same  amount  would  have  had  if 
made  at  the  same  time.^^ 

(b)  The  debtor  has  no  right  to  insist  that  the  creditor  shall  admit 
that  no  more  is  due  in  respect  of  the  debt  for  which  the  tender  is 
made.  He  may  exclude  any  presumption  against  himself  that  he 
admits  the  payment  to  be  only  for  a  part,  but  he  can  go  no  further. 
and  his  tender  will  not  be  good  if  he  adds  a  condition  that  the 
creditor  shall  acknowledge  that  no  more  is  due.-* 

§  2343.  Tender — Waiver  of  Production  of  Money.  If  the  jury 
believe,  from  the  evidence,  that  the  plaintiffs  were  the  owners  of 
the  property  in  question  at  the  time  of  the  alleged  demand  and 
tender,  and  that  the  defendants  then  had  the  same  in  their  posses- 
sion, as  warehousemen,  claiming  the  right  to  hold  the  property  until 
certain  charges  thereon  should  be  paid,  and  that  while  they  so  held 
the  goods,  and  before  the  commencement  of  this  suit,  the  plaintiffs, 
by  their  agent,  made  a  demand  on  the  defendants  for  the  property, 

and  then  offered  to  pay  the  sum  of  $ upon  defendants'  claim 

upon  said  goods,  and  that  the  sum  so  offered  covered  all  that  was 
then  due  to  defendants  for  stoi'age  and  all  other  charges  on  said 
goods,  and,  if  the  jury  further  believe,  from  the  evidence,  that  upon 
such  demand  and  offer  the  defendants  refused  to  surrender  the 
property,  and  told  the  person  making  such  demand  that  he  need  not 
trouble  himself  to  take  out  the  money  so  proposed  to  be  paid,  as  it 
would   not   be    accepted,   nor   would   the   goods   be   delivered,   unless 

plaintiffs  first  paid  the  sum  of  $ in  discharge  of  defendants' 

claim  on  the  goods,  then  this  was  a  waiver  of  the  necessity  for 
producing  and  exhibiting  to  the  defendants  the  money  so  proposed 
to  be  paid  in  order  to  constitute  a  good  tender  of  that  amount  for 
the  puiposes  of  this  suit.^^ 

§  2344.  Burden  of  Proof.  The  court  instructs  the  jui-y,  that  in 
order  to  maintain  this  action,  the  plaintiff  must  prove,  by  a  pre- 
ponderance of  evidence,  that  he  was  either  the  general  owner  of  the 
property  in  controversy,  and  lawfully  entitled  to  the  possession 
thereof  at  the  time  of  the  alleged  conversion,  or  that  he  had  some 
special  interest  in  it  at  the  time  of  the  alleged  conversion,  which 
entitled  him  to  the  possession  of  the  property ;  and  if  the  jury  believe, 
from  the  evidence,  that  at  the  time,  etc.,  the  plaintiff  was  not  the 
general  owner  of  the  property,  and  had  no  special  interest  in  it,  but 
was  holding  it  as  the  mere  servant  or  agent  of  the  owner,  then  they 
must  find  for  the  defendant.-'' 

§  2345.     Alleged  Conversion  of  Saw  Mill  Machinery — Series,     (a) 

I   instruct  you   that   if  you  believe    that   C.   Bros,   and   the   partner- 

23— RenJ.  on   Sales,  §712.  25— Hazzard    v.    Loring-,    10    Cush. 

24 — Bowon  v.   Owen,  11  Q.   B.  131;  267;    Birming-ham    Paint   &    Rnofinff 

Hes.s    V.    Peck,    111    111.    App.    Ill;  Co.  v.  Crampton,  —  Ala.  —    39  So 

Mann   v.   Roberts,  126  Wis.   142,  105  1020. 

N.  W.  785.  26—2  Greenl.  on  Ev.,  §  636  and  642. 


§  2345.]  TROVER.  1511 

ship  known  as  the  S.  Logging  Co.  entered  into  the  contract  marked 
"Defendants'  Exhibit  1,"  and  if  you  further  believe  that  the  'boiler, 
engine,  and  fittings  were  furnished  by  the  former  to  the  latter  subse- 
quent to  the  date  of  the  contract  marked  '^Exhibit  1,"  then  the  title 
of  the  property  in  question  would  pass  absolutely  to  the  partnership, 
in-espective  of  any  oral  agreement  in  conflict  with  the  terms  of  the 
written  instrument,  and  would  remain  there  until  parted  with  by 
some  act  on  the  part  of  its  members. 

(b)  The  parties  to  such  a  contract,  however,  have  the  right  to 
abrogate  or  rescind  it  by  mutual  consent.  If  you  believe  by  a  pre- 
ponderance of  the  evidence  that  C.  Bros,  and  the  S.  Logging  Co. 
mutually  agreed  that  the  contract  marked  ''Exhibit  1"  should  be 
abrogated,  and  all  relations  under  it  should  be  at  an  end,  and  that 
the  property  in  question  should  be  returned  to  the  possession  and 
ownership  of  C.  Bros.,  and  if  you  fmiher  believe  that  such  an  under- 
standing was  completed  by  the  parties,  then  you  may  find  that  the 
title  to  the  property  revested  in  the  plaintiffs ;  and  if  you  should  find 
from  the  preponderance  of  the  evidence  that  the  title  to  the  property 
remained  in  that  condition,  and  was  never  subsequently  parted  with 
by  the  plaintiffs,  then  your  verdict  should  be  in  favor  of  the  plaint- 
iffs— 'that  they  are  entitled  to  the  possession  of  the  property  de- 
scribed in  the  complaint. 

(e)  If  you  find  from  the  testimony  that  E.  B.  was  the  agent  of 
A.  H.  in  the  transfer  of  the  property  mentioned  in  plaintiffs'  com- 
plaint from  the  S.  Logging  Co.  or  from  M.  L.  or  from  T.  J.  to  A.  H., 
and  that  said  E.  B.  knew  the  terms  and  conditions  upon  which  the 
S.  Logging  Co.,  M.  L.  or  T.  J.  had  possession  of  the  property  men- 
tioned in  plaintiff's  complaint  from  the  plaintiffs,  and  that  the 
plaintiffs  were  the  owners  and  entitled  to  the  possession  of  such 
property  at  the  time,  and  only  consented  that  the  S.  L.  Co.,  M.  L.  or 
T.  J.  should  have  the  temporary  use  of  the  property  in  securing 
certain  saw  logs  in  Clallam  county,  Washington,  then  you  are  in- 
structed that  the  knowledge  of  the  agent,  E.  B.,  was  the  knowledge 
of  A.  H.,  and  A.  H.  could  not  be  an  innocent  purchaser  of  the 
property,  and  A.  H.  could  not  transfer  a  valid  title  to  said  property 
to  the  defendants,  or  either  of  them. 

(d)  If  you  find  from  a  prepondence  of  the  testimony  that  the 
property  during  all  of  the  time  belonged  to  the  plaintiffs,  and  the 
S.  Logging  Co.  on  or  about  July  17,  1897,  agreed  to  sun-ender  the 
possession  of  the  property  to  the  plaintiffs,  and  that  after  such 
agreement  of  surrender  M.  L.  and  T.  J.  or  either  of  them,  secured 
from  the  plaintiffs  the  temporai-y  right  to  use  said  property  in 
securing  saw  logs  in  Clallam  county,  "Washington,  no  title  would  pass 
to  A.  H.,  and  he  would  have  no  right  to  sell  or  dispose  of  said  prop- 
erty, and  any  sale  by  him  of  said  property  would  be  wrongful. 

(e)  But  if  you  believe  by  a  preponderance  of  the  evidence  that 
the  ownership  of  the  engine,  boiler,  and  fittings  vested  in  the  S.  Log- 


1512  FORMS  OF  INSTRUCTIONS.  [§2345. 

ging  Co.,  as  outlined  in  instruction  "a,"  and  that  the  written  con- 
tract between  the  logging  company  and  C.  Bros,  was  never  abrogated 
by  mutual  agreement,  and  no  return  of  the  property  in  dispute  was 
made  by  virtue  of  such  an  abrogation,  and  that  subsequently  the  S. 
Logging  Co.,  'by  its  managing  partner,  transferred  the  property  to 
A.  H.  in  consideration  of  an  antecedent  debt,  and  that  A.  H.,  in  his 
turn,  transferred  the  property  to  the  defendants  upon  their  promise 
to  pay  therefor,  then  your  verdict  should  be  in  favor  of  the  defendants 
— that  they  are  entitled  to  the  possession  of  the  property  described 
in  the  complaint.^''^ 

27— Approved    in    Carstens    v.  Earles,   26   Wash.    676,    67   Pac.    404(407). 


CHAPTER  LXXXII. 

VICIOUS    ANIMALS. 
See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2346.  Vicious  dog — Necessary  es- 
sentials  to   recover. 

§  2347,  Vicious  dog — Knowledge  of 
disposition. 

§  2348.  Vicious  dog — Dog's  reputa- 
tion not  competent. 


§  2349.  Vicious  steer — Plaintiff  must 
prove  due  care — Knowledge 
of   vicious    disposition. 

§  2350.  Vicious  cow — Knowledge  of 
disposition  —  Adopting 
means  to  prevent  injury. 


§  2346.  Vicious  Dog — Necessary  Essentials  to  Recover.  If,  there- 
fore, you  believe  from  the  evidence  and  a  preponderance  thereof  that 
the  defendant,  C.  T.,  on  or  about  the  5th  day  of  July,  1899,  had  a 
vicious  dog;  that  he  knew  said  dog  was  vicious  and  ferocious,  and 
liable  to  attack  and  bite  persons  coming  in  contact  with  it;  that  the 
defendant  permitted  said  vicious  and  ferocious  dog,  if  any,  to  run 
at  large  on  the  public  streets  of  El  Paso,  and  that  while  so  running 
at  large  the  said  dog  attacked  and  bit  the  plaintiff  J.  F., — then  you 
will  find  for  the  plaintiff  such  damages  as  you  find  from  the  evidence 
he  has  suffered.^ 

§  2347.  Vicious  Dog — Knowledge  of  Disposition,  (a)  In  arriving 
at  the  fact  of  whether  or  not  the  defendant  had  knowledge  of  the 
vicious  character  of  the  dog  in  question,  if  any,  you  will  consider 
all  the  facts  in  the  ease, — such  as  whether  the  defendant  knew  of 
any  acts  upon  the  part  of  the  dog  that  would  indicate  to  the  de- 
fendant that  the  dog  would  bite  if  he  had  a  chance,  such  as  his 
running  at  people  passing  along  the  streets,  attempting  to  bite  any 
person  in  a  public  place  without  provocation,  and  such  similar  acts, 
if  any,  in  proof  on  the  part  of  the  dog  which  came  under  the  ob- 
servation of  the  defendant.^ 

(b)  If  you  find  any  actual  damages  for  the  plaintiff,  then  if  you 
find  and  believe,  from  the  evidence,  that  the  defendant,  B.,  with  full 
knowledge  of  the  ferocious  and  vicious  habits  of  the  dog,  if  it  did 
have  such  habits,  permitted  the  dog  to  run  at  large  on  the  public 
streets  of  the  city  of  D.,  being  the  owner,  keeper,  or  harborer  of 
the  dog,  or  that  with  such  knowledge  she  pemiitted  her  servant  and 
porter,  J.,  to  keep  the  dog  on  her  premises,  and  from  said  premises 
to  allow  the  dog  to  run  at  large  on  the  streets  of  the  city,  without 
being  guarded   or   confined,   and  further  find   that   she    did   so  with 

1 — Triolo  V.    Foster,   —  Tex.   Civ.         2 — Triolo  v.   Foster,   supra. 
App.  — ,  57  S.  W.  698  (698-9). 

1513 


1514  FORMS  OF  INSTRUCTIONS.  [§  2348. 

reckless  disregard  for  the  safety  of  the  lives  and  persons  of  the 
public,  and  that  no  effort  was  made  to  restrain  the  dog  or  to  protect 
the  public  from  his  vicious  attacks,  if  any,  then  you  may  in  your 
discretion  find  for  plaintiff  as  exemplary  damages  such  an  amount 
as  3'ou  believe  will  be  proper  and  right.^ 

§  2348.  Vicious  Dog — Dog's  Reputation  Not  Competent.  A  dog 
cannot  be  known  to  be  vicious,  and  liable  to  bite  mankind,  by  evi- 
dence that  the  general  reputation  is  that  the  dog  is  vicious  and  so 
liable.  You  will  therefore  not  regard  the  evidence  of  the  witness 
Q.  that  such  is  the  reputation  of  the  dog  upon  the  issues  of  whether 
or  no  said  dog  was  vicious,  and  liable  to  bite  mankind.* 

§  2349.  Vicious  Steer — Plaintiff  Must  Prove  Due  Care — Knowledge 
of  Vicious  Disposition,  (a)  The  plaintiff  has  alleged  in  each  para- 
graph of  his  complaint,  among  other  things,  that  he  received  the 
injury  complained  of  without  fault  or  negligence  on  his  part.  This 
is  a  material  and  necessary  allegation.  Without  such  allegation  his 
complaint  would  not  have  been  sufficient  to  have  constituted  a  cause 
of  action,  and  before  the  plaintiff  can  recover,  he  must  have  proved 
by  a  fair  preponderance  of  the  evidence  that  he  did  receive  said 
injuries  without  fault  or  negligence  on  his  part  directly  and  ma- 
terially contributing  to  the  injury.  It  is  not  enough  to  enable  the 
plaintiff  to  recover  that  he  shall  have  proved  fault  and  negligence 
on  the  part  of  defendant.  He  must  also  prove  that  he  himself  was 
free  from  such  fault  or  negligence,  and  if  he  has  failed  to  prove 
by  a  fair  preponderance  of  the  evidence  that  he  received  the  injury 
without  such  fault  or  negligence  on  his  own  part,  he  can  not  re- 
cover. 

(b)  The  plaintiff  has  alleged  in  each  paragraph  of  his  complaint 
that  the  steer  in  question  was  of  a  dangerous  and  vicious  disposition, 
in  the  habit  of  attacking  mankind  and  animals.  He  has  also  alleged 
that  the  defendant  knew  of  such  dangerous  and  vicious  disposition. 
To   entitle   the  plaintiff  to   recover  he   must  prove,  by  a  fair  pre- 

3 — Barklow  v.  Avery,  —  Tex.  Civ.  dog  on  her  premises,  that  she  knew 

App.  — ,  89   S.  W.  417.  the  dog-  was  vicious  and  permitted 

"This    paragraph    of   the    charge,  it  to  run  at  large,  and  the  plaintiff 

strictly    construed,    might    possibly  was    bitten    by    said    dog,    and,    if 

be  subject  to  the  criticism  that  it  plaintiff  failed  to  make  such  proof, 

assumes    that    defendant    was    the  to    find    for    the    defendant.      The 

owner,   keeper,   or  harborer  of   the  charge,    when    taken    as    a    whole, 

dog;    but,   when   considered    in    the  evidently  prevented   the  jury  from 

light  of  the  balance  of  the  charge,  being  led   astray   by   the  defect,   if 

the  jury  could  not  have  been  mis-  any,   complained   of  by  plaintiff." 
led  thereby.    In  the  first  paragraph        4 — Triolo  v.   Foster,   supra, 
of   the   charge   the  ownership,   etc.,        "The   charge   was   a   correct  one, 

of    the   dog    is    left    for    the   jury's  and  properly  explained  and  limited 

determination,    and    in    the    latter  the    effect    of    the    said    testimony, 

part  of  the  charge  the  court  placed  It  was  defendant's  right  to  have  it 

the  burden  of  proof  on  plaintiff  to  thus  explained  and  limited,  and  the 

show    that    the    dog    was    vicious,  charge     should     have    been    given, 

that     defendant     was     the     owner.  Mutual      Life     Insurance      Co.      v. 

keeper,    or    harborer,    or    that    she  Baker,    10    Tex.    Civ.    App.    515,    31 

permitted  her  servant  to  keep  the  S.  W.  1073,  and  cases  cited." 


§2350.]  VICIOUS   ANIMALS.  1515 

ponderance  of  the  evidence,  not  only  that  the  steer  was  dangei-ous 
and  vicious,  but  that  the  defendant  knew  that  fact  and  the  plaintitt" 
was  ignorant  of  it. 

(c)  In  order  to  charge  the  defendant  with  knowledge  of  the  vicious 
propensities  of  the  animal  to  attack  mankind,  it  is  not  necessary 
that  he  have  notice  that  the  animal  has  frequently  broken  through 
the  tameness  of  his  nature  into  acts  of  aggression  on  man,  or  upon 
other  animals  in  the  dominion  and  ownership  of  man.  It  is  unneces- 
sary to  prove  more  than  that  the  owner  has  good  cause  for  supposing 
that  the  animal  so  conducts  itself.  And  if  the  juiy  find  from  the 
evidence  in  this  case  that  the  animal  in  question,  before  the  injuiy 
complained  of,  made  a  vicious  lunge  or  attack  upon  X.  or  Y.,  or 
either  of  them,  in  the  presence  of  the  defendant,  then,  upon  such 
facts,  if  established,  you  would  be  authorized  to  find  that  the  de- 
fendant had  knowledge  of  the  vicious  propensities  of  said  animal  to 
attack  mankind,  although  he  may  not  have  had  knowledge  of  attacks 
of  said  animal  upon  other  persons.^ 

§  2350.  Vicious  Cow — Knowledge  of  Disposition — Adopting  Means 
to  Prevent  Injury,  (a)  The  coui-t  instructs  the  juiy  that,  if  you 
find  and  believe  from  the  evidence,  to  your  reasonable  satisfaction, 
and  by  the  greater  weight  of  credibility  of  the  testimony,  that  on 
or  about  the  1st  day  of  June,  1900,  the  defendant,  by  and  through 
his  agent,  servant  or  employe,  undertook  to  carry  the  cow  in  ques- 
i^tion  through  the  streets  of  the  city  of  St.  Louis,  and  along  Broadway, 
at  the  place  of  the  alleged  injuiy  to  plaintiff,  and  that  at  such  time 
the  cow  was  of  a  vicious  disposition,  as  defined  by  the  court's  in- 
structions, and  such  disposition  was  known  to  defendant  at  and 
before  the  time  of  the  alleged  injury  to  plaintiff,  and  before  the 
cow  was  taken  into  the  streets  on  said  occasion,  then  it  was  the 
duty  of  the  defendant  to  adopt  suitable  measures  for  the  carnage 
of  the  cow  through  the  streets  so  as  to  prevent  inji;ry  by  her  to 
persons  on  or  near  the  streets  upon  or  along  which  the  cow  was  to 
be  driven.  And  if  you  believe,  under  the  circumstances,  that  by 
the  exercise  of  the  utmost  care,  prudence  and  caution,  defendant 
might  have  adopted  such  means  of  carrying  the  cow  as  would  have 
prevented  injury  to  plaintiff  by  the  cow,  but  you  further  find  he 
failed  to  adopt  such  means,  and  that  by  reason  of  such  failure  the 
cow  attacked  and  injured  plaintiff,  then  your  verdict  must  be  for 
plaintiff.*' 

(b)  The  court  instructs  the  juiy  that  knowledge  on  the  part  of 
defendants  that  the  cow  in  question  was  disposed  to  run  away  is  not 
sufficient  to  support  a  finding  in  favor  of  plaintiff,  but,  that  in  order 
to  entitle  plaintiff  to  recover  against  defendant,  he  must  prove  to 

5 — Todd   V.    Banner,   17  Ind.   App.  the    defendant    could    not    complain 

368,  46  N.  E.  829  (830).  of  the  phrase  "reasonable  satisfac- 

6 — O'Neill   v.    Blase,   94   Mo.   App.  tion"  in  the  above  instruction. 
648,    68    S.    W.    764    (768),    held    that 


1516 


FORMS  OF  INSTRUCTIONS. 


[§  2350. 


the  satisfaction  of  the  jury  that  such  defendant  knew  that  the  cow 
was  disposed  to  attack  persons,  or  was  of  a  vicious  disposition.'^ 


7— O'Neill  V.  Blase,  supra. 

The  courjt  said:  "Knowledge  of 
the  disposition  of  an  animal  is  im- 
portant in  its  bearing  on  the  own- 
er's obligation  to  restrain  him. 
This  is  so  not  only  by  the  immemo- 
rial common  law  of  England,  and 
of  this  country,  but  it  was  so  even 
by  the  Mosaic  law.  Exodus  xxi., 
28-32.  "When  the  owner  of  an  ani- 
mal acquires  knowledge,  or  where 
the  facts  reasonably  wan-ant  an 
inference  that  he  has  been  advised 
of  the  vicious  disposition  of  his 
animal,  he  is  in  duty  bound  to  use 
those  precautions  for  its  restraint 
which  the  law  requires  for  the 
protection  of  the  public,  already 
defined   in   this   opinion.    It   is   not 


essential  to  the  owner's  liability 
that  he  should  have  notice  of  the 
particular  f:ort  of  act  which  pro- 
duces the  injury  by  an  animal  in 
a  case  like  this.  He  must  not  wait 
until  his  dog  bites  somebody  be- 
fore taking  notice  of  his  dog's  con- 
duct, where  it  has  been  such  as  to 
wiarn  a  man  of  ordinary  prudence 
that  the  animal  is  ferocious  or  vi- 
cious in  disposition.  Codeau  v. 
Blood,  52  Vt.  251,  36  Am.  Rep.  751; 
Rider  v.  White,  65  N.  Y.  54,  22  Am. 
Rep.  600;  Worth  v.  Gilling,  L.  R. 
2  C.  P.  1;  Mann  v.  Weiand,  81  Pa. 
243;  Robinson  v.  Marino,  3  Wash. 
St.  434,  28  Pac.  752,  28  Am.  St.  50; 
Kennett  v.  Engle,  105  Mich.  693, 
63   N.    W.   1009." 


CHAPTER   LXXXIII. 


WATERCOURSES. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2351.  Watercourse  defined. 

§  2352.  No  rig-ht  to  divert  ancient 
watercourse. 

§  2353.  Diversion  of  surface  water — 
Measure  of  damages — Ele- 
ments   of    injury. 

§  2354.  Right  to  use  water  passing 
over  land — Must  restore  it 
to  original  bed. 

§  2355.  The  owner  of  the  soil  is  the 
owner  of  the  surface  and 
subterranean   water. 

§  2356.  Placing  obstruction  in  nat- 
ural watercourses  and  di- 
verting water — Damages. 

§  2357.  Mill-race — Obstructions. 


§  2358.  Embankment  —  Obstructions 
— Party  acquiring  interest 
after  erection — Right  of  ac- 
tion. 

§  2359.  Use  of  banks  of  streams — 
Floatage  of  logs  down  nav- 
igable stream. 

§  2360.  Owner  of  land  bordering  on 
a  navigable  stream  has 
right  to  build  docks. 

§  2361.  Flooding  of  land — Changing 
of  watercourse. 

§  2362.  Extraordinary  freshet — Onus 
on  defendant  to  prove  ab- 
sence of  negligence — Act  of 
God. 

§  2363.  Dams— Dedication. 


§  2351.  Watercourse  Defined.  To  constitute  a  watercourse  there 
must  be  a  stream  of  watei',  including  banks,  bed  and  water.  It  is 
not  necessary  to  prove  that  the  w^ater  flows  continuously.  It  may 
be  diy  at  certain  seasons  of  the  year  and  yet  be  called  a  stream, 
of  water,  but  it  must,  at  some  period  of  the  year,  be  a  stream  of 
water  flowing  in  a  well  defined  channel.^ 

§  2352.  No  Right  to  Divert  Ancient  Watercourse,  (a)  If  the  jury 
believe,  from  the  evidence,  that  the  nature  of  the  country  was  such 
that  after  heavy  rains  or  the  melting  of  snows  it  naturally  and 
necessarily  collected  together  large  quantities  of  water  on  defend- 
ant's land,  and  that  such  water  was  regularly  discharged  through 
a  Avell  defined  channel  which  the  force  of  the  water  had  made  for 
itself  and  that  the  water  had  been  accustomed  to  flow  through  that 
channel  from  time  immemorial,  then  such  channel  is  an  ancient  water- 
course, and  the  defendant  would  have  no  right  to  change  the  direction 
of  such  watercourse  even  on  his  own  land,  so  as  to  discharge  the 
water  onto  the  plaintiff's  land  at  a  point  different  from  what  it  had 
been   accustomed  to  flow.- 

(b)  The  court  instructs  the  juiy  that  if  they  believe,  from  the 
evidence,  that  the  plaintiff  has  made  out  his  case  as  set  out  in  the 
second  count  of  the  amended  declaration,  then  they  should  find  for 
the  plaintiff.^ 


1— Schlichter  v.  Philips.  67  Ind. 
201;  Peck  v.  Herrington.  109  111.  611. 

2— Schlichter  v.  Philips,  67  Ind. 
201. 

1517 


3— East  St.  L.  &  Carondelet  Ry. 
Co.  v.  Eisentraut,  134  111.  96  (100) 
24  N.  E.  760. 

"There   was  no  error   in  this   in- 


1518  FORMS  OF  INSTRUCTIONS.  [§  2353. 

§  2353.  Diversion  of  Surface  Water — Measure  of  Damages — Ele- 
ments of  Injury,  (a)  Under  the  issues  in  this  case,  as  made  by  the 
pleadings,  before  the  plaintiff  can  recover,  the  following  material 
facts  must  be  proved  by  a  preponderance  of  the  evidence:  (1)  That 
defendant  by  artificial  drains  or  ditches  so  changed  the  natural  flow 
of  the  waters  from  defendant's  land,  above,  to,  and  upon,  or  over, 
the  lower  land  of  plaintiff,  as  to  .cause  the  water  to  flow  in  larger 
quantities,  or  more  rapidly,  than  it  would  have  done  but  for  such 
changes,  to  the  injury  of  plaintiff's  land.  (2)  The  amount  of  damage 
sustained  by  plaintiff  by  reason  of  such  wrongful  act  or  acts  of 
defendant.  (21/2)  If  the  plaintiff  has  failed  by  a  preponderance  of 
the  evidence  to  show  that  defendant  did  change  the  course  of  the 
water-flow,  so  as  to  cause  the  same  to  injure  plaintiff,  either  by  in- 
creasing the  quantity  of  water  flowing  on  the  latter 's  land,  or  by 
increasing  its  velocity,  your  verdict  must  be  for  the  defendant.  But 
if  the  evidence,  by  a  preponderance,  shows  that  the  defendant 
changed  or  caused  to  be  changed  the  flow,  and  increased  the  quan- 
tity or  velocity  of  water  discharged  on  plaintiff's  land,  defendant 
is  liable  to  plaintiff  in  such  sum  as  the  evidence  shows  his  lands 
were  injured  by  the  greater  quantity  or  velocity  of  the  water;  or 
if  the  evidence  fails  to  satisfy  you  what  sum  he  is  entitled  to,  then 
to  nominal  damages  at  least.* 

(b)  The  court  instructs  the  jury  that  if  you  find  that  the  natural 
watercourse  for  the  water  from  Behan's  land,  in  a  state  of  nature, 
.was  to  the  west,  and  not  to  the  east,  then  I  charge  you  that  the 
plaintiff  had  no  right  by  any  artificial  means  to  change  the  course 
of  such  water  so  as  to  throw  it  upon  the  lands  of  the  defendant, 
unless  he  has  acquired  such  right  by  user  or  prescription,  as  above 
set  forth,  and  that  if  the  plaintiff  did  flow  upon  the  lands  of  the 
defendant  waters  from  the  Behan  land  which  did  not  naturally  flow 
upon  defendant's  land,  if  you  find  such  to  be  the  case,  without 
having  acquired  the  right  so  to  do  by  user  or  prescription,  then 
the  defendant  would  have  the  right  to  obstruct  the  flow  of  such 
waters,  either  by  erecting  dams  or  otherwise,  even  if  in  so  doing 
it  would  obstruct  the  flow  of  waters  upon  his  land  that  naturally 
flowed  in  that  direction,  and  if  in  so  doing  the  plaintiff's  crops  were 

struction.    The    sufficiency    of   said  J.    N.   \V.    &   S.   E.   R.   Co.   v.   Cox, 

count    follows    from     the    rules    of  91  111.   500;  T.  W.  &  W.   Ry.  Co.  v. 

law    which   have   received    repeated  Morrison,  71  id.   616." 

recognition  by  this  court.     Thus  in  4 — Dorr  v.   Simerson,   73  Iowa  89, 

C.   &   A.   R.   R.   Co.   V.   Glenney,  118  34  N.  W.  752  (753). 

111.    487,   9    N.    E.   203,   we  held   that  _   "It    will    be    observed    that    these 

where  a  railroad   company   diverts  instructions    correctly    state    what 

the  flow  of  surface  water  from  its  it    was    necessary    for   the    plaintiff 

natural     chaimel    and    conducts    it  to  prove  under  the  issues  to  entitle 

through   a   ditch  to  'a   point   where  him  to  recover.    This  was  as  full  a 

It  overflows  the  land  of  another,  it  statement     of    the    issues    as    was 

will   be    held    liable   for   such    dam-  required." 
ages  as  result  therefrom.    See  also 


§  2353.]  WATERCOURSES.  1519 

injured,  and  would  by  so  doing  not  subject  himself  to  any  liability 
for  damages  to  said  plaintiff. 

(e)  The  court  instructs  the  juiy  that  the  plaintiff  had  the  right, 
in  the  interest  of  good  husbandly,  and  in  the  good  faith  improvement 
and  tillage  of  his  farm,  'to  fill  up  the  sag-holes  so  that  no  water 
would  accumulate  or  stay  on  him,  even  if  the  water  arising  from 
rainfall  or  melting  snow  should  thereby,  in  natural  process  find  its 
way  in  the  natural  watercoui'se  ujion  the  land  of  the  defendant,  and 
incidentally  increase  the  flow  thereon;  but  he  cannot  by  artificial 
drains  or  ditches,  cast  the  water  from  sag-holes,  basins,  and  ponds 
on  his  own  lands  over  upon  the  propinetor  below,  to  his  injury;  that 
is,  where  the  natural  flow  does  not  go  in  that  direction. 

(d)  If  you  'believe  from  the  evidence  that  the  water  from  the 
plaintiff's  land  did  not  naturally  drain  from  his  land  by  a  flowing 
upon  the  land  of  the  defendant,  but  that  he,  by  drains  and  artificial 
means  did  drain  the  water  fix)m  his  own  lands,  and  caused  it  to  flow 
in  unnatural  quantities  upon  defendant's  land,  and  that  the  de- 
fendant only  stopped  such  unnatural  flow  by  stopping  the  lower 
end  of  such  ditches,  or  other  means  of  drainage,  to  the  extent  of 
setting  back  this  excess  of  water,  then  he  is  justified  in  so  doing,  and 
is  not  liable  for  such  acts,  provided  you  believe  from  the  evidence 
that  such  drain  had  not  existed  before  the  acts  complained  of,  and 
for  this  space  of  time  that  I  have  named — upwards  of  (15)  fifteen 
years. ^ 

(e)  The  jury  are  instructed  that  one  whose  lands  are  overflowed 
and  injured  by  reason  of  sand,  timber  and  trees  uprooted  and  car- 
ried thereon  in  consequence  of  the  manner  in  which  a  railroad  com- 
,pany  builds  a  bridge  across  a  natural  stream  or  river,  whereby  the 
waters  of  the  stream  are  contracted  and  diverted  from  their  natural 
channel  or  course,  and  made  to  flow  in  the  different  direction  from 
that  which  they  were  accustomed  to  do  before  the  building  the 
bridge  and  the  obstruction  of  the  stream  by  the  piers  thereof,  and 
by  allowing  and  permitting  other  obstructions  built  for  temporary 
purposes  to  remain  in  the  river  and  further  obstniet  the  flow  of  the 
waters,  may  maintain  an  action  against  such  railroad  company  for 
the  injuries  which  he  has  sustained,  as  the  company  is  presumed 
to  know  the  habits  of  the  stream  on  extraordinary  occasions  as  well 
as  ordinary  occasions.^ 

5 — O'Connor  v.   Hogan,   140   Mich,  necessarily    have    applied    all    that 

613,   104   N.   W.   29   (32).  was  said  by  the  court  on  the  sub- 

6— Jones  v.    Seaboard   Air  L.  Co.,  ject  of  negligence  to  these  charges. 

67  S.  C.  181,  45  S.  E.  188  (195).  The    instructions    on     this    subject 

"It  is  important  to  bear  in  mind  were  free  from   error  full   and  ex- 

that    there   were   only   two   charges  plicit.      After    stating     clearly    the 

of  negligence  to  which  all  the  evi-  only   issues   of  negligence,    the   cir- 

dence  on  the  subject  was  directed,  cuit  judge  said:     'So  your  business 

These    were    negligent    construction  is   to   determine   from   the   evidence 

of    the    bridge,    and    negligently   al-  whether    or    not    the    defendant    is 

lowing  the  cribs   to    remain   in   the  guilty    of    the    acts    of    negligence 

river.    The    jury,    therefore,    must  complained  of;  and  whether  or  not 


1520  FORMS  OF  INSTRUCTIONS.  [§  2354. 

§  2354.  Right  to  Use  Water  Passing  Over  Land— Must  Restore 
It  to  Original  Bed.  The  owner  of  land  through  which  a  watercourse 
passes,  has  a  right  to  receive  the  water,  when  the  water  in  its  natural 
channel  enters  his  land,  and  to  use  it  while  it  is  passing  over  or 
through  his  land,  but  he  must  restore  the  water  to  its  original  natural 
channel  whenever  it  leaves  his  land,  to  enter  that  of  an  adjoining 
owner.'^ 

§  2355.  The  Owner  of  the  Soil  Is  the  Owner  of  the  Surface  and 
Subterranean  Water.  The  court  instnicts  the  jury,  as  a  matter  of 
law,  that  water  that  percolates  through  the  soil,  beneath  the  surface, 
with  a  known  channel — water  which  temporarily  flows  upon,  or  over 
the  surface  from  falling  rains  or  melting  snows,  without  a  channel, 
but  simply  as  the  natural  amd  artificial  elevations  and  depressions 
of  the  surface  may  guide  it,  is  regarded  as  a  part  of  the  land  and 
belongs  to  the  owner  thereof,  and  he  makes  such  use  of  the  water 
as  he  sees  fit,  while  it  remains  on  his  land.* 

§  2356.  Placing  Obstruction  in  Natural  Watercourses  and  Divert- 
ing Water — Damages.  A  railroad  company  in  constructing  its  road 
over  a  natural  stream,  natural  watercourse,  should  have  openings 
sufficient  to  afford  a  free  outlet  or  passage  for  all  Avater,  as  well  in 
times  of  ordinary  freshets  or  floods  and  freshets  as  at  other  times; 
and  the  railroad  company  is  not  only  liable  in  damages  to  persons 
injured  by  obstructions  placed  in  a  natural  water  course,  and  there 
maintained,  or  there  negligently  allowed  to  remain,  but  also  for 
damages  resulting  from  diverting  the  natural  course  of  the  stream.^ 

§  2357.     Mill  Race— Obstructions,     (a)     If  the  jury  find  from  the 

evidence  in  this  case  that  the  defendant,  ,  its  agents  or  servants, 

during  the  campaigns   (so  called)    of  said  company  from  to 

,  have  deposited  into  B.  Creek,  and  from  thence  into  the  pond, 

race,  flume,  and  water  wheel,  of  the  water  power  and  mill  of  the 
plaintiff,  such  quantities  of  beets,  beet  roots,  lime  mud,  lime,  sand 
and  dirt,  and  other  refuse  from  its  sugar  plant  as  to  materially  and 
unreasonably  lessen,  diminish,  injure  and  damage  such  pond,  race 
and  mill  property,  then  such  use  and  such  acts  of  the  defendant 
with  the  said  waters  of  B.  Creek  would  be  an  unreasonable  use 
thereof,  and  would  render  it  liable  in  this  action  to  the  plaintiff  for 
the  damages  it  has  occasioned  him,  if  any.^** 

these    acts    of    neg-ligence — if    you  7 — Gould  on  Waters,  §  213;  Angell 

find   that  said  acts  were   neg-ligent  on   Watercourses,    §  108. 

acts,   and   that   the   defendant   was  8 — Taylor   v.    Pickas,   54   Ind.    167, 

guilty    of    said    acts    of    negligence,  23   Am.    Rep.    639. 

from  the  evidence — were  the  proxi-  9 — Jones  v.   Seaboard  Air   L.   Ry. 

mate    eauses    of    the.     injuries     of  Co.,    67    S.    S.    C.    181,    45    S.    E.    188 

which  the  plaintiffs  complain.'    The  (195). 

jury    were    also    charged    that    the  10 — Neely    v.    Detroit    Sugar    Co., 

plaintiffs  could   not  have  a   verdict  138    Mich.    469,    101    N.    W.    664    (666- 

unlfss  they  had  satisfied  the  minds  670). 

of   the   jury   by  the   preponderance  "This  charge  was  a  fair,  full  and 

of  the  evidence  on  all  the  material  impartial  statement   of  the  law  as 

Issues   raised   by   the  pleadings."  applicable  to  the  case  as  presented. 


§2358.]  WATERCOURSES.  1521 

(b)  The  plaintiff  cannot  recover  for  any  damages  sustained  by  him 
by  reason  of  beets  or  other  substances  which  escaped  into  B.  Creek 
from  the  defendant's  premises,  and  which  passed  into  the  flume 
between  the  penstock  and  the  water  wheels  of  the  plaintiff,  and  into 
said  water  wheels,  before  he  had  placed  in  the  raceway  a  suitable 
rack,  if  such  rack  would  have  prevented  the  passage  of  such  beets 
and  substances  into  said  flume  and  water  wheels.  Now,  I  was  asked 
orally  by  counsel  for  plaintiff  to  modify  that  or  add  to  it  by  saying 
that  he  could  I'ecover  nothing  for  the  obstruction  to  his  wheel  by 
beets  for  a  reasonable  time,  and  I  am  willing  to  add  those  words; 
but  I  feel  obliged  to  say  to  you  in  that  connection,  that  it  does  seem 
to  me  that  a  man  who  was  skilled  in  the  operation  of  the  mill,  and 
was  familiar  with  the  flowage  of  water  that  constitutes  mill  power, 
would  have  known  veiy  quickly  after  he  discovered  that  beets  were 
in  his  wheel  that  a  rack  was  essential  in  order  to  keep  them  away, 
so  that  if  one  day  if  he  knew  beets  were  going  in  there,  to  my  mind, 
would  give  him  notice — any  brief  time.  Perhaps  one  day  might  be 
a  little  too  short  a  time,  but,  if  he  knew  that  they  were  passing 
in  and  obstructing  it,  it  would,  to  my  mind,  oblige  him  to  erect  a 
suitable  rack  to  stop  their  passage  into  the  wheel.  Now,  that  re- 
quest has  no  bearing  whatever  upon  the  question  of  whether  the- 
beets  were  brought  down  there  which  obstructed  the  flow  of  water 
at  the  rack  itself.  That  refers  only  to  the  passage  of  beets  into  the 
wheel  from  the  fact  that  no  rack  was  there.^^ 

§  2358.  Embankments — Obstructions — Party  Acquiring  Interest 
After  Erection — Right  of  Action.  The  court  further  instructs  the 
jury  that  this  duty  (to  construct  and  maintain  his  road  across 
streams  and  natural  watercourses  which  it  intersects  as  to  inflict  no 
injury  upon  adjacent  lands)  is  a  continuing  one,  and  that  each  over- 
flow caused  by  the  negligence  or  want  of  skill  of  the  company  creates 
a  new  cause  of  action  for  damages  to  the  crops  or  other  property  of 
the  rightful  possessor  of  the  lands  overflowed,  although  the  plaintiff 
acquired  his  interest  after  the  creation  of  the  obstruction;  and  if 
the  jury  believe,  under  the  evidence,  that  a  portion  of  the  waters 
in  the  Little  Canteen  Creek  naturally  flowed  south  across  the  right 
of  way  of  defendant  prior  to  the  filling  up  of  the  trestle,  and  would 
still  continue  to  do  so  except  for  the  obstruction  of  the  embankment 
complained  of,  then  they  must  find  for  the  plaintiff,  giving  such  dam- 
ages as  the  jury  can  say  from  the  evidence  he  has  sustained,  if  they 
further   believe,   from    the    evidence,   he   has   sustained   damage   by 

See    the    following-   cases:    Dumont  106   Mich.   412.   64  N.   W.   329;   Stock 

V.    Kellogg-,    29    Mich.    420,    18    Am.  v.  Township  of  Jefferson.  114  Mich. 

Rep.  102;  Booming  Co.  v.  Speechly.  357.  72   N.   W.  132,   38  L.   R.   A.   355; 

31  Mich.  336,  18  Am.  Rep.  184;  Bu-  People    v.    Hulhert.    131    Mich.    156, 

chanan    v.    Log    Co.,    48    Mich.    367,  91   N.    W.   211,  64  L,.   R.   A.  265,   and 

12    N.    W.    490;    Woodin    v.    Went-  the  many  cases  cited  therein." 
worth.   57  Mich.   278,   23   N.   W.   813;         11— Neely    v.    Detroit    Sugar    Co., 

Wooden    v.    Lumber    &    Mfg.    Co.,  supra. 

96 


1522  FORMS  OF  INSTRUCTIONS.  [§  2359. 

reason  of  such  embankment  and  partial  obstruction  of  tbe  flow  of 
the  water  as  aforesaid.^^ 

§  2359.  Use  of  Banks  of  Streams — Floatage  of  Logs  Down  Naviga- 
ble Stream.  You  are  further  instructed  that  the  right  of  floatage 
of  logs  or  timber  down  a  navigable  or  floating  stream  refers  only  to 
the  right  of  floatage,  and  does  not  caii-y  with  it  the  right  to  use 
the  banks  of  such  navigable  stream  or  streams  above  the  line  of 
mean  high  tide.  The  fact  that  the  waters  in  such  river  or  slough 
at  times  rise  above  the  line  of  mean  high  tide,  and  in  consequence 
the  logs  in  such  river  or  slough  were  raised  to  an  elevation  above 
the  line  of  mean  high  tide,  and  the  waters  and  logs  for  such  time 
held  within  the  banks  above  the  line  of  mean  high  tide,  would  not 
be  such  a  use  of  the  banks  of  the  stream  as  would  entitle  the  ad- 
joining landowner  to  collect  rents  or  damages  from  the  boom  com- 
pany. ^^ 

§  2360.  Owner  of  Land  Bordering  on  a  Navigable  Stream  Has 
Right  to  Build  Docks.  The  jury  are  further  instructed  that  the 
owner  of  lands  or  lots  fronting  upon  a  navigable  stream,  and  of 
which  lands  or  lots  such  stream  forms  one  of  the  boundary  lines, 
has  a  lawful  right  to  erect  docks  and  wharves  conforming  to  such 
boundaiy  line  in  and  along  said  river,  conforming,  however,  to  the 
regulations  of  the  proper  public  authorities  for  the  protection  of 
the  public  rights  in  such  stream;  and  such  owner  may  so  place 
such  docks  and  wiiarves  as  to  have  the  benefit  of  the  navigable  part 
of  such  stream,  but  not  interfering  with  the  public  rights  of  naviga- 
tion.i* 

§  2361.  Flooding  of  Land — Changing  of  Watercourse,  (a)  Not- 
withstanding the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff's  property  was  lost,  injured  or  damaged  by  the  overflow 
of  the  stream  in  question,  as  alleged  in  plaintiff's  declaration,  yet 
if  they  shall  further  believe,  from  the  evidence,  that  any  part  or 
portion  of  such  property  would  have  been  equally  damaged  or  lost 
to  the  plaintiff  by  said  overflow  if  the  defendant  company  had  not, 
prior   thereto,   done   any  of  the   acts   changing   the   watercourse  in 

12 — Ohio  &  Miss.  Ry.  Co.  v.  Thill-  tion   against    the    company   for   in- 

man,  143  III.  127  (132),  32  N.  E.  529,  jury     thereby     occasioned     to     the 

36  Am.   St.  359.  crops   upon  such   land   (p.    136).     C. 

"We  see  no  objection  to  this  in-  R.  I.  &  P.  R.  R.  Co.  v.  Moffltt,  75 
struction.  It  announces  the  doc-  111.  524,  7  Am.  St.  342;  Groff  v.  Ark- 
trine  that  the  duty  of  the  railroad  enbrandt,  124  111.  51,  15  N.  E.  40; 
in  this  regard  is  a  continuing  one,  C.  B.  &  Q.  R.  R.  Co.  v.  Schaeffer, 
and  that  every  continuance  of  a  124  111.  24,  16  N.  E.  239;  Drake  v. 
nuisance  is  in  judgment  of  law  a  C.  R.  I.  &  P.  Ry.  Co.,  63  la.  302, 
fresh  nuisance.  Each  overflow  19  N.  W.  215;  Dorman  v.  Ames,  12 
upon  the  land  of  an  adjoining  own-  Minn.  451." 

er    caused     by    the    negligence    or  13 — Lownsdale    et    ux.    v.    Gray's 

want  of  skill  of  the  railroad  com-  Harhor    Room    Co.,    36    Wash.    198, 

pany    In    its    mode    of    constructing  78  Pac.   904  (907). 

or    maintaining    a    bridge    or    em-  14 — R.   &   I.    P.   Ry.    Co.   v.   Leisy 

bankment    over   a    running   water-  Brewing   Co.,    174    111.    547    (550)^   51 

course,  creates  a  new  cause  of  ac-  N.  E.  572. 


§  2362.]  WATERCOURSES.  1523 

question  charged  against  it  in  the  plaintiff's  declaration,  then  the 
jury  are  insti-ucted  that  the  plaintiff  cannot  recover  herein  against 
the  defendant  company  for  the  loss  of  or  injury  or  damage  to  any 
such  i^art  or  portion  of  said  property. 

(b)  Notwithstanding  the  jury  may  believe,  from  the  evidence, 
that  the  plaintiff's  pi'operty  was  injured  and  damaged  by  the  over- 
flow of  the  stream  in  question,  as  alleged  in  plaintiff's  declaration, 
yet  if  they  shall  further  believe,  from  the  evidence,  that  the  same 
loss  and  damage  would  have  occurred  from  said  overflow  if  the  de- 
fendant eomjiany  had  not,  pinor  thereto,  done  any  of  the  acts  chang- 
ing the  watercourse  in  question  charged  against  it  in  the  plaintiff's 
declaration,   then  the  jui-y  will  find  the  defendant  guilty.^^ 

§  2362.  Extraordinarj^  Freshet — Onus  on  Defendant  to  Prove  Ab- 
sence of  Negligence — Act  of  God.  (a)  The  jury  are  instructed  that 
the  onus,  then,  is  upon  the  defendant  to  prove  the  absence  of  negli- 
gence, unless,  as  I  have  charged  you,  that  the  proof  satisfies  your 
minds,  that  the  act  of  God  in  sending  an  extraordinary  freshet  was 
the  entire  cause  of  injury  to  the  plaintiff's  lands,  which  if  so,  would 
of  course  in  itself  show  the  absence  of  negligence. 

(b)  If  the  injury  here  complained  of  was  caused  by  an  extraor- 
dinary freshet,  which  could  not  be  foreseen  and  provided  against — 
in  other  words  was  the  act  of  God,  and  such  act  was  the  sole  cause 
of  the  injuiy — then  the  proof  of  the  fact  would  be  a  perfect  shield, 
and  the  plaintiffs  could  not  recover.^^ 

(c)  A  railroad  company  is  bound  to  provide  in  the  construction 
of  its  road  against  all  injury  and  damages  arising  from  ordinary 
floods  and  freshets.  It  is  only  relieved  from  its  liability  when  it 
is  shown  that  the  flood  or  freshet  was  an  unusual  or  extraordinaiy 
one — in  other  words,  that  it  was  the  act  of  God — an  act  w^hich  could 
not  have  been  anticipated  and  provided  against.^'' 

(d)  The  juiy  are  instructed  that  although  the  railroad  company 
constructed  its  piers  and  bridge  prudently  and  in  a  scientific  man- 
ner, yet  if  the  testimony  satisfies  your  minds  that  it  subsequently 
appeared  that  the  construction  was  such  that  damages  would  result 
from   the   bridge   and  piers,   and   the   railroad   company  could   have 

15— R.  I.  &  P.  Ry.  Co.  v.  Krapp,  was    in    accordance   with    the    doc- 

173  111.  219  (222),  50  N.  E.   663.  trine     laid     down     in     Thompson's 

16 — Jones    v.    Seaboard    Air    Line  Commentaries  on  the  Law  of  Neg- 

Ry.    Co.,    67   S.   C.    181,   45   S.   E.   188  ligence    and    other    authorities    re- 

(195).  lied  on   by  defendant.     There  is  no 

"The  charg-e  to  the  effect  that,  if  intimation   in    the   charge   that   the 

the    damage    was   produced   by   ex-  railroad    should    be    held    to    be    a 

traordinary  freshets,  but  if  it  would  warrantor    against    injury    arising 

not  have  occurred,  notwithstanding  from     placing     structures     for     its 

the   unprecedented    floods,    but    for  bridge   in    the   river.     On    the   con- 

the    negligence    of    the    defendant,  trary,  the  jury  w'ere  distinctly  told 

the  defendant  would  still  be  liable,  only   reasonable  care  and   diligence 

is   supported   by   reason   and   by  an  should   be  required." 

unbroken  line  of  authority.     In  ad-  17 — Jones  v.  Seaboard  Air  L.  Ry. 

dition   to  the  familiar  decisions   in  Co.,   supra, 
this  state,  the  charge  on  this  point 


1524 


FORMS  OF  INSTRUCTIONS. 


[§  2363. 


averted  this  damage  by  reasonable  effort,  nevertheless  failed  to  do 
so,  it  would  be  liable, ^^ 

§  2363.  Dams — Dedication.  The  jury  on  the  question  of  dedica- 
tion, might  take  into  consideration  the  condition  of  the  lake,  and 
the  public  work  upon  the  dam,  and  all  other  facts  and  circumstances 
as  disclosed  by  the  evidence;  that  all  acts  done  by  the  defendant, 
so  far  as  they  were  for  the  improvement  or  maintenance  of  the 
highway  over  the  dam,  would  not  be  acts  which  could  be  considered 
by  the  jury  in  connection  with  the  question  of  dedication,  but  that 
such  facts  as  were  done  by  the  public  upon  the  dam  itself,  and 
not  upon  the  highway,  for  the  purpose  of  maintaining  the  water  in 
the  lake,  might  be  so  considered.^" 


18 — Jones  v.  Seaboard  Air  Line 
Ry.  Co.,  supra. 

The  court  in  comment  said:  "It 
is  furtlier  submitted  tiie  circuit 
judge  was  in  error  in  cliarging-  that 
the  burden  of  proof  was  on  the  de- 
fendant to  establish  its  defense 
that  the  damage,  if  any,  was  due 
solely  to  unprecedented  floods.  It 
will  be  observed  that  in  the  charge 
the  court  had  already  laid  upon 
the  plaintiffs  the  burden  of  prov- 
ing their  case,  as  alleged  by  a  pre- 
ponderance of  the  evidence.  The 
third  paragraph  cf  the  answer  al- 
leging as  a  cause  of  damage  'fre- 
quent and   unusual   high   freshets' 


was  regarded  by  the  defendant, 
without  objection  by  plaintiffs,  as 
setting  up  the  affirmative  defense 
of  floods  so  extraordinary  that  the 
prudent  and  careful  could  not  be 
expected  to  anticipate  them  or  pro- 
vide against  them.  This  being  an 
affirmative  defense,  the  burden  was 
on  the  defendant  to  establish  it. 
The  plaintiffs  could  not  be  required 
to  overthrow  it  until  it  had  been 
made  out.  Frost  v.  Berkeley,  42 
S.  C.  402,  20  S.  B.  280,  26  L.  R.  A. 
693,  46  Am.  St.  Rep.  736;  Ellis  v. 
R.   R.   Co.,  24  N.   C.   138." 

19— Boye   v.    City   of   Albert   Liea. 
93  Minn.  121,  100  N.  W.  642  (643). 


CHAPTER   LXXXIV. 
WILLS. 

See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


NATUKE     OF     WIXLS     AND     GENERAl, 

REQUISITES     FOR    EXERCISING 

TESTAilENT  AKY     POWER. 


§  2364.  Power  of  testator  to  exclude 
relatives  from  a  share  in 
his  estate. 

§2365.  Witnessing  will— What  is 
sufficient. 

§  2366.  Change  of  domicile. 

CAPACITY    TO     MAKE     WILLS. 

§  2367.  Insanity — Issue   to   be   tried. 

§  2368.  Sanity   is   presumed. 

§  2369.  Burden  of  proof  in  case  of 
insanity — Rule  supported 
by  weight  of  authority — 
Burden  of  proof  on  con- 
testant, where  due  execu- 
tion proved. 

§  2370.  Same  subject— Rule  that 
burden  of  proof  is  on  pro- 
ponent. 

§  2371.  Same  subject — Rule  as  to 
burden  of  proof  in  Illinois. 

§  2372.  Sound  and  disposing  mind 
and  memory. 

§  2373.  Test  of  testamentary  capac- 
ity. 

§  2374.  Testamentary  capacity. 

S  2375.  Letters  as  evidence  of  testa- 
mentary capacity. 

§  2376.  Partial  insanity— Monomania. 

5  2377.  Time  at  which  unsoundness 
of  mind  must  exist  to  de- 
feat will. 

§  2378.  Settled  insanity  presumed  to 
continue. 

§  2379.  Intoxication. 

§  2380.  Drunkenness  insanity,   when. 

§  2381.  Intoxication  may  produce  in- 
sanity. 

§  2382.  Old  age  does  not  necessarily 
Incapacitate. 

§  2383.  Insane  delusions — Groundless 
suspicion  not  necessarily 
nn  insane  delusion. 

5  2384.  Delusion  regarding  wife  or 
child's  property. 

§2385.  Right  of  testator  to  dispose 
of   property   as    he   pleases. 

5  2386.  Previously  expressed  pur- 
poses. 

1525 


§  2387.  Will  as  evidence  of  insanity. 

§  2388.  Jury  must  determine  ques- 
tion of  soundness  of  mind 
and  memory  from  whole 
evidence. 

§  2389.  Expert   testimony. 

§  2390.  When  w^ant  of  sufficient 
mental  capacity  is  proven, 
jury  need  not  consider 
questions  of  fraud  or  un- 
due influence. 

§  2391.  On  appeal  from  Probate 
Court — Series. 

§  2392.  On  contest  in  Chancery — 
Series. 

UNDUE   INFLUENCE. 

§  2393.  Issue  to  be  tried. 

§  2394.  Burden  of  proof. 

§  2395.  What  must  appear. 

§  2396.  Destruction  of  free  agency 
of  testator. 

§  2397.  Undue  influence  may  be  in- 
ferred  from   circumstances. 

§  2398.  Circumstances  showing  un- 
due influence. 

§  2399.  Undue  influence  shown  rath- 
er by  means  employed  than 
by  effect  produced. 

§  2400.  Time  at  which  undue  Influ- 
ence must  be  exercised  to 
defeat  the  will. 

§  2401.  Testator  may  dispose  of 
property  as  he  pleases. 

§  2402.  Same  subject — But  jury  may 
consider  inequality  of  dis- 
tribution. 

§  2403.  Undue  influence  must  affect 
the  will. 

§  2404.  Legitimate   influence. 

§  2405.  Legitimate  advice  or  persua- 
sion. 

§  2406.  Installing  false  beliefs  in  tes- 
tator's mind. 

§  2407.  Parent  and  child. 

§  2408.  Husband   and   wife. 

§  2409.  Influence  in  bringing  about 
the  marriage  not  to  be  con- 
sidered. 

§  2410.  Unlawful  cohabitation. 

§  2411.  Undue  influence  of  attorney. 


1526 


FORMS  OF  INSTRUCTIONS. 


[§  2364. 


§  24x2,  Physical  condition  of  testa- 
tor. 

§  2413.  Declarations  and  previously 
expressed  purposes  of  tes- 
tator. 


§  2414.  Conduct  of  benpflciaries — 
Undue  influence  of  one  af- 
fects all. 

§  2415.  Undue  influence — Series. 

§  2416.  Undue  influence — What  must 
appear — Series. 


NATURE  OF  WILLS  AND  GENERAL  REQUISITES  FOR  EXER- 
CISING TESTAMENTARY  POWER. 

§  2364.  Power  of  Testator  to  Exclude  Relatives  From  a  Share 
in  His  Estate,  (a)  The  jury  are  instructed,  that  no  next  of  kin, 
no  matter  how  near  they  may  be,  can  be  said  to  have  any  legal  or 
natural  rights  to  their  kinsman's  estate,  which  can  be  asserted 
against  the  will  of  said  kinsman.  The  law  of  the  land  has  placed 
every  person's  estate  wholly  under  the  control  of  the  owner,  subject 
to  such  final  disposition  of  it  as  he  may  choose  to  make  by  his 
last  will  and  testament,  limited  only  by  the  statutory  rights  of  his 
widow. 

(b)  Children  have  no  natural  or  legal  rights  to  the  estate  of 
their  father  which  can  be  asserted  against  his  disposition  of  it  by 
will. 

(c)  All  parents  have  a  right  to  judge  as  to  who  are  the  proper 
objects  of  their  bounty;  and,  if  free  from  undue  influence  and 
insane  delusions,  and  of  sufficient  mental  capacity,  may  give  their 
property  to  any  person  whomsoever,  A  child  has  no  legal  or  natural 
right  to  the  estate  of  its  father  which  courts  or  juries  can  recognize 
against  the  will  of  the  father.^ 

§  2365,  Witnessing  Will— What  Is  Sufficient,  (a)  The  court  in- 
structs the  juiy,  that  if  they  believe,  from  the  evidence  (given  by 
the  subscribing  witnesses),  that  the  deceased  signed  the  paper,  pur- 
porting to  be  his  will,  in  the  presence  of  one  of  the  subscribing 
witnesses,  and  acknowledged  it  to  be  his  act  and  deed  to  the  other, 
and  that  they  subscribed  the  same  as  such  witnesses,  at  his  request 
and  in  his  presence,  and  if  the  jury  further  believe,  that  the  deceased 
was  of  sound  mind  and  memory  at  the  time,  then  this  is  a  compliance 
with  the  law,  and  is  prima  facie  evidence  of  the  due  execution  of 
the  will. 

(b)  The  court  instructs  the  jury,  that  it  is  not  necessary  that 
the  subscribing  witnesses  should  know  at  the  time  of  attesting  it 
that  it  is  the  will,  or  that  they  should  know  the  contents  of  it. 

(c)  If  the  witnesses  to  a  will,  while  signing  their  names  thereto, 
as  such  witnesses,  are  in  such  a  place  that  the  testator  can  see  them, 
if  he  chooses  to,  they  are  to  be  regarded  as  in  his  presence,  within 
the  meaning  of  the  statute,  and  it  is  not  necessary  that  they  shall 


1— Brace  v.   Black,   125  111.   33,  17     N.  E.  66. 


§  2365.]  WILLS.  1527 

be  in  the  same  room  with  the  testator,  or  that  he  shall  actually  see 
them  sign. 2 

(d)  The  court  instructs  the  jury  that  the  issue  in  this  case  is, 
is  the  paper  offered  in  evidence  purporting  to  be  the  last  will  and 
testament  of  J.,  in  fact  the  last  will  and  testament  of  J. 

(e)  The  court  instinicts  the  juiy  that  it  devolves  on  the  defendants 
to  show  by  a  preponderance  of  the  evidence  that  the  following  facts 
are  true,  before  the  juiy  are  authorized  to  find  the  paper  writing 
offered  in  evidence  to  be  the  last  will  of  J.: — First,  it  must  be  at- 
tested by  two  or  more  credible  witnesses;  second,  two  of  the  wit- 
nesses must  testify  that  they  saw  testator  sign  the  will  in  their 
presence,  or  that  he  acknowledged  same  to  be  his  act  and  deed,  and 
that  they  signed  the  same  as  witnesses  thereto  >at  his  request.^ 

(f)  To  make  a  legal  attestation  the  test  is,  was  there  an  un- 
inteiTupted  view  between  the  alleged  testator  and  the  subscribing 
witnesses,  and  were  the  witnesses  within  the  range  of  the  alleged 
testator's  vision  his  condition  as  to  health  and  posture  being  con- 
sidered when  the  alleged  attesting  was  done.  "Was  the  alleged  will 
then  present,  and  could  the  alleged  testator  in  his  then  condition 
and  posture  have  seen,  if  he  had  wished  to  and  had  looked  in  the 
proper  direction,  enough  of  the  persons  of  the  alleged  witnesses,  and 
enough  of  the  act  then  being  done  by  them,  to  know  on  his  part 
from  what  he  could  so  have  seen  if  he  had  wished  to,  and  from 
what  he  knew  of  the  then  surrounding  circumstances  that  the  al- 
leged witnesses  were  then  signing  their  names  as  witnesses  to  the 
alleged  testator's  proposed  will"? 

(g)  You  are  further  instn;eted  that,  if  you  believe,  from  the 
evidence,  that  at  the  time  of  the  alleged  attestation  of  D.'s  alleged 
will  now  in  dispute,  that  the  alleged  witnesses  were  in  the  same 
room  with  said  D.  and  only  a  few  feet  from  him,  that  the  view 
between  him  and  them  was  uninterrupted  and  they  were  within  the 
range  of  his  vision;  and  if  you  further  believe,  from  the  evidence, 
and  the  then  surrounding  circumstances  proved  upon  the  trial  in 
connection  with  the  alleged  attestation  of  said  alleged  will,  that 
said  D.,  taking  into  account  his  then  condition  or  state  of  health 
and  his  then  position  as  shown  by  the  evidence,  either  saw,  or  could 
have  seen  if  he  had  wished  to  and  had  looked  in  the  proper  direction, 
the  alleged  witnesses  themselves,  and  enough  of  the  act  then  being 
done  by  them  to  know  on  his  part,  from  what  he  so  saw  or  might 
have  seen  if  he  had  wished,  and  from  what  he  knew  of  the  then 
surrounding  circumstances,  that  the  alleged  witnesses  were  then 
signing  their  names  as  witnesses  to  his,  D.'s,  proposed  will,  then 
upon  that  question  you  should  find  the  alleged  will  in  question  to  have 
been  properly  attested. 

2— Ambre  v.  "Weishaar,  74  111.  109.  the  requirements  as  to  witnessini? 

The  statutes   of   the   state  where  wills, 

the  will  is  executed  or  the  property  "—Campbell  v.   Campbell,  138  111, 

located    should    be   consulted   as  to  612  (618),  28  N.  E.  1080. 


1528  FORMS  OF  INSTRUCTIONS.  [§  2366. 

(h)  Relative  to  the  witnessing  or  attestation  of  the  alleged  will 
in  question,  the  court  instructs  tlie  jury  that  the  statute  of  Illinois 
provides  that  all  wills  shall  be  attested,  in  the  presence  of  the 
testator,  by  two  or  more  credible  witnesses;  and  if  you  believe,  from 
the   evidence,   that  D.    signed   the    alleged   will   in   question   in   the 

presence   of  and  ,   and   after  he   so   signed  the  same 

they  took  said  will  to  a  writing  desk  a  short  distance  from  the  foot 
of  the  bed,  and  within  the  range  of  testator's  vision,  and  that  the 
said  D.  was  sitting  on  said  bed,  and  they  there  subscribed  their 
names  to  the  attestation  clause  of  said  alleged  will  in  full  and  unin- 
terrupted view  of  the  said  testator,  then  this  is  a  sufficient  attestation 
of  the  will  in  question  and  full  compliance  with  the  law  on  that 
subject. 

(i)  While  the  presumption  of  the  law  is,  that  where  the  will  is 
signed  by  the  attesting  witnesses  in  the  same  room  with  the  testator 
that  it  is  signed  in  his  presence,  yet  that  is  only  a.  presumption ;  and 
where  the  evidence  shows  that  the  witnesses  were  in  such  position 
that  the  testator  could  not  see  the  paper  nor  see  the  witnesses  when 
signing  it,  the  presumjotion  of  the  law  is  overcome.'* 

§  2366.  Change  of  Domicile.  If  you  believe  from  the  evidence  that 
A.  went  to  Kentucky,  and  it  was  her  avowed  purpose — her  expressed 
intention — to  make  that  her  home,  or  if  she  went  there  on  a  visit, 
and,  after  s.he  arrived  there,  if  she  'then  decided  to  make  that  her 
domicile,  and  there  so  expressed  her  avowal  of  intention  to  make  it 
her  residence,  then  that  would  constitute  a  good  change  of  residence, 
provided  you  believe  from  the  evidence  that  she  had  sufficient  mental 
capacity  to  form  an  intention  of  changing  her  residence.^ 


CAPACITY  TO  MAKE  WILLS. 

§  2367.  Insanity — Issue  to  be  Tried,  (a)  The  jury  are  instructed, 
that  the  only  question  in  this  case  for  them  to  try  is  this:  Is  the 
writing  offered  the  will  of  A.  B.,  deceased?.  And  your  verdict  will 
be,  either  that  it  is  his  will,  or  that  it  is  not. 

(b)  The  question  to  be  passed  upon  by  the  jury  is  this:  Was 
the  mind  and  memory  of  the  deceased,  at  the  time  of  the  making  of 
the  alleged  will,  sufficiently  sound  to  enable  him  to  know  and  un- 
derstand the  business  in  which  he  was  engaged  at  the  time  he  exe- 
cuted the  will,  judging  his  competence  of  mind  by  the  nature  of  the 
act  to  be  done,  and  from  -a  consideration  of  all  the  circumstances  in 
the  case.** 

4 — The    above    instructions    were  For   otlier   instructions   on   dom?- 

approved   in   Drury  v.   Connell,   177  cile,    see   chiapter   on   Domicile   and 

111.  43  (48),  52  N.  K.  368.  Residence. 

5— Whedori  v.  Knight,  112  Ga.  639,  6— Trisk  v.  Newell,  62  111.  196. 
37  S.  E.  972  (973). 


§  2368.]  WILLS.  1529 

§  2368.  Sanity  is  Presumed,  (a)  The  court  instructs  the  jury, 
that  in  all  cases  involving  questions  of  sanity  and  insanity,  prima 
facie  the  person  is  sane,  and  when  there  is  only  evidence  sufficient 
to  raise  a  doubt  of  a  person's  insanity,  the  presumption  in  favor  of 
sanity  must  prevail.  When  a  will  or  other  instrument  is  made  by 
a  person  of  competent  age,  and  under  no  legal  disability,  it  Avill  be 
taken  and  held  to  be  valid  and  binding  until  incompetencj'  is  estab- 
lished, by  a  preponderance  of  evidence.'^ 

(b)  Reason  being  the  common  gift  of  God  to  man,  every  man  is 
presumed  to  be  sane,  and  insanity  can  only  'be  proved  by  clear  and 
unexceptionable  evidence.* 

(c)  The  court  instructs  the  jury  that  the  law  presumes,  and  it  is 
your  duty  to  presume,  that  every  man  who  has  arrived  at  the  years 
of  discretion  is  of  sound  mind  and  memory  and  capable  of  trans- 
acting ordinary  business  and  capable  of  disposing  of  his  property 
by  will  or  otherwise,  until  the  contrary  is  shown,  and  the  court  in- 
structs you  that  it  is  your  duty  to  hold  that  C.  at  the  time  he  exe- 
cuted the  will  offered  in  evidence  was  of  sound  mind  and  memory, 
and  to  so  hold  until  you  believe  by  the  preponderance  of  the  evidence 
that  he  was  otherwise.'' 

§  2369.  Burden  of  Proof  in  Case  of  Insanity — Rule  Supported  by 
Weight  of  Authority — Burden  of  Proof  on  Contestant,  Where  Due 
Execution  Proved,  The  jury  are  instructed,  that  when  a  will  is 
2:)roved,  including  soundness  of  mind  and  memory,  on  the  part  of  the 
testator,  by  the  testimony  of  two  subscribing  witnesses,  and  un- 
soundness of  mind  is  alleged  as  a  ground  for  setting  the  will  aside, 
the  fact  of  insanity,  or  of  unsoundness  of  mind,  must  be  established 
with  reasonable  certainty;  the  evidence  of  insanity  should  prepon- 
derate, or  the  will  must  be  taken  as  valid.  If  there  is  only  a  bare 
balance  of  evidence,  or  a  mere  doubt  only,  of  the  sanity  of  the  tes- 

7 — Wyatt  v.  Walker,  44  111.  485.  mental    capacity,    as    required    by 

8 — Dominick     v.      Randolph,      124  the  statute,  and  there  was  no  ques- 

Ala.  557,  27  So.  481  (485).  tion    in    the    case    that    such    proof 

"This    charge    asserted    a   correct  was     not     made.     The     burden     of 

legal  proposition.     Cotton  v.  Ulmer,  proof   was  then   upon   the   contest- 

45  Ala.   378."  ants    to    prove    the    allegations    of 

The     court     instructs     you     that  their    bill    by    a    preponderance    of 

every  person   is  presumed  to  be  of  the  evidence  that   the  testator  was 

sound    mind    until    the    contrary    is  mentally  incompetent,  and  that  the 

shown.     Blough    v.    Parry,    144   Ind.  proponents  were  entitled  to  the  le- 

95,  463,  40  N.  E.  71,  43  N.  E.  560.  gal  presumption  of  sanity  as  stated 

9 — Craig  v.   Southard,   162  111.   209,  in  the  instruction.     As  said  in  Car- 

44  N.  E.  393.  penter    v.     Calvert,    S3    111.    62.    'In 

The  Supreme  Court,  in  its  opin-  weighing  the  conflicting  proofs,  the 
ion,  said:  "The  court  had  already  party  supporting  the  will  is  en- 
instructed  the  jury  that  it  was  in-  titled  to  the  benefit  of  this  pre- 
cumbent  upon  the  proponents  of  sumption.'  See  also  "Wilbur  v. 
the  will  to  make  out  a  prima  facie  Wilbur,  129  111.  392.  21  N.  E.  1076. 
case  in  the  first  instance  by  proper  where  the  same  question  was  con- 
proof  of  the  due  execution  of  the  sidered.  The  instruction  was  not 
will    by    the    testator,    and    of    his  erroneous." 


1530  FORMS  OF  INSTRUCTIONS.  [§  2370, 

tator,  the  presumption  in  favor  of  sanity,  if  proved  as  above  stated, 
must  turn  the  scale  in  favor  of  the  sanity  of  the  testator.^" 

§  2370.  Same  Subject — Rule  that  Burden  of  Proof  Is  on  Proponent, 
(a)  Wlien  the  party  insisting  on  the  probate  of  the  will  has  estab- 
lished the  sanity  of  the  testator,  at  the  making  of  the  will,  by  the 
oath  or  affinnation  of  two  of  the  subscribing  witnesses,  and  that  the 
will  was  legally  executed,  .acknowledged  and  witnessed,  as  explained 
in  these  instructions,  then  a  prima  facie  ease  is  made  out ;  and  in 
such  a  case,  the  party  seeking  to  contest  the  will,  on  the  ground  of 
insanity,  fraud,  compulsion,  or  for  any  other  cause,  takes  upon  him- 
self the  burden  of  pi'oving  the  ground  relied  upon;  and  the  cause 
relied  upon  must  be  proved  by  a  preponderance  of  evidence ;  and  if 
the  question  is  left  evenly  balanced,  the  vei'dict  should  be  in  favor 
of  the  validity  of  the  will. 

(b)  The  jury  are  instructed,  that  the  burden  of  proof  is  upon  the 
party  asserting  the  sufficiency  of  'the  will  to  prove  that,  at  the  time 
of  its  execution,  the  testator  was  of  sound  mind  and  memoiy,  within 
the  meaning  of  the  law,  as  explained  in  these  instructions,  and  this 
is  to  be  determined  by  the  jury,  not  alone  from  the  statements  or 
evidence  of  any  one  or  more  persons,  or  class  of  witnesses,  but  from 
a  consideration  of  the  whole  evidence  in  the  case. 

(c)  The  'burden  of  proving  testamentary  capacity  is  on  the  party 
alleging  it,  to  the  end  of  the  trial,  and  such  person  must  produce 
evidence  sufficient  to  outweigh  that  which  is  opposed  to  sanity,  or 
else  sanity  is  not  proved — and  if  the  jury  find  that  the  evidence 
relating  to  the  'testator's  mental  soundness  is  equally  balanced,  then 
they  must  not  allow  the  presumption  of  sanity  to  decide  the  question 
in  favor  of  soundness.  The  burden  of  proof  is  upon  the  party  al- 
leging it  to  establish  mental  capacity  by  other  evidence  than  the 
presumption  of  sanity.^'^ 

(d)  The  court  declares  the  law  to  be  that  the  burden  of  proof  is 
upon  the  defendants  in  this  case  to  prove  the  proper  execution  and 

10 — Perkins   v.   Perkins,   39  N.   H.  or   details   with   the   sanity   of   the 

163;   Brooks  v.    Barrett,   7   Pick.   91;  testator,    the    presumption    of    law 

Turner  v.   Cook,  36  Ind.  129;   Terry  makes  out  for  them  a  prima  facie 

V.     Buffing-ton,    11    Ga.     337;    In    re  case,    and    the    burden    of    showing 

Coffman,    12   la.   491;   Cotton  v.   Ul-  incapacity   on   the  part   of  the  tes- 

mer,  45  Ala.   378.  tator  is  shifted   to   the  contestants. 

In   Hennlng  v.   Stevenson,  26  Ky.  This    rule   has    since   been    followed 

L.    159,    80    S.    W.    1135    (1136),    the  in    Flood    v.    Pragoff,    79    Ky.    611; 

court  said  of  this  rule:  Fee  v.    Taylor,   83   Ky.    259;    Branel 

"In    Milton    v.    Hunter,    13    Bush  v.    Bramel,    101    Ky.    72,    39    S.    W. 

(Ky.)  163,  this  court  in  a  well  con-  520;    Howat  v.   Howat,  19  Ky.   Law 

sidered    opinion    by    Chief    Justice  756,  41  S.  W.  771;  Boone  v.  Ritchie, 

Lindsay,  condemned  an  instruction  21   Ky.    L.    864,   53   S.   W.    518;   King 

which   placed    the    burden   of  proof  v.    King-,    19    Ky.    L.    868,    42    S.    W. 

as    to    tcsttimontary    capacity    upon  347;   Woodford    v.    Buckner,    23    Ky. 

the  propouiidcrs,  and  laid  down  the  L.    628,    63    S.    W.    617;    Dunnway    v. 

rule    that    when   they    have   proved  Smoot,  23  Ky.  L.  2291,  67  S.  W.  62." 

the   due  execution   of  a   paper,   not  11 — Frazer   v.    Jennison,   42    Mich, 

irrational   in  its  provisions,  nor  in-  206,  3  N.  W.  882. 
consistent  in  its  structure,  language 


§2371.] 


WILLS. 


1531 


attestation  of  the  will  in  question,  and  that  the  testatrix  was  of 
sound  mind  at  the  time  of  the  execution  of  said  will;  and.  unless  the 
defendants  or  proponents  of  said  will,  have  shown  such  facts  by  a 
preponderance  of  the  testimony,  the  issues  will  be  found  for  the 
plaintiffs. ^2 

§  2371.  Same  Subject — Rule  as  to  Burden  of  Proof  in  Illinois, 
(a)    You  are  instructed  that  the  burden  of  proof  is  upon  the  proponent 

to  show  that  the  will  offered  by  him  was  signed  by  E.  on ,  and 

unless  he  has  proven  such  execution  by  a  preponderance  of  the  evi- 
dence, you  should  find  for  the  contestants.  But  if  you  believe,  from 
the  evidence,  that  E.  did  execute  the  instrument  offered  as  a  will, 
and  that  the  same  was  attested  by  two  credible  witnesses  in  her 
presence,  and  that  the  two  subscribing  witnesses  have  sworn  that  at 
the  time  she  executed  it  she  was  of  sound  mind,  then  the  burden 
shifts,  and  the  contestants  assume  the  burden  of  proving  the  testa- 
trix was  not  of  sound  mind  as  defined  in  these  instructions.^^ 

(b)  The  jury  are  instructed  that,  where  an  instrument  purporting 
to  be  a  will  is  proved,  including  soundness  of  mind  and  memorj'  on  the 
part  of  the  testator  by  the  testimony  of  the  subscribing  witnesses 
and  other  witnesses,  and  unsoundness  of  mind  is  alleged  as  a  ground 
for  setting  the  will  aside,  the  fact  of  insanity  or  of  unsoundness  of 
mind  must  be  established  by  a  preponderance  of  the  evidence.     The 


12— Lorts  v.  Wash,  175  Mo.  487, 
75  S.  W.  95. 

13— Egbers  v.  Egbers,  177  111.  82 
(87),    52   N.    E.    285. 

"As  said  by  the  learned  author 
of  the  article  entitled  'Burden  of 
Proof  in  5  Am.  &  Eng-.  Ency.  of 
Law,  2d  ed.,  the  term  'burden  of 
proof  has  two  distinct  meanings; 
by  one  is  meant  the  duty  of  estab- 
lishing the  truth  of  a  given  propo- 
sition or  issue  by  such  a  quantum 
of  evidence  as  the  law  demands  in 
the  case  in  which  the  issue  arises; 
by  the  other  is  meant  the  duty  of 
producing  evidence  at  the  begin- 
ning or  at  any  subsequent  stage 
of  the  trial  in  order  to  make  or 
meet  a  prima  facie  case.  General- 
ly speaking,  the  burden  of  proof, 
in  the  sense  of  the  duty  of  pro- 
ducing evidence,  passes  from  party 
to  party  as  a  case  progresses,  while 
the  burden  of  proof,  meaning  the 
obligation  to  establish  the  truth 
of  the  claim  by  a  preponderance 
of  the  evidence,  rests  throughout 
upon  the  party  asserting  the  af- 
firmative of  the  issue,  and  unless 
he  meets  this  obligation  upon  the 
whole  case  he  fails.  This  burden 
of  proof  never  shifts  during  the 
course  of  a  trial,  but  remains  with 
him    to    the    end.    This    court    has 


repeatedly  said  that  the  law  pre- 
sumes every  man  to  be  sane  until 
the  contrary  is  proved,  and  the 
burden  of  proof  rests  upon  the 
party  alleging  insanity.  (Argo  v. 
Coffin,  142  III.  368.  32  N.  E.  679,  34 
Am.  St.  86;  Guild  v.  Hull.  127  111. 
523,  20  N.  E.  665;  Menkins  v. 
Leightner,  18  111.  282.)  But  it  is 
incumbent  upon  the  proponents  of 
the  will  to  make  out  a  prima  facie 
case  in  the  first  instance  by  proof 
of  the  due  execution  of  the  will  by 
the  testator  and  of  his  mental  ca- 
pacity, as  required  by  the  statute. 
The  burden  of  proof  is  then  upon 
contestants  to  prove  the  allega- 
tions of  their  bill  by  a  preponder- 
ance of  all  the  evidence  that  the 
testator  was  mentally  incompetent. 
The  law  throws  the  weight  of  the 
legal  presumption  in  favor  of  san- 
ity into  the  scale  in  favor  of  the 
proponents,  from  which  it  neces- 
sarily results  that,  upon  the  whole 
case,  the  burden  of  proof  rests 
upon  the  contestants  to  prove  the 
insanity  of  the  testator.  (Craig  v. 
Southard.  162  III.  209,  44  N.  E.  393; 
same  v.  same,  148  111.  37.  35  N.  E. 
361;  Taylor  v.  Pegram,  151  111.  106, 
37  N.  E.  837;  Wilbur  v.  Wilbur,  129 
111.  392,  21  N.  E.  1076;  Carpenter 
V.  Calvert,  83  111.  362)." 


1532  FORMS  OF  INSTRUCTIONS.  [§  2372. 

evidence  of  insanity  should  preponderate,  or  the  will  must  be  taken 
as  valid.  If  the  evidence  is  evenly  balanced  as  to  the  sanity  of  the 
testator,  the  presumption  in  favor  of  sanity,  if  proved,  as  above 
stated,  must  turn  the  scale  in  favor  of  the  sanity  of  the  testator.^* 

§  2372.  Sound  and  Disposing  Mind  and  Memory,  (a)  The  law 
is,  that  to  be  of  sound  and  disposing  mind  and  memory,  so  as  to  be 
capable  of  making  a  valid  will,  it  is  sufficient  if  the  testator  has  an 
understanding  of  the  nature  of  the  business  in  which  he  is  engaged — 
a  recollection  of  the  property  he  means  to  dispose  of — of  the  persons 
who  are  the  objects  of  his  bounty,  and  the  manner  in  which  it  is  to  be 
distributed  among  them.  It  is  not  necessary  that  he  should  compre- 
hend the  provisions  of  his  will  in  their  legal  form.  It  is  sufficient 
if  he  understands  the  actual  disposition  which  he  is  making  of  his 
property  at  the  time. 

(b)  If  the  mind  and  memory  of  a  testator  are  sufficiently  sound 
to  enable  him  to  know  and  understand  the  extent  and  amount  of  his 
property,  and  his  just  relations  to  the  natural  objects  of  his  bounty, 
and  the  business  in  which  he  is  engaged,  at  the  time  of  executing 
his  will,  then  he  is  of  sound  mind  and  memory  within  the  meaning 
of  the  law." 

(c)  The  court  instructs  the  juiy  for  contestants  that  in  determin- 
ing the  issue  in  this  ease  as  to  whether  N.  had  sufficient  mind  and 
memory  to  make  the  will  offered  in  evidence,  the  inquiry  is  to  be 
made  in  view  of  the  circumstances  of  this  ease  as  shown  by  the  evi- 
dence, and  a  determination  reached  by  a  consideration  of  the  nature 
and  character  of  the  business  about  to  be  pei"foi'med  in  the  making 
of  said  will  as  shown  by  the  evidence.  He  must  have  had  at  the 
time  an  intelligent  comprehension  of  the  surrounding  circumstances, 
and  of  their  direct  consequences  and  probable  results.  To  constitute 
a  sound  disposing  mind,  the  testator  must  have  been  able  not  only  to 
understand  that  he  is  by  will  disi30sing  of  his  property,  but  he  also 
must  have  capacity  sufficient  to  comprehend  the  extent  of  the  prop- 
erty devised,  and  the  claims  of  others  upon  him ;  and  if  the  juiy 
believe,  from  the  evidence,  that  at  the  time  of  making  the  will  in 
controversy,  N.  did  not  possess  such  sound  and  disposing  mind  as 
described  in  these  instructions,  then  they  should  find  that  the  paper 
purporting  to  be  the  last  will  of  N.  is  not  his  last  will.^*' 

14 — Hollenbeck  v.  Cook,  180  111.  65  scribing    witnesses,    the   weight    of 

(70),   34  N.   E.   154.  the   legal    presumption    in    favor  of 

"The  instruction  in  its  material  sanity  is  in  favor  of  the  proponent, 
parts  is  sustained  by  Wilbur  v.  from  which  it  necessarily  results 
Wilbur,  129  111.  392,  21  N.  E.  1076,  that  upon  the  whole  case  the  bur- 
where  it  was  held  that,  in  the  con-  den  of  proof  rests  upon  the  con- 
test of  a  will  upon  the  question  of  testants.  See  also  Graybeal  v. 
testamentary  capacity,  the  law  Gardiner,  146  111.  337,  34  N.  E.  528, 
throws  the  burden  of  proving  the  where  the  same  doctrine  is  an- 
snnity  of  the  testator,   in  the   first  nounced." 

instance,     on     the    party     asserting  1.5 — Freeman    v.     Easley,    117    III. 

the  validity  of  the  will;   but,   after  317,   7  N.   E.   6.'S6. 

a  prima  facie  case  has  been   made  16 — Campbell  v.  Campbell,  138  111. 

out   by   the   testimony   of   the   sub-  612,   28  N.   E.   1080. 


§  2373.]  WILLS.  1533 

(d)  By  sound  mind  or  testamentary'  capacity,  as  used  in  these  in- 
structions, is  meant  such  capacity  on  the  part  of  the  decedent  as  to 
enable  him  to  know  his  estate,  the  extent  and  value,  his  children  and 
heirs  at  law,  and  their  natui'al  claims  on  his  bounty,  and  to  take  a 
rational  sui'vey  of  his  estate  and  dispose  of  the  same  according  to  a 
fixed  puipose  of  his  own.^'^ 

§  2373.  Test  of  Testamentary  Capacity,  (a)  The  jury  are  in- 
structed, that  a  testator,  not  affected  with  any  morbid  or  insane  de- 
lusion as  to  any  o-f  the  natural  objects  of  his  bounty,  possesses  testa- 
mentary capacity,  within  the  meaning  of  the  law,  if  he  has  a  clear 
understanding  of  the  nature  of  the  business  in  which  he  is  engaged, 
of  the  kind  and  value  of  the  property  devised,  and  of  the  persons 
who  are  the  natural  objects  of  his  bounty,  and  of  the  manner  in 
which  he  desires  his  property  to  be  distributed.^^ 

(b)  The  will  in  question  in  this  ease  is  not  a  valid  will  unless 
the  jui-y  believe,  from  the  evidence,  that  the  testator,  A.  B.,  not  only 
intended  to  make  such  a  disposition  of  his  property,  as  is  here  made, 
of  his  own  free  will,  but  was  also  capable  of  knowing  what  he  was 
doing,  of  understanding  to  whom  he  was  giving  his  property  and  in 
"what  proportions,  and  whom  he  was  depriving  of  it  as  his  heirs  who 
would  otherwise  have  inherited  it ;  and  was  also  capable  of  under- 
standing the  reasons  for  giving  or  withholding  his  bounty  as  to 
them.19 

§  2374.  Testamentary  Capacity,  (a)  The  jury  are  instructed, 
that  what  is  meant  by  testamentary  capacity,  as  used  in  these  in- 
structions, is  a  rational  understanding  on  the  part  of  the  testator  at 
the  time  of  the  making  of  his  will,  of  the  business  he  was  engaged  in, 
of  the  kind  and  value  of  the  property  devised,  of  the  persons  who 
were  the  natural  objects  of  his  bounty,  and  of  the  manner  in  which 
he  wished  to  dispose  of  his  property,  unaffected  by  any  morbid  and 
insane  delusion  regarding  any  of  these  subjects. 

(b)  The  jury  are  instructed,  that  in  order  to  make  a  valid  will  the 
law  requires  that  a  person  shall  be  of  sound  and  disposing  mind  and 
memory,  as  defined  in  these  instructions — and  testamentaiy  incapacity 
does  not  necessarily  require  that  a  person  shall  be  technically  insane. 
Weakness  of  intellect,  whether  it  arise  from  extreme  old  ago,  from 
disease  or  great  bodily  infirmity  or  suffering,  or  from  intemperance, 
or  from  all  of  these  combined,  may  render  the  testator  incapable  of 
making  a  valid  will,  provided,  such  weakness  really  disqualifies  him 
from  knowing  or  appreciating  the  nature,  effects  or  consequences  of 
the  act  he  is  engaged  in.-** 

(c)  The  court  further  instructs  the  juiy  before  thej^  can  find  the 

17 — Oberdorfer    v.    Newberger,    23  Mich.    363;    Frazer   v.    Jennison,    42 

Ky.    L.    2323,    67   S.    W.    267    (268).  Mich.  206,  3  N.  W.  882. 

18 — Frazer   v.    Jennison,    42    Mich.  20 — McGinnis      v.      Kempsey,      27 

206,  3  N.   W.  882.  Mich.  363. 

19 — McGinnis     v.      Kempsey,      27 


1534  FORMS  OF  INSTRUCTIONS.  [§2375. 

respondent,  S.,  is  a  distracted  person,  they  must  believe,  from  the 
evidence,  that  she  is  so  far  incapable  of  acting  rationally  in  the 
ordinary  affairs  of  life  and  of  comprehending  the  nature  and  value 
of  property,  as  to  be  incapable  of  transacting  or  jDrocuring  to  be 
transacted  ordinary  business.  And  if  upon  the  question  as  to  whether 
or  not  respondent  is  capable  or  not  of  transacting  ordinary  business 
or  procuring  it  to  be  transacted,  the  jury  believe  the  evidence  to  be 
equally  balanced  or  that  the  evidence  preponderates  in  favor  of  the 
respondent,  the  jury  must  find  in  favor  of  the  respondent,  and  that 
she  is  not  a  distracted  person.-^ 

(d)  The  jury  are  instructed  that  testamentary  capacity,  or  pos- 
session of  sufficient  mind  to  make  his  will,  is  like  the  capacity  to 
attend  to  his  own  affairs,  if  the  bodily  health  would  permit  his  atten- 
tion to  them;  and  no  man  who  is  incompetent  mentally  to  transact 
his  ordinary  business  can  be  pronounced  capable  of  making  his  will. 
It  is  also  necessaiy  that  the  testator  should  have  a  recollection  of 
his  property,  as  well  as  the  natural  relations  of  family  and  blood, 
and,  if  he  did  not  himself  write  the  will  or  read  it,  that  the  same 
should  have  been  read  and  explained  to  him,  so  as  to  be  fully  under- 
stood and  comprehended  by  him.-- 

§  2375.  Letters  as  Evidence  of  Testamentary  Capacity.  The  court 
further  instructs  you  that  in  arriving  at  your  verdict  it  is  right  and 
proper  for  you  to  consider  the  eleven  letters  offered  in  evidence  by 
proponent  as  the  letters  of  S.,  deceased.  There  has  been  no  attempt 
on  the  part  of  contestant  to  disprove  the  evidence  that  they  were  the 
letters  of  the  deceased,  and  were  written  and  mailed  at  times  detailed 
in  the  testimony;  and  if  you  believe  that  they  were  respectively,  the 
letters  of  said  deceased,  then  they  are  important  for  you  to  consider 
in  arriving  at  your  verdict  on  the  following  points:  First,  as  to  the 
ability  of  the  deceased  to  write;  second,  as  to  the  ability  of  the 
deceased  to  compose;  third,  as  to  the  ability  of  the  deceased  to  see; 
fourth,  as  to  the  mental  capacity  of  said  S.,  deceased;  fifth,  as  to  the 

feelings  entertained  by  the  deceased  toward  his  son, ,  at  the  time 

said  letters  were  written,  respectively.-^ 

§  2376.  Partial  Insanity — Monomania,  (a)  The  court  instructs 
the  jury,  that  "a,  man  who  is  very  sober  and  of  right  understanding 
in  all  other  things,  may,  in  some  one  or  more  particulars,"  be  in- 
sane; that  there  is  a  partial  insanity,  and  a  total  insanity;  and  that 
such  partial  insanity  may  exist  as  it  respects  particular  persons, 
things  or  subjects,  while,  as  to  others,  the  person  may  not  be  desti- 

21— Snyder   v.    Snyder,   142   111.    60  struction    would    probably   be   held 

(66),   31   N.    E.   303.  to    require    too    great    a    degree    of 

22— Kischman    v.    Scott,    166    Mo.  mental  capacity  in  the  testator,  as 

214,  65  S.  W.  1031  (1034),  citing  Mc-  a  person  might  be  unable  to  trans- 

Rrido  V.   Banguss,  65  Tex.  174;  Ad-  act     ordinary     business     and     still 

ams    V.    Eddy,    —    Tex.    Civ.    App.  have  testamentary  capacity. 

— ,  29  R.  W.  180;  Cabell  v.  Menczer,  23— Stull   v.    Stull,    1    Neb.    (unof.) 

—  Tex.   Civ.   App.  — ,   35  S.   W.   206.  380  (389),  96  N.  W.  196. 

In  the  majority  of  states,  this  in- 


§  2376.]  WILLS.  1535 

tute  of  the  use  of  reason.  And,  although  a  testator  has  some  insane 
delusion  upon  some  subjects,  yet,  if  he  has  mind  enough  to  know  and 
appreciate  his  relation  to  the  natural  objects  of  his  bounty,  and  the 
character  and  effect  of  the  dispositions  of  his  property,  then  he  has 
a  mind  sufficiently  sound  to  make  a  valid  will. 

(b)  The  court  instructs  the  jury,  that  the  law  recognizes  the  dif- 
ference between  general  and  partial  insanity,  and  if  the  juiy  believe, 
from  the  evidence,  that  the  will  here  offered  was  made  at  a  time  when 
the  testator  was  laboring  under  the  influence  of  partial  insanity,  and 
is  the  product  of  such  partial  insanity,  then  it  is  as  invalid  as  if 
made  under  the  effects  of  an  insanity  ever  so  general. 

(e)  A  person  may  have,  upon  some  subjects,  and  even  generally, 
mind  and  memory,  and  sense  to  know  and  comprehend  ordinary 
transactions,  and  yet  upon  the  subject  of  those  who  would  naturally 
be  the  objects  of  his  care  and  bounty,  and  of  a  reasonable  and  proper 
disposition  as  to  them  of  his  estate,  he  may  be  of  unsound  mind.-* 

(d)  A  man  may  have  sufficient  mind  to  know  and  comprehend 
that  he  is  making  a  will  and  thereby  disposing  of  his  property',  giv- 
ing it  to  some  of  the  natural  objects  of  his  bounty,  to  the  exclusion 
of  others,  and  have  an  object  in  so  doing  which  he  fully  compre- 
hends, and  yet  be  prompted  to  so  dispose  of  his  property  by  some 
form  of  monomania.  And  if  the  monomania  affected  in  any  way  or 
entered  into  the  making  of  the  will,  such  will  would  be  invalid  and 
should  be  set  aside.^^ 

(e)  Under  our  statutes  all  persons  except  infants  and  persons  of 
unsound  mind  may  dispose  of  'their  property  by  wdll,  and  the  words 
"persons  of  unsound  mind"  shall  be  taken  to  mean  any  idiot,  non- 
compos,  lunatic,  monomaniac,  or  distracted  person.  And  thus  the 
term  "unsound  mind"  includes  every  species  of  unsoundness  of 
mind.  A  monomaniac  is  a  person  who  is  deranged  in  a  single  faculty 
of  his  mind,  or  with  regard  to  a  particular  subject  only.  And  it  is  a 
fact  that  persons  possessed  of  monomania  may,  and  often  do,  on  all 
subjects  foreign  to  the  subject  of  mania,  act  rationally  and  with 
ordinary  pi-udence  and  judgment.  While  therefore,  monomania  is 
embraced  within  our  statutory  definition  of  what  constitutes  un- 
soundness of  mind,  yet  it  does  not  follow  that  every  one  possessed 
of  monomania  is  incompetent  to  make  a  valid  will.  You  may  find 
that  the  testator  in  this  case  was  afflicted  with  monomania,  or  with 
delusions  or  any  form  of  mental  unsoundness;  but  it  must  further 

24—1    Red.   on   Wills,    63;   Jarman  rectly  advises  the  jury  that  if  the 

on  Wills,  5th  Am.  ed.  77,  113;  Pag-e  testator    is    suffering    from    mono- 

on   Wills,   §  108.  mania    which    prompts    his    action 

25 — Swigart    v.    Willard,    166    Ind.  and  affects  his  purpose,  and  object 

25,  76  N.    E.   760.  in   making-  a  will,   such  will  would 

"This   instruction   is  criticised   by  be     invalid.     The     instruction     was 

counsel  as  inconsistent  and  contra-  tacitly    admitted    to    be    correct    in 

dictory    in    its    terms.     We    cannot  the    case    of    Young    v.    Miller,    145 

concur    in   the    view    of   counsel    in  Ind.   652,  44  N.   E.  757." 
this    regard.    The    instruction    cor- 


1536  FORMS  OF  INSTRUCTIONS.  [§  2377. 

appear  by  a  preponderance  of  the  evidence  in  this  case  that  such 
unsoundness  of  mind  entered  into  and  affected  the  provisions  of-  the 
will  in  controversy  before  you  can  find  that  the  testator  was  of 
unsound  mind  with  reference  to  the  will  in  controversy.  If  the 
monomania  or  unsoundness  of  mind  does  not  in  any  degree  influence 
or  affect  the  provisions  of  the  will,  it  may  be  valid;  but,  if  such 
monomania  or  unsoundness  of  mind  does  influence  or  affect  any  of 
the  provisions  of  the  will,  it  is  invalid.^^ 

§  2377.  Time  at  Which  Unsoundness  of  Mind  Must  Exist  to  De- 
feat Will,  (a)  If  the  jury  believe  from  a  preponderance  of  the 
evidence  in  this  case,  that  at  'the  time  of  executing  the  paper  in  evi- 
dence, B.  was  not  of  sound  mind  and  memory,  then  the  jury  should 
find  the  paper  in  question  is  not  his  will.^^ 

(b)  You  are  instnicted  that  the  material  question  for  you  to 
determine  is  whether,  at  the  time  the  will  in  controversy  was  exe- 
cuted, the  testator  was  of  sound  mind  and  understood  the  business 
he  was  doing  at  that  time.  If  the  testator  was  of  sound  and  dispos- 
ing mind  and  memory,  and  acted  voluntarily  at  the  time  he  executed 
the  will  in  controversy,  it  is  immaterial  what  the  condition  of  his 
mind  was  before  and  after  that  time.-® 

§  2378.  Settled  Insanity  Presumed  to  Continue,  (a)  The  jury 
are  instructed,  'that  when  settled  insanity  is  once  shown  to  exist,  it 
is  presumed  to  continue  until  restoration  to  reason  is  shown;  but 
such  presumption  arises  only  in  eases  of  settled  insanity,  and  if  com- 
plete restoration  of  reason  is  shown,  then  no  more  presumption  of 
insanity  arises  in  the  ease  of  the  execution  of  a  will  than  if  the 
testator's  mind  had  never  been  affected.-^ 

(b)  While  it  is  true  that,  in  the  absence  of  any  evidence,  the  law 
always  presumes  that  a  man  is  sane,  yet  if  settled  insanity,  either 
partial  or  total,  be  proved  to  exist  at  any  time  before  the  making  of 
a  will,  it  will  be  presumed  to  have  continued,  unless  the  contrary  be 
shown,  by  a  preponderance  of  the  evidence. ^° 

§  2379.  Intoxication.  The  jury  are  instructed,  that  neither  in- 
toxication, nor  the  actual  stimulus  of  intoxicating  liquor  at  the  time 
of  executing  a  will,  incapacitates  the  testator,  unless  the  excitement 
be  such  as  to  disorder  his  faculties  and  pervert  his  judgment. ^^ 

26 — Swigart  v.  Willard,  supra.  and    it    was    not    error   to   give   it. 

"The    next    instruction    (e)    com-  (Keithley    v.    Stafford,    126   111.    507, 

plained  of  was  given  at  the  request  18    N.    E.     740;     Town    of    Fox    v. 

of   appellants,    except    so   much    of  T.  of  Kendall,  97  111.  72. 

It     as     defines     'monomania.'    The  28— Stull   v.    Stull,    1    Neb.    (unof.) 

modification     made     by     the    court  380  (389),  96  N.   W.  196. 

was  proper  in  itself  and  pertinent.  29 — 1  Redfield  on  Wills,  112. 

The    instruction    as   given   was    fa-  30 — Menkins    v.    Lightner,    18    111. 

vor.'ible   to   appellants,   and   affords  282. 

no  just  cause  for  complaint."  31 — Gore   v.   Gibson,   13   M.   &  W. 

27— Petefish     v.     Becker,     176     111.  623;  Gardner  v.  Gardner,   22  Wend. 

448     (ir>?,),     52     N.     R.     71.       "This  526;  Thompson  v.  Kyner,  65  Pa.  St. 

instruction      is      substantially      in  368;   iu  re  Oonvey's  Will,  52  lowa 

the     language     of     the     statute,  197. 


§  2380.]  WILLS.  1537 

§  2380.  Drunkenness  Insanity,  When.  The  court  instructs  the 
jury,  that  drunkenness  itself  is  a  species  of  insanity,  and  may  invali- 
date a  will  made  during  the  drunken  fit;  and  long-continued  habit  of 
intemperance  may  gradually  impair  the  mind  and  destroy  its  facul- 
ties, so  as  to  produce  insanity  of  another  kind ;  drunkenness  long 
continued,  or  much  indulged  in,  may  produce  on  some  minds,  and 
with  some  temperaments,  permanent  derangement  and  fixed  insanity. 
Whether  in  this  case  intemperate  habits  or  drunkenness  on  the  part 
of  the  deceased  have  been  proved,  and  whether  his  mind  was  thereby 
affected,  and  at  to  what  extent,  if  any,  are  questions  of  fact  to  be  de- 
termined by  the  juiy,  from  a  consideration  of  all  the  evidenee.^- 

§  2381.  Intoxication  May  Produce  Insanity.  The  court  instructs 
the  jury,  that  while  it  is  not  the  law,  that  a  dissipated  man  cannot 
execute  a  will,  nor  that  one  who  is  in  the  habit  of  excessive  in- 
dulgence in  strong  drink  must  be  wholly  free  from  its  influence  when 
performing  such  an  act ;  yet,  if  fixed  mental  disease  has  supervened 
upon  intemperate  habits,  the  man  is  as  incompetent  to  execute  a 
valid  will  as  though  such  mental  disorder  resulted  from  any  other 
cause.  ^3 

§  2382.  Old  Age  Does  not  Necessarily  Incapacitate,  (a)  The  jury- 
are  instructed,  that  a  man  may  freely  make  his  last  will  and  testa- 
ment, no  matter  how  old  he  may  be ;  provided,  he  has  the  requisite 
mental  capacity,  and  is  a  free  agent  in  making  it.  The  control  which 
the  law  gives  a  man  over  the  disposal  of  his  property  may  be  one  of 
the  most  efficient  means  he  hag  in  old  age  of  commanding  the  atten- 
tions usually  required  by  his  infirmities.^* 

(b)  You  are  instructed  that  the  mere  fact  that  a  person  is  of  great 
age  creates  no  presumption  against  the  ability  of  such  person  to  dis- 
pose of  property  by  deed  or  will,  and  in  this  case,  although  you  may 
believe  from  the  evidence  that  the  testatrix,  P.,  at  the  time  of  exe- 
cuting the  paper  in  question,  was  of  about  the  age  of  eighty-six 
years,  and  suffering,  to  some  extent,  from  weakness  or  bodily  in- 
firmity, yet  such  circumstances  would  not  alone  render  her  incapable 
of  disposing  of  her  property  by  will  as  she  saw  fit.^^ 

§  2383.  Insane  Delusions — Groundless  Suspicion  not  Necessarily 
an  Insane  Delusion.  You  are  further  instructed  that  to  sustain  the 
allegation  that  B.  was  laboring  under  an  insane  delusion  in  regard 
to  the  legitimacy  of  his  son,  it  is  not  sufficient  to  show  that  he  had 
a  suspicion  to  that  effect,  or  that  his  suspicion  was  not  well  founded. 
Although  he  may  have  had  groundless  and  unjust  distrust  of  his 
wife's    fidelity,    yet    such    doubt   does    not   establish    a   condition   of 

32—1    Red.    on    Wills,    160-162;    1  See  Ames'  Will   v.  Blades,  51  Iowa 

Jarm.    on    Wills,    5    Am.    Ed.,    97;  596.  2  N.  W.  408. 

Wharton  &  Stille,  §36  et  seq.;  Ray  35— Pooler     v.     Cristman.     45     111. 

Med.   Jur.,    §  390.  App.    334.    338,   aff'd     145   111.   405,   34 

33—1  Redfield  on  Wills,  92  et  seq.  N.   E.   57. 

34—1    Red.    on    Wills,    95    et    seq. 

97 


1538  FORxVIS  OF  INSTRUCTIONS.  [§  2384. 

lunacy  or  a  lack  of  testamentary  capacity,  unless  it  appears,  from  a 
preiDonderance  of  the  evidence,  that  such  distrust  caused  him  to 
execute  a  will  he  would  not  othei-wise  have  made.  The  right  of  the 
testator  to  dispose  of  his  estate  depends  neither  on  the  justice  of  his 
prejudices  nor  'the  soundness  of  his  reasoning.  He  may  do  what  he 
will  with  his  own,  and  if  there  is  no  defect  of  testamentary  capacity, 
the  law  gives  effect  to  his  will,  though  its  provisions  are  unreasonable 
or  unjust.^^ 

§  2384.  Delusion  Regarding  Wife  or  Child's  Property.  The  court 
instructs  the  jury,  that  if  they  believe,  from  the  evidence  in  this 
case,  that  at  the  time  the  will  in  controversy  was  executed,  the  testa- 
tor was  laboring  under  an  insane  delusion  in  regard  to  the  value  of 
his  wife's  property,  and  that  he  was  influenced  or  controlled  in  the 
making  of  said  will  by  said  delusion,  or  that  the  said  testator  was 
laboring  under  an  insane  delusion  in  regard  to  what  amount  of  prop- 
erty he  had  already  given  to  his  daughter,  and  that  in  making  said 
will  he  was  influenced  or  controlled  by  such  delusion,  then  the  said 
testator  w^as  not  of  sound  mind  and  memory,  as  is  contemplated  and 
required  by  the  law,  and  any  paper  purporting  to  be  a  will  executed 
by  him  under  such  circumstances,  is  not  a  valid  and  legal  will,  and 
the  jury  should  find  the  issues  for  the  contestants.^'^ 

§  2385.  Right  of  Testator  to  Dispose  of  Property  as  He  Pleases. 
(a)  The  jury  are  instructed  that,  a  pei-son  competent  to  make  a  will 
may  disinherit  all  of  his  children,  and  bestow  all  of  his  property  upon 
strangers ;  or  he  may  give  his  property  to  one  or  more  of  his  chil- 
dren, and  disinherit  the  others ;  or  he  may  bequeath  more  of  his 
property  to  some  than  to  others  of  his  children, — and  the  motive  for 
so  doing  cannot  be  questioned,  and  the  hardship  of  the  case  can  have 
no  other  weight  further  than  a  circumstance  tending,  with  other  testi- 
mony, to  show  the  insanity  of  the  testator.  It  is  a  question  of  fact 
for  the  jury,  from  the  evidence  in  this  case,  whether  B.  made  an 
unequal  or  unnatural  disposition  of  his  estate.  If  he  did  so,  the 
weight  to  be  given  to  that  fact  must  be  determined  from  a  considera- 
tion of  the  circumstances  in  the  case.  In  determining  the  true  char- 
acter of  the  will  in  question  in  reference  to  the  parties  to  this  suit, 
it  will  be  proper  for  you  to  consider  the  pecuniary  circumstances  of 
the  respective  parties  at  the  time  the  will  was  made.  If,  upon  full 
consideration  of  all  the  circumstances  connected  with  the  making  of 
this  will,  you  find  that  the  testator  has  made  a  rational  and  reason- 
able disposition  of  his  property,  no  presumption  of  unsoundness  of 
mind  can  be  drawn  from  the  fact  that  he  bestowed  a  larger  share  of 
his  property  upon  the  defendants  than  upon  the  plaintiffs.  It  is 
proper  for  the  jury  to  consider,  with  this  part  of  the  case,  any 
declaration  which  may  have  been  made  by  the  testator  prior  to  the 

3«>— Petofish  V.  Becker,  176  111.  Jnrm.  on  Wills,  100  et  seq.;  Am. 
448   (4?,:'.),   ni  N.   E.  71.  Bible    Soc.    v.    Price,   115   111.    623,    5 

37—1    Red.     on     "Wills,     72,    90;    1     N.  E.  126. 


§2386.]  WILLS.  1539 

making  of  the  will  in  regard  to  the  disposition  he  intended  to  make 
of  his  property.  And  if  it  should  be  found  that  when  he  was  in  good 
health,  in  writing  or  otherwise,  he  declared  his  intention  to  dispose 
of  his  property  substantially  in  the  same  manner  it  is  disposed  of  in 
the  will  in  suit,  it  is  an  important  fact  to  be  considered  in  determin- 
ing the  validity  of  this  will,  and  as  tending  to  its  support. ^^ 

(b)  You  are  instructed  that  the  testatrix  had  the  right  to  dispose 
of  her  property  as  she  saw  fit,  and  it  is  in  itself  not  an  indication  of 
mental  incapacity  to  leave  the  bulk  of  her  pi'operty  to  a  charitable 
or  public  institution,  to  the  partial  or  total  exclusion  of  her  relatives. 

(e)  A  testatrix  may  dispose  of  her  property  as  she  pleases,  and 
it  is  not  an  indication  of  mental  incapacity  that  she  distributes  it 
partially  among  her  relatives,  and  leaves  the  balance  to  some  one 
else.^** 

§  2386.  Previously  Expressed  Purposes,  (a)  The  court  instructs 
the  juiy,  that  in  determining  whether  the  paper  in  question  offered 
as  a  will  is  entitled  to  be  so  regarded,  the  paper  itself  may  be  con- 
sidered in  connection  with  all  the  other  evidence  iri  the  case  in  de- 
termining the  question  of  sanity  or  unsoundness  of  mind.  And  if 
the  jury  believe,  from  the  evidence,  that  the  deceased,  before  execut- 
ing the  will,  had  expressed  any  fixed  purposes  and  intentions  regard- 
ing the  disposition  of  his  property,  at  variance  with  the  provisions  of 
the  alleged  will,  then  the  juiy  should  consider  whether  or  not  the 
provisions  of  the  will  are  inconsistent  with  sanity  itself,  and  with 
his  previously  expressed  and  fixed  purposes,  and  if  the  jury  find  that 
they  are  so,  then  these  facts  also  should  be  weighed  by  the  jury  in  de- 
termining the  question  of  sanity  or  unsoundness  of  mind  of  the  de- 
ceased at  the  time  of  its  execution.*" 

(b)  The  court  instructs  the  jury  that  in  determining  whether  the 
paper  in  question,  offered  as  a  will,  is  entitled  to  be  so  regarded,  the 
paper  itself  may  be  considered  in  connection  with  all  the  other  evi- 
dence in  the  case.  And  if  the  jury  believe  from  the  evidence  that 
the  deceased  had  expressed  any  fixed  purposes  and  intentions  re- 
garding the  disposition  of  his  property  at  variance  with  the  pro- 
visions of  the  alleged  will,  then  the  jury  should  consider  whether  or 
not  the  provisions  of  the  will  are  inconsistent  with  his  previously 
expressed  and  fixed  purposes ;  and  if  the  jury  find  that  they  are  so, 
or  that  deceased  was  unfx-iendly  to  the  beneficiaries  under  the  will, 
then  these  facts  should  also  be  weighed  by  the  jury  in  detennining 
whether  the  paper  offered  is  the  will  of  the  deceased.*^ 

38— Lamb   v.    Lamb,   105   Ind.    456,  40— Dye    v.    Young,    55    Iowa    433, 

5  N.  E.  171   (173).  7    N.    W.    678;    Stephensen    v.    Ste- 

"This  instruotion  asserts  the  law  phensen,  62  Iowa  163,  17  N.  W.  595. 

correctly,  and  is  in  strict  conform-  41 — Flowers    v.    Flowers,    74    Ark. 

ity   to   the   rule   declared   in   Bundy  212  (216),  85  S.  W.  242  (244). 

V.  McKnight,  48  Ind.  502.     See  page  "It    was    held    by    this    court    in 

509."  Leslie    v.    McMurtry,    60    Ark.    301, 

39— Spencer  v.  Terry's  Estate,  133  30  S.  W.  33,  that  'declarations  of  a 

Mich.  39,  94  N.  W.  372.  devisor,    made   after   the   will   was 


1540  FORMS  OF  INSTRUCTIONS.  [§2387. 

§  2387.  Will  as  Evidence  of  Insanity,  (a)  The  jury  are  in- 
structed, that  while  the  provisions  of  the  will  may  be  considered 
by  the  jury,  in  connection  with  all  the  other  evidence  in  the  case, 
for  the  purpose  of  determining  the  mental  condition  of  the  testator 
at  the  time  of  its  execution,  still,  in  order  to  defeat  the  will  upon 
the  ground  alone  of  the  character  of  such  dispositions,  they  must  not 
only  be  in  some  degree  extravagant,  and  apparently  unreasonable, 
but  they  must  depart  so  far  from  what  should  be  regarded  as  natural 
and  apparently  reasonable,  as  to  appear  fairly  attributable  to  no  other 
cause  than  that  of  a  disordered  intellect  or  unsound  mind. 

(b)  The  jury  are  instructed,  that  the  unequal  distribution  of  his 
property,  by  will,  is  not  of  itself  any  evidence  of  the  insanity  of  the 
testator. 

(e)  In  determining  the  question  of  the  validity  of  this  will  the 
jury  have  a  right,  and  it  is  their  duty,  to  take  into  consideration 
the  provisions  of  the  will  itself,  in  connection  with  all  the  other  evi- 
dence that  has  been  offered  in  reference  to  the  question  whether  the 
deceased  was,  or  was  not,  of  unsound  mind  and  memory  at  the  time 
of  its  execution.*^ 

§  2388.  Jury  Must  Determine  Question  of  Soundness  of  Mind  and 
Memory  From  Whole  Evidence.  The  jury  are  instructed  that  if  upon 
the  whole  evidence  you  believe  J.  E.  was  not  of  sound  mind  and 
memory,  as  defined  in  these  instructions,  then  you  should  find  that 
the  purported  will  is  not  the  will  of  J.  E.,  deceased.*^ 

§  2389.  Expert  Testimony,  (a)  The  testimony  of  medical  men 
of  large  experience  in  their  profession,  upon  the  question  of  the  ex- 
istence or  non-existence  of  soundness  of  mind,  is,  as  a  general  rule, 
entitled  to  more  consideration  than  the  testimony  of  unprofessional 
witnesses,  who  have  not  devoted  their  attention  to  the  same  class  of 
studies. 

(b)  The  jury  are  instructed,  that  while  it  is  true  that  the  testi- 
mony of  medical  men  of  large  experience,  as  a  general  rule,  in  this 

executed,     to    the    effect     that     he  tition  of  contestants  B.   P.  and  K., 

made   no    will,    are    inadmissible   to  contesting-  the   will,   directly   raised 

prove  that  the  will  was  forged.'  the  question  of  mental  capacity  or 

"That  decision  seems  in  line  with  incapacity  of  the  testator;  and  this 

the  decided  weight  of  authority,  as  instruction    was    g-iven    upon    their 

shown   by  the  collation  of  authori-  request,   and   not   upon   the   request 

ties  in  the  note  to  the  recent  case  of  appellee.    The  giving  of  the  in- 

of  Throckmorton  v.  Holt,  180  U.  S.  struction    was    not    therefore    erro- 

552,   21    Sup.    Ct.   474,  45   L.   Ed.   663.  neous,    as    it    was    competent,    upon 

But     the     authorities    are    equally  that  issue,  for  the  jury  to  consider 

uniform   in   holding  that  such   dec-  whether    or   not   the    provisions    of 

larations    are    admissible    to    show  the  will  were  inconsistent  with  the 

the  mental  capacity  of  the  testator;  previously     expressed     purpose     of 

when    that    issue    is    raised.     Leslie  the    testator    as    to    the    disposition 

V.  McMurtry,  supra;  Throckmorton  of  his  property." 

V.    Holt,    supra;    1    Redfield    Wills  42— In   re   Convey's   Will,   52  Iowa 

557,    559;    Schooler    Wills,    242,    243;  197,  2  N.  W.  1084. 

Gardner    Wills,    p.    137;    Meeker    v.  43— Entwistle    v.    Mcikle,    180    111. 

Boylan,    28    N.    J.    L.    282.     The    pe-  9  (28),  54  N.  E.  217. 


§  2390.]  WILLS.  1541 

class  of  eases,  is  entitled  to  more  consideration  or  weight  in  the  minds 
of  the  jury  than  that  of  unprofessional  men,  still,  whether  the  testi- 
mony of  the  medical  men,  who  have  testified  in  this  case,  is  entitled 
to  more  weight  than  that  of  other  witnesses,  is  a  question  entirely 
for  the  jury,  to  be  determined  by  them  from  a  careful  consideration 
of  all  the  evidence  in  the  case.** 

(c)  The  jury  are  instructed  that  the  law  recognizes  and  receives 
the  testimony  of  duly  qualified  medical  expert  witnesses.  Such  an 
expert  must  of  course  be  qualified  according  to  law.  A  mere  oppor- 
tunity afforded  for  observation  will  not  constitute  a  person  an  expert. 
He  must  have  been  educated  in  the  business  about  which  he  testifies 
or  it  must  be  first  shown  that  he  has  acquired  actual  skill  and  scien- 
tific knowledge  concerning  the  subject  matter  involved.  When  such 
experts,  however,  are  duly  qualified,  the  law  recognizes  and  receives 
their  testimony;  and  in  arriving  at  a  conclusion  concerning  the  issues 
involved  in  this  cause,  you  may  take  into  consideration  their  testi- 
mony and  award  to  it  such  value  as  in  your  judgment  it  desen^es.*^ 

§  2390.  When  Want  of  Sufiiclent  Mental  Capacity  is  Proven, 
Jury  Need  Not  Consider  Questions  of  Fraud  or  Undue  Influence, 
(a)  The  court  charges  the  jury  on  behalf  of  contestant  that  if  the 
juiy  are  reasonably  satisfied  from  the  evidence  that  at  the  time  of 
the  making  of  the  mark  to  the  instrument  propounded  for  probate  in 
this  case,  S.  did  not  have  testamentary  capacity  to  make  a  will,  the 
verdict  must  be  for  contestant,  and  in  this  event  they  should  dis- 
regard and  not  consider  the  charges  on  the  subject  of  undue  influence 
and  fraud,  and  what  it  takes  to  constitute  undue  influence  and  fraud, 
as  in  such  event  they  are  immaterial  inquiries. 

(b)  If  the  juiy  believe  from  the  evidence  to  their  reasonable  satis- 
faction that  the  deceased  at  the  time  of  making  the  mark  to  the 
paper  propounded  for  probate  did  not  have  testamentary  capacity, 
then  they  need  go  no  further  in  their  consideration  to  ascertain 
whether  there  was  fraud  or  undue  influence ;  and  it  would  be  the 
duty  of  the  jui-y  under  the  law,  for  this  reason  alone,  to  find  a  ver- 
dict for  the  contestant  and  against  the  validity  of  the  said  paper 
propounded  for  probate.*® 

§  2391.  On  Appeal  from  Probate  Court — Series,  (a)  Gentlemen 
of  the  juiy:  you  are  called  upon,  in  this  case,  to  deteiTuine  wliether 
F.,  on  the  17th  day  of  May,  ,  possessed  sufficient  mental  ca- 
pacity to  make  a  will. 

(b)  A  paper  has  been  offered  in  evidence,  which  the  proponents 
claim  to  be  his  last  will  and  testament.  If  you  believe  the  testimony 
of  the  subscribing  witnesses,  the  paper  was  executed  in  accordance 
with  the  laws  of  this  state;  but  conceding  this  to  be  ti'ue,  it  is  claimed 

44_Meeker    v.    Meeker,    74    Iowa        45— In  re  Blake's  Estate,  136  Cal. 
352.  37  N.  W.  773;  Blake  v.  Rourke,     306.   68   Pac.   827,   89  Am.    St.   135. 
74  Iowa  519,  38  N.  W.  392.  4S— Schieffelin    v.    Schieffelin,    127 

Ala.  14,  28  So.  687  (692). 


1542  FORMS  OF  INSTRUCTIONS.  [§  2391. 

on  behalf  of  the  contestants  that  the  paper  is  void,  because  Mr.  F., 
at  the  time  of  its  execution,  did  not  possess  sufficient  mental  vigor 
or  capacity  to  comprehend  and  realize  what  he  was  doing.  This  is 
the  question  of  fact,  or  the  principal  question  of  fact,  you  must  de- 
termine from  the  evidence  that  has  been  admitted.  You  must  be 
careful,  gentlemen  of  the  jury,  to  confine  your  attention  to  the  evi- 
dence introduced  and  not  permit  your  minds  to  be  influenced  by  any 
statements  made  in  your  presence  or  hearing  by  the  counsel  in  this 
case,  as  to  matters  that  were  not  permitted  to  go  in  evidence. 

(c)  The  rule,  gentlemen,  stated  by  the  w^eight  of  authority,  un- 
doubtedly is,  that  a  less  degree  of  mind  is  required  to  execute  a  will 
than  a  contx'act.  Although  the  testator  must  understand  substan- 
tially the  nature  of  the  act,  the  extent  of  his  property,  his  relations 
to  others  who  may  or  ought  to  be  the  object  of  his  bounty,  and  the 
scope  and  bearing  of  the  provisions  of  his  will,  and  must  have  suffi- 
ciently active  memory  to  collect  in  his  mind,  without  prompting,  the 
elements  of  the  business  to  be  transacted,  and  to  hold  them  in  his 
mind  a  sufficient  length  of  time  to  perceive,  at  least,  their  obvious 
relations  to  each  other,  and  be  able  to  form  some  rational  judgment 
in  reference  to  them,  yet  he  need  not  have  the  same  perfect  and 
complete  understanding  and  appreciation  of  any  of  these  matters, 
in  all  their  bearings,  as  a  person  in  sound  and  vigorous  health  of  body 
and  mind  would  have,  nor  is  he  required  to  know  the  precise  legal 
effect  of  every  provision  contained  in  his  will. 

(d)  To  use  still  another  form  of  expression,  gentlemen,  the  will 
is  not  valid  unless  the  person  making  it  not  only  intends,  of  his 
own  free  will,  to  make  such  a  disposition,  but  has  capacity  to  know 
what  he  is  doing,  or  understanding  to  whom  he  is  giving  his  property, 
in  what  proportions,  and  who  he  is  depriving  of  it,  as  his  heirs  or 
devisees  under  the  will  he  makes.  When  a  man  has  mind  enough 
to  know  and  appreciate  the  natural  object  of  his  bounty,  and  the 
character  and  effect  of  the  disposition  of  the  will,  then  he  has  mind 
sufficiently  sound  to  enable  him  to  make  a  valid  will. 

(e)  With  these  instructions  in  your  mind,  weigh  the  testimony  of 
all  the  witnesses.  Many  of  these  were  persons  who  spoke  from  actual 
knowledge  of  the  deceased.  Consider  the  testimony  of  those  as  well 
as  that  of  the  experts,  and  give  to  each  and  every  one  of  them  such 
weight  as  you  may  deem  proper.  This  question  of  eaiDaeity  is  en- 
tirely and  exclusively  for  your  disposition  and  decision. 

(f)  It  rests  upon  the  proponents  to  satisfy  you,  by  a  preponder- 
ance of  proofs,  that  the  deceased  was  of  sound  mind  when  the  paper 
was  executed.  As  bearing  upon  the  state  of  Mr.  F. 's  mind,  his 
declarations — that  is,  what  he  said  to  persons — have  been  admitted, 
and  are  to  be  construed  by  you  for  this  purpose  only,  not  as  proving 
any  facts  stated  in  the  declaration. 

(g)  If,  under  these  instructions,  you  reach  the  conclusion  tliat  F. 
possessed  sufficient  mental   capacity  on   the  17th  of  May,  ,  to 


§2392.]  WILLS.  1543 

make  his  will,  your  verdict  should  be  for  the  proponents.  If,  on 
the  other  hand,  you  determine  he  did  not  possess  this  mental  ca- 
pacity, your  verdict  should  be  for  the  contestants.''^ 

§  2392.  On  Contest  In  Chancery — Series,  (a)  The  court  instructs 
the  jury,  that  if  they  believe,  from  the  evidence,  that  F.,  at  the  time 
he  signed  the  paper  in  dispute,  had  mind  and  memory  sufficient  to 
transact  his  ordinary  business,  and  that,  when  he  made  the  will,  he 
knew  and  understood  the  business  he  was  engaged  in,  then  the  jury 
should  find  said  paper  writing  to  be  the  will  of  said  F. 

(b)  The  court  instructs  the  jury,  that  the  owner  of  property  who 
has  capacity  to  attend  to  his  ordinary  business,  has  the  lawful  right 
to  dispose  of  it,  either  by  deed  or  by  will,  as  he  may  choose,  and 
it  requires  no  greater  mental  capacity  to  make  a  valid  will  than  to 
make  a  valid  deed.  And  if  such  an  owner  chooses  to  disinherit  his 
heir,  or  leave  his  property  to  some  charitable  object,  he  has  a  legal 
right  to  do  so,  and  such  disposition  of  his  property  is  valid,  whether 
it  be  reasonable  or  unreasonable,  just  or  unjust;  and  the  reasonable- 
ness or  justice  or  propriety  of  the  will  are  not  questions  for  the 
jury  to  pass  upon.  If,  therefore,  the  juiy  believe,  from  the  evidence, 
that  when  he  executed  the  paper  in  dispute,  F.  had  capacity  enough 
to  attend  to  his  ordinaiy  business,  and  to  know  and  understand  the 
business  he  was  engaged  in,  then  he  had  the  right  and  the  capacity 
to  make  such  a  will,  and  the  jury  should  find  for  the  paper  in  dis- 
pute to  be  the  will  of  said  F.  The  court  instructs  the  jury  that 
even  if  they  find,  from  the  evidence,  that  F.  had,  during  some 
portion  of  his  life,  eccentricities  or  peculiarities,  or  even  an  insane 
delusion  or  partial  insanity  on  the  subject  of  religion,  or  masoniy, 
or  education,  or  any  other  subject,  yet  if  they  find,  from  the  evi- 
dence, that  at  the  time  he  made  the  will  in  question,  he  had  sufficient 
mind  and  memory  to  understand  his  ordinary  business,  and  that  he 
knew  and  understood  the  business  he  was  engaged  in,  and  intended 
to  make  such  a  will,  the  jury  should  find  such  will  to  be  the  will  of 
said  F. 

(c)  The  court  instructs  the  jury,  that  eccentricities  or  peculiari- 
ties, or  radical  or  extreme  notions  or  opinions  upon  religion,  colleges, 
education,  or  masonry  and  seci'et  societies,  will  not  necessarily  render 
a  man  incapable  of  making  a  will,  and  if  the  juiy  find  that,  in 
making  the  will  in  dispute,  F.  had  sufficient  mind  and  memory  to 
understand  the  business  he  was  engaged  in  when  he  made  the  will, 
then  the  jury  should  find  in  favor  of  said  will,  though  said  F. 
may  have  had  eccentricities  and  peculiarities,  or  extreme  notions 
and  opinions  upon  religion,  colleges,  education,  or  masoniy  or  secret 
societies. 

(d)  The  court  instructs  the  jury,  that,  in  order  to  make  a  valid 

47_The   above   series   of   instruc-     approved  in   Fraser  v.  Jennison,  42 
tions,  given  on  the  trial  of  an  ap-     Mich.   206,   3   N.   W.   576. 
peal  from  the  probate  court,  were 


1544  FORMS  OF  INSTRUCTIONS.  [§  2393. 

will,  it  is  only  necessary  that  a  man  shall  have  mental  capacity  suffi- 
cient for  the  transaction  of  the  ordinary  affairs  of  life,  and  pos- 
sessing this,  though  he  may  be  feeble  in  mind  and  body  from  sick- 
ness or  old  age,  he  has  the  legal  right  to  dispose  of  his  property 
just  as  he  pleases,  without  consulting  either  his  family  or  his  ac- 
quaintances. And  if  the  juiy  believe,  from  the  evidence,  that  when 
he  executed  the  paper  in  dispute,  F.  knew  what  he  was  doing, 
and  executed  it  as  his  will,  understanding  its  nature  and  effect, 
and  that,  at  the  time,  he  had  sufficient  mind  and  memory  to  transact 
his  ordinary  business,  such  as  buying  or  selling  or  renting  property, 
or  collecting  or  paying  out  money  or  settling  accounts,  then  the  jury 
should  find  the  paper  in  dispute  to  be  the  last  will  and  testament  of 
said  F. 

(e)  If  the  jury  believe,  from  the  evidence,  that,  although  F.  had 
sufficient  capacity  to  attend  to  the  ordinary  business  affairs  of  life, 
yet  that,  with  regard  to  subjects  connected  with  the  testamentary 
disposition  and  distribution  of  his  property  and  the  natural  objects 
of  his  bounty,  he  was  insane,  and  that  while  laboring  under  such 
insanity  he  made  the  will  in  question,  and  that  in  making  it  he  was 
so  far  influenced  or  controlled  by  such  insanity  as  to  be  unable 
rationally  to  comprehend  the  nature  and  effect  of  the  provisions  of 
the  will,  and  was  thereby  led  to  make  the  will  as  he  did,  then  the 
jury  must  find  the  will  not  to  be  the  will  of  the  said  F. 

(f)  An  insane  delusion  is  a  fixed  and  settled  belief  in  facts  not 
existing,  which  no  rational  person  would  believe ;  such  delusion  may 
sometimes  exist  as  to  one  or  more  subjects;  and  if  the  jury  believe, 
from  the  evidence  in  this  case,  that  F.  was  laboring  under  such 
insane  delusions  upon  subjects  connected  with  the  testamentary  dis- 
position of  his  property,  and  the  natural  objects  of  his  bounty,  when 
he  made  the  will  in  question,  and  was,  thereby,  rendered  incompe- 
tent to  comprehend,  rationally,  the  nature  and  effects  of  the  act,  and 
that  but  for  such  delusion  he  would  not  have  made  the  will  as  he 
did,  then  the  jury  should  find  against  the  validity  of  the  will.*^ 


UNDUE  INFLUENCE. 

§  2393.  Issue  to  be  Tried,  (a)  The  juiy  are  instructed,  as  a 
matter  of  law,  the  only  question,  in  this  case,  for  them  to  try,  is 
this:  Is  the  writing  here  offered  the  will  of  B.,  deceased?  And 
your  verdict  will  be,  that  it  is  his  will  or  that  it  is  not. 

(b)  And  the  real  inquiry  to  be  determined  is:  Did  the  said  B., 
deceased,  make  and  execute  the  alleged  will,  in  all  its  provisions, 
of  his  own  free  will  and  volition,  so  that  it  now  expresses  his  own 

48 — The    above    series    of   instruc-  (a),   (h),  (c)  and  (d)  were  given  for 

tions,  as  to  testamentary  capacity,  the    proponents,    and    (e)    and     (f) 

were   approved    in    Am.    Bible    Soc.  were  given  for  the  contestants. 
Y.    Price,    115   111.    623,    5   N.    E.   126; 


§  2393. 


WILLS. 


1545 


wishes  and  intention,  or  was  he  constrained  or  coerced,  through  the 
undue  influence,  restraint  or  coercion  of  others,  in  making  his  will, 
to  act  against  his  own  desire  and  intention,  as  regards  the  disposi- 
tion of  his  property,  or  any  part  of  it"?*^ 

(c)  The  jury  are  instructed  that  if  the  testator  was  not  of  sound 
mind  when  she  wrote  the  said  papers  or  one  or  more  of  them,  they 
should  find  the  paper  or  papers  written  by  her  when  she  was  not  of 
sound  mind  not  to  be  her  last  will.  If  she  wrote  the  said  papers, 
or  any  part  or  either  of  them  under  the  undue  influence  of  any  other 
person  or  persons  as  defined  in  instruction  No.  — ,  the  jury  should 
find  the  paper  or  papers,  or  the  parts  thereof  written  under  such 
undue  influence,  not  to  be  the  last  will  of  the  said  F.  S.^" 

(d)  If  the  JU17  believe  from  the  evidence  that  the  will  was  not 
obtained  by  the  exercise  of  an  influence  amounting  to  coercion,  by 
a  motive  tantamount  to  force  or  fear,  such  was  not  an  undue  in- 
fluence.^^ 

(e)  But  if  the  jury  believe  from  the  evidence  that  at  the  time 
said  papers  were  executed,  or  either,  the  decedent  was  not  of  sound 
mind,  as  hereinafter  defined,  or  that  said  papers,  or  either  of  them, 
were  procured  by  the  undue  influence,  if  any,  of  any  person  or  per- 


49— Webster  v.  Sullivan,  58  Iowa 
260,  12  N.  E.  319. 

Nearly  the  identical  instruction 
was  approved  in  England  v.  Fair- 
bush,  204  111.  384  (396),  68  N.  E.  526. 
It  is  as  follows:  The  court  in- 
structs the  jury  that,  when  undue 
influence  is  alleged,  the  real  in- 
quiry is  this:  Did  the  testator 
make  and  execute  the  alleged  will, 
in  all  its  provisions,  of  his  own 
free  will  and  volition,  so  that  it 
now  expresses  his  own  wishes 
and  intentions;  or  was  the  test- 
ator constrained  or  induced, 
through  the  undue  influence,  re- 
straint, coercion,  or  improper  con- 
duct of  others,  to  act  contrary  to 
his  own  desires  and  intentions  as 
regards  the  dispositions  of  his 
property  or  any  part  of  it. 

The  following  instruction  was 
given  in  Surber  v.  Mayfleld,  156 
Ind.  375,  60  N.  E.  7:  The  court  in- 
structs the  jury  that  the  law  pre- 
sumes in  favor  of  honesty  and  fair 
dealing,  and  whoever  asserts  the 
contrary  must  prove  it  to  your  sat- 
isfaction by  a  preponderance  of  the 
evidence. 

The  court  said:  "The  instruction 
required  of  appellants  only  'a  pre- 
ponderance of  the  evidence.'  The 
phrase  'to  your  satisfaction'  in- 
formed the  jurors  that  they  were 
the  judges  as  to  where  the  pre- 
ponderance lay." 


50— Henning  v.  Stevensen,  26  Ky. 
L.  159,  80  S.  W.  1135  (1136). 

51— Schieffelin  v.  Schieffelin,  127 
Ala.  14,   28   So.   687  (694). 

The  above  charge,  "requested  by 
plaintiff  and  given,  is  a  copy  of 
charge  2  in  the  case  of  Eastis  v. 
Montgomery,  95  Ala.  486,  11  So. 
204,  36  Am.  St.  227,  which  was  there 
held  to  be  good  on  the  authority 
of  the  same  case  on  another  ap- 
peal (93  Ala.  293,  9  So.  311),  and 
the  authorities  in  the  last  case 
cited.  Of  course  the  terms  coer- 
cion, force  or  fear,  when  applied 
to  undue  influence  and  its  results 
are  relative  terms,  owing  to  the 
character  and  condition  of  the 
party  at  the  time  upon  whom  such 
influence  was  exerted,  and  what 
would  amount  to  such  a  degree  of 
undue  influence  in  one  case  might 
not  have  the  same  result  in  an- 
other. Strength  of  will,  age,  in- 
firmity, loss  of  mental  power — not 
•amounting  to  deprivation  of  tes- 
tamentary capacity  in  the  testator, 
are  elements  entering  into  the  con- 
sideration of  every  will  contested 
on  the  ground  of  undue  influence 
exercised  over  him  in  procuring 
him  to  make  it  different  from  what 
he  otherwise  would  have  done. 
Burney  v.  Torrey,  100  Ala.  157.  14 
So.  685,  46  Am.  St.  33;  Knox  v. 
Knox.  95  Ala.  495,  11  So.  125,  36 
Am.   St.   235." 


1546  FORMS  OF  INSTRUCTIONS.  [§  2394. 

sons,  then  the  jury  should  find  such  paper  or  papers,  so  executed 
by  him,  if  any,  wlien  he  was  not  of  sound  mind,  if  they  so  find  or 
such  iDaper  or  papers  as  was  obtained  by  undue  influence,  if  any 
such  there  was,  of  any  person  or  persons,  not  to  be  his  codicils  or 
codicil  to  his  last  will  and  testament. 

(f )  By  undue  influence  as  used  in  these  instructions  is  meant  such 
an  influence  as  to  obtain  dominion  over  the  mind  of  the  decedent 
to  such  an  extent  as  to  destroy  free  agency  and  to  constrain  him 
to  do  against  his  will  what  he  would  otherwise  refuse  to  do.^- 

§  2394.  Burden  of  Proof.  The  burden  of  proof  is  upon  the  contes- 
tants to  show  that  the  making  of  the  will  was  obtained  by  undue 
influence;  and  in  order  to  defeat  the  probate  of  the  will  on  this 
account,  it  must  appear  to  your  satisfaction,  by  a  preponderance 
of  the  evidence,  that  undue  influence  was  employed;  and,  to  eon- 
Btitute  undue  influence,  it  must  appear  to  be  such  influence  or  re- 
straint as  caused  the  execution  of  the  will  by  the  decedent,  against 
his  own  preference  or  desire  in  the  matter.  Mere  advice  or  per- 
suasion to  induce  a  testator  to  make  a  will  or  influence  the  disposi- 
tion of  his  property  by  will,  is  not  undue  influence. ^^ 

§  2395.  What  Must  Appear,  (a)  The  jury  are  instructed,  that 
no  general  rule  can  be  laid  down  as  to  what  constitutes  undue  in- 
fluence in  this  class  of  cases,  further  than  this,  that  in  order  to 
make  a  good  will  a  man  must  be  a  free  agent,  and  feel  at  liberty 
to  carry  out  his  own  wishes  and  desires;  and  any  restraint,  threats 
or  intimidations  brought  to  bear  upon  the  testator,  which  he  has 
not  the  strength  of  mind  or  will  to  resist,  if  exerted  so  as  to  coerce 
him  against  his  desire  and  purpose  into  the  making  of  his  will,  or 
any  of  its  provisions,  is  undue  influence  within  the  meaning  of  the 
law.  And  whether  such  undue  influence  existed  in  this  case  must 
be  determined  by  the  jury,  from  a  consideration  of  all  the  evidence, 
in  view  of  the  law  as  given  you  by  the  court.^* 

(b)  To  avoid  a  will  on  the  ground  of  undue  influence,  it  must 
be  made  to  appear,  by  the  evidence,  that  it  was  obtained  by  means 
of  influence  amounting  to  moral  coercion,  destroying  free  agency, 
or  by  importunity  which  could  not  be  resisted,  so  that  the  testator 
was  constrained  to  do  that  which  was  against  his  actual  will,  and 
which  influence  he  was  unable  to  withstand,  or  too  weak  to  re- 
sist.■'"'^ 

(c)  The  jury  are  instructed  as  a  matter  of  law  that  it  is  not  suf- 
ficient that  the  circumstances  appearing  in  evidence  attending  the 
execution  of  the  instrument  in  evidence  in  this  case,  pui-porting  to 
be  the  last  will  and  testament  of  the  said  C.  M.,  are  consistent  with 
the  hypothesis  of  its  having  been  obtained  by  undue  influence;  it 

52— Oberdorfer   v.    Newberg-er,    23  54 — Maynard  &  Bradford  v.  Vin- 

Ky.  L.  2323.  67  S.  W.  267  (268).  ton,  59  Mich.  139,  26  N.  W.  401. 

53_Webster  v.    Sullivan,   58   Iowa  55— Brick   v.    Brick,   66   N.    Y.   144; 

260,  12  N.  E.   319.  Barnes  v.  Barnes,  66  Me.  285. 


§  2396.]  WILLS.  1547 

must  be  shown  that  they  are  inconsistent  with  a  contrary  hypothesis. 
Circumstances  which  should  avail  for  the  proof  of  fraud  are  only 
such  as  are  inconsistent  with  a  contrary  view  of  the  transaction.^^ 

§  2396.  Destruction  of  Free  Agency  of  Testator.  Whether  the 
free  agency  of  the  testator  is  destroyed  or  mastered  by  physical  force 
or  mental  coercion,  by  threats  which  occasion  fear  or  by  importunity 
which  the  testator  is  too  weak  to  resist,  or  which  extorts  compliance 
in  the  hope  of  peace,  is  immaterial.  In  considering  the  question, 
therefore,  it  is  essential  to  ascertain,  as  far  as  practicable,  the  power 
of  coercion,  upon  the  one  hand,  and  the  liability  to  its  influence  on 
the  other.  And  wherever,  through  weakness,  ignorance,  dejoendence, 
or  implicit  reliance  of  one  on  the  good  faith  of  another,  the  latter 
obtains  an  ascendancy  which  prevents  the  former  from  exercising  an 
unbiased  judgment,   undue   influence   exists. ^^ 

§  2397.     Undue   Influence   may   be   Inferred   from   Circumstances. 

The  exercise  of  undue  influence  need  not  be  shown  by  direct  proof; 
it  may  be  inferred  from  circumstances;  but  the  circumstances  must 
be  such  as  to  lead  justly  to  the  inference  that  undue  influence  was 
employed,  and  that  the  will  did  not  express  the  real  wishes  of  the 
testator.^^ 

§  2398.  Circumstances  Showing  Undue  Influence.  The  court  in- 
structs the  jury  that,  if  you  believe,  from  the  evidence  in  this  case, 
that  M.  was  a  person  so  illiterate  that  she  could  not  read  and 
understand  the  instrument  offered  in  evidence,  and  that  at  the  time 
she  signed  the  same  O.  was  her  agent,  and  that  she  reposed  special 
trust  and  confidence  in  him,  and  that  said  0.  caused  said  instrument 
to  be  written  by  an  attorney,  who  was  a  stranger  to  Mrs.  M.,  and 
out  of  her  presence,  and  that  said  0.  dictated  to  said  attorney  each 
and  every  provision  of  said  will,  and  that  said  0.  solicited  and  pro- 
cured the  attesting  witnesses  to  the  said  instrument,  and  that  one  of 
said  attesting  witnesses  was  his  co-partner  in  the  banking  business, 
and  that  the  other  of  said  witnesses  was  veiy  little  acquainted  with 
Mrs.  M.,  and  that  0.  received  a  beneficial  interest  in  the  alleged  will, 
then,  in  making  up  your  verdict  in  this  ease,  you  have  a  right  to  take 

56 — Compher  v.  Browning^,  219  111  that   they    are    inconsistent    with    a 

429  (447,  448),  76  N.  E.  678.  contrary  hypothesis.'  And  the  same 

"The  language  of  this  instruction  holds  true  where  positive  fraud  or 

is  the  same  as  that  which  appears  force    is    the    ground    of    objection, 

in  section  239  of  Schouler  on  Wills,  Hence  is   it   that   iisolated   and   dis- 

(2d   ed.)    and  in   the   case  of  Boyse  connected     circumstances     are     not 

v.    Rossborough,    6    H.    L.    Cas.    6.  permitted    to    outweigh    the    usual 

In    Schouler    on    Wills,    sec.    239,    it  presumption    of    the    law,     that    a 

is  said:     'In  order  to  set  aside  the  person  of  intelligence  and  capacity, 

will    of    a    person    of    sound    mind,'  who  executes  a  will,  does  so  with- 

observes     Lord     Cranworth,     'it    is  out  imposition  or  undue  influence." 

not  sufficient  to  show  that  the  cir-  57 — Coghill    v.    Kennedy,   119    Ala. 

cumstances  attending  'ts  execution  641.  24  So.  459. 

are  consistent   with  the  hypothesis  58— In    re    Smith's    Will.    22    Wis. 

of  its  having  been  obtained  bv  un-  543;    Samson    v.    Samson,    67    Iowa 

due    influence;    it    must    be    shown  253,  25  N.  W.  233  (237  note). 


1548  FORMS  OF  INSTRUCTIONS.  [§  2399. 

into  consideration  all  these  facts,  if  proven,  together  with  the  testi- 
mony of  witnesses  and  all  the  other  facts  and  circumstances  in  evi- 
dence in  this  ease,  in  determining  whether  the  instrument  in  question 
was  procured  by  undue  influence,  as  explained  in  these  instructions.^^ 

§  2399.  Undue  Influence  Shown  Rather  by  Means  Employed,  than 
by  Effect  Produced.  It  is  not  the  means  employed,  so  much  as  the 
effect  produced,  which  must  be  considered  in  determining  whether 
undue  influence  has  contributed  to  the  making  of  a  will;  for  though 
the  influence  exerted  over  the  testator  was  such  as  if  applied  under 
ordinarjr  circumstances,  or  exercise  over  persons  of  ordinary  powers 
of  resistance,  would  be  regarded  as  innocent,  yet  if,  in  the  particular 
case,  it  resulted  in  a  disposition  of  property  contrary  to  the  testator's 
desire,  the  influence  was  undue. ^" 

§  2400.  Time  at  which  Undue  Influence  Must  be  Exercised  to  De- 
feat the  Will.  The  court  instructs  you  that  the  fraud  and  undue 
influence  which  would  render  a  will  invalid  must  be  connected  with 
the  execution  of  the  will  and  operating  at  the  time  the  will  is  made ; 
and  the  fact  that  the  beneficiaries  of  a  will  are  those  by  whom  the 
testatrix  was  surrounded  and  with  whom  she  stood  in  confidential 
relations  at  the  time  of  the  execution  of  the  v^dll,  or  the  fact  that  the 
principal  beneficiaries  had  for  years  control  of  her  estate,  or  the  fact 
that  the  provisions  of  the  will  were  for  the  benefit  of  such  persons, 
or  may  seem  unreasonable,  are  not  grounds  for  infemng  undue  influ- 
ence; and,  in  this  ease,  if  you  believe,  from  the  evidence,  that  the 
testatrix,  P.,  had  sufficient  mind  and  memory  at  the  time  of  the  execu- 
tion of  the  will  in  question  to  know  and  understand  the  business  in 
which  she  was  engaged  at  the  time  she  executed  the  will,  and  a  rec- 
ollection of  the  property  she  meant  to  bequeath  and  of  the  persons  to 
whom  she  meant  to  bequeath  it,  and  that  she  executed  the  said  in- 
sti'ument  voluntarily  and  of  her  own  free  will,  then  you  should  find 
by  your  verdict  that  the  paper  produced  is  the  will  of  P.''^ 

§  2401.  Testator  May  Dispose  of  Property  as  He  Pleases,  (a)  The 
court  instructs  the  jury  that  a  man  has  a  right  to  dispose  of  his  own 

59 — Compher  v.  Browning,  219  111.  clearly   ag-ainst    the   weight   of   the 

429  C450,  451),  76  N.  E.  678.  evidence.     French     v.     French,     215 

"This  instruction  submitted  to  111.  470,  74  N.  E.  403;  Johnson  v. 
the  jury  all  the  facts  and  circum-  Farrell,  215  111.  542,  74  N.  E.  760; 
.stances  insisted  upon  by  the  con-  Piper  v.  Andricks,  209  111.  564.  71 
testants  as  .showing  undue  influ-  N.  E.  18;  Spencer  v.  Spruell,  196  111. 
ence  over  the  testatrix  by  McKen-  119,  63  N.  E.  621;  Kiunah  v.  Kin- 
ney. The  jury  found  against  the  nah,  184  111.  284,  56  N.  E.  376; 
contestants  upon  the  question  of  Bevelot  v.  Lestrade,  153  111.  625, 
undue  influence,  as  thus  submitted  38  N.  E.  1056.  Here  the  verdict  of 
to  thorn.  We  have  held  that,  where  the  jury  is  not,  in  our  opinion, 
the  evidence  is  conflicting,  as  it  is  clearly  against  the  weight  of  the 
in  the  case  at  bar,  upon   the  ques-  evidence." 

tion    whether    the    execution    of    a  60— Coghill    v.    Kennedy,   119   Ala. 

AV'ii    was   brought    about   bv  undne  641.  ?4  So.  459;  Leverett  v.  Carlisle, 

influf^nre,    a    court    of    review    will  19    Ala.   80. 

not    disturb  the   verdict   of   a  jury,  61 — Pooler    v.     Cristman,     45     111. 

which     has     been     approved     by    a  App.  334,  aff'd  145  111.  405,  34  N.  E. 

trial    court,    unless    the    verdict    is  57. 


§  2402.]  WILLS.  1549 

property  by  will  as  he  may  choose,  even  to  the  entire  exclusion  of 
ihose  who,  but  for  the  will,  would  be  the  heirs  of  his  estate;  and  the 
jury  are  not  to  consider  whether  or  not  the  disposition  made  by  the 
testator  is  appropriate,  or,  in  the  opinion  of  the  jury,  just,  but  simply 
whether  the  paper  propounded  as  his  will  be  or  be  not  his  last  will 
and  testament.''^ 

(b)  There  is  some  evidence  in  this  case  tending  to  show  that  testa- 
tor was  at  one  time  engaged  in  some  litigation  with  the  mother  of  the 
contestant,  and  bore  some  ill  will  or  dislike  towards  her;  and  you 
are  instructed  that  if  the  testator  was  influenced  thereby  to  make  his 
will  as  he  did,  and  at  the  time  was  of  sound  mind,  if  he  did  so  by  his 
own  free  choice  and  agency,  his  will  would  be  valid,  and  should  be 
recognized  by  you,  even  if  he  did  it  unjustly  and  with  mistaken 
opinion  as  to  the  matters  involved,  yet  that  would  not  invalidate  his 
will,  but  would  rather  tend  to  explain  why  he  made  his  will  as  he 
did.63 

§  2402.  Same  Subject — But  Jury  May  Consider  Inequality  of  Dis- 
tribution. The  court  instructs  the  jury  that  inequality  in  the  distri- 
bution of  property  among  those  who  would  inherit  it  if  no  will  had 
been  made,  is  not  of  itself  evidence  of  undue  influence  or  unsoundness 
of  mind,  yet  it  may  be  considered  as  a  circumstance  by  the  juiy,  to- 
gether with  all  the  other  facts  and  circumstances  shown  by  the  evi- 
dence as  tending  to  establish  undue  influence  or  unsoundness  of 
mind.^* 

§  2403.  Undue  Influence  Must  Affect  the  Will,  etc.  That  to  in- 
validate a  will,  on  the  ground  of  undue  influence,  it  must  appear,  by 
a  preponderance  of  the  evidence,  that  such  undue  influence  was  prac- 
ticed with  respect  to  the  will,  or  as  to  some  matter  or  circumstance 

62— Barkley  v.  Barkley  Cemetery  West,   48   Mo.   502;   Garvin's   Adm'r 

Ass'n,    153    Mo.    300,    54    S.    W.    482  v.    Williams.    50   Mo.    206;    Street   v. 

(483).  Goss,     62     Mo.     226;     Bradshaw     v. 

"We  recognize  the  well-settled  Yates,  67  Mo.  228;  Bridwell  v. 
rule  which  indulges  the  presump-  Swank,  84  Mo.  455;  Guy  v.  Gillilan, 
tion  that  undue  influence  has  been  92  Mo.  250,  5  S.  W.  7;  Maddox  v. 
used  where  a  patient  makes  a  will  Maddox,  114  Mo.  35,  21  S.  W.  499,  35 
in  favor  of  his  physician,  a  client  Am.  St.  734;  Carl  v.  Gobel,  120  Mo. 
in  favor  of  his  lawyer,  a  ward  in  283,  25  S.  W.  214,  are  of  that  char- 
favor  of  his  guardian,  or  any  per-  acter.  As  a  general  rule,  those 
son  in  favor  of  his  priest  or  re-  who  execute  wills  employ  persons 
ligious  adviser,  or  where  other  to  draft  them  in  whose  ability  to 
close,  confidential,  or  fiduciary  re-  do  so  correctly  they  have  confi- 
lationships  exist.  This  rule  has  dence,  and  especially  is  this  so 
for  its  basis  some  pecuniary  bene-  when  lawyers  are  employed;  and 
fit  to  be  derived,  directly  or  in-  it  has  never  been  held,  from  that 
directly,  under  the  will,  by  the  per-  fact  alone,  that  the  presumption 
son,  or  church,  or  charity  repre-  arises  that  the  will  was  obtained 
sented  by  the  person  by  whose  in-  by  undue  influence  of  the  drafts- 
fluence  the  testator  is  influenced  to  man." 

make  the  will,  and  the  cases  chiefly  63 — Townsend    v.     TownsentI,    122 

relied    upon    by    plaintiffs,    namely,  Iowa  246,  97  N.  W.  1108. 

Garvin's  Adm'r  v.  Williams,  44  Mo.  64 — England   v.    Fairbush,   204   IlL 

465;   Harvey  v.   Sullens,  46   Mo.  147,  384,  68  N.  E.  526. 
2    Am.    Rep.    491;    Cadwallader    v. 


1550  FORMS  OF  INSTRUCTIONS.  [§2404. 

so  connected  with  it,  as  to  raise  a  presumption  that  such  undue  influ- 
ence affected  the  provisions  of  the  will;  any  degree  of  influence  exer- 
cised over  the  testator  which  does  not  affect  the  making  of  the  will  or 
any  of  its  provisions  can  not  invalidate  it.^^ 

§  2404,  Legitimate  Influence,  (a)  The  court  instructs  the  jury, 
that  any  deg'ree  of  influence  over  another,  acquired  by  kindness  and 
attention,  can  never  constitute  undue  influence  within  the  meaning  of 
the  law,  and  although  the  jury  may  believe,  from  the  evidence,  that 
the  deceased,  in  making  his  will,  was  influenced  by  the  said  A.  B., 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the  influence 
which  was  so  exerted  was  only  such  as  was  gained  over  the  deceased 
by  kindness  and  friendly  attentions  to  him,  then,  such  influence  can- 
not be  regarded,  in  law,  as  undue  influence,  and  the  verdict  should 
be  in  favor  of  the  validity  of  the  will.*^*^ 

(b)  It  is  not  unlawful  for  one,  by  honest  advice  or  persuasion,  to 
induce  a  testator  to  make  a  will,  or  to  influence  him  in  the  disposition 
of  his  property  by  will.  To  vitiate  a  will  on  account  of  undue  influ- 
ence it  must  appear,  from  the  evidence,  that  there  was  something 
wrongfully  done  amounting  to  a  species  of  fraud,  compulsion  or  other 
improper  cond-uct.^'^ 

(c)  It  is  not  unlawful  for  a  person,  by  honest  intercession  and 
persuasion,  to  induce  a  will  in  favor  of  himself  or  any  other  person; 
neither  is  it  unlawful  to  induce  the  testator  to  make  a  will  in  one's 
favor  by  fair  speeches  and  kind  conduct,  for  this  does  not  amount  to 
that  kind  of  compulsion,  impi'oper  conduct  or  undue  influence,  which, 
in  a  legal  sense,  would  render  invalid  the  will.  To  have  such  an  effect 
it  must  amount  to  a  moral  force  and  coercion,  destroying  free  agency. 
It  must  not  be  the  influence  of  affection  and  attachment,  nor  be  the 
mere  desire  to  gTatify  the  wishes  of  another,  but  the  compulsion  in 
this  ease,  in  order  to  render  the  will  invalid,  must  be  of  such  a  degree 
and  character  as  to  prevent  the  exercise  of  that  discretion  which  is 
essential  to  a  sound,  disposing  mind.^^ 

(d)  The  court  instructs  the  jury  that,  if  they  find,  from  the  evi- 
dence, that  the  deceased,  in  making  the  will  in  question,  was  influ- 
enced  by   affection,  or  attachment,  or  a  disposition  to  gratify  the 

wishes  of  the  defendant,  ,  or  by  her  advice  or  entreaty,  that 

would  not  be  sufficient  cause  for  setting  aside  the  will.  The  court  in- 
structs the  jury  that  testamentary  capacity  exists  whei-e  the  testator 
has  an  understanding  of  the  nature  of  the  business  he  is  engaged  in, 
and  the  kind  and  value  of  the  property  devised,  and  of  the  persons 
v/ho  were  the  natural  objects  of  his  bounty,  and  of  the  manner  in 
wliich  he  desires  it  to  be  distributed.®^ 

65—1   Red.   on   Wills   525;   Samson        67— Yoe    v.     McCord,     74    III.     33; 

V.    Samson,    67   Iowa   253,   25   N.    W.  Pierce  v.  Pierce,  38  Mich.  412. 
2S3   (237  note).  68— Dickie  v.   Carter,   42  111.  376. 

66 — 1   Red.   on   Wills,   522   et   seq.;        69 — Nicewander     v.     Nicewander, 

In  re   Carroll's  Will,   50  Wis.   437.  151  111.  156,  37  N.  E.  698. 


§2405.]  WILLS.  1551 

§  2405.  Legitimate  Advice  or  Persuasion,  (a)  That,  in  this  ease, 
though  the  jury  may  believe,  from  the  evidence,  that  the  said  A.  B. 
did  use  arguments  and  importunities  to  influence  the  deceased  in  the 
making  of  the  will  in  question,  still  this  fact  will,  in  no  manner,  affect 
the  validity  of  the  will,  if  the  jury  further  believe,  from  the  evidence, 
that  such  arguments  and  importunities  did  not  deprive  the  deceased 
of  his  free  agency  or  prevent  him  from  doing  as  he  pleased  with  his 
property,  even  though  the  will  might  not  have  been  made  in  all  of  its 
provisions  as  it  is,  but  for  such  argument  and  persuasion. 

(b)  Though  the  jury  may  believe,  from  the  evidence,  that  the  tes- 
tator, in  making  the  will  in  question,  acted  upon  the  suggestions  and 
advice,  or  under  the  influence,  of  the  said  A.  B.,  this  will  not,  in  any 
manner,  affect  the  validity  of  the  will;  provided  he  acted  fi^eely  and 
from  his  own  conviction  in  the  disposition  of  his  property,  though  the 
provisions  of  the  will  are  not  the  same  as  they  would  have  been  but 
for  such  suggestions,  advice  or  influence.'^*' 

§  2406.  Instilling  False  Beliefs  in  Testator's  Mind.  If  a  testator 
is  given  a  false  impression  concerning  persons  who  are  the  natural 
objects  of  his  bounty,  so  that  when  he  comes  to  make  his  will  he  acts 
upon  unfounded  beliefs,  and  gives  or  withholds  his  bounty  in  a  man- 
ner entirely  different  from  what  his  action  would  have  been  had  it  not 
been  based  on  false  beliefs  and  opinions  deliberately  instilled  into  his 
mind  for  the  purpose  of  influencing  his  will,  and  if  in  such  ease  the 
testator  is  not  in  position,  from  any  cause,  as  sickness,  age,  debility, 
concealment  of  the  true  facts,  or  other  reasons,  to  judge  for  himself, 
and  to  deliberate  or  resist  the  influences,  and  the  will  is  the  result 
of  them,  it  is  invalid  from  undue  influenee.'^^ 

§  2407.  Parent  and  Child.  If  W.  had  by  his  love,  kindness  and 
dutiful  conduct  to  his  mother  and  obedience  to  her  so  won  her  affec- 
tion as  to  influence  and  cause  her  to  give  the  bulk  of  her  property 
to  him,  then  this  would  be  a  legitimate  and  lawful  influence.'^- 

§  2408.  Husband  and  Wife,  (a)  The  fact  that  the  testator  by 
his  will,  devised  nearly  all  of  his  property  to  his  wife,  is  of  itself,  and 
in  the  absence  of  other  testimony,  no  evidence  that  the  testator  lacked 
mental  capacity  to  make  the  will.'^ 

(b)  Evidence  has  been  introduced  tending  to  show  that  the  wife 
of  testator  was  accustomed  to  accompanying  him  when  he  went  away 
from  home,  and  also  that  she  participated  to  some  extent  in  his  busi- 
ness affairs,  and  was  familiar  therewith,  and  was  connected  with  her 
husband  in  relation  thereto.  You  are  hereby  instructed  that  such 
facts,  if  proven,  do  not  raise  any  presumption  of  undue  influence  on 
her  part  upon  her  husband,  or  that  she  influenced  him  to  execute  said 
will;  and  even  though  she  advised  him  to  make  the  will  as  he  did, 

70— Tn    re    Carrol's   Will,    50   Wis.  72— Schieffelin    v.    Schieffelin,    127 

437.   7   N.   W.   434.  Ala.  14,   28   So.   6R7  (694). 

71— Co!s:hill   v.    Kennedy,   119   Ala.  73— Paxton  v.   Knox,  122  Iowa  24, 

641,  24   So.   459.  98  N.  W.  468  (470). 


1552  FORMS  OF  INSTRUCTIONS.  [§  2409. 

there  would  be  no  presumption  therefrom  that  her  influence  was  un- 
due. If  the  wife  in  her  faithfulness  and  good  qualities  has  secured 
the  respect  and  esteem  of  her  husband  even  to  such  an  extent  that  her 
wishes  satisfy  him,  it  would  not  amount  to  undue  influence  should  he 
make  a  will  in  accordance  with  her  request.  The  law  will  not  presume 
that  a  wife  would  exert  undue  influence  upon  her  husband,  nor  would 
it  presume  that  a  will  made  in  harmony  with  her  request  or  prefer- 
ence would  be  the  result  of  undue  influence  on  her  part.  No  pre- 
sumption of  undue  influence  arises  from  the  fact  that  the  wife  ad- 
vised her  husband  in  his  business  affairs  or  even  guided  him  in  said 
matters.''* 

§  2409.  Influence  in  Bringing  About  the  Marriage  not  to  be  Con- 
sidered. The  jury  have  no  right  to  consider  for  the  purpose  of  affect- 
ing the  legal  standing  of  the  widow  after  the  death  of  her  husband, 
any  questions  as  to  what  or  which  of  the  parties  was  most  influential 
in  bringing  about  the  marriage;  you  are  to  consider  the  ques- 
tion whether  the  will  was  procured  by  undue  influence  in  reference  to 
the  relations  existing  when  the  will  was  made;  that  in  the  eye  of  the 
law  her  position  at  the  time  when  the  codicil  was  made,  in  reference 
to  her  relation  to  her  husband,  was  precisely  the  same  as  that  of  the 
most  honored  wife  in  the  land.''^ 

§  2410.  Unlawful  Cohabitation,  (a)  The  jui-y  are  instructed,  that 
illicit  sexual  intercourse  between  a  testator  and  his  devisee,  however 
immoral  or  illegal  it  may  be,  does  not  necessarily  render  the  will  of 
the  testator  invalid;  nor  could  that  circumstance,  in  any  manner, 
affect  the  validity  of  the  will  if  it  was  made  by  him  with  a  sound 
and  disposing  mind  and  memory,  and  as  a  free  agent.'^ 

(b)  The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  the  testator  and  the  said  Mrs.  P.,  before  and  at  the  time 
the  will  was  made,  were  living  in  unlawful  cohabitation,  then  the  law 
Avill  presume  that  undue  influence  was  used  by  her  over  the  deceased 
in  the  making  of  the  will  in  question,  and  the  burden  of  the  proof  is 
upon  her  to  show  that  no  such  undue  influence  was  used.'''' 

§  2411.  Undue  Influence  of  Attorney.  Where  a  person  devises  his 
property  to  one  who  is  acting  at  the  time  as  his  attorney,  either  in 
relation  to  the  subject-matter  of  the  making  of  the  will,  or  generally, 
during  that  time,  such  devise  is  always  carefully  examined,  and  of 
itself  raises  a  presumption  of  undue  influence.  But  this  is  by  no 
means  a  conclusive  presumption,  but  it  is  one  that  may  be  overcome 
by  evidence;  and  it  is  not  necessary  that  that  evidence  shall  in  all 
cases  be  a  positive  denial  of  parties  who  are  personally  acquainted 
with  the  facts,  but  it  must  be  such  evidence  as  will  lead  the  jury  to 

74— Townsend  v.  Townsend,  122  312;  Eckert  v.  Flowry,  43  Pa.  St.  46. 
Iowa  246,  97  N.  W.  1108  (1111).  77— Leig-hton  v.   Orr,  44  Iowa  679; 

75— Maynard   v.   Tyler,   168    Mass.  1    Red.    on   Wills,    531-533;    Wallace 

107,  46  N.  E.  413  (414).  v.  Harris,  32  Mich.  380. 

76— Dean    v.    Negloy,    41    Pa.    St. 


§  2412.]  WILLS.  1553 

believe  that  no  undue  influence  was  exerted.  And  if  such  evidence 
be  found  from  the  facts  and  circumstances  surrounding  the  making 
of  this  will  as  will  lead  you  to  believe  that  the  will  was  made  by  the 
testatrix  of  her  own  free  will,  uninfluenced  by  any  other  person,  then 
the  fact  that  S.  was  her  attorney  would  not  in  any  way  invalidate  the 
will.  That  should  simply  be  taken  into  consideration,  with  all  the 
other  facts,  to  determine  whether  or  not  the  will  was,  as  a  matter  of 
fact,  the  will  of  the  testatrix.''^ 

§  2412.  Physical  Condition  of  Testator,  (a)  The  jury  are  in- 
structed that  in  order  to  make  a  valid  will  the  law  requires  that  a 
person  shall  be  of  sound  and  disposing  mind  and  memory,  as  defined 
in  these  insti-uctions;  and  want  of  testamentary  capacity  does  not 
necessarily  require  that  a  person  shall  be  insane;  weakness  of  intel- 
lect, arising  from  old  age  or  great  bodily  infirmity  or  suffering,  or 
from  all  these  combined,  may  render  the  testatrix  incapable  of  mak- 
ing a  valid  will,  when  such  weakness  disqualifies  her  from  knowing 
or  apprehending  the  nature,  effect  or  consequence  of  the  act  she  is 
engaged  in. 

(b)  The  court  further  instructs  you  that,  if  you  believe,  from  the 
evidence  in  this  case,  that  P.,  at  the  time  of  the  execution  of  the  will, 
was  so  diseased  mentally  that  she  was  incapacitated  by  reason  of 
mental  weakness  caused  by  disease,  old  age  or  other  derangement,  of 
acting  rationally  in  the  ordinary  affairs  of  life,  and  of  intelligently 
comprehending  the  disposition  she  was  making  of  her  property,  and 
the  nature  and  effect  of  the  provisions  of  said  alleged  will,  then  they 
should  find  that  the  writing  produced  is  not  the  will  of  P.,  deceased. '^^ 

(c)  The  court  declares  the  law  to  be  that  if  it  appears,  from  the 
evidence,  that,  at  the  time  the  will  in  question  was  made,  A.  was  on 
her  deathbed,  racked  with  pain  and  disease,  and  feeble  in  mind  and 
body  from  such  sickness,  and  had  not  sufficient  understanding  and 
intelligence  to  transact  her  ordinai*y  business  affairs,  and  to  compre- 

78 — Donovan      v.      Bromley,      113  of  undue  influence  arising  from  a 

Mich.  53,  71  N.  W.  523.  will  being  drafted  by  a  beneficiary, 

"We      think     these      instructions  or  by  one  in  confidential  relations, 

fairly    embodied    the    law    of    the  may  be  overcome  by  showing-  that 

case.     While  a  bequest   in  favor  of  it   was   executed   freely,    and   under 

an  attorney  who  draws  a  will  is  a  circumstances  which   rebut  the  in- 

circumstauce     arresting     suspicion,  ference    of    undue    influence;     and, 

and  raises  a  presumption   more  or  where    the    proof    of    execution    is 

less    strong,    that    undue    influence  such   as  to   convince   the  jury   that 

has  been  exerted,  yet,  as  was  very  the  testator  was  not  at   that   time 

properly    charged    at    the    request  under    the    control    of    the    legatee, 

of   the   contestants   themselves,   the  it  is  certainly  not  error  to  at  least 

presumption    of    the    invalidity    of  permit  the  jury  to  draw  the  infer- 

a  will  made  by  a  client  to  her  at-  ence  in  favor  of  the  validity  of  the 

torney   may   be   rebutted   by  show-  will    from    the    circumstances.     See 

ing    that    she    made    her   will    after  Waddirigton  v.  Buzby,  45  N.  J.  Eq. 

receiving  independent  legal  advice.  173,  16  Atl.  690,  14  Am.  St.  706;  Post 

In    the    present   case    the    will    was  v.  Mason,  91  N.  Y.  539,  43  Am.  Rep. 

not  drawn  by  S..  but  was  prepared  689." 

in  the  handwriting  of  the  deceased         79— Pooler    v.    Cristman,    145    111. 

herself     after     conferring    with     S.  405,  34  N.  E.  57. 
It  is  also  true  that  the  presumption 
98 


1554  FORMS  OF  INSTRUCTIONS.  [§  2413. 

bend  the  transaction  then  in  question,  the  nature  and  extent  of  her 
property,  and  to  whom  she  was  giving  the  same,  then  she  had  not 
sufficient  capacity  to  make  a  will,  and  the  issues  will  be  found  for  the 
plaintife.8o 

(d)  The  jury  are  instructed  that  if  you  believe,  from  the  evidence, 
the  said  Y.,  at  the  time  he  executed  the  will  now  in  question,  was 
feeble  in  body  and  mind  from  sickness,  old  age  or  otherwise,  and  that 
while  in  this  condition  his  son,  X,  unduly  influenced  him  to  make  said 
purported  will,  and  that  at  said  time  the  said  Y  was  not  a  free  agent, 
but  was  under  the  undue  influence  of  said  X,  then  you  should  so  find 
by  your  verdict.^^ 

§  2413.  Declarations  and  Previously  Expressed  Purposes  of  Tes- 
tator, (a)  The  court  instructs  the  jury  that  in  determining  whether 
the  paper  in  question,  offered  as  a  will,  is  entitled  to  be  so  regarded, 
the  paper  itself  may  be  considered  in  connection  with  all  the  other 
evidence  in  the  case.  And  if  the  jury  believe,  fi'om  the  evidence,  that 
the  deceased  had  expressed  any  fixed  purposes  and  intentions  regard- 
ing the  disposition  of  his  property  at  variance  with  the  provisions  of 
the  alleged  will,  then  the  jury  should  consider  whether  or  not  the  pro- 
visions of  the  will  are  inconsistent  with  his  previously  expressed  and 
fixed  purposes ;  and  if  the  jury  find  that  they  are  so,  or  that  deceased 
was  u.nfriendly  to  the  beneficiaries  under  the  will,  then  these  facts 
should  also  be  weighed  by  the  jury  in  determining  whether  the  paper 
offered  is  the  will  of  the  deceased. ^^ 

(b)  In  order  that  contestant  may  recover  in  this  ease  there  are 
two  facts  that  must  be  proven  by  her:  First,  that  undue  influence 
was  in  fact  exerted;  second,  that  it  was  successful  in  subverting  and 
controlling  the  will  of  the  testator.  Both  of  these  facts  must  be 
proven  by  the  contestant  by  the  weight  of  the  evidence  in  order  to 
defeat  the  will.  Upon  the  latter  question  evidence  of  the  statements 
of  the  testator,  made  either  before  the  will  was  made  or  after,  and 
which  tend  to  throw  light  on  the  question  of  mind  are  admissible;  but 
as  to  the  first  question  the  evidence  of  such  statements  is  hearsay  and 
incompetent,  and  should  not  be  considered  by  you.  Such  declarations 
have  been  admitted  only  for  the  purpose  of  proving  the  condition  of 
the  testator.  They  afford  no  substantive  proof  of  undue  influence, 
and  cannot  be  admitted  for  such  purpose;  and  before  contestant  can 
recover,  it  is  necessary  that  she  should  prove  that  undue  influence 
was  in  fact,  and  actually  exerted  upon  the  testator  by  other  evidence 
than  his  own  declarations.^^ 

§  2414,  Conduct  of  Beneficiaries — ^Undue  Influence  of  One  Affects 
All.  (a)  The  existence  of  confidential  relations  between  the  testator 
and  principal  or  large  beneficiaries  under  the  will,  coupled  with  ac- 

80— Tort.s    v.    Wash,    175    Mo.    487,  82— Flowers    v.    Flowers,    74   Ark. 

75   S.   W.   95.  212,   85   S.    W.    242   (244). 

81— England   v.   Fairbush,  204   111.  8.3— Townsend    v.    Townsend,    122. 

m,  68  N.  E.  526.  Iowa  246,  97  N.  W.  1108. 


§  2415.]  WILLS.  1555 

tivity  on  the  part  of  the  latter  in  and  about  the  execution  of  the  will, 
such  as  initiation  of  proceedings  for  the  preparation  of  the  will,  or 
participation  in  such  preparation,  employing  the  draftsman,  selectinof 
the  witnesses,  excluding  jDersons  from  the  testator  at  or  about  the 
time  of  the  execution  of  the  Avill,  concealing  the  making  of  the  will 
after  it  was  made,  and  the  like,  will  raise  a  presumption  of  undue 
influence,  and  cast  on  them  the  burden  of  showing  that  it  was  not  in- 
duced by  coercion  or  fraud  on  their  part,  directly  or  indirectly.^* 

(b)  It  is  not  necessary  that  there  should  be  confidential  relations 
between  all  the  beneficiaries  and  the  testatoi*.  If  there  is  such  rela- 
tion with  one  of  a  family,  and  the  will  is  found  to  have  been  procured 
through  his  undue  influence,  it  operates  against  all  the  family.^^ 

§  2415.  Undue  Influence — Series,  (a)  The  court  instructs  the  jury 
that  the  iDlaintift's  allege  that  the  paper  read  in  evidence,  dated,  and 
purporting  to  be  the  last  will  and  testament  of  B,  deceased,  is  not  his 
will,  and  the  defendants  deny  this  allegation,  and  say  said  paper  is 
his  will,  and  the  issue  for  the  jury  to  determine  in  this  ease  is  whether 
said  paper  is  in  reality  the  will  of  said  deceased,  B;  and  upon  this 
issue  the  court  instructs  the  jury  that,  to  entitle  a  man  to  make  a 
testamentary  disposition  of  his  property,  he  must  possess  a  sound  and 
disposing  memoiy;  and  by  this  is  meant  such  mind  and  memory  as 
would  enable  him  to  comprehend  and  understand  the  nature  of  the 
transaction  in  which  he  was  about  to  engage, — that  is,  the  nature  and 
effect  of  the  will  he  was  undertaking  to  make, — to  recollect  the  amount 
and  character  of  his  property  which  he  meant  to  dispose  of,  and  to 
call  to  mind  and  appreciate  the  relation  existing  between  himself  and 
those  persons  who  were  related  to  him  by  the  ties  of  blood  and  affec- 
tion, as  "well  as  those  who  were  to  be  named  in  his  will  as  the  objects 
of  his  bounty;  and  if  the  jury  believe,  from  the  evidence  in  the  case, 
that  the  said  B  was,  at  the  time  of  signing  and  attestation  of  said 
paper  in  question,  possessed  of  a  sound  mind  and  disposing  memoiy, 
as  above  defined,  and  that  he  signed  his  paper  as  and  for  his  last  will, 
then  you  will  find  that  said  paper  is  his  will,  unless  you  believe,  from 
the  evidence  in  the  case,  that  an  undue  influence  was  exerted  by  W 
to  induce  said  B  to  make  the  will  as  it  was  written.  By  the  term 
''undue  influence,"  as  used  in  these  instructions,  is  meant  the  exercise 

84 — Coghill   V.   Kennedy,   119   Ala.  will,    raises    a   presumption   of   un- 

641,   24  So.  459  (464,   471).  due   influence,    and    casts   upon    the 

"The   part  of  the  general   charge  latter  the   burden   of  showing  that 

of  the  court  to  which  an  exception  it  was  not   induced  by  coercion  or 

was  reserved  states  a  correct  prop-  fraud  on  their  part,  directly  or  in- 

osition  of  law.     It   asserts  the  doc-  directly." 

trine  laid  down  in  Bancroft  v.  Otis,  85 — Coghill  v.  Kennedy,  supra. 

91    Ala.    279,    8    So.    286,    and    many  "This  charge,  taken  in  its  entirety, 

subsequent    cases,    that    the    exist-  asserts   no   more   than   the  proposi- 

ence    of    confidential    relations    be-  tion  that  if  the  fraud  or  undue  in- 

tween    the    testator    and    principal  fluence  on  the  part  of  one  or  more 

or    large    beneficiaries    thereunder,  of  the  legatees   or  devisees   affects 

coupled    with    activity   on    the   part  the  whole  will,   then   no  portion   of 

of     the     latter    in     and    about    the  it    can     stand.      Florey's    Ex'rs    v. 

preparation     or     execution     of     the  Florey,  24  Ala.  248." 


1556  FORMS  OP  INSTRUCTIONS.  [§  2415. 

of  such  power  and  influence  by  one  person  over  the  mind  of  another 
as  would  result  in  the  subjugation  of  the  mind  of  the  one  to  that  of 
the  other,  and  complete  sulostitution  of  the  will  of  one  for  the  will  of 
the  other  in  the  matter  in  which  they  were  engaged;  and  if  the  jury 
believe,  from  the  evidence  in  the  case,  that  by  reason  of  old  age  and 
physical  ailments,  or  by  reason  of  his  friendship  for  and  confidence 
in  W,  said  W  was  enabled  to  and  did  exert  such  an  influence  over  the 
mind  of  said  B  in  the  disposition  of  his  property  by  will,  and  if  the 
signing  of  said  paper  by  said  B  Avas  induced  and  brought  about  by 
the  exercise  of  that  influence,  then  the  jury  will  find  that  said  paper 
is  not  the  will  of  said  deceased,  B,  notwithstanding  they  may  further 
believe,  from  the  evidence  in  the  ease,  that  said  B  was,  at  the  time 
said  paper  was  signed  and  attested,  of  sound  mind  and  disposing 
memory,  as  this  term  has  been  defined  in  these  instructions. 

(b)  To  establish  undue  influence  on  the  part  of  W  over  the  mind  of 
said  B,  and  that  the  signing  of  the  paper  in  controversy  was  induced 
and  brought  about  by  such  influence,  it  is  not  necessary  that  it  should 
be  shown  that  the  said  W  pui-posely  practiced  a  fraud  on  said  B,  or 
pui7>osely  and  intentionally  sought  to  acquire  and  exert  an  undue  or 
improper  influence  over  the  mind  of  said  B,  but  if  the  jury  believe, 
from  the  evidence  in  the  case,  that  an  undue  influence  (as  the  same  is 
defined  in  these  instructions)  on  the  part  of  said  W  over  the  mind 
of  said  B  did  exist,  and  that  the  signing  of  the  paper  in  controversy 
by  B  was  induced  and  brought  about  by  the  exercise  of  such  undue 
influence,  then  the  jury  must  find  a  verdict  in  favor  of  the  plaintiffs, 
and  against  the  validity  of  said  will,  regardless  of  how  such  influ- 
ence was  acquired,  or  the  manner  in  Avhieh  it  was  exercised. 

(c)  The  court  instructs  the  jury  that  it  is  not  necessary  tbat  undue 
influence  should  be  proven  by  direct  and  positive  testimony,  but  the 
same  may  be  proven  by  facts  and  circumstances;  and  in  passing  on 
the  question  as  to  whether  the  signing  of  the  paper  in  question  by  B 
was  induced  by  undue  influence  on  the  part  of  W  it  is  proper  for  the 
jury  to  take  into  consideration  the  terms  of  the  will  itself;  the  rela- 
tions of  said  B  to  plaintiffs,  as  shown  by  the  evidence;  his  relations 
to  and  connection  with  the  B.  C.  Ass'n,  as  shown  by  the  evidence;  his 
age  and  mental  and  physical  condition,  as  shown  by  the  evidence ;  his 
relations  with  and  feelings  toward  said  W,  as  shown  by  the  evidence ; 
his  sentiments  towards  and  opinions  of  McC,  as  shown  by  the 
evidence;  the  relations  to  and  connection  of  said  "W  with  said  C. 
Ass'n  and  the  preparation  of  said  will,  as  shown  by  the  evi- 
dence, as  well  as  other  facts  and  circumstances  disclosed  by  the  evi- 
dence in  the  case;  and  if,  from  all  such  facts  and  circumstances,  the 
jury  believe  that  the  signing  of  the  paper  in  controversy  by  said  B 
Avns  induced  and  brought  about  by  an  undue  influence  which  has  been 
defined  in  these  instructions,  then  it  is  the  duty  of  the  jury  to  find 
that  the  said  paper  is  not  the  will  of  said  B. 

(d)  If  the  jury  find,  from  the  evidence  in  the  cause,  that  the  said 


§  2416.]  WILLS.  1557 

B  signed  his  name  to  the  instrument  of  writing  alleged  to  be  his  last 
will  and  testament,  and  that  at  the  time  he  so  declared  he  requested 
said  D  and  H  to  sign  the  same  as  witnesses  thereto,  and  that  said  D 
and  H  signed  said  will  in  the  presence  of  said  B  as  witnesses  thereto 
at  such  request,  and  that  said  B  was  at  the  time  of  the  execution  of 
said  will,  as  aforesaid,  of  sound  mind,  then  the  juiy  should  find  that 
said  instrument  is  the  last  will  of  said  B,  unless  the  juiy  should  find 
that  said  will  was  the  result  of  undue  influence,  as  explained  in  other 
insti^uetions  herein. 

(e)  The  court  instructs  the  jury  that  it  was  not  neeessaiy  that  said 
instrument  should  have  been  read  to  said  subscribing  witnesses,  or 
that  they  should  know  what  was  in  said  instrument,  at  the  time  they 
signed  said  will  as  witnesses. 

(f)  The  court  instructs  the  jury  that  in  the  attestation  of  the  in- 
strument in  controversy  it  was  not  necessary  for  the  witnesses  H  and 
D  to  sign  it  as  witnesses  in  the  presence  of  each  other,  but  it  was  only 
necessary  that  they  should  sign  it  in  the  presence  of  the  deceased, 
and  at  the  request  of  the  deceased.  Nor  was  it  necessary  that  the 
deceased,  B,  should  have  in  fact  signed  his  name  to  said  instinment 
in  the  actual  presence  of  either  of  the  witnesses,  provided  the  juiy 
find,  from  the  evidence,  that  at  the  time  of  the  witnesses  D  and  H 
so  signing  and  attesting  said  instrument  it  had  been  signed  at  any  time 
prior  thereto  by  said  B,  and  the  deceased  acknowledged  or  made 
known  to  them  at  the  time  or  just  before  they  signed  as  witnesses,  if 
they  did  so,  by  word,  act,  or  sign,  that  he  had  signed  or  executed  the 
siame  as  his  last  will  and  testament. 

(g)  The  court  instructs  the  juiy  that,  to  constitute  a  sound  and 
disposing  mind,  it  is  sufficient  that  B,  at  the  time  of  making  his  will, 
bad  sufficient  understanding  and  intelligence  to  transact  his  ordinary 
business,  and  understand  what  disposition  he  was  making  of  his  prop- 
erty, what  property  he  owned,  and  to  whom  he  was  giving  it. 

(h)  The  jury  are  instructed  that  ''undue  influence,"  as  used  in 
these  instructions,  means  that  such  influence  as  amounts  to  over- 
persuasion,  coercion,  or  force,  overpowering  and  destroying  the  free 
agency  and  will  power  of  the  person  upon  whom  it  is  used,  and  no 
amount  of  influence  or  advice  or  persuasion  which  comes  short  of 
such  effect  will  amount  to  undue  influence;  and  the  burden  of  prov- 
ing, by  the  greater  weight  of  the  evidence  in  the  cause,  that  such 
undue  influence  was  exerted  and  exercised,  rests  upon  the  plain- 
tiffs.8« 

§  2416.  Undue  Influence— What  Must  Appear— Series,  (a)  To 
avoid  a  will  on  the  ground  of  undue  influence,  it  must  be  made  to  ap- 
pear by  a  preponderance  of  the  evidence  that  the  will  was  obtained 
by  means  of  an  influence  which  the  testator  was  unable  to  withstand. 

86 — Barkley  v.  Barkley  Cem.  at  the  request  of  the  contestants 
Ass'n,  153  Mo.  300,  54  S.  W.  4S2  and  from  (d)  to  (h)  inclusive  for 
(483);    (a),    (b)    and    (c)    were    given     the   propouonts. 


1558  FORMS  OF  INSTRUCTIONS.  [§  2416. 

or  ioo  weak  to  resist,  and  amounting  to  moral  coercion,  and  destroy- 
ins:  the  free  agency  of  the  testator,  or  by  importunity  so  persistent 
and  forcible  that  it  could  not  be  resisted  by  the  testator,  so  that  the 
testator  was  constrained  to  do  that  which  was  against  her  own  in- 
clination and  will,  in  order  to  secure  peace,  and  be  relieved  of  its 
annoyance ;  and  such  influence  must  have  been  exerted  upon  and  con- 
trolling her  during  all  the  time  she  was  engaged  in  making  and  execut- 
ing her  will. 

(b)  Unless  the  jury  find,  from  the  evidence,  that  B,  at  the  time  she 
made  and  executed  the  will,  was  unduly  influenced  and  coerced,  as 
these  terms  are  defined  in  these  instructions,  then  the  jury  have  no 
right  to  inquire  into  or  speculate  upon  the  motives  which  caused  her 
to  dispose  of  her  property,  as  set  forth  in  the  will.  If  she  had  ca- 
pacity to  make  a  will,  and  was  not  unduly  influenced  in  making  it,  she 
had  the  right  to  dispose  of  her  property  in  accordance  with  any  whim 
or  caprice  which  may  have  led  her. 

(c)  The  court  instructs  the  jury  that  the  issue  in  this  case  is 
whether  the  instrument  offered  in  evidence  and  read  to  the  jury  is  the 
last  will  and  testament  of  the  deceased,  B.  The  burden  is  on  defend- 
ants to  show  that  said  instrument  was  executed  and  signed  by  B  as 
and  for  her  last  will;  that  the  signatures  of  the  attesting  witnesses 
were  placed  on  such  paper  in  her  presence,  and  at  her  request,  or  with 
her  consent;  and  that  at  the  time  she  executed  the  same  she  was  of 
sound  and  disposing  mind  and  memory.  If  the  defendants  have,  by  a 
preponderance  of  the  evidence,  established  and  proven  these  facts, 
then  the  will  would  have  to  be  adjudged  the  last  will  of  B,  unless  the 
jury  should  find  that  it  is  invalid  because  undue  influence  was  exerted 
over  her  by  her  husband,  sons,  or  some  of  them,  which  destroyed  her 
free  will,  and  forced  her  to  adopt  as  her  will  an  instrument  which  she 
did  not  approve,  and  which  she  would  not  have  adopted  except  for 
such  undue  influence  operating  on  her  at  the  very  time  she  was 
making  the  will,  and  which  undue  influence  overcame  and  destroyed 
her  free  will,  and  compelled  her  to  do  as  another  dictated.  The 
bui'den  is  on  the  plaintiff  to  prove  the  existence  of  this  undue  influ- 
ence, and  its  opei'ation  on  the  mind  of  B  at  the  time,  and  Avhile  she 
was  engaged  in  making  her  will;  and  unless  plaintiff  has,  by  a  pre- 
ponderance of  the  evidence  in  the  case,  established  the  fact  that  such 
undue  influence,  and  its  operation  on  the  mind  of  B  at  the  time,  and 
while  she  was  engaged  in  making  her  will ;  and  unless  plaintiff  has,  by 
a  preponderance  of  the  evidence  in  the  case,  established  the  fact  that 
such  undue  influence  was  exerted  over  B  by  her  husband  or  son  or 
sons,  and  acted  upon  her  so  as  to  cause  her  to  sign  a  will  that  she  did 
not  want  or  approve,  then  the  finding  of  the  jury  must  be  that  said 
instrument  is  her  last  will  and  testament,  provided  they  find  it  Avas 
executed  and  attested  as  above  described. 

(d)  Mere  advice  or  persuasion,  although  intended  to  induce  a  tes- 
tator to  make  a  will  in  a  particular  or  in  a  different  way  from  what 


§2416.]  WILLS.  1559 

the  testator  had  been  thinking  of  and  intending  is  not  undue  influ- 
ence, and  wili  not  invalidate  the  will,  and  unless  more  is  shown  than 
that  someone  begged,  persuaded,  or  solicited  B  to  make  the  will  as 
she  did,  the  jury  must  find  the  will  is  valid.  Persuasion  and  solicita- 
tion, to  be  undue  influence,  must  be  so  persistent  and  so  forceful  as 
to  overcome  the  will  power  of  the  testator,  and  to  induce  her  to  ac- 
cept as  her  will  an  instrument  which  does  not  express  her  wishes  and 
desires  in  the  disposition  of  her  property,  but  the  will  and  wishes  of 
another,  whose  i^owers  she  can  no  longer  resist. 

(e)  The  court  instructs  the  jury  that  B,  in  making  her  will,  had 
the  right  to  dispose  of  her  property  as  she  pleased,  and  to  give 
all  or  so  much  thereof  to  any  one  of  her  relatives  or  descendants,  to 
the  exclusion  of  the  others,  as  she  saw  fit  or  deemed  proper;  and 
although  the  juiy  may  believe,  from  the  evidence,  that  she  made  an 
unequal  distribution  of  her  property  by  her  will,  and  cut  off  some  with 
nothing,  or  but  little,  who  seemed  to  have  as  strong  claim  on  her  gen- 
erosity as  othei's,  who  fared  better,  such  facts  are  no  evidence  of 
undue  influence,  and  raise  no  presumption  of  the  invalidity  of  the 
will;  provided  the  jury  find  that  while  making  the  will  she  had  a 
sound  and  disposing  mind  and  memory. 

(f)  The  court  instructs  the  jury  that  the  words  "undue  influ- 
ence," used  in  these  instructions,  do  not  mean  mere  coaxing  or 
persuasion,  which  may  cause  the  person  coaxed  to  alter  or  change 
the  mind  so  as  to  act  differently  from  what  they  would  if  there  had 
been  no  coaxing,  but  do  mean  an  influence  exercised  by  one  person 
over  the  mind  of  another,  which  desti'Oj's  the  free  will  of  the  latter, 
and  renders  it  incapable  of  carrying  out  its  own  purposes  and  desires, 
and  compels  and  forces  it  to  adopt  and  accept  the  will  and  purposes 
of  the  person  exercising  such  power  as  his  own,  which  he  would  not 
have  done  if  he  had  not  been  constrained  by  such  influence.  Now, 
unless  the  jury  shall  find,  from  a  preponderance  of  the  evidence  in 
the  case,  that,  at  the  time  or  prior  to  the  time  when  B  executed  the 
will  in  question,  her  sons,  husband,  or  some  one  of  them,  had  acquired 
such  undue  influence  over  her  that  she  was  incapable  of  making  her 
will  as  she  wanted  it,  but  was  constrained  by  such  influence  to  make 
it  according  to  the  dictation  of  the  person  or  persons  exercising  such 
influence,  and  further  find  that  because  of  such  undue  influence  her 
will  power  was  destroyed,  and  she  registered  the  will  of  another,  and 
not  her  own,  your  finding  must  be  for  the  defendants;  provided  you 
further  find,  from  the  evidence,  that  in  all  other  respects  B  had  ca- 
pacity to  make  a  valid  will. 

(g)  The  court  instructs  the  jury  that  the  issue  in  this  cause  is 
this:     Is  the  writing  produced  in  evidence  the  will  of  B  or  not? 

(h)  The  court  instructs  the  jury  that  you  must  find  that  the  in- 
strument purporting  to  be  the  last  will  and  testament  of  B,  in  evi- 
dence in  this  case,  was  not  the  last  will  and  testament  of  said  B, 
unless  you  find,  from  the  evidence,  that  at  the  time  the  same  was 
executed  she  was  of  sound  and  disposing  memory. 


1560  FORMS  OF  INSTRUCTIONS.  [§  2416. 

(i)  The  jury  are  instructed  that,  as  a  matter  of  law,  the  one  ques- 
tion in  this  ease  for  them  to  try  is  this:  Is  the  writing  offered  the 
will  of  B,  deceased"?  And  your  verdict  will  be  that  it  is  her  will,  or 
that  it  is  not.  And  did  B,  deceased,  make  and  execute  the  alleged 
will,  in  all  its  provisions,  of  her  own  free  will  and  volition,  so  that  it 
now  expresses  her  own  wishes  and  intentions,  or  was  she  consti'ained 
or  coerced;  through  the  undue  influence,  restraint,  or  coercion  of 
others,  in  making  her  will,  to  act  against  her  own  desire  and  inten- 
tion as  regards  the  disposition  of  her  property,  or  any  part  of  it? 

(j)  The  words  ''sound  and  disposing  mind  and  memory,"  as  used 
in  these  instructions,  mean  a  mind  sufficient  to  enable  a  testatrix  to 
understand  what  business  she  was  engaged  in  while  she  was  making 
and  executing  a  will ;  also,  to  enable  her  to  know  who  were  the  natural 
objects  of  her  bounty,  and  her  relation  to  them,  and  what  property 
she  had,  and  the  disposition  she  desired  to  make  of  it.  And  if  the 
jury  shall  find,  from  the  evidence,  that  B,  at  the  time  she  executed 
the  instrument  in  evidence,  had  sufficient  mind  and  memoiy  to  under- 
stand that  she  was  engaged  in  making  a  will,  and  knew  what  prop- 
erty she  had,  knew  who  her  relatives  were,  and  comprehended  the 
claims  that  they  had  on  her  bounty,  and  understood  what  disposition 
she  wanted  to  make  of  her  property,  then  she  possessed  a  sound  and 
disposing  mind  and  memoiy,  and  sufficient  capacity  to  make  a  valid 
will. 

(k)  The  court  instructs  the  jury  that  B,  in  making  her  will,  had 
the  right  to  dispose  of  her  property  as  she  pleased,  and  to  give  all  or 
so  much  thereof  to  any  one  of  her  relatives  or  descendants,  to  the 
exclusion  of  the  others,  as  she  saw  fit,  or  deemed  proper;  although 
the  jury  may  believe,  from  the  evidence,  that  she  made  an  unequal 
distribution  of  her  property  by  her  will,  and  cut  off  some  with 
nothing,  or  but  little,  who  seemed  to  have  as  strong  claim  on  her 
generosity  as  others  who  fared  better,  such  facts  are  no  evidence  of 
undue  influence,  and  raise  no  presumption  of  the  invalidity  of  the 
will,  provided  the  jury  find  that  while  making  the  will  she  had  a 
sound  and  disposing  mind  and  memory. 

(1)  The  court  declares  the  law  to  be  that,  if  the  will  in  question 
was  the  result  of  undue  influence  exercised  by  the  defendants,  or 
either  of  them,  over  the  mind  and  will  of  B,  that  alone  is  sufficient  to 
impeach  and  set  aside  said  will. 

(m)  If  the  juiy  believe,  from  the  evidence,  that  the  will  in  question 
was  produced  by  undue  influence  of  tlie  defendants,  or  either  of  them, 
and  that  J,  to  aid  the  defendant  in  producing  the  execution  of  said 
will,  and  to  quiet  the  testatrix's  fears  that  plaintiff  might  not  be 
provided  for,  promised  the  testatrix  that  he  would  provide  for  plain- 
tiff in  his  will,  then  said  will  was  not  the  will  of  said  B,  and  the  jury 
will  so  find. 

(n)  The  jury,  in  determining  whether  the  will  in  controversy  is 
the  will  of  B,  may  take  into  consideration  the  relation  of  the  parties 


[§2416.  WILLS.  1561 

to  the  deceased;  the  unequal  distribution  of  the  testatrix's  property; 
the  presence  of  the  parties,  or  any  of  them,  at  the  time  the  will  was 
made,  if  any  of  them  were  present ;  the  testimony  as  to  what  took 
place  at  the  time  the  will  was  made,  and  any  testimony  as  to  any 
statements  made  by  the  testatrix,  either  before  or  after  the  will  was 
made,  as  to  her  feelings  toward  her  grandchild,  the  plaintiff:;  and  if 
from  all  the  facts  and  circurostances  in  evidence  in  the  ease,  the  juiy 
shall  find  the  will  was  procured  by  the  undue  influence  of  defendants, 
or  either  of  them,  then  you  will  find  for  the  plaintiff,  provided,  how- 
ever, that  any  statements  B  may  have  made,  before  or  after  the  will 
was  made,  as  to  her  feelings  for  said  grandchild,  or  expressing  a 
desire  to  provide  for  hex*,  should  only  be  considered  by  the  jury  as 
an  evidence  of  the  feelings  of  said  B  toward  her  said  grandchild,  and 
for  no  other  purpose. 

(o)  The  court  instructs  the  jury  that  "undue  influence,"  as  used 
in  the  instructions,  is  defined  as  that  which  compels  the  testator  to 
do  that  which  is  against  his  will  from  fear,  the  desire  of  peace  or 
some  feeling  which  he  is  unable  to  resist. 

(p)  The  court  instructs  the  jury  that,  if  you  believe,  from  the  evi- 
dence, that  the  mind  or  will  of  deceased,  B,  either  from  sickness,  dis- 
ease, and  bodily  decay  was  subject  to  the  domination  and  control  of 
the  defendants,  or  either  of  them,  and  that  they  or  either  of  them 
exercised  such  power  and  influence  over  her  mind  and  will  in  the  dis- 
position of  her  property  by  such  will  as  to  destroy  her  liberty  and  free 
agency,  and  to  cause  such  disposition  of  her  property  to  be  made  by 
such  will  to  suit  the  purpose  and  wishes  of  the  defendants,  or  either 
of  them,  and  not  her  own,  then  such  will  in  law  is  not  the  will  of  said 
B,  and  the  jury  will  find  the  issue  submitted  to  it  for  plaintiff,  and 
against  her  will.^^ 

87— Gordon     v.     Burris,     153     Mo.  Perry    Co.,    145    Mo.    432,    46    S.    W. 

223,  54  S.  W.  546.     Instructions  from  955;  Sehr  v.  Lindeman,  153  Mo.  276, 

(a)   to   (f)   inclusive   were  given  for  54  S.   W.  537.     Whien  tiiese  instruc- 

tlie    proponents,    and    tlie    instruc-  tions    are    read    in   connection    witli 

tions   from    (g)    to   (p)   inclusive   for  the   instructions   given   for   defend- 

the  contestants.  ants  on  the  same  subject  there  can 

In  its  opinion,  the  court  said  con-  be  no  doubt  that  the  jury  was 
cerning  this  whole  series:  "Read  properly,  fully,  and  explicitly  in- 
together  as  these  instructions  must  structed  as  to  the  meaning  of  un- 
be,  they  declared  the  true  law  to  due  influence  as  it  has  been  defined 
the  jury,  and  whatever  omissions  by  this  court  from  Jackson  v.  Har- 
those  given  for  the  plaintiff  may  din,  83  Mo.  175,  to  Sehr  v.  Lande- 
contain  are  fully  supplied  by  those  mann,  supra,  which  in  short  is  that 
given  for  the  defendants.  Harris  it  is  such  influence  as  amounts  to 
V.  Hays,  53  Mo.  90;  Benoist  v.  force,  coercion,  or  over  persuasion, 
Murrin,  58  Mo.  322;  Norton  v.  Pax-  which  destroys  the  free  agency  and 
ton,  110  Mo.  456,  19  S.  W.  807;  will  power  of  the  testator  and  that 
Farmer  v.  Farmer,  129  Mo.  530,  31  the  influence  of  affection  or  desire 
S.  W.  926;  Berberet  v.  Berberet,  to  gratify  the  wishes  of  one  who 
131  Mo.  399.  33  S.  W.  61,  52  Am.  St.  is  near  and  dear  to  the  testator  is 
6.34;  McFadin  v.  Catron,  120  Mo.  not  within  the  meaning  of  the 
252,'  25  S.  "W.  506;  Cash  v.  Lust,  142  rule."  Note:  The  last  pirt  of  the 
Mo.  630.  44  S.  W.  724,  64  Am.  St.  comment  refers  to  the  last  two  in- 
576;  Riiey  v.  Sherwood,  144  Mo.  stnictions  only. 
354,    45    S.    W.    1077;     Fulbright    v. 


CHAPTER   LXXXV. 


MISCELLANEOUS— CIVIL. 


See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


§  2417. 

§  2418. 

§  2419. 

§  2420. 

§  2421. 

§2422. 

§  2423. 
§  2424. 


§  2425. 
§  2426. 


Members  and  officers  of  the 
corporation  in  same  posi- 
tion as   other  creditors. 

LiabiHty  of  persons  holding 
themselves  out  as  officers 
of  a  corporation. 

No  individual  liability  for 
contracts  made  as  officers 
of  corporation. 

Corporations  —  Purchase  of 
capital  stock — Ownership  of 
— Burden  of  proof. 

Salary  of  vice-president — 
Period   of   contract. 

Notice  to  corporation — Estop- 
pel. 

Estoppel,  doctrine  of. 

Sale  by  sheriff  and  payment 
of  proceeds  to  the  creditor 
after  appointment  of  trus- 
tees— Good  faith — Burden  of 
proof. 

Wrongful  levy — Interest. 

Keeping  of  prisoner  under 
strict  guard — Escape  of 
prisoner. 


§  2427.  Value  of  accounts— When 
good  and  collectible,  are 
presumed  to  continue  so. 

§  2428.  What  words  necessary  to 
create  a  trust — Repudiation 
— Limitations. 

§  2429.  Filing  papers — What  consti- 
tutes. 

§  2430.  What  constitutes  a  quartz 
mining  claim. 

§  2431.  Forest  products — Whether  in 
transit — Transit  defined— 
Taxation. 

§  2432.  Right  to  dismiss  school 
teacher — When  reviewable 
by  the  court — Gi^ound  for 
dismissal. 

§  2433.  Discharge  of  school  teacher 
— Grounds  for — What  may 
be  demanded  in  the  ab- 
sence of  special  contract — • 
Excess  in  social  pleasures 
and  indulgences. 


§  2417.  Members  and  Officers  of  the  Corporation  in  Same  Position 
as  Other  Creditors.  Under  the  laAV  of  this  state  I.  C.  and  his  sister, 
A.  C,  woukl  occupy  no  different  position  as  creditors  than  any  other 
creditors  of  the  C.  Lumber  Co.  The  fact  that  they  were  members 
and  officers  of  the  company  did  not  affect  their  legal  rights  in  that 
respect.^ 

§  2418.  Liability  of  Persons  Holding  Themselves  Out  as  Officers  of  a 
Corporation,  (a)  The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  W.,  C.  and  H.  represented  or  held  themselves  out  as 
officers  of  a  corporation  named  W.-H.  M.  Company,  and  the  jury 
further  believe  from  the  evidence  that  there  was  no  such  corporation 
as  the  "W.-H.  M.  Company,  then  in  such  case  all  of  the  parties  who 
represented  themselves  to  be  officers  of  such  corporation  or  allowed 
their  names  to  be  so  used  as  to  lead  parties  dealing  with  said  concern 
to  believe  that  said  concern  was  a  corporation,  then  in  such  case 
such  parties  so  making  repi-esentations  or  so  allowing  their  names 

1— Crossette  v.  Jordan,  132   Mich.     78,   92  N.   W.   782   (783). 

1562 


§  2419.]  MISCELLANEOUS— CIVIL.  1563 

to  be  used  as  to  lead  parties  to  believe  said  concern  was  incorporated, 
would  be  liable  for  all  contracts  made  in  the  name  of  said  W.-H.  M. 
Company.- 

(b)  The  jury  are  instracted  that  if  you  believe  from  the  evidence 
that  the  defendants,  C.  and  W.  did  not  take  part  in  creating  the  in- 
debtedness sued  on  in  this  cause,  then  the  jury  are  insti'ucted  to  find 
the  issues  for  the  defendants,  C.  and  W.^ 

(c)  The  court  instructs  the  jury  that  a  president  of  a  corpora- 
tion, by  virtue  of  his  office,  has  no  authority  to  guarantee  the  pay- 
ment, in  the  name  of  the  corporation  of  a  promissory  note  executed 
by  a  third  jDerson.* 

§  2419.  No  Individual  Liability  for  Contracts  Made  as  Officers  of 
Corporation.  The  court  instructs  the  jury  that  if  you  believe,  from 
the  evidence,  that  the  defendant,  E,  [in  all  his  dealings  with  plain- 
tiff, appearing  in  evidence,]  was,  [to  plaintiff's  knowledge,]  acting 
in  the  capacity  of  president  of  the  company,  and  not  as  an  indi- 
vidual, and  that  no  sei'viees  were  rendered  to  the  said  E  as  an  indi- 
vidual by  the  plaintiff  nor  any  agreement  to  pay  therefor  by  him, 
then  you  will  find  for  the  defendant."* 

§  2420.  Corporations — Purchase  of  Capital  Stock — Ownership  of 
— Burden  of  Proof,  (a)  The  question  for  your  determination  in  this 
case  is  as  to  whether  the  plaintiff  company,  at  the  time  of  the  transfer 
of  the  200  shares  of  its  capital  stock  from  D  to  M,  trustee,  paid  what 

2 — Churchill  v.  Thompson  Elec.  authority  to  guarantee  the  pay- 
Co.,   119  111.   App.   430  (434).  meiit  in   the  name   of  the  corpora- 

3 — Churchill  v.  Thompson  Elec.  tiou  of  a  promissory  note,  execut- 
Co.,  supra.  The  court  said:  "The  ed  by  a  third  person;  but  if  the 
instruction  refused  was  the  one  it  president  of  a  corporation  makes 
was  held  error  to  refuse  in  Ed-  such  guarantee  and  the  corpora- 
wards  V.  Dettenmaier,  88  111.  App.  tion  thereafter  receives  the  benefit 
366."  thereof,  it  would  thereby  ratify  the 

4 — Lloyd  &  Co.  v.  Matthews,  119  act  of  its  president.  What  the  facts 
111.  App.  546  (553).  The  court  said:  are  you  must  determine  from 
"This  instruction  is  correct  as  an  the  evidence.'  The  only  objection 
abstract  proposition  of  law.  But  of  appellant's  counsel  to  the  modi- 
there  was  evidence  tending  to  fied  instruction  is:  There  is  no 
prove  that  appellant's  president  evidence  tending  to  prove  that  the 
guaranteed  the  note  merely  as  a  guaranty  was  made  for  the  pur- 
means  of  procuring  money  for  the  pose  of  enabling  the  maker  of  the 
Columbia  Telephone  Manufactur-  note  to  pay  its  debt  to  appellant, 
ing  Company,  its  debtor,  with  and  that,  when  the  note  was  dis- 
which  to  pay  appellant,  and  that  counted,  and  the  proceeds  placed 
the  discount  of  the  note  was  in  to  the  credit  of  the  Columbia  Tele- 
fact  for  appellant,  though  indi-  phone  Manufacturing  Company, 
rectly  so.  The  instruction  ignores  that  company  gave  to  appellant  a 
this  evidence,  and  also  ignores  the  check  for  the  money  so  credited 
evidence  of  ratification,  name,  to  it,  and  this  evidence  is  not  con- 
appellant's  letter  of  July  29,  1902.  tradicted  by  any  of  appellant's 
The  court  modified  the  instruction  witnesses.  The  objection  to  the 
and  gave  it  as  modified,  to  which  modified  instruction  is  untenable." 
appellant  excepted.  The  instruc-  5 — Evans  v.  Marden,  154  111.  443 
tion  as  modified  and  given  by  the  (447),  aff'g  54  111.  App.  291,  40  N. 
court    is    as    follows:      'The    court  E.    446. 

instructs  the  jury  that  a  president  The    bracketed    words    are    sug- 

of   a  corporation  by  virtue   of   his  gested  by  the  editor, 
office,    as    such    president,    has    no 


1564  FORMS  OF  INSTRUCTIONS.  [§  2421. 

it  did  pay  for  the  same  because  it  had  purchased  said  stock  to  be 
held  as  its  own  or  like  treasury  stock,  and  to  be  disposed  of  as  its 
board  of  directors  should  order,  or  Avhether  the  stock  was  purchased 
by  the  defendant,  S,  and  the  other  stockholders  in  the  proportion  of 
their  then  holdings;  each  being  entitled  to  dispose  of  his  own  share 
■as  he  saw  fit,  the  plaintiff  corporation  paying  for  the  same  at  the 
request  of  the  purchasers  and  for  their  accommodation. 

(b)  The  burden  of  proof  is  on  plaintiff  to  show  that  it  did  not 
buy  or  own  the  D  stock,  and  that  when  it  paid  for  the  same  it  was 
not  paying  its  own  obligation  or  indebtedness,  but  advanced  the 
money  as  an  accommodation  to  the  defendants,  P,  M  and  J,  who  were 
purchasers  of  the  same;  and  the  plaintiff  must  satisfy  you  by  a  pre- 
ponderance of  the  evidence  that  it  did  not  buy  said  stock,  but  simply 
advanced  to  the  persons  last  named,  at  their  request,  the  money  to 
buy  the  same ;  -and  if  you  believe  the  weight  of  the  evidence  is  against 
the  contention  of  the  plaintiff  in  that  regard,  or  if  you  believe  the 
evidence  in  respect  to  the  matter  to  be  evenly  balanced,  or  if  you 
are  unable  to  say  from  the  evidence  what  the  truth  of  the  matter  is, 
your  verdict  should  be  for  the  defendant.*' 

§  2421.  Salary  of  Vice  President — Period  of  Contract.  If  you  be- 
lieve that  tlfere  was  no  'compensation  attached  to  the  office  of  vice 
president,  he  can  recover  nothing  on  that  score.  But  if  you  believe 
the  election  of  vice  president  placed  him  in  a  position  to  manage  and 
conduct  the  business,  and  for  that  he  was  to  receive  a  salary  while 
vice  president,  you  may  take  that  into  consideration  in  detei'mining 
whether  that  was  a  matter  which  fixed  the  period  of  his  contract. 
That  is  to  say,  if  he  was  employed  as  vice  president,  for  which  he 
received  no  emolument,  but  by  reason  of  his  vice  presidency  he  was 
assigned  to  another  position,  for  which  he  was  to  receive  $2,400  per 
annum,  you  can  take  that  fact  into  consideration  in  determining 
whether  it  was  understood  between  the  parties  that  he  was  to  receive 
$2,400  a  year  or  $200  per  month.'^ 

6 — Donovan-McCormick  Co.  v.  jury  is  not  to  be  oommended,  we 
Sparr,  —  Mont.  — ,  85  Pac.  1029,  cannot  say,  in  the  absence  of  the 
(1030).  "These  instructions  would  evidence,  that  the  instruction  is 
seem  to  indicate  that  the  trial  erroneous.  Confessedly,  the  bur- 
court  understood  that  the  theory  den  was  upon  the  plaintiff  to  show 
of  the  defendant  was  that  the  that  the  shares  of  stock  were  pur- 
shares  of  stock  had  been  pur-  chased  for  S.,  and  that  S.  either 
chased  by  the  plaintiff  for  its  own  requested  that  they  be  purchased 
use  and  benefit  and  not  for  S.'s  ac-  for  him,  or  knowing-  that  they 
count.  'had    been    purchased    for    his    use, 

"It  is  also  arg-ued  that  the  sec-  agreed  to  pay  for  them.  Smith  v. 
ond  instruction  imposes  upon  the  Perham,  3:^  Mont.  309,  83  Pac.  492. 
plaintiff  the  burden  of  proving  a  If  the  second  instruction  does  not 
negative;  that  is,  that  the  plaintiff  impose  upon  the  plaintiff  any  ad- 
did  not  purchase  the  shares  of  ditional  burden,  it  cannot  com- 
stock  for  its  own   use  and  benefit,  plain." 

While    this    manner    of    presenting  7— Arkadelphia    Lumber     Co.     v. 

a    question    in    controversy   to    the  Asman,   68  Ark.   526,   60   S.   W.   238 

(239). 


§  2422.]  MISCELLANEOUS— CIVIL.  1565 

§  2422.  Notice  to  Corporation — Estoppel.  The  court  instructs  the 
jury,  that  notice  to  a  corporation  can  only  be  given  by  giving  it  to 
some  officer  authorized  to  represent  the  corporation  in  the  particular 
matter  to  which  the  notice  relates;  or  else  to  some  person  whose  sit- 
uation and  relation  to  the  corporation  imply  authority  to  represent 
the  corporation  in  such  matter.® 

§  2423.  Estoppel,  Doctrine  of.  It  is  a  principle  of  law  that  a 
man  who  takes  an  active  part  in  leading  others  into  error  cannot  ask 
that  the  consequences  of  his  mistake  be  thrown  on  others.  It  is  also 
a  well-settled  principle  of  law  that,  when  an  act  is  done,  or  a  state- 
ment made,  by  a  person,  which  if  denied  by  him  would  work  an  injury 
to  others  whose  conduct  had  been  influenced  by  the  act  or  statement, 
the  character  of  an  estoppel  attaches,  and  he  will  not  be  allowed  to 
m^ake  such  denial.^ 

§  2424.  Sale  by  Sheriff  and  Payment  of  Proceeds  to  the  Creditor 
After  Appointment  of  Trustee — Good  Faith — Burden  of  Proof.    In 

this  case  the  burden  rests  upon  the  plaintiff  to  prove,  by  a  fair  pre- 
ponderance of  evidence,  that  the  allegations  of  his  complaint  are 
true ;  and,  first,  that  P  was,  at  the  date  of  his  assignment,  the  owner 
of  the  articles  in  question.  It  is  conceded  that  he  was  the  owner, 
unless  the  claimed  sale  of  them  to  C  is  valid  against  the  plaintiff. 
If  you  find  upon  the  evidence  that  the  sale  in  question  was  merely 
colorable,  and  not  m^ade  in  good  faith,  or  was  not  accompanied  or 
followed  by  any  change  of  possession  or  use,  then  you  will  find  that 
is'sue  for  the  plaintiff.  If  you  find  that  it  was  made  in  good  faith, 
and  was  accompanied  and  followed  by  an  actual  change  of  possession, 
then  you  will  find  that  issue  for  defendant,  for  the  law  is  so  that  if 
a  man  sells  pei'sonal  property  like  this,  and  continues  to  possess  and 
use  it  as  before,  so  that  there  was  none  of  the  usual  indicia  of  a 
change  of  ownership  apparent,  his  creditors  may  treat  it  as  never  sold, 
and  this  right  inures  to  his  assignee  in  insolvency.  Now,  under  our 
statute,  it  is  the  duty  of  an  officer  to  deliver  property  of  an  assigning 
debtor  which  has  been  attached  by  him  to  the  trustee  in  insolvency, 
and  if  you  find  that  the  property  in  question  was  the  property  of  the 
assigning  debtor,  within  the  instructions  which  I  have  given  you,  it 
became  the  duty  of  the  defendant  to  deliver  it  to  the  trustee  imme- 
diately upon  his  appointment  and  qualification :  and  if,  knowing  of 
such  assignment,  and  of  the  appointment  of  the  trustee,  he  did  not 
so  deliver  the  property,  but  sold  the  same  afterwards  under  the  exe- 
cution, auu  paid  the  proceeds  over  to  the  creditor,  then  the  plaintiff 
must  prevail  in  this  action.  But  if  he  had  no  knowledge  of  the  as- 
signment or  of  the  appointment  of  the   trustee,  until   after  he  had 

8— Keenan    v.    Dubuque,    etc.,    13  ers',    etc.,    Bk.    v.    Payne,   25   Conn, 

la.    375;   Fulton   Bk.    v.    New  York,  444. 

etc.,    4    Paig-e    127;    Housatonic    Bk.  9 — Hutching    v.    Weldin,    114    Ind. 

V.    Martin,    1    Met.    294;   Bk.   of    the  80,  15  N.    E.   804. 
U.    S.   V.   Davis,   2  Hill  451;   Farm- 


1566  FORMS  OF  INSTRUCTIONS.  [§  2425. 

sold  the  property,  under  the  execution,  and  in  good  faith  paid  the 
avails  to  the  judgment  creditor,  and  no  notice  had  been  given  to,  and 
no  demand  had  been  made  upon  him  before  this  last-mentioned  act, 
then  the  plaintiff  cannot  recover  upon  the  allegations  of  this  com- 
plaint, and  the  conceded  facts  in  the  case.  If  the  defendant  is  to 
prevail,  howevei',  because  he  had  no  knowledge  of  the  assignment,  the 
burden  of  proving  this  lack  of  knowledge  rests  upon  him.^° 

§  2425.  Wrongful  Levy — Interest.  The  court  instructs  the  jury- 
that  if  you  find  for  the  plaintiff  you  should  return  a  verdict  for  the 
amount  of  the  balance  due  on  the  note  held  by  K,  read  in  evidence, 
not  exceeding  the  value  of  the  stock  of  goods,  furniture  and  fixtures 
levied  upon  by  the  sheriff  under  the  execution  referred  to  in  the  evi- 
dence, on  the day  of ,  to  which  you  may  add  —  per  cent. 

interest  from  that  date  to  the  present  time.^^ 

§  2426.    Keeping  Prisoner  Under  Strict  Guard — Escape  of  Prisoner. 

(a)    If  the  jury  find  from  the  evidence  that  the  defendant  was  the 

acting  sheriff  of  the  county  of ,  and  keeper  of  the  common  jail 

thereof,  at  the  time  when  the  execution  or  capias  against  the  body  of 
A.  was  placed  in  the  hands  of  said  defendant  or  any  deputj'  sheriff 
of  his  to  execute,  if  the  same  was  so  placed  in  his  hands,  or  that  of 
any  of  his  deputies,  and  that  said  defendant  as  such  sheriff  or  any 
of  his  deputies  arrested  said  A.  under  and  by  virtue  of  said  execu- 
tion or  capias,  and  that  said  plaintiff  or  his  mother  as  his  next  friend 
on  his  behalf  paid  said  defendant,  as  such  sheriff,  or  his  deputy  or 
turnkey,  said  defendant's  fees  as  such  sheriff  for  receiving  and  com- 
mitting said  A.  to  said  jail,  and  his  board  at  the  time  of  such  commit- 
ment at  the  commencement  of  each  week  for  two  weeks,  and  that 
during  any  part  of  said  time  said  defendant,  or  his  deputy  or  jailer 
or  turnkey,  suffered,  pei'mitted  or  allowed  said  A.  to  go  outside  of 
said  jail  for  ever  so  short  a  time  for  his  own  ease  or  comfort,  or  to 
do  chores,  then  the  plaintiff  is  entitled  to  recover  in  this  cause,  and 
it  will  be  your  duty  to  return  a  verdict  in  his  favor;  and  it  makes 
no  difference  as  to  the  plaintiff's  right  to  recover,  even  if  A.  volun- 
tarily returned  to  or  was  taken  into  custody  again  by  said  defendant 
or  his  deputy  or  turnkey. 

10— Boseli  v.  Doran,  62  Conn.  311,  Mo.  383);  to  be  allowed  in  the  dis- 

25  Atl.  242  (243).  cretion    of    the    jury    (section    2869 

11— State    ex    rel.    Kennen    v.    Fi-  Rev.   St.   1899;   Carson  v.   Smith,  133 

delity    &    Deposit    Co.,    94    Mo.    184,  Mo.  606,  34  S.  W.  855).     The  instruc- 

67  S.  W.   958   (962).  tion   is   not   as   definite  and    full   as 

"The     admitted     facts     are    that  it  should  have  been,   in  calling-  the 

the  levy   was  made  on  August  27,  attention    of   the   jury   to    the   fact 

1900.    This    is    therefore    the    date  that  the  allowance  of  interest  was 

on    which    the    goods    were    taken  in   their  discretion.     But  it   did   in 

and   converted,   and   their  value  on  fact    leave    the    allowance    of    in- 

thnt    date,    with    six    per    cent    in-  terest  to  the  discretion  of  the  jury, 

terest    per    annum,    is    the    proper  and    if    the    defendants    were    not 

measure   of   respondent's   damages,  satisfied   with  the  instruction,  they 

(Rir-hnrrlson  v.  Ashby,  132  Mo.  238,  should  have  asked  for  a  more  defi- 

33  S.   W.  806;   Carter  v.   Feland,  17  nite   direction." 


§  2427.]  MISCELLANEOUS— CIVIL.  1567 

(b)  If  the  juiy  believe  from  the  evidence  that  said  A,  at  any- 
time after  he  was  committed  to  jail  under  the  writ  read  in  evidence, 
if  he  was  so  committed,  and  during  the  time  for  which  his  board  had 
been  paid,  if  it  had  been  paid,  was  allowed  to  go  outside  of  said  jail 
at  any  one  time  or  more  when  he  was  not  under  strict  guard,  then 
the  plaintiff  is  entitled  to  recover  in  this  case,  and  you  should  find 
a  verdict  for  the  plaintiff. 

(c)  If  the  juiy  believe  from  the  evidence  in  this  ease  that  said 
A  at  any  time  after  he  was  committed  to  jail  under  the  writ  read 
in  evidence,  if  he  was  so  committed,  and  during  the  time  for  which 
his  board  had  been  paid,  if  it  had  been  paid,  was  allowed  to  and  did 
sleep  with  the  jailer  in  the  debtors'  room,  without  the  same  being 
locked  or  guarded,  or  was  allowed  to  go  into  a  room  or  rooms  not  a 
part  of  the  jail — to  wash  dishes  or  peel  potatoes,  or  for  any  other 
purpose — when  not  strictly  under  guard,  then  the  defendant  is  liable 
in  this  case  and  you  should  find  a  verdict  for  the  plaintiff.^" 

§  2427.  Value  of  Accounts — When  G-ood  and  Collectible,  Are  Pre- 
sumed to  Continue  So.  You  are  instructed  that  accounts  having  once 
been  shown  to  be  good  and  collectible  are  presumed  to  have  continued 
so,  and  that  the  fact  that  the  accounts  appear  upon  the  books  of  the 
company  and  are  testified  to  have  been  good  and  collectible  is  evi- 
dence for  your  consideration  of  the  value  of  those  accounts.^^ 

§  2428.  What  Words  Necessary  to  Create  a  Trust — Repudiation — 
Limitations,  (a)  The  court  instructs  the  jury  that  no  particular 
form  of  words  is  necessary  to  create  a  trust  or  to  make  the  person 
declaring  the  tnist  himself  a  trustee.  The  word  "tinist"  need  not 
be  used.  Any  expression  which  shows  unequivocally  the  intention  to 
create  a  trust  will  have  that  effect.  When  a  person  accepts  personal 
property  to  be  held  in  trust  for  another  and  orally  or  in  writing,  ex- 
pi-essly  or  implied,  declares  that  he  holds  such  propertj^  for  such 
other  person,  then  such  possession  and  declaration  constitute  him  a 
trustee,  in  an  express  trust  for  such  other,  of  the  property',  and  in 
such  ease  the  beneficial  interest  in  the  property  is  considered  as  vested 
in  the  cestui  que  trust. 

(b)     In  this  ease  if  you  believe  from  a  preponderance  of  the  evi- 

12— Comer  v.  Huston,  55  111.  App.  cl.    32.    Mr.    Abbott,    in    his    Trial 

153.  Brief  (2d  ed.),  p.  433,  says:     'In  the 

13 — Thornton-Thomas     Mercantile  absence    of    evidence,    solvency    is 

Co.   v.   Bretherton,   32   Mont.   80,   80  presumed.     Solvency   or   insolvency 

Pac.  10  (16).  at  a  given  time  having  been  shown, 

"This   presumption   is   recognized  it   is   presumed   to  continue   within 

in    the    Code    of    Civil    Procedure  reasonable    limits    of    time.'     It    is 

'All   other  presumptions   are   satis-  also    asserted    that    the    instruction 

factory,     if     uncontradicted.      They  does  not  inform  the  jury  that  some 

are    denominated    disputable    pre-  of  said   accounts   and   bills   receiv- 

sumptions  and  may  be  controvert-  able  were  taken  po.ssession  of  un- 

ed  by  other  evidence.     The  follow-  der    a   writ    of    attachment    in    the 

irig  are  of  that  kind:     .     .     .    That  suit  of  C.  &  Bro.  against  the  com- 

a  thing   once   proved  to  exist  con  pany    to    satisfy    its    indebtedness, 

tinues    as    long    as    is    usual    with  Section  4334,  Civ.  Code,  covers  this 

things  of  that  nature.'  Section  3266,  objection." 


.1568  FORMS  OF  INSTRUCTIONS.  [§2429. 

dence  th'at  A.  D.  received  money  from  his  father  in  England  to  be  by 
him  held  in  trust  for  J.  D.,  and  that  he,  the  said  A.  D.,  further  de- 
clared that  he  intended  to  keep  and  use  the  money  himself  and  pay 
interest  upon  the  same  until  J.  D.  attained  the  age  of  twenty-one 
years,  for  the  benefit  of  the  said  J.  D.,  and  did  so  keep  and  use  the 
money,  then  you  are  instructed  that;  in  law,  such  a  state  of  facts 
constitutes  an  express  trust  in  the  hands  of  A.  D.  for  the  benefit  of 
J.  D.,  and  the  Statute  of  Limitations  has  no  application  to  this  case, 
unless  you  believe  from  a  preponderance  of  the  evidence,  that  A.  D. 
oi>enly  and  expressly  disavowed  such  express  trust,  if  any,  and  that 
such  a  disavowal  and  repudiation,  if  any,  was  brought  to  the  personal 
knowledge  of  the  said  J.  D.,  and  that  after  receiving  such  personal 
knowledge,  if  any,  he  failed  to  use  due  diligence  in  prosecuting  his 
claim.i* 

§  2429.  Filing  Papers — What  Constitutes.  To  illustrate  what  I 
mean,  an  attorney  cannot  put  a  paper  among  a  lot  of  papers,  and 
carry  the  whole  bundle  to  the  clerk's  office  and  hand  them  to  the 
clerk,  and  expect  the  clerk  to  seek  out  from  that  bundle,  papers  that 
have  not  been  filed,  and  enter  the  fact  that  they  were  filed  upon  them. 
That  does  not  constitute,  in  law,  a  legal  filing.^^ 

§  2430.  What  Constitutes  a  Quartz  Mining  Claim.  The  court  in- 
structs the  jury  that,  to  constitute  a  quartz  mining  claim,  certain 
things  are  absolutely  necessary:  First,  that  a  vein  or  lode  of  rock 
in  place  bearing  minerals  exists  within  the  boundary  lines  of  the 
mining  claim;  second,  that  the  person  puiporting  to  locate  the  said 
claim  has  discovered  this  vein  or  lode  before  the  location  can  be 
made.^^ 

14 — Dawes  v.  Dawes,  116  111.  App.  tion  was  not  called  to  the  fact  that 

36  (39).  they    were    so    left    or    that    there 

"These  instructions  considered  in  was    any    intention    to    file    them, 

connection    with   the   evidence   and  there  was  no  legal  filing.     That,  it 

with     all     the     other     instructions  is   true,    is    not   this    case;    but    the 

given    in    the    case,    state    the    law  following   language   of   Mr.    Presid- 

corrcctly    and     were    not,     in    our  ing   Justice    Lumpkin,    112    Ga.    344, 

opinion,    in    any    respect    mislead-  37    S.    E.    359,    bears    closely    upon 

ing."  the  question  now  under  discussion: 

15 — Cooper  v.  Nisbet,  119  Ga.  752,  'It    is    scarcely    reasonable    to    ex- 

47  S.  E.  173  (174).  pect  a  clerk  to  duly  file  papers  left 

"The  true  rule,  we  think,  is  that  upon   his   desk  or  elsewhere  in   his 

stated  by  the  Illinois  Court  in  the  office  when   his  attention  is  not  in 

case   of   Hamilton   v.    Beardslee,   51  some  way  directed  to  the  fact  that 

111.   478,    that,   to  constitute   a   legal  the    person    depositing    them    in    or 

filing,  the  paper  must  pass  into  the  upon    his    office     furniture    wishes 

custody  of  thn  clerk,  'and  that  the  him  to  assume  charge  thereof  and 

object    be    communicated    to    him  file  the  same.'  " 

in   some  manner  capable   of  being  16— La  Grande  Inv.  Co.  v.   Shaw, 

undpi-stood.'    See.  also,  Pflrmann  v.  44   Or.   416,  72  Pac.   795  (797). 

Henkel,    1    111.    App.    145;    Boyd    v.  "ThiS'   is    technically    correct.      A 

Desmond,    79  Cal.   250,   21   Pac.   755;  discovery  after  an  attempted  loca- 

Phillips  V.  Beene.  38  Ala.  248.     And  tion  may,  however,  take  effect  and 

in  the  case  of  Jolley  v.  Rutherford,  validate    the    location    by    relation, 

112    Ga.    342,    37    S.    E.    358,    it   was  providing    no    valid    discovery    and 

held    that   where   papers   were  left  location  by  a  third  person  has  in- 

on  the  clerk's  desk,  and  his  atten-  tervened.    Crown    P.    Min.    Co.    v. 


§2431.]  MISCELLANEOUS— CIVIL.  1569 

§  2431.  Forest  Products — Whether  in  Transit — Transit  Defined — 
Taxation.  The  court  instructs  you  that  the  logs  in  question  are  what 
is  classed  in  our  tax  laws  as  "forest  products,"  and  we  have  a  re- 
cent statute  in  this  state  w'hieh  provides  that  property  of  that  class, 
owned  by  residents  or  non-residents,  shall  be  assessed  to  the  ov.ner, 
or  to  the  person  having  control  thereof,  in  the  township  or  ward 
where  the  same  may  be,  except  that  where  such  property  is  in  transit 
to  some  place  within  the  state  it  is  to  be  assessed  in  such  place.  All 
forest  products  in  transit  on  the  second  Monday  in  April  and  there- 
after, found  in  the  waters  or  streams  of  this  state,  shall  be  held  to 
have  a  place  of  destination  at  the  sorting  grounds  nearest  the  mouth 
of  such  stream,  unless  the  contrary  is  made  to  appear.  The  law  also 
provides  that  logs,  lumber,  pickets,  telegraph  poles,  ties  and  other 
forest  products,  if  piled  or  left  in  any  yard,  railroad,  reserve,  shed, 
or  any  other  place,  shall  not  be  deemed  to  be  in  transit,  but  are  to 
be  assessed  to  the  owner  in  the  township  where  they  are  found. 
Therefore  it  becomes  an  important  question  in  this  case  whether  or 
not  the  logs  were  in  transit.     If  they  were,  they  were  not  liable    to 

taxation  in  township,  and  the  plaintiffs  are  entitled  to  your 

verdict.  If  they  were  not  in  transit,  they  would,  under  the  undis- 
puted evidence,  be  liable  to  taxation  there.  When  we  speak  of  goods 
in  transit,  we  mean  on  the  way  or  passage,  while  going  from  one 
place  or  person  to  another,  in  the  course  of  business  or  commercial 

dealing.     So  if  you  find  that  on  the  of  ,  the  plaintiffs 

■were  driving  the  logs  of  which  the  logs  in  this  suit  formed  a  part, 
towards  their  destination,  or  were  breaking  the  rollways  and  jams 
for  that  purpose,  or  were  working  upon  them  in  the  ordinary  way, 
with  a  view  of  driving  them  towards  their  destination,  or  as  many 
of  them  as  the  stage  of  water  in  the  river  would  permit,  then  the 
logs  would  be  in  transit,  and  not  liable  to  assessment  in  the  township 

of  for  that  year,  and  your  verdict  will  be  for  the  plaintiff. 

But  if  you  find  from  the  e\'idence  that  the  logs  in  question  were  not 
in  the  waters  or  stream  in  question;  were  not  actually  started  on 
their  way  or  passage  down  it,  but  in  unbroken  piles,  awaiting  the 
breaking  up  of  the  river  or  rise  of  waters,  or  some  future  event,  be- 
fore starting,^ — the  mere  intent  of  the  owners,  unaccompanied  by  any 
acts  showing  their  present  purpose  to  drive  the  logs,  would  not  justify 
you    in    regarding    the    property  in  transit.     What  was  the  condition 

of  these  logs  on  the  of  ,  and  what,  if  anything,  was 

being  done  with  them  at  that  time,  are  disputed  questions  of  fact, 
for  you  to  decide  from  the  evidence.  If  you  find  that  the  logs  were  in 
transit,  your  verdict  will  be  for  the  plaintiffs,  that  they  are  entitled, 
and  were  at  the  time  of  the  commencement  of  this  suit,  to  their  prop- 
erty.    If  you  find  that  defendant  did  not  unlawfully  detain  the  proj)- 

Crimson.  39  Or.  364,  65  Pae.  87;  The  North  Noonday  Min.  Co.  v. 
Jupiter  Min.  Co.  v.  Bodie  Consol.  The  Orient  Min.  Co.  (C.  C).  1  Fed. 
Min.    Co.    (C.    C),   11   Fed.    666,   675;     522,  531." 

99 


1570  FORMS  OF  INSTRUCTIONS.  [§  2432. 

erty  replevined,  then,  by  virtue  of  his  seizure,  he  had  a  lien  to  the 
amount  of  the  tax  against  the  logs,  to-wit, dollars,  and,  hav- 
ing waived  a  return  of  the  property,  would  in  such  case  be  entitled 
to  a  verdict  for  the  amount  of  his  lien.^^ 

§  2432.  Right  to  Dismiss  School  Teacher — When  Reviewable  by  the 
Court — Gi;Dund  for  Dismissal.  If  the  jury  find  from  the  evidence 
that  the  school  board  of  the  defendant  district  met,  in  conjunction 
with  the  county  superintendent  of  public  instruction,  to  consider  the 
matter  of  complaints  made  against  the  plaintiff  as  teacher  of  the 
school  of  the  district,  and  at  such  meeting  such  board  and  superin- 
tendent gave  full  and  fair  consideration  to  the  facts  of  the  matter 
as  known  to  them  personally,  and  also  used  reasonable  diligence  to 
inform  themselves  upon  the  subject  from  such  sources  as  were  avail- 
able, and  gave  full  and  fair  consideration  to  such  information,  and 
then,  in  good  faith,  reached  the  unanimous'  conclusion  that  plaintiff 
had  been  so  negligent  of  his  duties  as  teacher,  that  the  interest  of 
the  school  required  his  discharge,  and  therefore  made  an  order  dis- 
charging him  as  such  teacher  on  the day  of ,  then  plaintiff 

is  not  entitled  to  recover  in  this  action.^* 

§  2433.  Discharge  of  School  Teacher — Grounds  for — What  May 
Be  Demanded  in  the  Absence  of  Special  Contract — Excess  in  Social 
Pleasures  and  Indulgences,  (a)  Unless  the  contract  so  pi-ovided,  the 
board  of  trustees  would  not  have  the  right  and  power  to  adopt  a  rule 
or  by-law  prescribing  that  the  plaintiff,  as  one  of  the  teachers,  should 
not  receive  callers  or  have  company  during  the  school  days, — say  from 
Monday  morning  to  Friday  afternoon, — nor  to  adopt  a  rule  prescrib- 
ing that  she  should  not  have  company  in  the  parlor,  of  evenings, 
later  than  10:30  or  11  o'clock.  Such  a  rule  or  regulation  or  by-law 
as  either  of  these  would  be  regarded,  in  law,  as  arbitrary,  unreason- 
able and  oppressive,  and  could  not  be  upheld  or  enforced,  and  the 
plaintiff  would  have  the  legal  right  to  ignore  them  or  refuse  com- 
pliance with  them.  The  boiard  of  trustees  would  not  have  the  right 
to  discharge  the  plaintiff  for  her  refusal  to  obey  or  comply  with  such 
rules  as  these,  and  if  they  did  so  discharge  her  for  this  reason  alone, 
the  defendant  would  be  guilty  of  a  breach  of  its  contract,  and  would 
be  liable  to  the  plaintiff  therefor. 

17 — Hill  v.   Graham,   72   Mich.  659,  which  they  may  be  dismissed,  and 

40  N.   W.   779   (782),   16  Am.    St.   552.  the  manner  in  which  they  may  be 

"This    charge    fully    covered    the  dismissed.  Said  section  reads:   'Tlie 

ground,    and    was    as    favorable    to  district  board  in  each  district  shall 

the  plaintiff,   at  least,  as  they  had  contract    with    and     hire    qualified 

a  right  to  expect."  teachers,    for   and    in    the    name    of 

18 — School    Dist.    of    Kearny    Co.  the  district,  which  contract  shall  be 

v.   Davies,   69  Kan.  162,   76  Pac.  409  in    writing,    and    shall    specify    the 

(409).  wages     per     week     or     month     as 

"Section  6184,   Gen.   St.   1901,   pro-  agreed    upon    by    the    parties,    and 

vides  for  the  employment  of  teach-  such  contract  shall  be  filed  in  the 

ers,  and  the  manner  of  employing  district   clerk's   ofTice;    and   in   con- 

them   in  the  district  schools  of  the  junction    with    the    county   superin- 

state.     It  al.so  provides  for  the  dis-  tendont    may     dismiss    for    incom- 

missal   of   teachers,   the   causes  for  petency,  cruelty,  negligence  or  im- 


2433.] 


MISCELLANEOUS— CIVIL. 


1571 


(b)  While  this  is  true,  yet  the  plaintiff,  under  her  contract,  owed 
to  the  defendant,  as  a  teacher,  her  loyal  support,  her  faithful  service, 
her  most  efficient  work;  and  she  could  not  lawfully  and  rightfully 
engage  in  such  social  functions,  or  devote  so  much  of  her  time  and 
attention  to  social  pleasures,  or  engage  in  such  other  work,  conduct 
or  practices,  as  would  impair  her  usefulness  and  efficiency  as  a  teach- 


morality.'     In    the    case    of    School 
Dist.  V.  McCoy,  30  Kan.  268,  1  Pac. 
97,  46  Am.  Rep.  92,  it  was  held  that 
the  school   district   board  acting  in 
conjunction  with  the  county  super- 
intendent, as  provided  by  said  sec- 
tion,   was    not    a    court;    that    this 
tribunal    so    constituted    could    act 
without      pleading      and      without 
process,    and    that   the    proceedings 
to  dismiss  a  teacher  could  be  con- 
ducted  by   it  in   an  informal   man- 
ner.    We    are    now    called    upon    to 
determine    the    legal    effect    of    the 
acts  of  this  tribunal.     The  Legisla- 
ture  must   have    had   a   purpose   in 
uniting   the    county    superintendent 
Avith   the  school   district  board.     In 
doing    so    it    constituted    a    special 
tribunal,  w'hich  may  fairly  be  said 
to    be    outside    and    independent    of 
the     employing    board — a    tribunal 
unknown   to   the   common  law,   and 
given  power  to  dismiss  the  teacher 
for    negligence,    incompetency,    cru- 
elty or  immorality.     In  the  case  of 
Meffert  v.    Medical   Board,  66  Kan. 
710,  72  Pac.  247,  the  board  of  med- 
ical   registration    and    examination 
was    classed    with    such    boards    as 
the    county    board    of   equalization, 
boards  for  the  examination  of  ap- 
plications for  teachers'   certificates, 
city    councils    in    granting   and    re- 
fusing a  business  or  occupation  li- 
cense,   and   numerous   other  boards 
of  similar  character.     It  was  there 
said    that    such    boards    performed 
no  judicial  functions,  were  not  ju- 
dicial    tribunals,     and     had     never 
been    classified    as    such.      It    was 
held    however   that    in   the   absence 
of   fraud,    corruption   or  oppression 
the   findings   of   the   medical   board 
were    conclusive    upon    this    court. 
The     school     law     of     New     Jersey 
clothes  the  board  of  education  with 
power    to    employ   teachers    and    to 
remove   them    for    cause.     There   is 
given    the    right    of    appeal    to    the 
county  superintendent.     Fmni  that 
official  is  given  the  right  of  appeal 
to    the    State  'Superintendent,    and 
thence  to  the  State  Board  of  Edu- 
cation.    There  is  no  statutory  pro- 
vision constituting  the  acts   of  the 
State    B.     of    Education    final.    In 


the    case    of   Draper   v.    Com'rs   of 
Pub.   Instruction,   66   N.   J.   Law  54, 
48   Atl.    566,    it    was    held    that    the 
board     had     exclusive     jurisdiction 
over    such    controversies    and    that 
its  determinations  were  final.     The 
school  law  of  Iowa,  in  the   matter 
of     the     dismissal     of    teachers     is 
quite  similar  to  that  of  N.  J.     The 
Sup.    C.    of    Iowa    in    the    case    of 
Park   V.   School  Dist.,    65  Iowa  209, 
21  N.  W.  567,  held  that  the  finding 
of  the   Co.   Supt.   sustained   by  the 
State    Supt.    on    appeal    was    final; 
that    the    proceeding    is    statutory, 
unknown  to   the  common  law,  and 
the   courts    therefore    have   no    au- 
thority   to    examine    or    retry    the 
questions    of    fact.     In    the   case    of 
McCrea    v.     School    Dist.,    145    Pa. 
550,    22   Atl.   1040,    it   was   held   that 
under  a  statute  giving  a  board   of 
directors  power  to  dismiss  a  teach- 
er for  incompetency,  cruelty,  negli- 
gence    or     immorality,     the     board 
was  held  merely  to  the  observance 
of    good    faith,    and    its    acts    were 
not    reviewable.     To    like    effect    is 
the    case    of    Whitehead    v.    School 
Dist.,    145    Pa.    418,    22    Atl.    991.      In 
Gillan  v.  Board  of  Regents,  88  Wis. 
7,    58    N.    W.    1042,   24   L.    R.    A.    336, 
it  was   held  that  the  power  to  re- 
move a  teacher  given  to  the  board 
of    regents,    when    exercised    in    a 
given  case  cannot  be  inquired  into 
by   the  courts;   that   this   power  of 
removal   becomes    a    part   of   every 
contract   made   by   the   board    with 
the   teacher;   that   when   the   board 
has    exercised    this   power   and    the 
teacher   has   received   notice  there- 
of,   the   right   to   further  salary  or 
compensation  is  terminated.     In  the 
case   of   P.    v.    B.    of   Education,   52 
N.  T.  Super.  Ct.  620,  under  a  stat- 
ute    providing    that     'any    teacher 
may   be   removed   by  the   board   of 
education    upon    the    recommenda- 
tion   of    the    city    superintendent,' 
it   was   held    that   the   order  of  re- 
moval    might     be     made     without 
cause  asserted  or  shown,  and  was 
not  reviewable.     It  is  manifest  that 
the  intention  of  the  Legislature  in 
enacting    section   6184    was    to    pro- 
vide    a     speedy     and     inexpensive 


1572  FORMS  OF  INSTRUCTIONS.  [§  2433. 

er,  or  as,  when  properly  understood  and  interpi-eted,  would  injure  the 
school,  or  interfere  with  the  discipline  of  its  pupils  or  tend  to  dam- 
age its  reputation  and  character  as  an  institution  of  learning. 

(e)  The  defendant  would  have  the  right,  under  the  law,  to  dis- 
charge the  plaintiff  and  terminate  her  connection  with  said  school  for 
any  reasonable  cause,  but  not  arbitrarily  and  without  good  cause.  It 
had  the  right  to  discharge  her  for  incompetency  as  a  teacher,  if  the 
fact  existed,  or  for  her  insubordination  or  refusal  to  carry  out  or 
comply  with  or  confonn  to  any  reasonable  by-laws  or  regulations 
made  and  adopted  by  the  board  of  trustees,  or  by  the  president  of 
the  faculty  under  and  by  the  direction  of  said  board,  or  it  would 
have  the  right  to  dismiss  her  from  the  school  and  terminate  her  con- 
nection therewith,  for  immorality,  immodest  or  unladylike  conduct  and 
behavior,  or  for  any  improper,  immodest,  and  unbecoming  conduct, 
such  as  would  be  likely  to  be  hurtful  or  injurious  to  the  reputation 
or  standing  of  the  school,  or  to  impede  and  prevent  or  interfere  with 
the  proper  progress  of  its  pupils,  or  their  proper  discipline  and  train- 
ing. But  under  these  principles  the  board  of  trustees  would  not  have 
the  right  to  interfere  with  her  social  relations,  or  her  right  to  receive 
and  entertain  her  friends,  or  with  the  time  at  which  she  would  dis- 
miss- them  of  evenings,  so  long  as  her  actions  and  conduct  in  these 
particulars  were  usual,  chaste,  proper,  ladylike,  and  becoming  a  lady 
in  her  position  in  life,  and  not  hurtful  nor  injurious  to  the  school, 
nor  incompatible  with  her  duties   as  a  teacher  in  said  school. 

(d)  If  she  was  guilty  of  going  into  society  or  of  keeping  late 
hours  in  company  of  young  men,  or  going  with  them  to  such  ques- 
tionable places  as  was  likely  to  cause  her  reputation  as  a  lady  to  be 
called  into  question,  or  as  would  impair  her  ability  and  efficiency  as 
a  teacher,  or  disqualify  her  to  perfoi-m  her  duties  as  well  as  she 
might  otherwise  have  done  her  duties  as  a  teaehei-,  then  the  board  of 
trustees  would  have  the  right  to  dismiss  her  and  terminate  its  con- 
tract with  her  for  these  reasons. 

(e)  Again,  if  she  was  guilty  of  habitually  counselling  or  encour- 
aging the  pupils  of  said  school,  or  any  of  them,  to  disobey  and  vio- 
late the  proper  and  reasonable  regulations  and  rules  of  the  school, 
which  had  been  adopted  by  the  board  of  trustees  or  by  the  president 
of  said  school  under  the  authority  of  siaid  board, — such  as  a  rule  for- 

mode  for  the  dismissal  of  teachers  with  the  district  board,  and  giving 
from  the  district  schools.  We  be-  the  tribunal  thus  created  the  pow- 
lieve  that  the  Legislature  estab-  er  to  dismiss  teachers,  unless  it 
lished  this  tribunal  clothed  with  was  intended  that  in  the  absence 
the  power  to  dismiss  with  the  in-  of  fraud,  corruption,  or  oppression, 
tention  that  its  acts  should  be  its  acts  should  be  final  and  con- 
final.  The  teacher  takes  his  em-  elusive.  It  would  tend  greatly  to 
ployment  with  the  knowledge  of  impair  the  government  and  effi- 
this  power,  and  it  enters  into  his  cicncy  of  the  public  schools  if  the 
contract  of  hire  however  made  or  honest  judgment  and  discretion  of 
formulated.  We  can  see  no  pur-  this  tribunal  so  exercised  was  sub- 
pnse  or  object  of  the  Legislature  in  ject  to  review." 
Joining   the   county    superintendent 


§2433.]  MISCELLANEOUS— CIVIL.  1573 

bidding  and  prohibiting  the  boys  and  girls  to  visit  each  other  with- 
out permission, — then,  under  these  circumstances,  the  board  would 
have  the  right  to  dismiss  her  from  the  school  and  terminate  her  con- 
nection with  it. 

(f)  If  you  find  that  when  the  ox'iginal  contract  was  made  there 
was  no  express  stipulation  that  she  was  to  keep  the  study  hall,  but 
that  she  was  aftenvards  assigned  to  the  position  and  work,  and  that 
the  disorder  and  confusion,  if  any  there  were,  in  the  study  hall,  was 
not  due  to  her  neglect  or  inattention  to  her  duties,  but  that  it  was 
due  to  the  fact  that  she  was  a  lady,  and  a  young  lady,  and  that  many 
of  the  pupils  were  young  men  or  large  boys,  and  that  they  were  un- 
ruly, and  could  not  be  restrained  by  plaintiff,  as  a  young  lady,  with- 
out fault  on  her  part,  then,  under  these  cii'cums'tances,  she  would  not 
be  liable  for  such  disorder.!^ 

19— The   above   series    of   instruc-     stitute  v.   Copass,  108  Tenn.   582,  69 
tions  approved  in  Hall-Moody  In-     S.  W.  327  (329). 


PART    III, 

FORMS    OF   INSTRUCTIONS— CRIMINAL. 


CHAPTER   LXXXVI. 

CRIMINAL— IN  GENERAL. 

ALIBI— IDENTITY    OF    ACCUSED— ARREST— ATTEMPT    TO 
ESCAPE— FLIGHT. 

See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


ALIBI. 
§  2434.  Defendant  not  present  when 

crime  committed. 
§  2435.  An  alibi  is  the  completest  de- 
fense  that  can  be  devised. 
S  2436.  The    alibi    must    show    that 
the     defendant     could     not 
have   been  at   the   place  of 
the  crime  at  that  time. 
§  2437.  Evidence    must    account    for 
the  whereabouts  of  defend- 
ant   during-    the    whole    pe- 
riod— Benefit     of    a     doubt 
given  defendant. 
§2438.  That    the    defendant    was   at 
another    place    but    not    so 
far  away  but  that  he  could 
with       ordinary       exertion 
have    reached    it    may    be 
considered. 
§  2439.  Evidence  of  an   alibi   should 
be  subjected  to  rigid  scru- 
tiny. 
{  2440.  An  alibi  characterized  as  be- 
ing easily  proven  and  hard 
to    disprove — Caution     and 
care  in  examining  evidence 
of. 
5  2441.  A  simulated,  false  and  fraud- 
ulent alibi  is  a  discrediting 
circumstance. 
§  2442.  Burden    of    proof    on    state 
of  whereabouts  of  defend- 
ant. 
§  2443.  Burden     of     proof — An     alibi 
is   not  to   be   considered   as 
a    basis    for    a     reasonable 
doubt  unless  established. 
5  2444.  Reasonable   doubt   raised   by 
an  alibi  sufficient  to  acquit. 
§  2445.  Defendant    should    be    given 
the  benefit  of  a  reasonable 
doubt  of  his  presence  at  the 
commission  of  the  crime. 


IDENTITY   OF  ACCUSED. 

§  2446.  Identity  of  accused— Homi- 
cide— Larceny. 

§  2447.  Identification  of  defendant. 

§  2448.  Doubt  as  to  defendant  or 
somebody  else. 

AEREST. 

§  2449.  When  officer  may  arrest 
without  warrant— Right  of 
private  individual  to  do  so. 

§  2450.  Unnecessary  violence  in  mak- 
ing arrest. 

§  2451.  Deputy  sheriff  making  ar- 
rest for  misdemeanor  can 
kill  only  in  self  defense. 

§  2452.  Right  of  officer  to  make  ar- 
rest-Shooting the  officer 
for  purpose  of  escape — 
What  constitutes  an  act  of 
selling  liquor. 

§  2453.  Right  of  sheriff  to  call  posse. 

§  2454.  Wbpn  a  refusal  to  assist  in 
making  arrest  is  justified. 

§  2455.  Resisting  officer  in  execution 
of  a  writ — Personal  ani- 
mosity  immaterial. 

ATTEMPT   TO   ESCAPE — FLIGHT. 

J  2456.  Attempt  to  escape — How  con- 
sidered. 

§  2457.  Flight  raises  presumption  of 
guilt. 

§  2458.  Flight  to  avoid  arrest  as  pri- 
ma facie  evidence — Homi- 
cide. 

§  2459.  Flight  as  tending  to  show- 
Consciousness  of  guilt — 
Significance  when  defend- 
ant  is   insane. 

§  2460.  Flight  as  evidence  of  guilt — 
Explained  by  defendant. 

§  2461.  Flight  may  or  may  not  be 
considered  as  proof  of 
guilt — Depends  on  motive 
— Explained. 


1575 


1576 


FORMS  OF  INSTRUCTIONS. 


[§  2434. 


§  2462.  Attempt  to  escape— Infer- 
ence to  be  drawn  therefrom 
— May  be  either  strong  or 
slight— Terms  explained. 


§  2463.  Failure  to  flee  or  voluntary- 
surrender  no  evidence  of 
innocence. 

§  2464.  Attempt  to  release  prisoner 
from  jail  by  delivering  tools 
to  prisoner. 


ALIBI. 

§  2434.    Defendant  Not  Present  When  Crime  Committed.     If  you 

believe  from  the  evidence  that  the  defendant  was  not  present  at  the 
time  it  is  alleged  that  the  crime  was  committed,  you  must  acquit 
him.^ 

§  2435.  An  Alibi  Is  the  Completest  Defense  That  Can  Be  Devised. 
Something  has  been  said  here  about  an  alibi.  The  books  say  that  an 
alibi  is  a  dangerous  defense,  yet,  when  there  are  no  circumstances  s'how- 
ing  any  lack  of  completion  in  (the  chain,  it  is  as  complete  a  defense  as 
can  be  devised,  because  the  law  says  a  man  cannot  be  in  two  places  at 
one  and  the  same  time,  and  we  all  know  that.  He  cannot  be  in  A. 
and  B.  the  same  day,  at  precisely  the  same  time.^ 

§  2436.  The  Alibi  Must  Show  That  the  Defendant  Could  Not  Have 
Been  at  the  Place  of  the  Crime  at  That  Time,  (a)  An  alibi  is  a  de- 
fense which  is  established  by  showing  that  the  person  chai'ged  with 
the  crime  was  at  some  place  other  than  that  where  the  crime  was 
committed,  at  such  a  time  that  he  could  not  have  been  at  the  place  of 
the  crime  at  the  time  of  its  commission.  If  the  evidence  offered  to 
establish  an  alibi  fails  to  show  the  accused  at  the  place  claimed  at 
such  a  time  that  he  could  not  have  been  where  the  crime  was  com- 
mitted at  the  time  of  its  commission,  the  alibi  fails.  In  other  words, 
if  the  accused  might  have  been  at  the  place  he  claims  at  the  time 
shown,  and  yet  might  have  been  at  the  place  of  the  crime  at  the  time 
of  its  commission,  there  is  no  alibi.  Of  course  if  it  appears  that  the 
respondent  was  at  W.  at  such  a  time  that  he  could  not  have  been  in 
the  R  bank  between  the  hours  of  two  and  three  in  the  morning  of 
November  6th,  the  alibi  is  made  out,  and  the  defense  is  complete.^ 

(b)  The  defense  interposed  by  the  defendant  in  this  case  is  what 
is  known  in  law  as  an  alibi — that  is,  that  the  defendant  claims  that 
he  was  at  another  place  at  the  time  of  the  commission  of  the  crime ; 
and  the  court  instructs  the  jury  that  such  defense  is  as  proper  and 
legitimate,  if  proved,  as  any  other,  and  all  the  evidence  bearing  upon 
that  point  should  be  carefully  considered  by  the  jury.  Such  de- 
fense, to  be  entitled  to  consideration,  must  be  such  as  to  show  that 
at  the  very  time  of  the  commission  of  the  crime  charged  the  accused 
was  at  another  place  so  far  away  and  under  such  circumstances  that 
he  could  not,  with  any  ordinary  exertion,  have  reached  the  place 
where  the  crime  was  committed,  so  as  to  have  participated  in  the 


1— People  v.  Feliz,  136  Cal.  19,  69 
Pac.    220. 

2— State  V.  Rhodes,  44  S.  C.  325, 
22  S.   E.  306   (308). 


3— State  v.  Powers,  72  Vt.  168,  47 
Atl.   830   (833). 


§  2437.]  CRIMINAL— IN    GENERAL.  1577 

commission  thereof.  But  the  court  instructs  the  juiy,  also,  as  a  mat- 
ter of  law,  that  the  burden  to  prove  that  the  defendant  was  at  an- 
other place  at  the  time  of  the  commission  of  the  ci'ime,  must  be  by 
preponderance  of  evidence;  that  is,  by  the  ^'eater  and  superior  evi- 
dence.* 

(c)  The  court  instructs  the  jury  that  the  testimony  in  support  of 
this  defense,  to  be  entitled  to  weight,  must  be  such  as  to  show  that, 
at  the  very  time  of  the  commission  of  the  crime,  the  defendant  was 
at  another  place  so  far  away,  or  under  such  circumstances,  that  he 
could  not  have  been  at  the  place  where  the  crime  was  committed.^ 

(d)  The  court  instructs  the  jury  that  the  defense  of  an  alibi,  to 
be  entitled  to  consideration,  must  be  such  as  to  show  that,  at  the  very 
time  of  the  commission  of  the  crime  charged  the  accused  was  at 
another  place,  so  far  away  or  under  such  circumstances  that  he  could 
not  with  any  ordinary  exertion  have  reached  the  place  where  the 
crime  was  committed  so  as  to  have  participated  in  the  commission 
thereof.® 

§  2437.  Evidence  Must  Account  for  the  Whereabouts  of  Defend- 
ant During  the  Whole  Period — Benefit  of  a  Doubt  Given  Defendant. 
The  jury  are  instructed  that  when  a  defendant  undertakes  to  estab- 
lish an  alibi,  the  evidence  which  he  offers,  taken  with  the  other  evi- 
dence in  the  case,  must  account  for  him  during  the  whole  period. 
But  if  you  entertain  a  reasonable  doubt  as  to  his  guilt,  or  as  to  his 
whereabouts  when  his  presence  is  material,  you  should  give  him  the 
benefit  of  that  doubt. '^ 

§  2438.  That  the  Defendant  Was  at  Another  Place  but  Not  So  Far 
Away  but  That  He  Could  with  Ordinary  Exertion  Have  Reached  It, 
May  Be  Considered.  One  of  the  defenses  interposed  by  the  defend- 
ant in  this  case  is  an  alibi;  that  is,  that  the  defendant  was  at  an- 

4 Glover  v    U    S     —  IT.  — ,91  sumed  the  instruction  in  Peyton  v. 

S    ^    41  •       •      •'  State,  54  Neb.  188,  74  N.  W.  597,  11 

5— State  v.  McGarry,  111  Va.  709,  Am.  Grim.  Rep.  47,  did,  that,  to  en- 

83  N    W    719.  t'*^^®  t^®  defense  of  alibi  to  consider- 

6— State   v.*   Maher,    74   la.    82,    37  ation  it  must  appear  that  the  place 

•  N    W.  2;  Mullins  v.  The  People,  110  where    the    defendant     claimed     to 

jjj     45     '  have  been  was  so  great  a  distance 

In   the   first   case   the   court   said  from  the  place  where  the  crime  was 

that  the  defendants  were  claiming  committed  as  to  preclude  the  pos- 

"what  is  known  in  law  as  an  alibi;  sibility  of  participation  therem." 
that    is,    at    the    time    the    robbery        7— People  v.  Worden,  113  Cal.  569, 

with   which   they  are   charged  was  45  Pac.   844  (846).  „„    ^  ,       ^„„ 

being    committed    they    were    at   a        In   Barr   v.    People,    30   Colo.   522. 

different  place,   so  that  they  could  71  Pac.  392  (394),  a  snnilar  mstruc- 

not    have   participated    in   its   com-  tion  was  given  to  the  effect  that: 
mission,"  and  defines  the  nature  of        The  court  instructs  the  jury  that 

ihe  proof  required.  to  render  an  alibi  satisfactory    the 

An    instruction    in    substantially  evidence  must  cover  the   whole  of 

the   same    form    was   approved   by  the  time  of  the  transaction  in  ques- 

the  Supreme  Court  of  Nebraska  in  tion.     If   you   have  any   reasonable 

Nightingale    v     State,    62   Neb.    371,  doubt    whether   the   defendant   was 

87  N    W    158  (159).     The  court  said  present   or   absent   from    the    place 

that  this  instruction  was  not  "sub-  where    the    crime    was    committed 

iect   to   anv  just  criticism.     It   did  and  participated  in  the  commission 

not  say  to  the  jury,  as  it  was  as-  thereof,  it  is  your  duty  to  acquit. 


1578  FORMS  OP  INSTRUCTIONS.  [§  2439. 

other  place  at  the  identical  time  that  the  crime  was  committed,  if 
committed  at  all.  If,  in  view  of  all  the  evidence,  you  have  any  rea- 
sonable doubt  as  to  whether  the  defendant  was  at  another  place  from 
where  the  crime  was  committed  at  the  time  of  its  commission,  then 
you  should  acquit ;  but  if  you  believe  from  the  evidence  that  the  ac- 
cused was  not  so  far  away  from  the  place  where  the  offense  was  com- 
mitted but  that  he  could,  with  ordinary  exertion,  have  reached  the 
place  where  the  offense  was  committed,  then  you  will  consider  that 
fact  as  a  circumstance  tending  to  prove  or  disprove  the  alibi. ^ 

§  2439.  Evidence  of  an  Alibi  Should  Be  Subjected  to  Rigid  Scru- 
tiny. The  defense  claimed  in  this  case  is  that  of  an  alibi;  that  is, 
that  the  defendant  was  elsewhere  when  the  offense  was  committed. 
The  testimony  offered  to  prove  this  defense  should  be  subjected,  like 
all  the  evidence  in  the  case,  to  rigid  scrutiny,  for  the  reason  that 
witnesses,  even  when  truthful,  may  be  honestly  mistaken  in,  or  for- 
getful of,  times  and  places.^ 

§  2440.  An  Alibi  Characterized  as  Being  Easily  Proven  and  Hard 
to  Disprove — Caution  and  Care  in  Examining  Evidence  of.  The  de- 
fense in  this  case,  gentlemen — ^one  of  the  defenses  introduced  here,  or 
a  train  of  circumstances  that  has  been  presented  here — tends  to  show 
an  alibi  of  the  defendant  here,  as  claimed  by  the  defendant.  That  is 
a  defense  which  is  legitimate.  If  it  is  true  that  this  defendant  was 
not  in  a  condition  so  that  he  could  have  committed  the  crime,  that 
should,  and  would  be  a  perfect  defense;  but  in  the  consideration  of 
that  class  of  defenses,  gentlemen,  it  is  necessary  for  you  to  take 
into  consideration  the  facts,  and  it  is  your  duty  as  jurors  to  examine 
carefully  the  evidence  given  on  that  point — scrutinize  any  evidence 
in  relation  to  the  alibi.  An  alibi  is  a  defense  that  is  easily  proven 
and  hard  to  disprove;  therefore  you  will  be  careful  and  cautious  in 
examining  the  evidence  bearing  upon  the  question  of  alibi.  I  say, 
if  it  is  established,  and  you  believe  the  evidence — in  other  words,  if 
you  believe  this  party  was  in  a  position  so  that  he  couldn't  have  com- 
mitted the  crime — of  course  that  would  be  an  absolute  defense.^*' 

^  2441.  A  Simulated,  False  and  Fraudulent  Alibi  Is  a  Discrediting 
Circumstance,  (a)  If  you  believe  from  the  evidence  in  this  case 
that  the  plea  of  an  alibi  was  not  interposed  in  good  faith,  or  that 
the  evidence  to  sustain  it  is  simulated,  false  and  fraudulent,  then  this 
is  a  discrediting  circumstance  to  which  you  may  look,  in  connection 
with  all  the  other  evidence,  in  determining  the  guilt  or  innocence  of 
the  defendant.^^ 

8— State  v.  Burton,  27  Wash.  528,  ing-  reference  to  that  phase  of  the 

67  Pac.  1097  (1099).  defense  where  an  alibi  was  sought 

9 — Roszczyniala  v.  State,  125  Wis.  to  be  proven  under  the  general  is- 

414,  104  N.  W.  113  (115).  sue.     So   taken   the  charge   was   in 

10 — People  V.  Portenga,  134  Mich,  line  with  the  principle  asserted   in 

247,  96  N.  W.  17,  12  Am.  Crim.  Rep.  Albritton  v.  State,  94  Ala.  76,  10  So. 

30.  426,   where  it  was  said:   'A  fraudu- 

11 — Tatum  V.  State,  131  Ala.  32,  31  lent  attempt  to  prove  an  alibi,  sus- 

So.   369.  tained    by    perjury,    will,    when   de- 

"This      instruction      must      have  tected,  be  a   circumstance  of  great 

meant  and  been  understood  as  hav-  weight  against  the  prisoner.'  " 


§  2442.; 


CRIMINAL— IN    GENERAL. 


1579 


'  (b)  If  the  defendant  attempted  to  prove  an  alibi  and  failed,  it 
is  a  circumstance  that  may  be  weighed  against  him.^^ 

(c)  If  the  jury  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  alibi  set  up  in  this  case  is  Emulated,  false,  and  fraud- 
ulent, they  may  consider  this  as  a  circumstance  against  the  defend- 
ant, in  connection  with  all  the  other  evidence  in  the  ease.^^ 

§  2442.  Burden  of  Proof  on  State  of  Whereabouts  of  Defendant. 
The  court  instructs  the  jury  that  the  burden  of  proving  the  presence 
of  the  defendants,  or  either  of  them,  at  the  time  and  place  of  the  al- 
leged burglary,  devolves  upon  the  state,  and  the  state  must  prove 
beyond  a  reasonable  doubt  that  they  were  present  at  the  time  of  the 
alleged  commission  of  the  offense.  It  does  not  devolve  upon  the  de- 
fendants to  prove  that  they  were  not  present.  So  that  after  a  full 
and  fair  consideration  of  all  the  facts  and  circumstances  in  evidence, 
or  that  adduced  by  the  defendants,  you  have  a  reasonable  doubt  as 
to  whether  defendants  were  at  the  place  of  the  alleged  crime  at  the 
time  of  its  commission,  or  were  at  another  place,  you  are  bound  to 
give  the  defendants  the  benefit  of  such  doubt,  and  acquit  them.^* 


12— Jackson  v.  State,  117  Ala.  155, 
23  So.  47  (48). 

The  court  said  in  comment  that 
"the  law  recognizes  no  distinction 
between  the  consequent  weight  of 
an  unsuccessful  attempt  to  estab- 
lish an  alibi  as  a  defense,  and  an 
unsuccessful  attempt  to  prove  any 
other  material  fact  in  defense;  and 
it  is  a  well-recognized  principle 
that  an  attempt  to  prove  any  mate- 
rial fact  in  defense,  followed  by  a 
failure,  is  a  circumstance  to  be 
weighed  against  the  party  making 
it.  There  was  no  reversible  error, 
therefore,  in  giving  the  first  charge 
requested  by  the  state.  If  the  de- 
fendant apprehended  the  charge 
singled  out  and  laid  stress  upon  a 
single  phase  of  the  evidence,  he 
should  have  asked  an  explanatory 
charge.  Albritton  v.  State,  94  Ala. 
76,  10  So.  426;  Kilgore  v.  State,  74 
Ala.  1;  Pellum  v.  State,  89  Ala.  28, 
8  So.  83." 

13— Crittenden  v.  State,  134  Ala. 
145,  32   So.   273  (275). 

14— State  V.  Hale,  156  Mo.  102,  56 
S.  W.  881  (882). 

But  see  the  instruction  approved 
by  the  court  in  State  v.  Howell,  100 
Mo.  628,  14  S.  W.  4,  where  that 
court  quotes  with  approval. 

"Whart.  Cr.  Ev.  (8th  Ed.)  par. 
333.  The  part  material  to  the  ques- 
tion we  are  now  considering  reads 
as  follows:  'Undoubtedly,  if  the 
prosecution  makes  out  a  case  suf- 
ficient to  secure  a  verdict  of  con- 
viction,  then  the  burden  is  on  the 


defendant  to  prove  his  defense. 
But,  when  his  proof  is  in,  then  the 
final  question  is,  are  the  essential 
averments  of  the  indictment  proved 
beyond  a  reasonable  doubt?  And 
among  these  essential  averments  is 
the  defendant's  participation  in  the 
act  charged.'  And  that  court  adds 
that  'the  supreme  courts  of  In- 
diana, Iowa  and  Texas,  in  well-con- 
sidered cases,  have  also  approved 
and  announced,  in  express  terms, 
the  same  doctrine,'  citing  Howard 
V.  State,  50  Ind.  190;  State  v.  Har- 
din, 46  Iowa  623,  26  Am.  Rep.  174; 
Walker  v.  State,  32  Tex.  360.  It  will 
be  noticed  that  Mr.  Wharton  uses 
the  expression,  'then  the  burden  is 
on  the  defendant  to  prove  his  de- 
fense.' 

"In  the  late  case  of  Harrison  v. 
State,  83  Ga.  129,  9  S.  E.  542,  the 
supreme  court  of  that  state,  in  dis- 
cussing the  question  of  alibi,  uses 
the  following  language:  'Were  our 
own  minds  not  hedged  in  by  au- 
thority, we  would  be  inclined  to 
adopt  the  view  expressed  by  Judge 
Thompson  (2  Thomp.  Trials,  para. 
2436)  who,  after  recognizing  that 
the  burden  of  proof  is  upon  the  ac- 
cused, adds:  'But,  upon  the  most 
unshaken  grounds  this  burden  is 
sustained,  and  an  adequate  quan- 
tum of  proof  produced  by  the  de- 
fendant, when  he  succeeds  in  rais- 
ing a  reasonable  doubt  in  the  minds 
of  the  jurors  as  to  whether  or  not 
he  was  at  the  place  of  the  crime 
when  it  was  committed.'  " 


1580  FORMS  OF  INSTRUCTIONS.  L§  2443. 

§  2443.  Burden  of  Proof — An  Alibi  Is  Not  to  Be  Considered  as  a 
Basis  for  a  Reasonable  Doubt  unless  Established,  (a)  The  count  in- 
structs the  jury  that  if  the  defendant  has  failed  to  establish  this 
defense  by  a  preponderance  of  the  credible  testimony,  then  he  is  not 
entitled  to  an  acquittal  upon  this  ground,  nor  to  have  it  considered 
by  you  as  a  basis  of  his  reasonable  doubt. 

(b)  The  burden  of  establishing  this  defense  by  a  preponderance 
of  the  credible  testimony  is  upon  the  defendant.  If  he  has  so  estab- 
lished it,  he  is  entitled  to  an  acquittal. ^^ 

(c)  The  defendant  in  this  ease  does  not  set  up  justification,  but 
he  undertakes  to  show  that  at  the  time  that  C.  was  killed  he  (the 
defendant)  was  not  at  the  place  where  such  killing  occurred,  but  at 
another  place,  and  that,  therefore,  he  was  not  connected  with  or  im- 
plicated in  such  crime.  The  burden  of  showing  an  alibi  is  on  the  de- 
fendant; but  if,  on  the  whole  ease,  the  testimony  raises  a  reasonable 
doubt  that  the  defendant  was  present  when  the  crime  was  committed, 
he  should  be  acquitted ;  but  the  jury  should  scrutinize  the  testimony 
of  witnesses,  to  see  if  some  of  them  may  or  may  not  be  mistaken  as 
to  dates  and  times  when  they  saw  the  defendant;  and  it  is  proper 
for  the  jury  to  consider  the  lapse  of  time  since  the  occurrence  hap- 
pened, and  whether  witnesses  are  likely  or  not  likely,  after  such 
lapse  of  time,  to  be  accurate  as  to  the  precise  time  or  hour  that  they 
saw  defendant  on  the  night  the  shooting  occurred.  In  other  words, 
in  arriving  at  your  conclusion  on  this  point,  the  jury  should  consider 
whether  it  may  or  may  not  be  true  that  defendant  was  present  at 
the  time  and  place  C.  was  shot,  and  that  some  of  the  witnesses  are 
honestly  mistaken  as  to  the  exact  time  they  saw  defendant  upon  the 
evening  and  night  of  November  3,  1900.^*^ 

15 — State    v.    McCarry,    111    Iowa  not  shift  the  burden  upon  the  de- 

709,  83  N.  W.  719.  fendant     to     prove     his     innocence. 

The  court  said:     "These  instruc-  The  burden  is  still  upon  the  state 

tions  accord  with  the  doctrines  of  to  prove  beyond  a  reasonable  doubt, 

this   court    pertaining    to    the    sub-  upon  the  evidence  in  the  whole  case 

jects  of  alibi  and  reasonable  doubt,  (which    would   include   evidence    of 

The  doctrine  laid  down  in  State  v.  alibi)  that  the  defendant  was  pres- 

Maher,  on  this  subject,  is  expressly  ent  when  the  crime  was  committed, 

approved   in    State   v.    Hatfield,    75  In    Commonwealth    v.    Choate,    105 

Iowa  592,   39   N.  W.    910.     See   also,  Mass.  456,  the  court  passed  upon  an 

State  V.  Fry,  67  Iowa  475,  25  N.  W.  instruction     which     told    the    jury: 

738;   State   v.   Kline,   54  Iowa  183,   6  'That   where  the   defendant  sought 

N.  W.  184;  State  v.  Hardin,  46  Iowa  to   establish   the   fact   that  he  was 

623,  26  Am.  Rep.  174.    It  is  manifest  at  a  particular  place  at  any  given 

that   the   instructions   given  in   the  time,  and  wished  them  to  take  it  as 

case   at   bar   are   in   harmony  with  an  affirmative  fact  proved,  the  bur- 

the  rule  stated."  den  of  proof  was  upon  him,  and,  if 

16— Rayburn  v.  State,  69  Ark.  177,  he  failed  in  maintaining  that  bur- 

63  S.  W.  356  (357).  den,   the  jury  could  not  consider  it 

The  court  said  this  "instruction  as  a  fact  proved  in  the  case;  that 
is  a  literal  copy  of  an  instruction  the  burden,  however,  was  upon  the 
approved  by  this  court  in  Ware  v.  government  to  show  that  the  de- 
State,  59  Ark.  379,  27  S.  W.  485.  fendant  was  present  at  the  time  of 
That  case  was  well  considered,  and  the  commission  of  the  defense, 
the  conclusion  we  then  reached  was  and,  as  bearing  upon  that  question, 
sound.  Learned  counsel  for  appel-  the  jury  were  to  consider  all  the 
lant,  we  think,  misapprehend  the  evidence  offered  by  the  defendant 
purport  of  the  instruction.    It  does  tending   to  prove  an  alibi;  and  if, 


§  2443. 


CRIMINAL— IN    GENERAL. 


1581 


(d)  The  court  instructs  the  juiy  that  where  the  state  makes  out 
such  a  case  as  would  sustain  a  verdict  of  guilty,  and  the  defendant 
offers  evidence,  the  burden  is  upon  the  defendant  to  make  out  his 
defense  as  to  an  alibi;  and  when  the  proof  is  all  in,  both  that  given 
for  the  defendant  and  for  the  state,  then  the  primary  question  is 
(the  whole  evidence  being  considered),  is  the  defendant  guilty  be- 
yond a  reasonable  doubt! — the  law  being  that  if,  after  you  have 
considered  all  the  evidence,  as  well  as  that  touching  the  question  of 
alibi,  as  the  criminating  evidence  introduced  by  the  state,  you  have 
a  reasonable  doubt  of  the  guilt  of  the  accused,  you  should  acquit; 
if  you  have  not,  you  should  convict.^^ 

(e)  The  juiy  are  instructed  that  when  the  state  offers  evidence 
and  makes  out  a  prima  facie  case  (in  law)  of  guilt  against  the  de- 
fendants, and  the  defense  of  alibi  is  relied  on,  then  the  burden  of 
proof  is  on  the  defendants  to  show  you  by  a  preponderance  or  the 
evidence  offered  that  at  the  time  and  place  in  question  it  was  im- 
possible for  the  defendants  to  have  been  there. ^^ 

(f )  Where  the  defendant  enters  a  general  plea  of  not  guilty,  that 
is  a  denial  of  the  state's'  entire  case;  it  puts  the  state  upon  proof  of 
the  case, — of  the  charge.  If  he  goes  on  further,  and  enters  a  special 
plea  (for  instance,  an  alibi),  then  the  defendant  assumes  the  burden 


upon  all  the  evidence,  the  jury  en- 
tertained a  reasonable  doubt  as  to 
the  presence  of  the  defendant  at 
the  fire,  they  were  to  acquit.'  The 
court  said  of  this:  'The  substance 
of  the  whole  ruling-  was  that,  if 
the  evidence  of  the  defendant 
which  tended  to  prove  an  alibi  was 
such  that,  taken  together  with  the 
other  evidence,  the  jury  were  left 
in  reasonable  doubt  as  to  whether 
the  defendant  was  present  at  the 
alleged  fire,  they  should  acquit 
him.'  The  instruction  in  the  form 
g-iven  in  the  Massachusetts  case 
is,  perhaps,  a  preferable  statement 
of  the  law.  But  the  instruction 
under  consideration,  fairly  con- 
strued, is  of  exactly  the  same  pur- 
port. The  burden  to  show  the  de- 
fendant's presence  and  participa- 
tion in  the  crime  is  still  upon  the 
state,  when  the  evidence  consid- 
ered as  a  whole,  including  that  in- 
troduced by  the  defendant  on  the 
question  of  alibi.  But  as  to  the 
particular  defense  of  alibi  set  up 
under  the  general  plea  of  not 
guilty,  the  defendant,  if  he  relies 
upon  it  as  an  affirmative  fact, 
must  show  that  particular  fact. 
The  state  could  not  be  expected  to 
prove  that  he  was  not  present. 
That  would  be  to  devolve  upon  the 
state  the  duty  of  proving  a  neg- 
ative, i.  e.,  that  defendant  was  not 


present,  and  not  guilty.  The  state 
must  prove  its  charge — the  guilt  of 
the  accused — beyond  a  reasonable 
doubt,  notwithstanding  the  testi- 
mony tending  to  prove  an  alibi,  or 
the  defendant  must  be  acquitted; 
but  it  is  the  province  of  the  de- 
fendant to  introduce  evidence  tend- 
ing- to  show  an  alibi  when  relied 
upon  as  an  affirmative  matter  of 
defense,  and  as  to  this  the  burden 
rests  upon  him." 

17— State  V.  Thornton,  10  S.  D. 
349,  73  N.  W.  196  (197),  41  L.  R.  A. 
530;  Ackerson  v.  People,  124  III. 
563,   16  N.   E.   847. 

See  also  State  v.  Maher,  74  la. 
82,  37  N.  W.  2,  where  an  instruc- 
tion charging  the  jury  that  "the 
burden  is  upon  each  defendant  to 
prove  this  defense  for  himself,  by 
a  preponderance  of  evidence;  that 
is,  by  the  greater  and  superior  evi- 
dence," was  approved. 

18— Bone  v.  State,  102  Ga.  387,  30 
S.  E.  845  (847). 

A  similar  instruction  was  ap- 
proved in  Cochran  v.  State,  113  Ga. 
726,  39  S.  E.  332,  the  court  addiner 
further  that  "the  evidence  offered 
as  an  alibi  is  to  be  considered  along 
with  all  the  other  evidence,  in  or- 
der to  determine  whether  the  guilt 
of  the  defendant  has  been  shown 
beyond   a   reasonable   doubt." 


1582  FORMS  OF  INSTRUCTIONS.  [§  2444. 

of  proving  that  special  plea,  not  beyond  a  reasona'ble  doubt,  but  by 
the  preponderance  (the  greater  weight)  of  the  testimony. 

(g)  It  is  the  duty  of  the  state  to  prove  every  material  allegation 
in  an  indictment  beyond  a  reasonable  doubt,  land  the  defendant  is 
entitled  to  the  benefit  of  any  reasonable  doubt  growing  out  of  all  the 
testimony  in  the  case.^^ 

§  2444.    Reasonable  Doubt  Raised  by  an  Alibi  Sufficient  to  Acquit. 

(a)  The  court  instructs  the  juiy  that,  if  there  is  any  evidence  be- 
fore you  that  raises  in  your  minds  a  reasonable  doubt  as  to  the  pres- 
ence of  the  defendant  at  the  time  and  place  where  the  crime  is 
charged  to  have  been  committed  (if  you  find  a  crime  was  committed) 
you  will  acquit  the  defendant.-" 

(b)  The  court  instructs  the  jury  that  all  the  evidence  bearing  upon 
that  point  should  be  carefully  considered  by  the  jury.  And  if,  in  view 
of  the  evidence,  the  jury  have  any  reasonable  doubt  as  to  whether 
the  defendant  was  at  some  other  place  at  the  time  the  crime  was 
committed,  they  should  give  the  defendant  the  benefit  of  any  doubt, 
and  find  him  not  guilty.  The  defendant  is  not  required  to  prove  that 
defense  beyond  a  reasonable  doubt  to  entitle  him  to  an  acquittal.  It 
is  sufficient  if  the  evidence  upon  that  point  raisers  a  reasonable  doubt 
of  his  presence  at  the  time  and  place  of  the  commission  of  the  crime 
charged.-^ 

(c)  The  defendant  is  not  requii-ed  to  prove  that  defense  beyond 
a  reasonable  doubt,  but,  to  entitle  him  to  an  acquittal,  it  is  sufficient 

19 — State   v.    Anderson,    59    S.    C.  fully    proves    a    prima    facie    case, 

229,  37  S.  E.  820.  and   a   special   defense,   such  as  in- 

In    approving    these    instructions  sanity,   alibi,   etc.,   is  interposed,   it 

the    court    said    that    "in    view    of  must   be   established   only   by   such 

these    instructions,    and    the    cases  a  preponderance  of  evidence  as  will 

of  State  v.  Nance,  25  S.  C.  173,  and  satisfy    the    jury    that    the    charge 

State    v.    Jackson,    36    S.    C.    492,    15  is  not  sustained  beyond  all  reason- 

S.  E.  559,  31  Am.  St.  890.  we  do  not  able    doubt.'      Such    was    the   prac- 

think  the  court  in  this  inatter  com-  tical   effect  of   the   charge,    treated 

mitted      reversible      error.       These  as  a  whole." 

cases   seem   to   treat  an   alibi   as  a  20 — State    v.    Davis,    186    Mo.    533 

special  defense,  to  be  supported  by  (539),   85  S.  W.  354  (356). 

a    preponderance    of    the    evidence,  "This    instruction    was    approved 

just    as     the    plea    of    insanity     is  in  State  v.  Adair,  160  Mo.  391,  61  S. 

treated  in  State  v.  Paulk,  18  S.  C.  W.  187;  and  while  in   State  v.  Mc- 

514,    and    State   v.    Bundy,   24   S.    C.  Ginnis,  158   Mo.  123,   59   S.  W.   83,  a 

442,    58   Am.    Rep.    263;    but    all    the  different     form     was     indicated     as 

cases    recognize    that    such    rule    is  proper,    it    was   not   ruled   that   the 

subordinate    to    the    cardinal    rule  same    principle    might    not    be    ex- 

in    criminal    cases    that    the    state  pressed   in  fewer  words   or  in   dif- 

must   prove    every   element  of   the  ferent   form." 

crime  charged  beyond  a  reasonable  21 — People  v.  Resh,  107  Mich.  251, 

do'ibt.     In  criminal  cases  'the  pre-  65  N.  W.   99  (100). 

ponderance  of  the  evidence'  is  with  The  court   said:     "It  requires  no 

the    defendant   when    the    evidence  discussion  to  show  the  correctness 

raises    a    reasonable    doubt    of    his  of   this   instruction.     The   respond- 

guilt,  since  the  case  of  the  state  is  ent  relies  on  People  v.  Pearsall,  50 

thereby    overthrown.       In    State   v.  Mich.  233,  15  N.  W.  98,  but   the  in- 

Pnulk,  supra,  approved  in  State  v.  struction    there  given    is   in    no   re- 

Bundy,  supni,  the  rule  in  this  state  spect  similar  to   the  instruction  in 

is  thu.s  expressed:  'Where  the  state  this  case." 


§2444.] 


CRIMINALr-IN    GENERAL. 


1583 


if  the  evidence  upon  that  point  raises  a  reasonable  doubt  of  the  de- 
fendant's  presence  at  the  time  and  place  of  the  commission  of  the 
crime  charged.  The  burden  is  upon  the  defendant  to  prove  this  de- 
fense for  himself  by  a  preponderance  of  evidence,  that  is,  by  the 
greater  and  superior  evidence. -^ 

(d)  This  defense  of  alibi  is  a  legitimate  defense,  and  if,  from  a 
consideration  of  the  evidence,  you  should  be  convinced  that  the  de- 
fendant vpas  not  in  this  county  at  the  time  -when  it  is  claimed  the 
cattle  in  question  were  stolen,  or  if  you  entertain  a  reasonable  doubt 
a.s  to  his  whereabouts  at  that  time,  he  would  be  entitled  to  an  acquit- 
tal on  this  defense  of  alibi.-^ 

(e)  As  regards  the  defense  of  an  alibi,  the  jury  are  instructed, 
that  the  defendant  is  not  required  to  prove  that  defense  beyond  a 
reasonable  doubt  to  entitle  him  to  an  acquittal;  it  is  sufficient  if  the 
evidence  upon  that  point  raises  a  reasonable  doubt  of  his  presence 
at  the  time  and  place  of  the  commission  of  the  crime  charged.-* 

(f)  The  court  instructs  the  jury  that  the  burden  of  proof  is  on 
the  accused  to  verify  the  alibi,  not  beyond  a  reasonable  doubt,  but 
to  the  reasonable  satisfaction  of  the  jury.  Any  evidence  whatever  of 
alibi  is  to  be  considered  in  the  general  case  with  the  rest  of  the  testi- 


22— State  v.  Thomas,  —  la.  — ,  109 
N.  W.  900   (902). 

"It  is  claimed  that  this  instruc- 
tion is  erroneous  because  it  does 
not  properly  present  the  rule 
adopted  by  this  court,  and  which  is 
in  some  respects  peculiar  to  this 
state,  that,  while  the  defense  of 
alibi  must  be  made  out  for  de- 
fendant by  a  preponderance  of  the 
evidence  relating  thereto,  neverthe- 
less the  defendant  is  entitled  to  ac- 
quittal if  all  the  evidence,  includ- 
ing that  relating  to  alibi,  leaves  in 
the  minds  of  the  jury  a  reasonable 
doubt  as  to  defendant's  guilt  of  the 
crime  charged.  State  v.  Hogan, 
115  Iowa  455,  88  N.  W.  1074;  State 
v.  McGarry,  111  Iowa  709,  83  N.  W. 
718;  State  v.  Hathaway,  100  Iowa 
225,  69  N.  W.  449;  State  v.  Maher, 
75  Iowa  77,  37  N.  W.  2.  The  only 
question,  as  we  think,  is  whether, 
in  the  instruction  quoted,  the  jury 
was  directed  to  take  into  account 
the  evidence  relating  to  alibi  in 
determining  whether  they  were 
satisfied  beyond  a  reasonable  doubt 
on  all  the  evidence  as  to  defend- 
ant's guilt,  and  we  are  satisfied  that 
the  instruction  plainly  conveys  this 
idea.  The  jury  was  told  to  acquit 
if  the  evidence  as  to  alibi  'raises  a 
reasonable  doubt  of  the  defend- 
ant's presence  at  the  time  and 
place  of  the  commission  of  the 
crime  charged.'     Certainly  it  must 


have  been  understood  from  this 
instruction  that,  in  determining 
whether  there  was  a  reasonable 
doubt  of  defendant's  guilt,  the  evi- 
dence as  to  alibi  should  be  consid- 
ered regardless  of  whether  defend- 
ant established  the  defense  of  alibi 
by  a  preponderance  of  the  evi- 
dence. The  instruction  is  quite 
similar  in  this  respect  to  one 
which  was  held  not  prejudicial  to 
the  defendant  in  State  v.  Worthen, 
124  Iowa  408,  100  N.  W.  330.  It  is 
said  in  the  Worthen  case,  that  the 
instruction  given  was  more  favor- 
able to  the  defendant  than  it 
should  have  been,  and  perhaps  the 
same  thing  is  true  in  this  case; 
but  at  any  rate  there  was  clearly 
no  error  prejudicial  to  defendant." 

In  Long  V.  State,  42  Fla.  612,  28 
So.  775,  citing  Adams  v.  State,  28 
Fla.  511,  10  So.  106,  14  L.  R.  A.  253, 
the  court  approved  a  similar  in- 
struction and  held  that  a  refusal  to 
give  it  constituted  error. 

23— Catron  v.  State,  52  Neb.  389. 
72    N.    W.    354    (355). 

The  court  said  that  this  uistruc- 
tion  was  of  the  same  character  as 
those  considered  in  Barney  v. 
State,  49  Neb.  515,  68  N.  W.  636. 

24— State  v.  Harden,  46  la.  623; 
State  V.  Jaynes,  78  N.  C.  504;  How- 
ard V.  State,  50  lud.  190;  State  v. 
Watson,  7  S.  C.  63. 


1584  FORMS  OP  INSTRUCTIONS.  [§  2445. 

mony,  and,  if  a  reasonable  doubt  of  guilt  be  raised  by  the  evidence 
as  a  whole,  the  doubt  must  be  given  in  favor  of  innocenee.^^ 

(g)  One  of  the  defenses  interposed  by  the  defendants,  in  this 
ease,  is  what  is  known,  in  law,  as  an  alibi,  that  is,  that  the  defendants 
were  at  another  place  at  the  time  of  the  commission  of  the  crime, 
and  the  court*  instructs  the  jury,  that  such  a  defense  is  as  proper  and 
as  legitimate,  if  proved,  as  any  other,  and  all  the  evidence  bearing 
upon  that  point  should  be  carefully  considered  by  the  jury;  and  if  in 
view  of  all  the  evidence,  the  jury  have  any  reasonable  doubt  as  to 
whether  the  defendants  were  in  some  other  place  when  the  crime  was 
committed,  they  should  give  the  defendants  the  benefit  of  the  doubt, 
and  find  them  not  guilty.-^ 

(h)  The  court  instructs  the  jury  that  if  the  evidence  on  this  sub- 
ject, considered  with  all  the  other  evidence,  is  sufficient  to  raise  a 
reasonable  doubt  as  to  the  guilt  of  the  defendant,  you  should  acquit 
him.  The  accused  is  not  required  to  prove  an  alibi  beyond  a  reason- 
able doubt,  or  even  by  a  preponderance  of  evidence.  It  is  sufficient 
to  justify  an  acquittal  if  the  evidence  upon  that  point  raises  a  rea- 
sonable doubt  of  his  presence  at  the  time  and  place  of  the  commis- 
sion of  the  crime  charged,  if  you  find  that  a  crime  was  committed. 
And  you  will  understand  also  that  the  attempt  of  the  accused  to 
prove  an  alibi  does  not  shift  the  burden  of  proof  from  the  prosecu- 
tion, but  that  the  prosecution  is  bound  to  pi'ove  his  presence  beyond 
a  reasonable  doubt.-^ 

§  2445.  Defendant  Should  Be  Given  the  Benefit  of  a  Reasonable 
Doubt  of  His  Presence  at  the  Commission  of  the  Crime,  (a)  When 
a  person  on  trial  for  a  crime  shows  that  he  was  in  another  place  at 
the  time  when  the  act  was  committed,  he  is  said  to  prove  an  alibi. 
One  of  the  defenses  intei-posed  by  the  defendant  in  this  case  is 
what  is  known  as  an  ''alibi;"  that  is,  that  the  defendant  was  in 
another  place  at  the  time  of  the  commission  of  the  crime.  The  court 
instructs  the  juiy  that  such  defense  is  as  proper  and  legitimate,  if 
proved,  as  any  other,  and  all  evidence  bearing  on  that  point  should 
be  carefully  considered  by  the  juiy.  If,  in  view  of  all  the  evidence, 
the  jui-y  have  a  reasonable  doubt  as  to  whether  defendant  was  in 
some  other  place  when  the  crime  was  committed,  they  should  give 
him  the  benefit  of  the  doubt,  and  acquit  him.  As  regards  the  de- 
fense of  an  alibi,  the  jury  are  instructed  that  the  defendant  is  not 
required  to  prove  that  defense  beyond  a  reasonable  doubt  to  entitle 
him  to  an  acquittal.     It  is  sufficient  if  the  defense  upon  that  point 

25— In    Henderson    v.    State,    120  26— Davis  v.  State,  5  Bax.  (Tenn.) 

Ga.  504.  48  S.  E.  167  (168),  this  form  612;  Wiley  v.  State,  5  Bax.  662. 

of   instruction,    tlie  court  said,   has  In   Conrad   v.   State,   132  Ind.  25*^ 

been    frequently    approved    by    this  31   N.   E.   805,   a  similar  instruction 

court,  citing  Miles  v.  State,  93  Ga.  was  given  and  the  jury  were   told 

120,   19   S.   E.   805,   44   Am.   St.   Rep.  that  an  alibi  is  to  be  judged  as  any 

140;    see    also    Boston    v.    State,    94  other  defense. 

Ga.    591,    20    S.    E.    98;    Cantrell    v.  27— People  v.    Lang,   142   Cal.   482, 

State.  95  Ga.  500.  20  S.  E.  218.  76  Pac.  232  (234). 


§2446.]  CRIMINAL—IN    GENERAL.  1585 

raises  a  reasonable  doubt  of  his  presence  at  the  time  and  place  of 
the  commission  of  the  crime  charged.^* 

(b)  If  the  jury  have  a  reasonable  doubt,  arising  from  the  evi- 
dence, or  from  the  want  of  evidence,  whether  the  defendant  was 
present  at  the  time  and  place  where  said  offense  Avas  committed  (if  it 
was),  then  it  would  be  the  duty  of  the  jury  to  give  the  defendant 
the  benefit  of  such  reasonable  doubt  (if  any),  and  acquit  him,^^ 


IDENTITY  OF  ACCUSED. 

§2446.  Identity  of  Accused  —  Homicide  —  Larceny,  (a)  The 
court  instructs  the  jury,  so  far  as  the  identity  of  the  defendant  is 
concerned,  that,  if  they  believe,  from  the  evidence  and  the  circum- 
stances proved,  that  there  is  a  reasonable  doubt  whether  the  witness 
might  not  be  mistaken  as  to  his  identity,  then  the  juiy  would  not  be 
authorized  to  convict  the  prisoner;  the  corroborating  circumstances 
tending  to  establish  his  identity  must  be  such  as,  with  other  testimony, 
produces  a  degree  of  certainty  in  the  minds  of  the  jury  so  great  that 
they  can  say  that  they  have  no  reasonable  doubt  of  the  identity  of 
the  defendant.^'' 

(b)  If  the  jury  are  satisfied  from  the  evidence,  beyond  a  reason- 
able doubt,  that  a  larceny  was  committed  in  manner  and  form  as 
charged  in  the  indictment  by  some  one  or  more  of  the  defendants,  and 
that  this  was  done  in  pursuance  of  a  common  purpose  entertained  by 
all  for  the  benefit  of  all,  and  according  to  a  plan  or  scheme  contrived 
or  agreed  upon  by  all  of  the  defendants,  then  the  jui-y  -nnll  be  war- 
ranted in  finding  them  all  guilt}',  although  you  may  be  in  doubt  as 
to  the  identity  of  the  particular  defendant  who  actually  took  and 
carried  away  the  property  in  question.^^ 

§  2447.  Identification  of  Defendant.  The  court  instructs  the  jury 
that  unless  they  believe  beyond  everj'-  reasonable  doubt  that  the  wit- 
ness H.  C.  saw  and  recognized  the  defendant  on  the  night  of  the 
killing,  as  stated  by  him,  they  will  acquit  the  defendant.^- 

§  2448.  Doubt  as  to  Defendant  or  Somebody  Else,  (a)  The  court 
instructs  the  jury,  that  before  they  can  convict  the  defendant  in  this 

28— State    v.    McGinnes,    158    Mo.  of  the  crime,    they   should    acquit 

105,  59  S.  W.  83  (88).  him,  and   that  it  was  sufficient,   if 

"It     is     challenged     because    the  the    defense    raised    a    reasonable 

court  used   the  phrase   'if  proved.'  doubt  of  his  presence  at   the   time 

The  language  is  most  unfortunate,  and   place  of  the   homicide,   to   ac- 

and  was  criticised  by  this  court  in  quit  him." 

State   v.   Taylor,   118  Mo.  153.   24   S.  29— Tune    v.    State,    —    Tex.    Cr. 

W.  449,  11  Am.  Crim.  Rep.  51;  but,  App.— ,  94  S.  W.  231  (232). 

when  taken  altogether,  we  think  it  30— Painter  v.  People,  147  III.  444 

clearly   informed    the   jury   that   if,  (469),  35  N.  E.  64. 

in    view    of    all    the    evidence,    the  31— Neville  v.  State,  60  Ind.  308. 

jury  had  a  reasonable  doubt  of  the  32— Petty    v.    State,    83    Miss.   260, 

presence   of   the   defendant   at    the  35  So.  213,  102  Am.  St.  442. 
time  and   place   of  the  commission 

100 


1586  FORMS  OF  INSTRUCTIONS.  [§  2449. 

ease,  it  must  appear,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant,  and  not  somebody  else,  committed  the  offense 
charged  in  the  indictment.  It  is  not  sufficient  that  the  evidence 
shows  that  the  defendant  or  somebody  else  committed  the  crime,  nor 
that  the  probabilities  are  that  the  defendant  and  not  somebody  else 
committed  the  crime,  unless  those  probabilities  are  so  strong  as  to 
remove  all  reasonable  doubt  as  to  whether  the  defendant  or  some 
one  else  is  the  guilty  party.^^ 

(b)  The  jury  are  instructed,  that  it  is  a  rule  of  law  that  although 
it  may  be  positively  proved  that  one  of  two  or  more  persons  com- 
mitted a  crime,  yet  if  there  is  any  reasonable  doubt  as  to  which  is 
the  guilty  party,  all  must  be  acquitted.^* 


ARREST. 

§  2449.  When  Officer  May  Arrest  without  Warrant — Right  of  Pri- 
vate Individual  to  Do  So.  (a)  The  court  instructs  the  jury  that  an 
officer  or  a  private  individual  may  arrest,  without  a  warrant,  one 
whom  he  has  reasonable  grounds  to  suspect  of  having  committed  a 
felony. 

(b)  An  officer  or  a  private  individual  may  arrest,  without  a  war- 
rant, a  person  upon  suspicion  of  felony,  upon  the  information  of  a 
third  person. 

(c)  An  officer  or  a  private  citizen  may  lawfully  arrest,  without  a 
warrant,  one  whom  he  has  reasonable  grounds  to  suspect  of  having 
committed  a  felony;  and  it  is  immaterial  whether  the  suspicion  arises 
out  of  information  given  by  another,  or  whether  it  arises  out  of  the 
officer's  own  knowledge. 

(d)  An  individual  without  a  warrant,  *  *  *  acting  in  good 
faith,  may  ai-rest  a  particular  individual  for  having  oommifcted  a 
felony  in  a  sister  state  on  an  occasion  already  passed. 

(e)  The  court  instructs  the  juiy  that  any  one  liable  to  be  ar- 
rested as  a  fugitive  from  justice  by  warrant  might  be  arrested  by  a 
private  person  without  warrant,  from  necessity  and  sound  policy,  on 
showing  that  prima  facie  a  felony  or  some-  crime  punishable  either 
capitally  or  by  imprisonment  for  one  year  or  upwards  in  a  state 
prison  was  in  fact  committed,  and  the  prisoner  was  the  perpetrator. 

(f)  The  court  instructs  the  jury  that  on  view  of  a  felony  com- 
mitted, or  upon  certain  information  that  a  felony  has  been  commit- 
ted, or  upon  view  of  a  larceny  committed,  any  person  may  arrest  the 
felon  or  thief  and  take  him  to  a  judge  or  magistrate  to  be  dealt  with 
according  to  law.^^ 

(g)  Where  it  is  shown  by  satisfactory  proof  to  a  peace  officer,  upon 

33— Lyons   v.   The   People,    68   111.         35— State  v.  Whittle,  59  S.  C.  297, 
271.  37  S.   E.  923   (927). 

34— Campbell  v.  People,  16  111.  1. 


§  2450.]  CRIMINAL— IN    GENERAL.  1587 

the  representation  of  a  credible  person,  that  a  felony  has  been  com- 
mitted, and  that  the  offender  is  about  to  escape,  so  that  there  is  no 
time  to  procure  a  warrant,  such  peace  officer  may,  without  warrant, 
pursue  and  arrest  the  pei-son  accused  of  such  felony.  In  order  to 
make  the  attempted  arrest  of  defendant  by  G.  lawful  (if  you  be- 
lieve that,  at  the  time  of  the  killing  of  H.  S.,  G.  was  making  such 
attempt)  you  must  find  the  existence  of  all  the  following  facts,  to- 
wit:  (l)^That  G.,  as  sheriff,  had  satisfactory  proof  that  defendant 
had  committed  a  felonious  killing  of  M.  in  Karnes  county;  (2)  that 
such  proof  had  been  made  upon  the  representation  of  a  credible  per- 
son; (3)  that  the  defendant  was  about  to  escape;  and  (4)  t^hat  G. 
had  no  time  to  procure  a  waiTant  for  defendant's  arrest;  or  (5)  that 
if  he  had  time  to  procure  such  warrant  he  made  no  effort  to  do  so. 
The  absence  of  any  one  or  more  of  these  facts  would  make  the  at- 
tempted arrest  unlawful,  and  you  should  in  that  event  so  find.^*^ 

§  2450.  Unnecessary  Violence  in  Making  Arrest.  The  court  in- 
structs the  jury  that  under  the  law  an  arrest  may  be  made  by  a 
peace  officer  in  obedience  to  a  warrant  of  arrest  delivered  to  him,  or 
without  a  warrant  where  a  public  offense  is  committed  in  his  pres- 
ence, or  where  he  has  reasonable  grounds  for  believing  that  the  per- 
son arrested  has  committed  a  felony;  and  the  court  tells  you  that  a 
marshal  is  a  peace  officer.  The  court  further  tells  you  that  an 
arrest  is  made  by  placing  the  person  in  restraint,  or  by  his  submit- 
ting to  the  custody  of  the  person  making  the  arrest.  But  in  mak- 
ing the  arrest  no  unnecessary  force  or  violence  shall  be  used,  and  m 
this  case,  although  the  jury  may  believe  from  the  evidence  that  the 
defendant  was  a  peace  officer,  and  as  such  was  undertaking  to  ar- 
rest  the  prosecuting  witness,  B.,  still,  if  you  further  believe  from  the 
evidence  beyond  a  reasonable  doubt  that  the  defendant  used  greater 
force  or  violence  in  making  the  arrest  than  was  apparently  necessary, 
he  would  not  be  justified  or  excusable  under  the  law,  and  you  will 
find  him  guilty."^ 

36-Cortez    v.    State,   43    Tex.    Cr.     State,  67  Ark.  594.  50  S.  W.  554.  59 

^??e,f  ^i-rror'to'^^ftfiSinstruc  ^T^e  cSurt  instructs  the  Jury  that 

tion  where  defendant  was  charged  if    B.    at    the    time    of   the    assault 

w°th    muidei     of    sheriffs    deputy  complained  of,  was  violatm?  a  city 

l\,^I^nttPmntin2:  to  arrest  him.  ordinance,     or    was    committmg    a 

^Secause  1     t^re  ^la^  nrpurpose  misdemeanor,     the     defendant,     as 

on  the  part  of  thi  sheriff,  and  those  city  marshal,   had   a  right,   and   it 

w^th  him    to  find  and  arrest  anpel-  was  his  duty    to  arrest  h.m.  and  to 

T^,   f^^'thP   killine   of    Sheriff    M.,  use    force,    if    necessary,    to    do    so. 

'hen  the  acts  o    himself  and  those  He  was  not  obliged  to  call  any  one 

accommnying    him    were    without  to  his  assistance.     It  is  not  the  law 

accompa-nyiub  ^^^^   ^^j   other   means   must   be   re- 

®^,S."^^-i„^_^,._  ^    atate    69  Ark.  573,  sorted    to    before    using    force    to 

fi/rw  ti^  mk^    13  Am    crRe^^  make    the    arrest.      The    court    m- 

?23      sTys     ^at     "this  TusFrucUon.  structs     you     that,      if     defendant 

Sen' wfth  ?h?  following  one    fully  struck  B-vhi^e  making  ^he  arr^^^^ 

£"not"li'ving^it^--  -Magnlsrv^     ^rS^tS^  t^^e'..^^^.m,  or 


1588  FORMS  OF  INSTRUCTIONS.  [§  2451. 

§  2451.  Deputy  Sheriff  Making  Arrest  for  Misdemeanor  Can  Kill 
Only  in  Self  Defense.  Defendant  had  the  right  to  go  to  the  Pratt 
house  for  the  purpose  of  making  an  arrest  and  if,  while  in  the  vicin- 
ity, and  without  justifiable  cause  or  provocation,  the  inmates  of  the 
house  began  to  shoot  at  him,  and  he  had  reasonable  grounds  to  ap- 
prehend a  design  on  the  part  of  the  inmates  of  the  house  to  do  him 
great  pei-sonal  injuiy,  and  that  there  was  imminent  danger  of  said 
design  being  accomplished,  then  the  assault  on  the  part  of  defend- 
ant was  justifiable  and  the  jury  should  find  him  not  guilty.^^ 

§  2452.  Right  of  Officer  to  Make  Arrest— Shooting  the  Officer  for 
Purpose  of  Escape — What  Constitutes  an  Act  of  Selling  Liquor. 
Gentlemen  of  the  jury,  an  arrest  by  a  peace  officer  of  a  person  is 
made  by  taking  the  person  into  actual  custody.  If  you  believe  from 
the  evidence  in  this  case  beyond  a  reasonable  doubt  that  C.  was  a  po- 
lice officer  of  the  city  of  D.,  B.  county,  Ky. ;  that  the  defendant,  R.  0., 
within  the  corporate  limits  of  the  city  of  D.,  in  the  presence  of  said 
C,  while  he  was  a  police  officer,  sold  by  retail,  or  was  engaged  in  the 
act  of  selling  beer  by  retail,  to  any  person  or  persons, — then  it 
was  right  and  the  duty  of  said  C.  immediately  and  without  warrant 
to  arrest  defendant  by  taking  him  into  actual  custody.  And  if  you 
further  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
within  the  corporate  limits  of  said  city,  and  before  the  finding  of 
the  indictment,  C.  either  arrested  or  undertook  to  arrest  the  defend- 
ant for  that  offense,  and  that  while  defendant  was  under  arrest,  or 
that  while  C.  was  endeavoring  to  arrest  him,  the  defendant,  for  the 
purpose  of  breaking  the  arrest,  or  for  the  purpose  of  pi-eventing  its 
accomplishment,  willfully  and  knowingly  shot  and  killed  C.  with  a 
pistol,  knowing  at  the  time  that  C.  was  a  police  officer,  and  the  rea- 

to  do  him  injury,  or  if  it  reason-  which  is  not  warranted,  upon  any 

ably  appeared  to  defendant,  viewed  one   whom    he   proposes   to   arrest, 

from     his     standpoint     alone,     by  He   must   use   no   more   force   than 

words    or    acts,    or    by   words    and  the    nature    of    the    case    warrants, 

acts,  that  B.  was  about  to  make  an  and  if  he  exceeds  such  limits  then 

'unlawful    attack    upon    him,    then  he  may  be  liable  for  damages  in  a 

and    in    that    event    the    defendant  civil   suit.     It  is  true  that  a  large 

had  a  rig^ht  to  use  whatever  means  discretion  is  vested  in  an  officer  as 

was    necessary    to    protect    himself  to   the  force   necessary   to   be   used 

from    serious    bodily    injury.     And  in  making  an  arrest.    It  is  'for  the 

this   is   the   case,   although  it   sub-  jury  to  decide  what  those  circum- 

sequently    appeared    that    the    de-  stances     were,     and     whether     the 

fendant  used  more  foix;e  than  was  posse     acted     as     reasonable     men 

actually  necessary  to  protect  him-  would  have  acted  in  like  situation, 

self  from   serious  bodily  injury  or  The  question  is  one  of  mixed  law 

to     make     the     arrest.       In     other  and   fact.'     Territory   v.    McGinnis, 

words,   the   defendant  had   a  right  10  N.   M.   264,   61   Pac.   208.     In   the 

to  act  upon  danger,  or  reasonable  case    at    bar    the    testimony   as   to 

appearance  of  danger.  what  took  place  before  the  shoot- 

?8 — Territory  v.  Taylor,  11  N.  M.  ing   is   conflicting,   and    it   was   for 

589,  71  Pac.  489  (492).  the  jury  to  decide  after  hearing  all 

"This  instruction  sets  out  what  the  evidence.  The  jury  evidently 
wc  understand  to  be  the  law.  Even  believed  that  the  appellant  as- 
a  sheriff  or  his  legally  appointed  saulted  N.  without  any  just  cause 
deputy  has  no  right  to  make  an  for  so  doing  and  consequently  re- 
unjustifiable      assault,      and      one  turned  a  verdict  of  guilty." 


§'2453.]  CRIMINAL— IN    GENERAL.  1589 

son  C.  was  arresting  or  attempting  to  arrest  him,  then  you  will  find 
the  defendant  guilty  of  willful  murder,  and  fix  his  punishment  at 
death,  or  imprisonment  in  the  penitentiary  for  the  period  of  his  nat- 
ural life,  in  your  discretion.  To  constitute  an  act  of  selling  beer 
within  the  meaning  of  this  instruction,  it  is  not  necessary  that  there 
should  have  been  an  express  agreement  between  the  parties  that 
money  should  be  paid  for  the  beer,  nor  that  the  money  should  have 
been  actually  delivered  in  payment.  It  is  sufficient,  to  constitute  a 
sale,  if  the  defendant  and  the  person  or  persons  who  called  for  it 
actually  understood  and  intended  that  it  should  be  paid  for.  The 
words  ''in  his  presence,"  as  used  in  this  instruction,  do  not  mean 
exclusively  that  C.  should  have  actually  heard  the  call  for  beer,  or 
that  he  should  actually  have  witnessed  the  delivery  of  it.  It  would 
in  law  be  deemed  to  be  in  his  presence  if  he  was  so  close  to  the  par- 
ties at  the  time  as  to  witness  such  part  of  the  itransaction  as  would 
furnish  to  him  a  reasonable  assurance  of  the  nature  of  the  act  done 
and  of  the  identity  of  the  seller.^^ 

§  2453.  E,ight  of  Sheriff  to  Call  Posse.  The  jury  are  instructed 
that  in  substance,  under  the  statutes  of  this  tenitory  (Section  1409, 
Comp.  Laws  1897)  a  sheriff  or  his  legally  constituted  deputy  may 
call  on  any  citizen  or  citizens  to  assist  him  in  the  execution  of  his 
office,  and  that  any  person  who  shall  refuse  such  assistance  with- 
out a  sufficient  excuse  shall  be  subject  to  penalty.^*' 

§  2454.  When  a  Refusal  to  Assist  in  Making  Arrest  Is  Justified. 
If  the  jury  believe  that  under  all  the  circumstances,  at  the  time  of 
said  summoning  by  the  said  W.  to  aid  in  making  the  arrest  that  an 
attempt  to  make  said  arrest,  or  to  aid  thei"ein,  would  have  been  both 
futile  and  dangerous,  then  the  defendant  must  be  acquitted.*^ 

39_Approved   in   Quinn   v.    Com-  and   protection.     An   ofRcer  cannot 

monwealth,  23  Ky.  L.  1302,  63  S.  W.  decline  to  arrest  because  it  is  dan- 

792   (793).  gerous  to  do  so,  else,  the  desperate 

40— "This  is  undoubtedly  the  law  and  lawless  might  go  unchallenged 

in  this  territory."    Territory  v.  Tay-  for  crime;  and  for  the  very  reason, 

lor,   11  N.   M.  588,  71  Pac.  489   (492).  that  when  resistance  is  made  to  his 

41— Dougherty   v.   State,   106   Ala.  lawful    authority,    and    it    becomes 

63,  17  So.  393  (394).  hazardous  to  make  an  arrest,  then. 

The  court  held  that  "when  one  is  for  the  sake  of  saving  human  life — 
duly  summoned  by  an  officer,  hav-  either  his  own  or  that  of  the  crim- 
ing lawful  authority  to  assist  him  inal— he  is  authorized  by  law  to 
in  making  an  arrest,  the  duty  of  summon  the  bystanders  to  his  as- 
the  citizen  to  obey  is  absolute.  'His  sistance.  Obedience  to  such  a  sum- 
obligation,'  says  Mr.  Wharton,  'to  mons,  because  it  involves  danger, 
come  to  the  aid  of  the  sheriff  or  cannot  be  refused  by  the  private 
other  officer,  is  just  as  imperative  citizen,  any  more  than  the  duty  to 
as  that  imposed  on  the  latter,  to  make  the  arrest  can,  for  the  same 
see  that  the  community  suffer  no  reason  be  declined  by  the  officer, 
harm  from  licentiousness.'  Whart.  The  fact  that  there  is  danger  in- 
Cr.  Law  §  652,  and  authorities  volved  is  the  very  thing  which 
cited;  Whart.  Cr.  PI.  «&  Prac.  §§10,  calls  for  and  makes  obedience  a 
11.  The  citizen  while  acting  actual-  duty.  Nor  can  the  citizen  consti- 
ly  or  constructively,  under  the  of-  tute  himself  a  judge  of  the  neces- 
ficer's  command,  becomes  pro  hac  sity  for  obedience,  and  the  circum- 
vice  an  officer,  and  is  clothed  with  stances  under  which  he  should 
the    same     duties,     responsibilities  obey,  in  such  cases.     If  he  should 


1590  FORMS  OF  INSTRUCTIONS.  [§  2455. 

§  2455.  Resisting  Officer  in  Execution  of  a  Writ — Personal  Ani- 
mosity Immaterial.  In  ease  you  believe  beyond  a  reasonable  doubt 
tliat  the  defendants  conspired  to  resist  any  officer  in  the  execution 
of  the  writ  of  possession  read  in  evidence,  then  it  would  be  imma- 
terial whether  they  had  any  personal  animosity  or  cherished  any. 
malice  towards  G.  personally.'*^ 


ATTEMPT  TO  ESCAPE— FLIGHT. 

§  2456.  Attempt  to  Escape — How  Considered,  (a)  Evidence  has 
been  introduced  as  to  an  attempted  escape  from  jail  by  the  defendant 
while  in  the  custody  of  the  sheriff  of  this  county,  on  this  charge.  If 
you  find,  from  the  evidence,  that  the  defendant  did  thus  attempt  to 
escape  from  custody,  this  is  a  circumstance  to  be  considered  by  you, 
in  connection  with  all  the  other  evidence,  to  aid  you  in  determining 
the  question  of  guilt  or  innocence.^^ 

(b)  If  you  find  that  burglary  was  committed  as  charged  in  the 
information,  evidence  of  flight  of  the  accused  may  be  considered  in 
determining  the  question  as  to  whether  he  was  the  one  who  commit- 
ted the  act.'*'* 

§  2457.  Flight  Raises  Presumption  of  G-uilt.  (a)  The  court  in- 
structs the  jury  that  flight  raises  the  presumption  of  guilt.  There- 
fore, if  the  jury  believe  from  the  evidence  that  the  defendant,  re- 
cently after  the  commission  of  the  offense  alleged  in  the  indictment, 
fled  from  H.  county  to  avoid  arrest  and  trial  for  the  forging  the 
note  offered  in  evidence,  then  you  may  take  this  fact  into  considera- 
tion in  determining  his  guilt  or  innocence."*^ 

(b)  The  flight  of  a  person  immediately  after  the  commission  of  a 
crime,  or  after  a  crime  has  been  committed  with  which  he  is  charged — ■ 
if  you  find  from  the  evidence  'that  the  defendant  fled, — is  a  circum- 

be  excused,  because,  in  his  opinion,  at    the    time    an   attempt    to   make 
assistance,    if    rendered,    would    be  said  arrest,  or  to  aid  therein,  would 
futile  and  dangerous,   and   because  have  been  both  futile  and  danger- 
he  supposed  the  offlcer  was  not  dis-  ous  to  the  life  and  limb  of  defend- 
charging    his    full    duty,    it    would  ant,  as  the  charge  requested  clear- 
render  the   statute   nugatory.     The  ly  implies  from  all  the  facts  of  the 
law   necessarily  requires  the  judg-  case,  it  would  have  been  their  duty 
ment    and     summons     of     the     of-  to  acquit  the  defendant." 
ficer,   and  not  the  opinion  and  op-  42 — Smith    v.    State,    46    Tex.    Cr. 
tion   of  the  citizen,  the  measure  of  App.  267,  81  S.  W.  936  (944). 
the    duty    of    the    latter    to    obey.  Citing  Kipper  v.  State,  8  Tex.  Ct. 
Watson   V.   State,   83  Ala.   61,   3   So.  Rep.  852,  77  S.  W.  611. 
441,  7  Am.  Crim.  Rep.  64.     But  the  43— Anderson    v.    State,    104    Ind. 
officer  is  under  obligation   to  have  467,   4  N.  E.  63,  5  N.  E.  711,  5  Am. 
prf»i)or     regard     for     the     life     and  Cr.    Rep.    601. 

safety  of  the  party  whom  he  calls  44 — State  v.  Deatherage,  35  Wash, 

to    aid    him    In    making    an   arrest,  326,  77  Pac.  504  (506). 

and  not  recklessly,  and  for  no  good  45 — This  instruction  was  given  In 

Iiurpose   to  expose  his  life  and  limb  the  trial  of  a  charge  of  forgery  and 

to  useless  danger.    And  in  this  case  approved    in   State   v.    Milligan,   170 

it  miiy  be  said,  if  the  jury  believed  Mo.  215,  70  S,  W.  473  (474). 
under   all    the   circumstances,    that 


§2458.]  CRIMINAL— IN    GENERAL.  1591 

stance  in  establishing  his  guilt  not  sufficient  in  itself  to  establish 
guilt,  but  a  cii'cumstanee  which  the  jury  may  consider  in  determin- 
ing the  probabilities  for  or  against  him — the  probabilities  of  his 
guilt  or  innocence.  The  weight  to  which  that  circumstance  is  enti- 
tled is  a  matter  for  the  juiy  to  determine  in  connection  with  all  the 
facts  called  out  in  the  case.*^ 

(c)  Flight  raises  the  presumption  of  guilt,  and,  if  the  jury  believe 
and  find  from  the  evidence  that  after  the  commission  of  the  offense  al- 
leged in  the  information,  that  the  defendant  fled  from  the  state,  and 
tried  to  avoid  arrest  and  trial  for  said  offense,  then  the  juiy  may 
take  this  fact  into  consideration  in  determining  his  guilt  or  inno- 
cence.*^ 

S  2458.  Flight  to  Avoid  Arrest  as  Prima  Facie  Evidence — ^Homi- 
cide, (a)  If  you  find  from  the  evidence  that  the  defendant,  upon 
being  informed  that  he  was  suspected  of  taking  the  life  of  said  B., 
fled  to  avoid  arrest,"  and  remained  away,  going  under  an  assumed 
name,  such  fact  is  a  circumstance  which  prima  facie  is  indicaitive  of 
guilt.'** 

(b)  Now,  then,  j^ou  consider  his  conduct  at  the  time  of  the  kill- 
ing and  his  conduct  afterwards.  If  he  fled,  if  he  left  the  country,  if 
he  sought  to  avoid  arrest,  that  is  a  fact  that  you  are  to  take  into 
consideration  against  him,  because  the  law  says  unless  it  is  satis- 
factorily explained — and  he  may  explain  it  upon  some  theoiy,  and  you 
are  to  say  whether  there  is  any  effort  to  explain  it  in  this  case — if 
it  is  unexplained  the  law  says  it  is  a  fact  that  may  be  taken  into  ac- 
count against  the  party  charged  with  the  crime  of  murder  upon  the 
iheoiy  that  I  have  named,  upon  the  existence  of  this  monitor  called 
conscience  that  teaches  us  to  know  whether  we  have  done  right  or 
wrong  in  a  given  ease.*^ 

§  2459.  Flight  as  Tending  to  Show  a  Consciousness  of  Guilt — Sig- 
nificance When  Defendant  Is  Insane,     (a)     The  flight  of  a  person 

46 — This     instruction    was    given  from  arrest  for  the  crime  charged; 

where    homicide    was    the    charge  that   under   the  rule  announced,   if 

and  approved  in  State  v.  Stentz,  33  defendant  fled  the  country  to  avoid 

Wa-^h.  444,  74  Pac.  588  (589).  arrest  for  the  larcenies  he  had  com- 

47— State  v.  Hattman,  196  Mo.  110,  mitted,   such   fa<;t  would   be  a  cir- 

94  S.  W.  237  (240).  cumstance    prima    facie    indicative 

48— State  v.  Seymore,  94  Iowa  699,  of  his  guilt   of  the  crime   of   mur- 

63  N.  W.  661  (664).  der.     We  do  not  think  the  instruc- 

"It  is  insisted  that  this  instruc-  tion  will  bear  this  interpretation, 
tion  was  erroneous.  There  was  The  'arrest'  referred  to  in  the  in- 
evidence  in  the  case  to  establish  struction  plainly  means  arrest  for 
the  facts  upon  which  it  is  predi-  taking  the  life  of  B.  No  other  con- 
cated,  and  the  rule  of  law  an-  struction  can  be  placed  upon  it 
nounced  has  been  approved  by  this  without  doing  violence  to  the  Ian- 
court  in  the  following  cases:  State  guage  used.  The  instruction  un- 
V.  James,  45  Iowa  412;  State  v.  doubtedly  gives  a  correct  proposi- 
Schaffer,  70  Iowa  371,  30  N.  W.  639;  tion  of  law,  and  one  having  sup- 
State  v.  Arthur,  23  Iowa  430;  State  port  in  the  record." 
V.  Boyer,  79  Iowa  330,  44  N.  W.  558.  49— Allen  v.  United  States,  164 
It  is  said  the  instruction  is  faulty  U.  S.  492  (498),  17  S.  Ct.  154. 
because  it  does  not  relate  to  fleeing 


1592  FORMS  OF  INSTRUCTIONS.  [§  2460, 

suspected  of  a  crime  is  a  circumstance  to  be  weighed  by  the  jury  as 
tending  in  some  degree  to  prove  a  consciousness  of  guilt,  and  is  en- 
titled to  more  or  less  weight  according  to  the  circumstances  of  the 
particular  ease.^° 

(b)  The  court  charges  the  jury  that,  if  [you  believe  from  the  evi- 
dence that]  the  defendant  fled  from  the  consciousness  of  guilt,  this 
[his  flight]  may  be  considered  by  the  jury,  in  connection  with  all 
other  evidence,  as  circumstance  tending  to  show  guilt. ^^ 

§  2460.  Flight  as  Evidence  of  Guilt — Explained  by  Defendant. 
You  are  instructed  that  the  defendant  insists,  if  there  be  evidence  of 
the  fact  that  after  these  were  found  that  he  absconded  and  fled,  he 
insists  that  the  truth  is  he  did  not  flee  by  reason  of  the  fact  that  he 
was  guilty  of  this  charge,  but  he  claims  that  part  of  his  conduct  is 
attributable  to  the  fact  that  he  was  charged  with  complicity  with  an- 
other matter,  and  that  was  the  reason  he  left,  and  that  it  had  no 
connection  with  the  charge  made  in  this  case.^- 

§  2461.  Flight  May  or  May  Not  Be  Considered  as  Proof  of  Guilt — 
Depends  on  Motive — Explained.  The  flight  of  a  defendant  in  a  crim- 
inal case,  may  or  may  not  be  considered  as  a  circumstance  tending  to 
prove  guilt,  depending  on  the  motive  which  prompted  it, — whether  a 
consciousness  of  guilt  and  a  pending  apprehension  of  being  brought 
to  justice  caiised  the  flight,  or  whether  it  was  caused  from  some  other 
and  more  innocent  motive, — and  the  jury  may  look  to  the  fac-t  that 
he  went  to  police  headquarters  and  gave  himself  up.^^ 

50 — People  v.  Easton,  148  Cal.   50,  to  evade  justice,   by  a  person  sus- 

82  Pac.  840  (841).  pected  or  charged  with  crime,   are 

"No  attack  is  made  upon  the  circumstances  from  which  a  con- 
soundness  of  this  instruction  as  a  sciousness  of  guilt  may  be  inferred, 
proposition  of  law,  but  it  is  said  if  connected  with  other  criminating 
that  under  the  facts  of  this  case,  facts.  Of  themselves  they  may  not 
where  the  defense  was  insanity  the  warrant  a  conviction,  but  they  are 
giving  of  it  was  prejudicial  to  the  relevant  as  evidence,  and  the 
defendant.  Herein  it  is  argued  weight  to  which  they  are  entitled 
that,  if  one  is  insane  when  he  com-  it  is  the  province  of  the  jury  to  de- 
mits a  violent  and  unlawful  attack  termine  under  proper  instructions 
upon  another,  his  immediate  flight  from  the  court.  *  *  *  jrijght  for 
cannot  affect  the  question  of  his  which  no  proper  motive  can  be  as- 
legal  responsibility.  This  is  quite  signed,  and  which  remains  unex- 
true;  but  it  was  for  the  jury  to  say  plained,  is  a  circumstance,  all  au- 
whether  or  not  the  defendant  was  thorities  agree.  It  is  proper  to  sub- 
insane,  and,  if  they  so  found  him,  mit  to  the  jury  in  connection  with 
his  flight  was,  of  course,  meaning-  other  evidence  tending  to  show  the 
less.  If  he  was  not  insane,  then  guilt  of  the  accused.  In  the  old 
his  flight  had  the  significance  common  law,  the  rule  which  passed 
which  the  law  attaches  to  it."  into  a  maxim  was  that  flight  was 

51 — Approved  as  one  of  a  series,  equivalent      to      a      confession      of 

without    the    words    bracketed,    in  guilt.      'Fatetur   Facinus   qui   judi- 

NichoLson   v.    State,   117   Ala.   32,   23  cium    fugit.'       At    the    present    day 

f'O.  792.  it  is  regarded  as  a  mere  criminat- 

52— Moncrief  v.   State,  99  Ga.  295,  ing      circumstance      indicative      of 

25  H.  E.  735.  guilt,   and   of  an  attempt   to  evade 

53— White   v.    State,    111    Ala.    92,  justice,    which    is    subject    to    inflr- 

21  8o.  330  (331).  mntive  considerations  that  mav  de- 

"In  Bowles  v.  States,  58  Ala.  335,  prive  it  of  all  force.     The  unfavor- 

■we  said:    All  evasions  or  attempts  able  inference  against  the  prisoner 


§  2462.]  CRIMINAL— IN    GENERAL.  1593 

§  2462.  Attempt  to  Escape — Inference  to  Be  Drawn  Therefrom 
May  Be  Either  Strong  or  Slight — Terms  Explained,  Evidence  has 
been  offered  of  the  escape  of  the  defendant,  or  attempted  escape, 
after  arrest  on  the  charge  on  which  the  defendant  is  now  being  tried. 
This  evidence  is  admitted  on  the  'theory  that  the  defendant  is  in  fear 
of  the  consequences  of  his  crime  and  is  attempting  to  escape  there- 
from; in  other  words,  that  guilt  may  be  inferred  from  the  fact  of 
escape  from  custody.  The  court  instructs  you  that  the  inference 
that  may  be  drawn  from  an  escape  is  strong  or  slight  according  to 
the  facts  surrounding  the  party  at  the  time.  If  a  party  is  caught 
in  the  act  of  crime  and  speedily  makes  an  attempt  for  liberty  under 
desperate  circumstances,  the  inference  of  guilt  would  be  strong,  but 
if  the  attemi^t  was  made  after  many  months  of  confinement  and 
escape  comparatively  without  danger,  then  the  inference  of  guilt  to 
be  drawn  from  an  escape  is  slight;  but  whether  the  inference  of 
guilt  is  strong  or  slight  depends  upon  the  conditions  and  circum- 
stances surrounding  the  accused  person  at  the  time.^* 

§  2463.  Failure  to  Flee  or  Voluntary  Surrender  No  Evidence  of 
Innocence.  The  fact  that,  when  charged  with  the  commission  of  a 
crime,  the  defendant  refuses  to  flee,  but  surrendei-s  himself  to  the 
proper  authorities,  cannot  be  considered  as  showing  his  innocence  of 
the  offense  charged. ^^ 

§  2464.  Attempt  to  Release  Prisoner  from  Jail  by  Delivering 
Tools  to  Prisoners,  The  jury  are  instructed  that  the  statutes  of  the 
state  of  Illinois  make  a  distinction  between  an  attempt  to  set  at  lib- 
erty a  person  in  the  custody  of  an  officer  and  an  attempt  to  convey 
tools  to  a  person  confined  in  jail,  and  that  a  person  indicted  for  one 

would  be  lessened  If  he  voluntar-  of  flig-ht,  carried  with  it  no  evi- 
lly returned  and  surrendered  him-  dence  of  a  consciousness  of  guilt, 
self  to  answer  the  accusation.  *  *  *  It  was  no  more  than  a  commis- 
We  think  it  permissible  to  prove  siou  of  the  homicide,  flight  from 
the  fact  of  flight,  and  all  the  facts  the  place,  and  an  immediate, 
connected  with  it,  either  to  in-  voluntarily  surrender  by  the  per- 
crease  or  diminish  the  probative  petrator  to  the  constituted  author- 
force  of  the  fact  itself.  In  Syl-  ities,  confessing  that  he  had  com- 
vester  v.  State,  71  Ala.  17,  we  de-  mitted  it.  Referred  to  this  state 
clared  a  principle  in  substantially  of  proof,  the  charge  was  correct, 
the  language  of  the  charge  under  had  no  misleading  tendency  be- 
consideration.  The  evidence  shows  cause  of  the  singling  out  of  a  fact 
that  the  defendant  committed  the  from  other  facts,  and  ought  to 
homicide  about  2  or  3  o'clock  in  have  been  given.  It  was  not  ob- 
the  morning,  that  he  fled  from  the  jectionable  for  referring  specially 
place,  and  went  directly  to  police  to  the  duty  of  the  jury  to  look  to 
headquarters,  about  two  miles  dis-  the  surrender,  for  that,  with  the 
tant,  reported  to  the  sergeant  accompanying  declarations  of  the 
of  police  what  he  had  done,  and  defendant  which  con.stituted  a  part 
surrendered  himself  and  the  gun  of  the  surrender,  was  the  only  cir- 
with  which  he  had  committed  the  cumstnnce  which  the  jury  could 
act  to  the  oflicer.     There  is  in  the  consider." 

evidence   no   other  fact   or  circum-  54— Bird    v.    IT.    S.,    1S7    U.    S.    118 

stance     touching     the     subject     of  (131).  23  S.   Ct.   43. 

flight.     It   is  evident,  therefore,  that  55— Walker   v.   State,   138  Ala.   53, 

what  the  defendant  did,  in  respect  35   So.   1011   (1012). 


1594 


FORMS  OF  INSTRUCTIONS. 


[§  2464. 


of  such  offenses  cannot  be  convicted  of  the  other.  The  court  in- 
structs the  jury  for  the  defendants  that  although  you  may  believe, 
from  the  evidence,  that  the  defendants  on  trial  did  offer  to  pay  J. 
to  take  tools  to  the  jail  for  Gr.  and  loaned  him  money  to  buy  the  file 
testified  to,  yet  you  should  find  them  not  guilty.^s 


56— Patrick  v.  People,  132  111.  529 
(534),  24   N.    E.   619. 

"The  conviction,"  the  court  said, 
"is  claimed  under  section  87  of  the 
Criminal  Code  (Rev.  Stat.  1874, 
chap.  38,  p.  364),  which  reads  thus: 
'Whoever  sets  at  liberty  or  rescues 
or  attempts  to  set  at  liberty  or  res- 
cue a  person  charged  with  the 
commission  of  ;iny  capital  offense 
or  crime  punishable  by  imprison- 
ment in  the  penitentiary,  before 
the  conviction  of  such  person,  shall 
be  imprisoned  in  the  penitentiary 
not  exceeding-  five  years  and  fined 
not  exceeding  $1,000.'  The  ques- 
tion, therefore,  necessarily  arises, 
what  constitutes  'an  attempt  to  set 
at  liberty'  a  person?  The  statute 
•does  not  define  'an  attempt'  and 
we  must  hence  resort  to  the  com- 
mon law  to  ascertain  what  in  a 
legal  sense  is  its  meaning.  Bouvier 
in  his  Dictionary  (vol.  1,  p.  138) 
says:  'An  attempt  to  cominit  a 
crime  is  an  endeavor  to  accomplish 
it,  carried  beyond  mere  prepara- 
tion, but  falling  short  of  execution 
of  the  ultimate  design  in  any  part 
of  it.'  And  Wharton  says:  'To 
make  an  act  an  indictable  attempt 
it  must  be  a  cause,  as  distin- 
guished from  a  condition.'  2  Crim. 
Law  (7th  ed.)  sec.  2693.  See  also 
People  V.  Murray,  14  Cal.  159; 
Griflith  v.   State,   26  Ga.   493. 

"Since  the  mere  delivery  of  the 
saws,  knives  and  file  to  G.  does 
not  manifestly  open  any  way  of 
escape  from  the  jail,  it  is  plain 
there  is  no  relation  of  cause  and 
effect  between  that  which  J.  tried 


to  do,  and  that  which  the  indict- 
ment charges  and  the  jury  found 
was  coinmitted.  The  saws,  knives 
and  file  were  only  implements  or 
tools  that  might  be  used  in  effect- 
ing an  opening  in  the  jail,  and 
procuring  and  attempting  to  de- 
liver thein  to  G.  was  therefore 
simply  attempting  to  prepare  for 
an  attempt  to  make  an  escape. 
They  were  means,  or,  adopting 
the  language  of  Wharton,  'condi- 
tions' in  making  an  attempt  to  es- 
cape. 

"It  is  provided  by  Section  92  of 
our  Criminal  Code  (Rev.  Stat.  1874, 
chap  38,  p.  365)  that  'Whoever  con- 
veys *  *  *  into  any  jail  *  *  * 
any  instrument,  tool  or  other  thing 
adapted  or  useful  to  aid  a  prisoner 
in  making  his  escape  with  intent 
to  facilitate  the  escape  of  any 
prisoner  *  *  *  shall  be  punished,' 
as  therein  provided,  but  which  is 
only  by  confinement  in  the  county 
jail  and  by  fine.  And  since,  by 
section  273  of  the  same  Code,  all 
attempts  to  commit  offenses  pro- 
hibited by  law  are  indictable  and 
punishable  by  confinement  in  the 
county  jail  and  by  fine,  it  would 
seem  clear  that  the  offense  here 
proved  is  that  contemplated  by 
these  sections,  and  not  that  con- 
templated by  section  87  of  the 
Criminal  Code,  supra,  and  that  the 
punishment  should  not  have  been 
by  confinement  in  the  penitentiary, 
but  by  confinement  in  the  county 
jail  and  fine  only.  The  Circuit 
Court  therefore  erred  in  refusing 
to  give  the  instruction  asked." 


CHAPTER   LXXXVII. 

CRIMINAL— BURDEN    OF    PROOF— CHARACTER   EVIDENCE- 
CIRCUMSTANTIAL  EVIDENCE. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.   III. 


BURDEN    OF    PROOF. 

§  2465.  Burden  of  proof  on  the  state 
— Presumption  of  i  n  n  o  - 
cence. 

§  2466.  Burden    of    proof — Homicide. 

§  2467.  Every  essential  element 
charged  must  be  proved 
to  satisfaction  of  every 
juror. 

§  2468.  Burden  never  shifts — Excuse 
and    justification. 

§  2469.  Defendant  not  required  to 
prove  excuse  or  ju.stifica- 
tion — Burden  of  proof. 

§  2470.  Burden  of  proving  self-de- 
fense. 

§  2471.  Presumption  of  intent — Bur- 
den of  disproving. 

§  2472.  Burden  of  proving  extenuat- 
ing circumstances  is  on 
the    defendant. 

§  2473.  Insanity — Burden  of  proving 
on   defendant. 

§  2474.  Burden  of  proof — Quantum 
of  evidence  to  be  produced 
by    defendant. 

§  2475.  Burden  of  proof — Presump- 
tion as  to  degree  of  mur- 
der. 

CHARACTER     EVIDENCE. 

§  2476.  Jury  may  take  into  consid- 
eration character  and  mo- 
tives. 

§  2477.  Defendant's  character. 

§  2478.  Evidence  of  good  character 
not   sufficient   to   acquit. 

§  2479.  When  jury  should  convict 
notwithstanding  proof  of 
previous   good    character. 

§  2480.  Evidence  of  previous  good 
character  alone  may  ac- 
quit. 

§  2481.  Previous  good  character  may 
overcome  positive  evi- 
dence of  guilt. 

§  2482.  Previous  good  character — 
Requires  stronger  proof  of 
malice. 

§  2483.  Previous  good  character  as 
against  positive  facts 
showing   guilt. 

1595 


§  2484.  Previous  reputation  for 
peace  and  quietude — Homi- 
cide. 

§  248o.  Reputation — Relative  weight 
of  in  case  when  positive 
or  circumstantial  evidence 
is  relied  on. 

§  2486.  Previous  reputation  for  hon- 
esty. 

§  2487.  Defendants — Previous  dis- 
position towards  children — ■ 
Infanticide. 

§  2488.  Previous  bad  character  of 
defendant. 

§  2489.  Character  of  deceased  for 
violence  immaterial  when 
killing  unlawful  and  pre- 
meditated. 

§  2490.  Character  of  deceased — Same 
offense  to  kill  bad  person 
as  to  kill  a  good  one. 


CIRCUMSTANTIAL    EVIBENCE. 


§  2491. 
§  2492. 
§  2493. 
§  2494. 

§  2495. 
§  2496. 
§  2497. 

§  2498. 
§  2499. 
§  2500. 


2501. 
2502. 


Circumstantial  evidence  de- 
fined. 

Circumstantial  evidence — 
What  is  meant  by. 

Circumstantial  evidence  is 
competent. 

Legal  and  competent — Ex- 
cluding every  reasonable 
hypothesis. 

Positive  and  circumstantial 
evidence    distinguished. 

Elements  necessary  for  con- 
viction. 

Facts  must  all  be  consistent 
with  guilt  and  inconsistent 
with   innocence. 

No  reasonable  theory  of  in- 
nocence must  be  possible. 

A  single  inconsistent  fact  ac- 
quits. 

Circumstances  proven  must 
be  consistent  with  one  an- 
other, and,  taken  together, 
'must  exclude  every  rea- 
sonable hypothesis  of  in- 
nocence. 

Certainty   required. 

Circumstantial  evidence 
need  not  be  conclusive — 
Degree  of  proof. 


1596 


FORMS  OP  INSTRUCTIONS. 


[§  2465. 


§  2503.  Only  inferences  or  presump- 
tions necessarily  arising' 
from  proved  circumstances 
should  be  considered. 

§  2504.  Conviction  upon  circum- 
stantial evidence  alone — 
Homicide  —  Extenuating 
circumstances. 

§  2505.  What  must  be  proved  in  or- 
der to  convict  on. 

§  2506.  Circumstantial  evidence, 
weight  of — How  to  be  con- 
sidered by  jury. 


§  2507.  Weight  of — As  conclusive  as 
direct. 

§  2508.  Credibility — Of  circumstan- 
tial evidence. 

§  2509.  Murder  may  be  proven  by 
facts  and  circumstances 
attending  the  killing — Ab- 
sence  of  body. 

§  2510.  Failure  to  use  deadly  weap- 
on at  hand. 

§  2511.  Instruction  when  testimony 
is  largely  circumstantial. 

§  2512.  Inference   of  fact. 


BURDEN  OF  PROOF. 

§  2465.    Burden  of  Proof  on  the  State — Presumption  of  Innocence. 

(a)  The  court  instructs  the  juiy  that  the  burden  of  proof  in  this 
case  is  on  the  state  to  prove  to  the  satisfaction  of  the  jury,  beyond 
all  reasonable  doubt,  that  the  defendant  is  guilty  as  charged  in  the 
indictment ;  and  unless  you  are  so  satisfied  of  his  guilt  beyond  rea- 
sonable doubt  you  will  find  him  not  guilty.^ 

(b)  The  law  presumes  every  man  to  be  innocent,  and  in  this  case 
the  burden  of  proof  is  upon  the  state,  and,  to  entitle  her  to  a  convic- 
tion of  the  defendant,  she  must  prove  every  element  material  of  the 
offense  charged  to  your  satisfaction  beyond  a  reasonable  doubt,  and 
to  the  satisfaction  of  each  member  of  the  jury.- 

(e)  The  prisoner  at  the  bar  is  presumed  to  be  innocent  until  he 
is  proven  to  be  guilty.  He  is  not  required  to  prove  his  innocence, 
but  may  rest  upon  the  presumption  in  his  favor  until  it  is  overthrown 
by  positive,  affirmative  proof.  The  burden  is  therefore  on  the  state 
to  establish  to  your  satisfaction,  beyond  any  reasonable  doubt,  the 
guilt  of  the  prisoner  as  to  the  crime  charged  in  this  indictment,  or 
any  other  lesser  one  included  in  it.  If  you  entertain  any  reasonable 
doubt  as  to  any  fact  or  element  necessary  to  constitute  the  prisoner's 
guilt,  it  is  your  sworn  duty  to  give  him  the  benefit  of  that  doubt  and 
return  a  verdict  of  acquittal.  And  even  where  the  evidence  demon- 
strates probability  of  guilt,  yet  if  it  does  not  establish  it  beyond 
reasonable  doubt,  you  must  acquit  the  prisoner.  You  are  prohibited 
b}''  law  and  your  oath  from  going  beyond  the  evidence  to  seek  for 
doubts  upon  which  to  acquit  the  prisoner,  but  you  must  confine  your- 
selves strictly  to  a  dispassionate  consideration  of  the  testimony  given 
upon  the  trial.  You  must  not  have  recourse  to  extraneous  facts  and 
circumstances  in  reaching  your  verdict.  You  are  the  exclusive  judges 
of  the  facts.  You  find  from  the  evidence  what  facts  have  been 
proven  and  what  have  not.^ 


1— Strother  v.  State,  74  Miss.  247,     N.  E.  532  (534);  State  v.  Linhoff,  121 
21  So.  147  (148),   34  L.   R.   A.  472.  Iowa  632,   97  N.  W.   77   (78). 

2— Rains  v.   State,   137  Ind.   83,   36        3— State   v.    Aspara,    113    La.    940, 

37   So.    883    (889). 


§  2466.]  CRIMINAL— BURDEN  OF  PROOF.  1597 

§  2466.  Burden  of  Proof — Homicide.  The  court  instructs  the  jury 
that  up  to  the  moment  when  the  killing  is  proved,  the  prosecution 
must  make  out  its  case  beyond  any  reasonable  doubt.  When  the 
killing  is  proved,  it  devolves  upon  the  defendant  to  show  any  cir- 
cumstances in  mitigation  to  excuse  or  justify  it  by  some  px'oof  strong 
enough  to  create  in  the  minds  of  the  jury  a  reasonable  doubt  of  his 
guilt  of  the  offense  charged,  unless  as  before  stated,  the  proof  on  the 
part  of  the  prosecution  tends  to  show  the  crime  committed  only 
amounts  to  manslaughter,  or  that  the  defendant  Avas  justified  or  ex- 
cused in  doing  the  act.* 

§  2467.  Every  Essential  Element  Charged  Must  Be  Proved  to  Sat- 
isfaction of  Every  Juror,  (a)  The  state  must  prove  by  eompetenr 
evidence  every  essential  element  of  the  crime  charged,  to  the  satis- 
faction of  each  and  every  juror,  beyond  a  reasonable  doubt. ^ 

(b)  The  court  instructs  the  jury,  that  the  law  pi-esumes  the  de- 
fendant innocent,  and  that  the  burden  of  proving  bej'ond  all  reason- 
able doubt  eveiy  material  allegation  necessary  to  establish  defend- 
ant's guilt  rests  upon  the  state  throughout  the  trial. "^ 

(c)  The  court  instructs  the  juiy  that  the  prosecution  must  make 
out  and  prove  to  the  satisfaction  of  the  juiy,  beyond  all  reasonable 
doubt,  every  material  allegation  in  the  information,  and  unless  that 
has  been  done  the  juiy  should  find  the  defendant  not  guilty.'^ 

(d)  The  court  instructs  the  jury  that  the  burden  is  upon  the 
prosecution  to  prove  beyond  a  reasonable  doubt,  by  competent  evi- 
dence, every  essential  ingredient  of  the  crime  charged  in  this  indict- 
ment, before  the  prisoners,  or  either  of  them,  can  be  found  guilty 
thereof.^ 

(e)  The  court  instructs  the  jury  that  as  a  matter  of  law,  the 
burden  of  proof  is  upon  the  people,  and  it  is  for  them  to  prove  their 
case  by  a  preponderance  of  evidence.^ 

(f )  The  court  instructs  you  that  when  all  the  evidence  in  the  case 
is  before  the  jury  the  burden  of  proof  remains  where  it  started,  with 
the  prosecution. ^° 

§  2468.  Burden  Never  Shifts — Excuse  and  Justification.  The 
court  insti-uets  the  jury  tliat  the  law  pi-esumes  that  the  defendant  is 
innocent,  and  that  the  burden  of  proving  bej'ond  all  reasonable  doubt 
every  material  allegation  necessary  to  establish  defendant's  guilt 
rests  upon   the   state   throughout   the  trial,  and   that   the   burden   of 

4— People  V.   Mathai,  135  Cal.  442.  7— Hill   v.    State,   42   Neb.   503,   60 

67    Pac.    694    (695).  N.   W.   916. 

"The   whole   instruction   certainly  8— State  v.   Brinte,  —  Del.  — ,   58 

presents    a    fair    exposition    of    the  Atl.  258. 

law.     People  v.  Milner,  122  Cal.  179,  9— Johnson  v.  People.  140  111.  350, 

54   Pac.    837."  29   N.   E.   895. 

5— State  v.   Ryno,  68  Kan.  348.  74  10— People  v.    Rich,  133   Mich.  14, 

Pac.   1114   (1116),   64  L.    U.   A.   303.  94  N.  E.   375. 

6— Blalock  v.   State,  79   Miss.  517, 
31  So.   105. 


1598  FORMS  OP  INSTRUCTIONS.  [§  2469, 

proof  never  shifts  to  the  defendant;  and  that  the  law  does  not  re- 
quire the  defendant  to  prove  by  his  evidence  excuse  or  justification,  but 
that  if,  from  all  the  evidence,  the  jury  entertains  a  reasonable  doubt, 
as  to  whether  the  killing  proceeded  from  deliberate  and  premeditated 
intent  on  the  part  of  the  defendant,  or,  on  the  other  hand,  from  the 
principle  of  self-defense,  they  must  find  the  defendant  not  guilty.^^ 

§  2469.  Defendant  Not  Required  to  Prove  Excuse  or  Justification 
— Burden  of  Proof.  You  are  instructed  that  the  burden  of  proof 
never  shifts  to  the  defendant  and  that  the  law  does  not  require  the 
defendant  to  prove  by  his  evidence  excuse  or  justification ;  but  if 
from  all  the  evidence  the  jury  entertains  a  reasonable  doubt  as  to 
whether  the  killing  was  done  in  the  heat  of  passion,  or  proceeded  from 
the  principle  of  self-defense,  you  will  find  the  defendant  not  guilty.^^ 

§  2470.  Burden  of  Proving  Self -Defense,  (a)  The  court  instructs 
the  jury  that  if  the  use  of  deadly  weapon  is  proved,  and  the  prisoner 
relies  upon  self-defense  to  excuse  him  for  the  use  of  the  weapon,  the 
burden  of  showing  such  excuse  is  on  the  prisoner,  and,  to  avail  him, 
he  must  prove  such  defense  by  a  preponderance  of  the  evidence. ^^ 

(b)  The  jui-y  are  instructed  that,  the  killing  being  proved,  the 
burden  of  proving  circumstances  that  justify  or  excuse  the  homicide 
will  devolve  upon  the  accused,  unless  the  proof  on  the  part  of  the 
prosecution  sufficiently  manifests  that  the  accused  was  justified  or 
excused  in  committing  the  homicide.^'' 

(e)  When  the  defendant  sets  up  self-defense  in  justification  or 
excuse  of  a  killing,  the  burden  of  proof  is  upon  him  to  show  the  jury 

11— Blalock  V.  State,  79  Miss.  517,  of  a  certain  provision  of  the  crim- 

27  So.  642.  inal   code,    tliis   being-  in   the   exact 

The    case   was   reversed   and    re-  language  of  section  155  of  the  act 

manded  for  the  refusal  of  this  in-  of     1874     in     relation     to     criminal 

struction  as  asked,  and  for  erron-  jurisprudence.     It    was,    and     was 

eously     modifying     the     same     by  doubtless    understood   by    the   jury 

adding   the   phrase    "of   the   charge  to  be  a  mere  statement  of  an  ab- 

of    murder."      The    same    case    was  stract    legal    propositiou   applicable 

again    before    the    Supreme    Court  alike  to  all  prosecutions  for  homi- 

two  years  later  and  reported  in  79  cide,  and  the  words  with  which  it 

Miss.   517,   31  So.  105.  began,    namely    'The    killing    being 

12— Blalock  V.  State,  79  Miss.  517,  proved'  could  not  have  been  under- 

31  So.  105  (106).  stood  as  an  assumption  that  in  this 

13— State    V.    Staley,    45    W.    Va.  case   the   killing   had   been  proved, 

792,   32   S.   E.   198   (199).  but   a    statement    of    the    rule    that 

14_Duncan  v.  People,  134  111.  110  when     in    any    prosecution    for    a 

(118),  24  N.   E.   765.  homicide  the   killing  is  proved,  the 

The    court    said:'     "It    is    claimed  burden    of    justifying    or    excusing 

that  this  instruction   assumed,  and  the  homicide   is  upon   the  accused, 

therefore   took   from    the   jury,    the  Nor  did  the  instruction  in  any  just 

ciuestion   of   the  killing   of  the   de-  sense  relieve  the  prosecution   from 

ceased  by  the  defendant,   and   also  proving  an  unlawful  and  felonious 

excused  the  prosecution  from  prov-  killing.      It    merely    announced    the 

ing   in    the    first    instance    that    the  statutory    rule    that    the    killing   of 

homicide  was  unlawful,  willful  and  one    human    being    by    another    is 

felonious.      It   is  clear  that   neither  prima     facie     felonious,     so    as     to 

of    these     criticisms     can    be     sus-  throw  the  burden  of  justification  or 

tained.    This,  like  the  four  preced-  excuse  on  the  person  killing." 
ing  instructions,  was  a  mere  copy 


§2471.]  CRIMINAL— BURDEN  OF  PROOF.  1599 

by  the  evidence  that  thei'e  was  a  present,  impending  danger,  real  or 
apparent,  to  life  or  limb,  or  of  grievous  bodily  harm,  from  which 
there  was  no  other  probable  means  of  escape,  unless  the  evidence 
which  proves  the  homicide  proves  also  its  excuse  or  justification.^^ 

(d)  The  unlawful  killing  being  proved,  the  burden  of  proving  cir- 
cumstances of  mitigation  that  justify  or  excuse  the  homicide  devolves 
on  the  accused,  unless  by  the  proof  on  the  part  of  the  prosecution 
it  is  sufficiently  manifest  that  the  offense  committed  only  amounted 
to  manslaughter,  or  that  the  accused  was  justified  or  excused  in  com- 
mitting the  homicide. ^"^ 

(e)  The  burden  is  upon  the  defendant  to  reasonably  satisfy  your 
minds  that  he  acted  in  self-defense.^^ 

§  2471.  Presumption  of  Intent — Burden  of  Disproving,  (a)  Hav- 
ing thus  instructed  yon  as  to  murder  of  the  first  and  second  degrees 
and  the  lesser  grades  of  homicide,  for  your  proper  guidance  in  de- 
termining the  guilt  or  innocence  of  the  prisoners  whom  you  have  iu 
charge,  it  is  also  proper  to  remind  you  that,  as  the  law  presumes 
every  accused  person  to  be  innocent  until  he  is  proven  guilty,  the 
burden  is  upon  the  prosecution  to  prove  beyond  a  reasonable  doubt, 
b}^  competent  evidence,  every  essential  ingredient  of  the  crime 
charged  in  this  indictment,  before  the  prisoners,  or  either  of  them,  can 
be  found  guilty  thereof.  But  on  the  other  hand,  every  sane  man  is 
presumed  to  intend  that  which  is  the  ordinary  and  natural  conse- 
quence of  his  own  willful  act.  Therefore,  on  the  charge  of  murder, 
where  the  fact  of  killing  as  charged  in  the  indictment  is  shown  by 
the  prosecution,  unaccompanied  by  circumstances  of  legal  justifica- 
tion, excuse,  or  mitigation,  ihe  law  presumes  that  the  homicide  was 
committed  with  malice,  and  hence  amounts  to  murder,  until  the  con- 
traiy  is  shown;  and  consequently  the  burden  is  thereupon  thrown 
upon  the  accused  of  disproving  the  malice,  and  showing  by  evidence 
to  the  satisfaction  of  the  jury,  that  the  killing  was  not  malicious,  but 
was  either  justifiable  or  excusable  homicide,  or  else  manslaughter.''^ 

§  2472.  Burden  of  Proving  Extenuating  Circumstances  Is  on  the 
Defendant.  The  court  instructs  the  jury  that  a  mortal  wound  given 
with  a  deadly  weapon  in  the  previous  possession  of  the  slayer,  with- 
out any  provocation,  or  even  with  slight  provocation,  is  prima  facie 
willful,  deliberate  and  premeditated  killing,  and  throws  upon  the 
prisoner  the  necessity  of  showing  extenuating  circumstances.^" 

§  2473.  Insanity — Burden  of  Proving  on  Defendant.  Eveiy  one 
over  the  age  of  14  years  is  presumed  by  law  to  he  of  sound  mind  and 
discretion  until  the  contrary  is  proven,  and  the  burden  is  on  the  de- 
fendant in  this  case  to  satisfy  you.  but  not  beyond  a  reasonable  doubt. 
that  he  is  not  of  sound  mind  and  discretion.^o 

IB— Jarvis   v.    State,    138    Ala.    17,  18— State  v.   Brinte,  —  Del.  — ,  58 

34    So.    1025    (1030).  Atl.   2.58   (262). 

16— Williams     v      U.     S.,     4     Ind.  19— Lonpley     v.      Commonwealth, 

Ter    ''69    69  S    W    871  99  Va.   807,  37  S.   E.   339  (340). 

17— Miller  v.  State,  107  Ala.  40,  19  20— State   v.    Mills.   116  N.   C.   992, 

So   37.  21  S.  E.  106  (107),  affirming  convic- 


1600  FORMS  OF  INSTRUCTIONS.  [§2474. 

§  2474.  Burden  of  Proof — Quantum  of  Evidence  to  Be  Produced 
by  Defendant.  The  court  instructs  the  jury  that  when  the  court  says 
'that  the  burden  of  proof  is  on  the  defendant  it  means  that  the  evi- 
dence must  be  sufficient  to  raise  a  reasonable  doubt  of  defendant's 
guilt.-i 

§  2475.  Burden  of  Proof — Presumption  as  to  Degree  of  Murder. 
All  murder  is  presumed  in  law  to  be  murder  in  the  second  degree,  and 
in  order  to  elevate  the  offense  to  murder  in  the  first  degree  the  bur- 
den of  proof  is  on  the  commonwealth,  and  in  order  to  reduce  the 
offense  below  murder  in  the  second  degree  the  burden  is  on  the  pris- 
oner.22 

CHARACTER  EVIDENCE. 

§  2476.    Jury  May  Take  into  Consideration  Character  and  Motives. 

(a)  The  eoui't  further  instructs  the  jury  that,  in  an-iving  at  a  ver- 
dict in  this  ease,  you  are  the  sole  judges  of  the  facts  and  credi- 
bility of  each  and  every  witness  introduced  in  this  case,  and  you 
have  the  right  to  disregard  the  testimony  of  any  witness  or  witnesses 
who,  in  the  opinion  of  the  jury,  may  have  testified  falsely  in  this 
ease,  or  give  to  the  testimony  of  any  such  witness  such  weight  as, 
in  the  opinion  of  the  jury,  the  same  may  be  entitled  to,  and  in  ascer- 
taining such  weight  the  juiy  may  take  into  consideration  the  charac- 
ter and  motive  of  the  witnesses  as  disclosed  by  the  evidence  in  this 
case. 2^ 

(b)  Gentlemen  of  the  jury,  if  the  evidence  convinces  you  that 
E.  P.  is  a  man  of  bad  character,  and  unworthy  of  belief,  then  you 
may  disregard  his  evidence  altogether.^* 

§  2477.  Defendant's  Character,  (a)  The  court  instructs  the  jury 
that  if  3^ou  believe  and  find  from  the  evidence  that  lait  the  time  this 
charge  was  made  against  the  defendant  he  was  a  man  of  good  char- 
acter, you  should  take  such  good  character  into  consideration  in  pass- 
ing upon  the  question  of  his  guilt  or  innocence,  for  the  law  presumes 
that  a  man  of  good  character  is  less  likely  to  commit  a  crime  than 
one  whose  character  is  not  good.     If,  however,  upon  a  consideration 

tlon  of  murder  in  first  degree  and  jury  that,  in  arriving-  at  a  verdict 

sentence  of  death.  in    this    case,    they    are    the    sole 

21— Jarvis    v.    State,    138   Ala.    17,  judges  of  the  facts,  and  credibility 

34   So.  1025  (1030),   charge  of  homi-  of   each    and    every    witness   intro- 

cide.  duced  in  said   case,  and   that  they 

22— Longley  v.  Commonwealth,  99  have    the    right    to    disregard    the 

Va.   S07,    37   S.   E.   339   (340).  testimony   of   any   witness    or   wit- 

23— Slate   v.    Roberts,    50  W.   Va.  nesses    that    have    testified    in    the 

422,  40  S.  E.  484  (486).  said  case,  and  may  take  into  con- 

The  supreme  court  approves  the  sideration    the   character   and    mo- 
above     InHtruction     given     by     the  tive  for  the  testimony  of  each  and 
trial  court  as  a  modification  of  the  all  of  said  witnesses. 
following,    which    it   holds   was   er-         24— Prater    v.    State,    107   Ala.    26, 
roneous:  18   So.   238   (239). 

The   court    further   instructs    the 


§  2478.]  CRIMINAL— EVIDENCE.  1601 

of  all  the  evidence,  including  that  touching  his  good  character,  you 
believe  him  to  be  guilty,  you  should  not  acquit  him  solely  on  the 
ground  of  such  good  character. 

(b)  Evidence  of  a  witness  that  he  had  known  the  defendant  prior 
to  the  time  the  charge  was  made  against  him,  and  was  acquainted  in 
the  neighborhood  in  which  the  defendant  lived,  land  that  he  had  never 
heard  anything  said  against  him,  is  evidence  tending  to  show  and 
prove  that  his  character  was  good  ait  said  time  in  said  neighbor- 
hood.^^ 

(c)  The  previous  good  character  of  the  defendant,  if  proved  to 
your  satisfaction  in  the  case,  you  ought  to  consider,  together  wdth  all 
the  other  facts  in  evidence,  in  passing  upon  the  question  of  his  guilt 
or  innocence  of  this  charge,  for  the  law  presumes  that  a  man  whose 
character  is  good  is  less  likely  to  commit  a  crime  than  the  one  whose 
character  is  not  good.-*' 

(d)  Where  there  is  a  serious  conflict  in  the  testimony  as  to  the 
commission  of  an  offense  like  that  charged  in  this  ease,  evidence 
of  the  previous  good  character  of  the  defendant,  as  to  such  offenses, 
should  be  considered  by  the  jury,  in  connection  with  all  the  other  evi- 
dence given  on  the  trial,  in  determining  whether  the  defendant  would 
be  likely  to  commit,  and  did  commit,  the  offense  in  question.-" 

§  2478.  Evidence  of  Good  Character  Not  Sufladent  to  Acquit,  (a)  If 
the  jury  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
the  defendant  committed  the  crime  in  question,  as  charged  in  the  in- 
formation, it  will  be  their  sworn  duty  'as  jurors  to  find  the  defendant 
guilty,  even  though  the  evidence  may  satisfy  their  minds  that  the 
defendant,  previous  to  the  commission  of  the  alleged  crime,  had 
sustained  a  good  reputation  and  character  for  being  a  law-abiding 
and  peaceable  citizen.^^ 

(b)  Evidence  has  been  given  in  regard  to  the  character  of  the 
defendant  for  peace  and  quietude.  This  evidence  should  be  consid- 
ered by  the  jury  in  determining  the  guilt  or  innocence  of  the  defend- 
ant; but,  if  the  jury  should  be  satisfied  beyond  a  reasonable  doubt 
of  the  guilt  of  the  defendant,  then,  in  that  view  of  the  case,  although 
you  might  believe  that  the  defendant  had  a  good  character  before  the 
alleged  offense  occurred,  if  it  did  occur,  that  would  not  avail  him  as 
a  defense  or  entitle  him  to  an  acquittal.-^ 

25— State  v.   Weber,   156  Mo.   249,  "We   do   not  think   there   is   any 

56  S.  W.  729.  error    in    this    instruction.       It    is 

26— State   v.    Privitt,   175   Mo.   207,  easily     distinguishable     from      the 

75  S.  W.  457  (461),  homicide  case.  case    of    Kistler    v.    State,    54    Ind. 

27— Kistler  v.   State,  54  Ind.  400,  2  400,   2    Am.    Cr.    Rep.    18,    in    which 

Am.  Cr.   Rep.  18.  the    jury    was    instructed    that,    if 

28 — State  v.    Jones,   32   Mont.   442,  the     defendant     was     guilty,     evi- 

80  Pac.  1095  (1096).  dence  of  good  character  was  of  no 

"We  thiiik  the  instruction  cor-  benefit.  Good  character  may  al- 
rectly  states  the  law  and  could  ways  benefit  a  guilty  defendant, 
hardly  be  misunderstood  by  the  for  the  jury  may  take  it  into  con- 
jury."  sideration     in     fixing     his     punish- 

29 — Walker  v.  State,  136  Ind.  663,  ment,   and   may,   by   reason  of   his 

36  N.  E.  356  (357).  character,  mitigate  the  punish- 
101 


1602  FORMS  OF  INSTRUCTIONS.  [§  2479. 

§  2479.  When  Jury  Should  Convict  Notwithstanding  Proof  of  Pre- 
vious Good  Character,  (a)  The  court  instructs  the  jury  as  a  mat- 
ter of  hwv  that  the  defendant  has  put  in  evidence  his  general  repu- 
tation for  honesty  and  integrity,  that  such  evidence  is  pennissible  un- 
der the  law,  and  is  to  be,  by  the  jury,  considered  as  a  circumstance  in 
this  ease.  But  the  court  further  instructs  the  jury  that  if,  from  all 
the  evidence  in  this  case,  you  are  satisfied  beyond  a  reasonable 
doubt,  of  the  guilt  of  the  accused,  then  it  is  the  duty  of  the  jury  to 
find  him  guilty,  notwithstanding  the  fact,  if  such  be  the  fact,  that 
heretofore  the  accused  has  borne  a  very  good  character  for  honesty.^" 

(b)  Upon  the  question  of  the  good  character  of  the  defendant  for 
being  a  peaceable  and  law-abiding  citizen,  the  court  instructs  the 
jury  that  this  evidence  should  be  considered  by  the  jury  as  tending 
to  establish  a  defense.  If,  however,  the  jury  should  be  satisfied  of 
the  guilt  of  the  defendant  beyond  a  reasonable  doubt,  after  a  full 
consideration  of  all  the  evidence  in  the  case,  including  the  evidence 
in  regard  to  the  character  of  the  defendant  for  being  a  peaceable  and 
law-abiding  citizen,  then,  though  the  jury  might  believe  the  defendant 
had  a  good  character  for  being  a  peaceable,  law-abiding  citizen  before 
the  charge  for  which  he  is  now  being  tried,  such  evidence  of  good 
character  would  not  avail  the  defendant  as  a  defense  and  entitle  him 
to  an  aequittal.^i 

(c)  In  determining  as  to  the  guilt  or  innocence  of  the  defendant, 
you  should  take  into  account  the  testimony  in  relation  to  his  charac- 
ter as  a  moiial  man,  and  you  should  give  to  such  testimony  such 
weight  as  you  deem  proper;  but  if,  from  all  the  evidence,  you  are 
satisfied  beyond  a  reasonable  doubt,  as  defined  in  these  instructions, 
that  the  defendant  is  guilty,  then  his  previous  good  'character,  if 
shown,  cannot  justify,  excuse,  i>alliate  or  mitigate  the  offense,  and 
you  cannot  acquit  him  merely  because  you  believe  he  has  been  a  per- 
son of  good  repute.^^ 

(d)  The  defendant  has  in  this  case  placed  his  previous  character 
and  reputation  as  to  being  'a  man  of  peace  and  quiet  in  evidence. 
If  you  find  that  previous  to  this  difficulty  he  sustained  a  good  repu- 
tation for  peace  and  quiet,  you  will  weigh  it  in  his  favor  for  what,  in 
your  judgment,  you  may  think  it  is  worth.  Where  the  question  to  be 
determined  by  you  may  be  close,  it  shouUl  be  sufficient  to  turn  the 
scales  in  his  favor.  If,  however,  you  are  satisfied  that  notwithstand- 
ing his  former  good  reputation,  the  proof  shows  in  this  case  beyond 

ment.     Under  this  instruction,   the  30 — Approved   in   case  of  larceny 

jury  was  ffiveu  Ihe  liberty  of  con-  as  bailee;  Young  v.  People,   193  III. 

.slderiiif?  the  prond   chjiracter  of  the  236  (238-9),  61  N.  E.  1104. 

appellant  in  mitigation  of  his  pun-  31 — Approved    in    case    of    homi- 

Ishmenl,   if  it   chose  to    do   so;   but  cide;  State  v.  Stentz,  33  Wash.  444, 

they  were  told,  if  he  was  guilty  of  74  Pac.   588  (590). 

the    charge    preferred    against    him  32 — Approved    where   charge    was 
he  was  not  mtilled  to  acquittal  be-  homicide;   State  v.   Privitt,  175   Mo- 
ralise hi.s  character  had  previously  207,  75  S.  W.  457  (460). 
been  good." 


2480. 


CRIMINALr— EVIDENCE. 


1603 


a  reasonable  doubt  that  he  is  giiilt}^  of  either  of  the  crimes  of  murder 
in  the  first  degree  or  second  degree,  or  manslaughter,  as  the  same 
have  heretofore  been  defined  in  these  instructions,  then  the  former 
good  character  or  reputation  of  the  defendant  would  not  be  a  defense 
in  this  action.33 

(e)  The  court  instructs  the  juiy  that  the  previous  good  character 
of  the  defendant,  if  proven  to  your  reasonable  satisfaction,  is  a  fact 
in  the  case  which  the  juiy  should  consider  in  passing  upon  the  ques- 
tion of  the  defendant's  guilt  or  innocence;  but  if  all  the  evidence  in 
the  case,  including  that  given  touching  the  previous  good  character 
of  the  defendant,  shows  him  to  be  guilty  of  the  offense,  then  his  pre- 
vious good  character  cannot  justify,  excuse  or  mitigate  the  offense.^* 

§  2480.    Evidence  of  Previous  Good  Character  Alone  May  Acquit. 

(a)  The  court  instructs  the  jury  that  the  character  of  the  accused 
may  be  such  as  to  create  a  doubt  in  the  minds  of  the  jury,  and  lead 
them  to  believe,  in  view  of  the  improbability  of  a  person  of  such 
character  being  guilty,  that  the  other  evidence  is  false.^^ 

(b)  The  court  instructs  the  jury  that  evidence  of  good  character 
may  of  itself  create  a  reasonable' doubt,  where  otherwise  no  reason- 
able doubt  would  exist.     And  in  relation  to  that  you  can  give  such 


33 — Approved  where  charge  was 
homicide;  McCormick  v.  State,  66 
Neb.   337,   92   N.   W.   606    (60S). 

34— State  v.  Kinder,  184  Mo.  276 
(290),   83   S.   W.   964   (966). 

35— People  v.  Elliott,  163  N.  Y. 
11,  57  N.  E.  103  (104),  holds  that  re- 
fusal of  this  instruction  was  ob- 
vious error.  "The  defendant  was 
entitled  to  have  the  jury  distinctly- 
instructed  that  g-ood  character  will 
sometimes,  of  itself,  create  a 
doubt,  when  without  it  none  would 
exist.  Cancemi  v.  People,  16  N.  Y. 
501;  Stephens  v.  People,  4  Parker 
396;  Commonwealth  v.  Webster,  5 
Cush.  295,  52  Am.  Dec.  71;  Rem- 
sen  V.  People,  43  N.  Y.  9.  The 
court  had  been  previously  request- 
ed by  defendant's  counsel  to  charge 
as  follows:  'I  ask  the  court  to 
charge  the  jury  that  the  jury  may, 
in  the  exercise  of  sound  judgment, 
give  the  person  the  benefit  of  pre- 
vious good  character,  no  matter 
how  conclusive  the  other  testimony 
may  appear  to  be.'  The  court  in 
response  charged:  'I  leave  it  to 
the  jury  to  say  what  weight  good 
character  should  have  in  determin- 
ing the  question  of  the  defendant's 
guilt  or  innocence.  I  think  it  is  a 
proper  subject  for  their  consider- 
ation.' Exception  was  taken  to  the 
refusal  to  charge  as  requested. 
The  vice  of  this  ruling  is  the  same 


as  in  the  one  already  considered. 
The  jury  were  not  clearly  informed 
as  to  their  power  in  the  exercise  of 
a  sound  discretion.  The  defendant 
was  entitled  to  the  chai-ge  as  re- 
quested, wathout  change  or  com- 
ment." 

Citing  also  Remsen  v.  People,  43 
N.  Y.  8,  2  Reiss, '  Crimes  785,  3 
Greenl.  Ev.  §  25,  and  People  v. 
Hughson,  154  N.  Y.  153  (164),  47 
N.    E.    1092,    where  the   court    said: 

"Good  chai-acter  may  create  a 
doubt  against  positive  evidence,  but 
this  doubt  against  positive  evi- 
dence is  created  only  when,  in  the 
judgment  of  the  jury,  the  charac- 
ter is  so  good  as  to  raise  a  doubt 
as  to  the  truthfulness  or  correct- 
ness of  the  positive  evidence.  In 
such  a  case  the  prisoner  must  be 
given  the  benefit  of  the  doubt." 

In  People  v.  Garbutt,  17  Mich. 
9,  97  Am.  Rep.  162,  Cooley,  J.,  said: 
"Good  character  is  an  important 
fact  with  every  man;  and  never 
more  so  than  when  he  is  put  on 
trial  charged  with  an  offense, 
which  is  rendered  improbable  in 
the  last  degree  by  a  uniform  course 
of  life  wholly  inconsistent  with  any 
such  crime.  There  are  cases  when 
it  bticomes  a  man's  sole  depend- 
ence, and  may  prove  sufficient  to 
outweigh  evidence  of  the  most 
positive    character." 


1604  FORMS  OF  INSTRUCTIONS.  [§  2481. 

testimony  that  consideration  that  you  think  it  is  entitled  to,  and  no 
more;  taking  it  into  consideration  with  all  the  other  facts  and  cir- 
cumstances of  the  case.^*^ 

§  2481.  Predous  Good  Character  May  Overcome  Positive  Evi- 
dence of  Guilt — A  Question  for  the  Jury.  The  evidence  of  good  char- 
acter is  evidence  which  must  be  considered,  and  if,  in  the  judgment 
of  the  jury,  that  good  character  does  raise  a  doubt  against  positive 
evidence,  they  have  a  right  to  entertain  that  doubt  and  the  pxisoner 
must  have  the  benefit  of  it.^'^ 

§  2482.  Previous  Good  Character — Requires  Stronger  Proof  of 
Malice.  I  have  been  requested  to  charge  you  as  to  the  defendant's 
good  character.  The  question  of  fact  as  to  whether  he  has  satisfied 
you  from  the  evidence  that  he  has  established  a  good  character  is  for 
you  to  determine.  I  have  been  requested  to  charge  you  ^'that,  should 
the  jury  conclude  from  the  evidence  that  the  defendant  has  borne  a 
reputation  for  poaceableness,  they  should  require  a  greater  degree  of 
certainty  in  the  proof  of  the  maliciousness  attributed  to  him  than 
would  be  requisite  if  the  contraiy  were  shown."  I  so  charge  you. 
Every  party  charged  with  crime  has  a  right  to  introduce  and  make 
proffer  of  his  good  character,  that  character  having  reference  to  the 
na4;ure  of  the  charge  made  against  him,  and  if  he  does  the  jurors  are 
required  to  take  that  testimony,  in  connection  with  all  the  other 
facts  of  the  case^  in  determining  whether  the  guilt  of  the  party  has 
been  established  beyond  a  reasonable  doubt.^® 

§  2483.  Previous  Good  Character  as  Against  Positive  Facts  Show- 
ing Guilt,  (a)  In  regard  to  evidence  of  this  character,  it  is  the  duty 
of  the  court  tq  say  to  you  that,  where  it  is  shown  to  your  satisfac- 
tion that  the  defendant  was  of  good  general  reputation  for  peace  and 
good  order  in  the  community,  that  kind  of  testimony,  if  properly  made 
out  to  you,  is  positive  and  substantial  evidence,  and  it  should  be 
weighed  by  you  in  consideration  of  this  case.  The  courts  of  highest 
resort  in  this  state  have  said  it  is  evidence  which  may  work  a  doubt 
for  the  acquittal  of  the  defendant.  If  that  evidence  is  properly  made 
out  to  you,  it  should  be  sufficient  in  that  line.  It  is  not,  however,  to 
weigh  against  positive  facts  which  should  convince  your  mind  that 
this  defendant  did  the  deed  which  he  is  charged  with  committing 
here.  Where  the  facts  and  circumstances  are  such  as  to  leave  no 
room  for  doubt,  and  the  minds  of  the  jury  ai'e  thoroughly  and  fully 

36 — People  v.   Jackson,  182  N.  Y.  followed  neither  added  to  nor  took 

66,  74  N.  E.  570.  from   the  proper  rule  as   stated  to 

In     regard     to     this     instruction  the   jury." 

"counsel    argues    that,    while    the  37 — People  v.  Hughson,  154  N.  Y. 

court    charged    as    requested,    the  153,   47   N.   E.   1092   (1095).     See  pre- 

quaiiflcation    following    was    error;  vious   section. 

citing  People  v.   Bonier,  179  N.   Y.  38 — Approved       in      case      where 

315,   72    N.   E.   226.     The  charge   as  charge     was     homicide.       State    v. 

requostod    and    made    was    within  Pet.'sch,   43   S.   C.   132,    20    S.    E.   993 

the    ruin    laid     down     in    the    case  (996). 
cited,    and    the    qualification    that 


§  2484.]  CRIMINALr— EVIDENCE.  1605 

convinced,  this  evidence  itself  would  not  then  work  the  acquittal  of 
the  defendant,  but  it  is  to  come  in  the  consideration  of  the  case,  the 
same  as  any  other  evidence,  as  positive  and  substantive  evidence, 
and  to  be  weighed  by  you  in  that  line. 

(b)  Evidence  of  good  character  is  not  a  mere  makeweight,  thrown 
in  to  assist  in  the  production  of  a  result  that  would  happen  at  all 
events,  but  is  positive  evidence,  and  may  of  itself,  by  the  creation  of 
a  reasonable  doubt,  produce  an  acquittal. ^^ 

§  2484.    Previous  Reputation  for  Peace  and  Quietude — Homicide. 

You  are  insti'ucted  that  the  defendant  is  entitled  to  have  the  evi- 
dence touching  the  question  of  his  reputation  for  peace  and  quietude 
considered  by  the  juiy  in  determining  the  question  of  his  guilt,  and 
especially  in  determining  the  question  as  to  who  was  the  aggressor 
in  the  affray  in  which  K.  lost  his  life.  In  such  cases,  proof  of  good 
reputation  for  peace  and  quietude  on  the  part  of  the  defendant  is 
proper  evidence  to  be  considered  by  the  jury,  in  connection  with  all 
the  other  evidence.  In  determining  the  guilt  or  innocence  of  the  ac- 
cused, the  weight  to  be  attached  to  the  fact  of  good  character  or 
reputation,  like  that  to  be  attached  to  every  other  fact  of  the  case, 
is  for  the  jury  alone  to  determine.'"* 

§  2485.  Reputation — Relative  Weight  of  in  Cases  Where  Positive 
or  Circumstantial  Evidence  Is  Relied  On.  You  are  instructed  that 
evidence  of  good  character  is  always  receivable  in  a  court  of  law, 
where  a  person  is  charged  with  the  commission  of  a  crime,  and  some- 
times it  proves  a  very  important  part  of  the  testimony,  as,  for  in- 

39— Commonwealth    v.     Harmon,  527,    45    Pac.    145    (146),    53   Am.    St. 

199  Pa.  521,   49  Atl.  217,  85  Am.   St.  Rep.   883. 
Rep.   799.  The    court    held    it    was    error   to 

The  court  said:     "It  is  plain  that  refuse  this  instruction.     The  court 

the   judge    did    not   see   any   incon-  said:     "We  think  it  too  well  settled 

sistency  in   these  two  instructions,  to   admit   of  any   doubt   or   contro- 

nor    do    we    think    they    are    fairly  versy  that  a  defendant  in  a  crimi- 

open   to    that    objection.     The    true  nal  case  may  introduce  evidence  of 

rule    was    accurately   expressed    in  his    good    character,    with    respect 

Commonwealth  v.   Eckerd,   174  Pa.  to    the    elements    involved    in    the 

137,  34  Atl.  305,  in  this  form:  'That  charge   against    him,    as    a   fact    to 

evidence  of  good  character  is  sub-  weigh  in  his  favor,  and  that  he  is 

stantive   and   positive  proof  in  the  entitled,   if  he  requests  it,   to   have 

prisoner's    behalf,     and    may    give  the  jury  advised   as   to  the  weight 

rise   to   a   reasonable  doubt,   which  to    be   given    to    such    evidence.      3 

would  not  otherwise  exist,  by  mak-  Thomp.   Trials,   par.  444;  Kistler  v. 

ing    it    improbable    that   a    man    of  State,   54  lud.   400,    2   Am.    Cr.    Rep. 

such    character    would    commit   the  18;   State  v.   Clemohs,   51   Iowa  274, 

offense     charged;     but     where     the  1  N.   "W.   546;  McQueen  v.   State,  82 

jury   is  satisfied   beyond   a  reason-  Ind.  72;   People  v.   Laird,  102  Mich, 

able  doubt,  under  all  the  evidence,  135,  60  N.  W.  457;  People  v.  Jassino, 

that    the   defendant   is    guilty,    evi-  100  Mich.  536,  59  N.  W.  230.  In  this 

dence    of    previous    good    character  last  case  the  court  said:     'Evideni-^e 

is  not  to   overcome   the  conclusion  of    good    character    is    admissible, 

which   follows   from    that   view   of  not    only    in    a    case    where    doubt 

the  case.'     The  charge  complained  otherwise   exists,    but    may    be   of- 

of  in  the  present  case  did  not  vary  fered    for   the    purpose   of  creating 

substantially   from   this   rule."  a  doubt.'  " 

40— State    v.    Gushing,    14    Wash. 


1606  FORMS  OP  INSTRUCTIONS.  [§  2486. 

stance,  in  a  case  that  depends  entirely  upon  circumstantial  evidence, 
or  where  the  testimony  as  to  the  commission  of  the  crime  or  offense  is 
very  contradictory.  In  such  cases  the  testimony  might  be  veiy  im- 
portant. Sometimes  in  such  a  case  the  testimony  of  good  character 
would  turn  the  scale  in  favor  of  the  defendant.  But,  in  a  case  where 
the  testimony  is  direct  and  positive  as  to  the  commission  of  the  of- 
fense, it  is  not  of  so  much  weight — -not  of  so  much  value.  Still  it  is 
to  be  considei^ed  by  the  jury,  and  to  be  given  by  them  all  the  weight 
they  believe  it  entitled  to  receive.  It  should  be  considered  in  connec- 
tion with  all  of  the  other  testimony  and  circumstances  surrounding 
the  alleged  commission  of  the  offense.**^ 

§  2486.  Previous  Reputation  for  Honesty.  Evidence  as  to  the  good 
reputation  of  the  defendant  for  honesty  and  integrity  was  received, 
and  you  should  consider  such  evidence  together  with  all  the  other  evi- 
dence in  the  case  in  arriving  at  your  verdict.  But,  if  from  all  the 
evidence  in  the  case  you  are  satisfied  of  his  guilt  beyond  a  reasonable 
doubt,  then  it  is  immaterial  what  his  reputation  has  heretofore  been 
as  to  honesty  and  integrity.'*^ 

§  2487.  Defendant's  Previous  Disposition  Toward  Children — In- 
fanticide. Defendant  has  introduced  evidence  as  to  his  character  as 
a  man  of  humane  and  kindly  disposition  towards  children.  In  pass- 
ing on  the  question  of  his  guilt  or  innocence,  and,  if  you  find  him 
guilty,  in  passing  on  the  grade  of  his  offense,  this  evidence  as  to  his 
character  constitutes  an  ingredient  to  be  considered  by  you,  without 
reference  to  the  apparently  conclusive  or  inconclusive  character  of 
the  other  evidence;  and  it  is  for  you  to  consider  this  evidence 
throughout  your  deliberations  on  the  facts  of  the  case,  and  give  it 
such  weight  as  you  think  it  justly  entitled  to.*^ 

§  2488.  Previous  Bad  Character  of  Defendant.  The  court  instructs 
the  jury  that  no  person  should  be  convicted  uioon  his  reputation, 
character  or  former  convictions,  but  must  be  convicted  by  the  evi- 
dence in  the  ease;  and  the  evidence  must  exclude  any  and  every  rea- 
sonable doubt,  and  to  a  moral  certainty.'** 

§  2489.  Character  of  Deceased  for  Violence  Immaterial  When 
Killing  Unlawful  and  Premeditated,  (a)  If  defendant  K.  had  the 
previously  formed  design  unlawfully  to  take  S.  's  life  and  carried  it 
into  effect  pursuant  thereto,  or  if  he  was  the  aggressor,  or  brought 
on  the  difficulty,  then  S.  's  character  for  violence,  no  matter  how 
clearly  proved,  will  avail  him  nothing.'*^ 

(b)     In  trials  of  homicide,  in  all  doubtful  questions  as  to  who  was 

41— Grabowski   v.   State,  126  Wis.  the   decisions   of   this   court."     Cit- 

44,    105    N.   W.    808.  iiig    State    v.    Gustafson     50    Iowa 

42— State    v.    Dunn,    125    Wis.    181  194. 

(197),   102  N.   W.   935   (940).  44— McVay  v.    State,   —    Miss.  — , 

43— State      v.     Cunningham,      111  26    So.    947. 

Iowa  233,  82  N.  W.  77.J  (779).     "The  45— Kair  v.    State,    106    Ala.    1,   17 

law   as  stated   is   in   harmony   with  So,    328    (329). 


'§  2490.]  CRIMINALr— EVIDENCE.  1607 

the  aggressor,  the  violent  or  bloodthirsty  character  of  the  deceased, 
if  such  be  his  character,  may  be  given  in  evidence,  for  the  reason 
that  an  assault  or  attack  by  one  known  to  be  of  a  violent  character, 
and  one  who  fights  with  weapons  would  justify  more  prompt  and  de- 
cisive measures  than  if  by  one  of  a  milder  character.  But  such  evi- 
dence is  confined  to  defensive  measures. 

(c)  The  evidence  of  character  as  to  the  deceased  is  immaterial 
if  the  defendant  was  the  aggressor,  or  was  not  acting  in  self-de- 
fense.^^ 

§  2490.  Character  of  Deceased — Same  Offense  to  Kill  Bad  Person 
as  to  Kill  a  Good  One.  The  evidence  offered  as  to  the  character  of 
deceased  should  be  considered  by  the  jury  in  determining  whether  or 
not  by  his  acts  and  conduct  at  the  time  of  the  homicide,  J.,  deceased, 
gave  the  defendant  reasonable  cause  to  ai>prehend  such  danger  as  to 
justify  defendant  in  striking  him,  if  he  did  strike  him,  on  the  ground 
of  self-defense,  as  defined  in  these  instructions.  But  if  you  find  from 
the  evidence  that  the  defendant  was  the  aggressor,  and  that  he  sought 
the  deceased,  and  provoked,  began,  or  entered  into  a  difficulty  with 
him  with  a  preconceived  intent  of  wreaking  his  malice  upon  said  J., 
then  the  bad  character  of  J.,  if  he  was  a  person  of  bad  character, 
would  afford  the  defendant  no  excuse  for  taking  his  life,  if  he  did  take 
his  life,  because  it  is  the  same  offense  to  kill  a  bad  person  as  it  is  to 
kill  a  good  one.'*''^ 


CIRCUMSTANTIAL  EVIDENCE. 

§  2491.  Circumstantial  Evidence  Defined.  The  court  further  in- 
structs the  jury,  that  what  is  meant  by  circumstantial  evidence  in 
criminal  eases,  is  the  proof  of  such  facts  and  circumstances  connected 
with  or  surrounding  the  commission  of  the  crime  charged,  as  tend  to 
show  the  guilt  or  innocence  of  the  party  or  parties  charged;  and  if 
these  facts  and  circumstances  are  sufficient  to  satisfy  the  jur}^  of  the 
guilt  of  the  defendants,  or  any  of  them,  beyond  a  reasonable  doubt, 
then  such  evidence  is  sufficient  to  authorize  a  jmy  in  finding  a  ver- 
dict of  guilty,  as  to  such  of  the  defendants  as  the  jury  are  so  satis- 
fied, beyond  a  reasonable  doubt,  from  the  evidence,  are  guilty.** 

46 — Winter  v.  State,  123  Ala.  1,  26  respondent  passed  into  the  second 

So.   949    (950).  room.     One  of  these   officers   testi- 

47 — State  v.  Darling-,  199  Mo.  168,  fled   that   he   heard   a   noise,   as  of 

97  S.  W.  592.  something-    falling.      He      has     de- 

48 — Law    v.    State,    33  Tex.    37.  scribed    the    manner    in    which    he 

Circumstantial    evidence    defined  found     O'G.     near    the     dump,     so 

by   illustration:  called,    as    it    rises    in    the    second 

As  tending  to  show  there  w^as  in-  room,  back  of  the  counter.     He  has 

toxicating    liquor    kept    there,    the  testified  that  he  smelled  the  fumes 

state  has  introduced  evidence  tend-  of  whisky  coming  from   the  dump, 

ing    to    show    that    soon    after    the  Now,  if  you  find  that  he  did  in  fact 

officers    or   some    one   of   them,    at  smell  intoxicating  liquor,  then  that 

least,   entered  the  front  room,   this  establishes,    or   tends    to    establish, 


1608 


FORMS  OF  INSTRUCTIONS. 


[§  2492. 


§  2492.  Circumstantial  Evidence — What  Is  Meant  by.  Ths  court 
instructs  the  jury  that  what  is  meant  by  circumstantial  evidence  in 
criminal  cases  is  the  proof  of  such  facts  or  circumstances  connected 
■with  or  surrounding  the  commission  of  the  crime  charged  as  tend  to 
show  the  guilt  or  innocence  of  the  party  charged ;  and,  if  these  facts 
and  circumstances  are  sufficient  to  satisfy  the  jury  of  the  guilt  of 
the  defendant  beyond  a  reasonable  doubt,  then  such  evidence  is  suf- 
ficient to  authorize  the  jury  in  finding  a  verdict  of  guilty.'*'' 

§  2493.  Circumstantial  Evidence  Is  Competent.  If  the  jury  be- 
lieve, from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defend- 
ant delibei-ately  and  intentionally  shot  J.  M.,  in  manner  and  form  as 
charged,  and  as  he  was  passing  along  the  public  highway,  and  that 
from  the  effects  of  such  shooting  the  said  J.  M.  died,  as  charged  in 
the  indictment,  it  matters  not  that  such  evidence  is  circumstantial,  or 
made  up  from  facts  and  circumstances,  provided,  the  jury  believe 
such  facts  and  circumstances  pointing  to  his  guilt,  to  have  been 
proven,  beyond  a  reasonable  doubt,  by  the  evidence.^*' 

§  2494.  Legal  and  Competent — Excluding  Every  Reasonable  Hy- 
pothesis, (a)  The  court  further  instructs  the  jury  that  circumstan- 
tial evidence  is  legal  and  competent  in  criminal  cases,  and,  if  it  is  of 
such  a  character  as  to  exclude  every  reasonable  hypothesis  other 
than  that  the  defendant  is  guilty,  is  entitled  to  the  same  weight  as 
direct  testimony.^^ 


two  facts:  First,  that  he  did  ac- 
tually smell  an  odor  there  present, 
that  it  had  existence  and  that  that 
odor  came  from  intoxicating 
liquors,  and  therefore  it  tends  to 
show  that  intoxicating  liquor  had 
been  present  there.  Now,  to  illus- 
ti-ate  how  this  kind  of  testimony  is 
acted  upon  in  the  ordinary  experi- 
ence of  mankind,  I  will  bring  to 
your  minds  a  very  homely  illustra- 
tion,— one  which  presents  itself  to 
me.  You  hear  a  commotion  in  your 
hen-house.  You  are  aware  by  the 
disturbance,  that  some  animal  is 
there.  You  hasten  to  the  place. 
You  do  not  see  the  animal.  He  has 
fled  at  your  approach.  But  when 
you  get  in  there  you  have  the  un- 
mistakable odors  of  a  skunk.  There 
is  the  evidence  of  an  odor,  and  that 
proves  that  the  animal  has  been 
there  at  some  time.  It  is  on  ac- 
count of  our  being  able  to  act 
ui)on  such  circumstances  as  these, 
arising  in  our  ordinary  human  ex- 
perience, with  reasonable  safety, 
and  a  reasonable  assumption  of 
their  truth,  that  the  law  has  per- 
mitted this  class  of  evidence  to  be 
used  In  criminal  cases.  If  you  are 
satisfied  from  the  evidence  of  Mr. 
C.  that  he  smelled  the  fumes  of  in- 


toxicating liquor  there,  you  will 
say  whether  or  not  there  was  in- 
toxicating liquor  there  in  that 
dump.  It  does  not  make  any  differ- 
ence whether  the  officer  found  any 
liquor,  so  that  he  was  enabled  to 
lay  his  hand  upon  it.  If  you  find 
there  was  intoxicating  liquor 
there,  that  establishes  the  fact. 
Approved  in  S-tate  v.  O'Grady,  65 
Vt.   66,   25   Atl.   905. 

49 — Cunningham  v.  State,  56  Neb. 
691,   77   N.   W.    60   (61). 

The  court  said:  "We  see  nothing 
wrong  with  this  instruction.  Law 
V.  State,  3.3  Tex.  37." 

50— Schoolcraft  v.  People,  117  111. 
277,    7    N.    E.    649. 

51 — Longley  v.  Commonwealth,  99 
Va.   807,   37   S.   E.   339   (341). 

The  same  instruction,  excepting 
the  last  phrase,  was  approved  in 
Cunningham  v.  State,  56  Neb.  691, 
77   N.   W.    60.     It  is   as   follows: 

The  court  instructs  the  jury  that 
circumstantial  evidence  is  legal 
and  competent  in  criminal  cases> 
and,  if  it  is  of  such  a  character  as 
to  exclude  every  reasonable  hy- 
pothesis other  than  that  the  de- 
fendant is  guilty,  it  is  sufficient  to 
authorize   a   conviction. 

The   court   in   support   of   the   in- 


§  2495.]  CRIMINAL— EVIDENCE.  1609 

(b)  You  will  have  observed,  gentlemen,  on  the  prosecution  of  this 
ease,  that  the  evidence  is  largely,  if  not  entirely,  circumstantial. 
Now  in  respect  to  that,  I  charge  you  that  circumstantial  evidence  is 
legal  and  competent  in  criminal  cases.  If  it  is  of  such  a  character 
as  to  exclude  every  reasonable  hypothesis  other  than  that  the  defend- 
ant is  guilty,  it  is  entitled  to  the  same  weight  as  direct  evidence.  If 
you  believe  from  the  evidence  beyond  a  reasonable  doubt  that  the 
defendant  deliberately  and  intentionally  set  fire  to  the  building,  as 
charged  in  the  infonnation,  it  matters  not  that  such  evidence  is  cir- 
cumstantial, or  made  up  of  facts  and  circumstances,  provided  you 
believe  such  facts  and  circumstances  pointing  to  her  guilt  to  have 
been  proven  bej'ond  a  reasonable  doubt  bj^  the  evidence. ^- 

§  2495.  Positive  and  Circumstantial  Evidence  Distinguished,  (a) 
Evidence  is  either  direct  and  positive,  or  presumptive  and  circum- 
stantial. Evidence  is  direct  and  positive,  when  the  very  facts  in  dis- 
pute are  communicated  by  those  who  have  had  actual  knowledge  of 
them  by  means  of  their  senses,  and  where,  therefore,  the  jury  may 
be  supposed  to  perceive  the  fact  through  the  organs  of  the  witnesses. 
It  is  presumptive  or  circumstantial  where  the  evidence  is  not  direct, 
but  where,  on  the  contraiy,  a  fact  which  is  not  directly  and  posi- 
tively known  is  presumed  or  inferred  fi'om  one  or  more  other  facts 
or  circumstances  which  are  known.  The  state  claims  that  it  has  con- 
nected the  defendant  with  the  crime  alleged  in  the  second  count  of 
the  information,  not  by  direct  and  positive  evidence,  but  by  what 
has  been  herein  defined  as  presumptive  and  circumstantial  evidence ; 
that  is,  the  state  has  offered  no  evidence  of  a  witness  or  witnesses 
who  saw  the  act  that  is  alleged  in  the  second  count  of  the  infonna' 
tion,  which  it  is  claimed  resulted  in  the  death  of  the  said  G.,  but  the 
state  has  offered  the  testimony  of  witnesses  tending  to  prove  a  cata- 
logue of  facts  and  circumstances  which  the  state  claims  presumably 
and  circumstantially  connects  the  defendant  with  the  commission  of 
the  alleged  crime  in  said  second  count,  and  establishes  his  guilt  of 
the  crime  charged  beyond  a  reasonable  doubt.^^ 

(b)  The  court  instructs  the  jury  that  evidence  is  of  two  kinds—- 
direct  and  circumstantial.  Direct  evidence  is  when  a  witness  testi- 
fied directly  of  his  own  knowledge  of  the  main  fact  or  facts  to  be 
proven.  Circumstantial  evidence  is  proof  of  certain  facts  and  cir- 
cumstances in  a  certain  ease,  from  which  the  juiy  may  infer  other 
and  connected  facts,  which  usually  and  reasonably  follow,  according 
to  the  common  experience  of  mankind.  Crime  may  be  proven  by  cir- 
cumstantial evidence  as  well  as  by  direct  testimony  of  eye-witnesses; 

struction   cited    Davis   v.    State,    51  53 — "The    instruction    assailed    is 

Neb.   301,  70  N.   W.  984;   Morgan  v.  indeed    a    fair     statement     of     the 

State,    51    Neb.    672,    71    N.    W.    788;  claim    advanced    in    behalf    of    the 

Johnson  v.  State,  53  Neb.  103,  73  N.  state,    and    hi    no    wise    prejudicial 

W.  463.  to     the     rights     of     the     accused." 

52— Colbert  v.  State,  125  Wis.  423,  Morgan  v.  State,  51  Neb.  67?,  71  N. 

104  N.  W.  61  (66).  W.   788   (795). 


1610  FORMS  OF  INSTRUCTIONS.  [§  2496. 

but  the  facts  and  circumstances  in  evidence  should  be  consistent 
with  each  other  and  with  the  guilt  of  the  defendant,  and  inconsistent 
with  any  reasonable  theory  of  defendant's  innocence.^* 

§  2496.  Elements  Necessary  for  Conviction,  (a)  The  jury  are  in- 
structed that  ithe  prosecution  seeks  a  conviction  in  this  case  upon  cir- 
cumstantial evidence  alone.  The  court  therefore  instructs  you  that 
you  cannot  convict  the  defendant  unless  the  state  has  proven  his 
g'uilt  from  the  evidence  beyond  a  reasonable  doubt,  by  facts  and  cir- 
cumstances all  of  which  are  consistent  with  each  other  and  with  his 
guilt,  and  absolutely  inconsistent  with  any  reasonable  theory  of  his 
innocence.^^ 

(b)  Circumstantial  evidence  is  the  evidence  of  certain  facts  from 
which  are  to  be  inferred  the  existence  of  other  material  facts  bearing 
upon  the  question  at  issue  or  fact  to  be  proved.  This  evidence  is 
legal  and  competent,  and,  when  of  such  a  character  as  to  exclude 
every  reasonable  doubt  of  defendant's  innocence,  is  entitled  to  as 
much  weight  as  direct  evidence.  When  a  conviction  is  sought  on  cir- 
cumstantial evidence  alone,  it  must  not  only  be  shown  by  prepon- 
derance of  evidence  that  the  facts  are  true,  but  they  must  be  such 
as  are  absolutely  opposed,  upon  any  reasonable  ground  of  reasoning, 
with  the  innocence  of  the  accused,  and  incapable  of  explanation  upon 
any  reasonable  hypothesis  other  than  that  of  the  guilt  of  the  ac- 
cused. The  degree  of  certainty  must  almost  be  equal  to  that  of  direct 
testimony,  and,  if  there  is  any  one  single  fact  proved  to  your  satis- 
faction by  a  preponderance  of  evidence  which  is  inconsistent  with  de- 
fendant's  guilt,  this  is  sufficient  to  raise  a  reasonable  doubt,  and  the 
juiy  should  acquit  the  defendant.  In  order  to  justify  the  inference 
of  legal  guilt  from  circumstantial  evidence,  the  proof  must  be  abso- 
lutely incompatible  with  the  innocence  of  the  accused>,  and  incapable 
of  explanation  upon  any  other  reasonable  hj^othesis  than  that  of 
his  guilt.  If  there  is  any  reasonable  doubt  as  to  reality  of  the  con- 
nection of  the  circumstances  of  evidence  with  the  facts  to  be  proved, 
or  as  to  the  completeness  of  the  proof  of  the  corpus  delicti,  or  as  to 
the  proper  conclusion  to  be  drawn  from  the  evidence,  it  is  safer  to  err 
in  acquitting  than  in  convieting.^^ 

(c)  The  rule  with  reference  to  circumstantial  evidence  is  to  prove 
such  facts  and  circumstances  with  or  surrounding  the  commission  of 
the  crime  charged  are  true,  to  show  the  guilt  or  innocence  of  the 
party  charged ;  and,  if  these  facts  and  circumstances  are  sufficient  to 
convince  the  jury  of  the  guilt  of  the  defendant  beyond  a  reasonable 
doubt,  then  such  evidence  is  sufficient  to  authorize  the  jury  in  finding 
a  verdict  of  guilty.°'^ 

54— State   V.    GatUn,   170   Mo.    354,  113   La.    940,    37    So.    883    (889),    in   a 

70  S.   W.   885  (888),  homicide  case.  homicide  case. 

55 — State  v.  Pysoher,  179  Mo.  140,         57 — This    instruction   approved   in 

77  S.  W.   836  (842).  a  homicide  case;  Smith  v.  State,  94 

56— Approved  in  State  v.  Aspara,  Ga.  591,  22  S.  E.  214  (215). 


§  2497.] 


CRIMINAL— EVIDENCE. 


1611 


§  2497.  Facts  Must  All  Be  Consistent  with  Guilt  and  Inconsistent 
with  Innocence,  (a)  The  jury  are  instructed,  as  a  matter  of  law, 
that  where  a  eonviotion  for  a  criminal  offense  is  sought  upon  circum- 
stantial evidence  alone,  the  people  must  not  only  show,  by  a  pre- 
ponderance of  evidence,  that  the  alleged  facts  and  circumstances  are 
true,  but  they  must  be  such  facts  and  circumstances  as  are  abso- 
lutely incompatible,  upon  any  reasonable  hypothesis,  with  the  inno- 
cence of  the  accused,  and  incapable  of  explanation,  upon  any  reason- 
able hypothesis,  other  than  that  of.  the  guilt  of  the  accused. -"^^ 

(b)  When  circumstantial  evidence  is  relied  upon  to  obtain  a  con- 
viction of  a  jjei'son  charged  with  crime,  it  is  not  only  necessary  that 
the  circumstances  all  concur  to  show  that  the  defendant  committed 
the  crime,  but  that  all  be  inconsistent  with  any  other  rational  con- 
clusion.''® 


58—1   Greenl.    on   Ev.    §  12. 

In  Gantling-  v.  State.  40  Fla.  237, 
23  So.  857  (859),  the  following  in- 
struction  was   given: 

As  to  the  evidence  in  the  case 
at  bar,  which  is  circum.stantial  you 
are  instructed  as  matter  of  law 
that  circumstantial  evidence  is 
legal  evidence,  (and  are  further  in- 
structed that  it  is  well  settled  by 
decisions  of  various  courts  in  this 
country,  and  especially  by  our  own 
supreme  court,  'that  circumstantial 
evidence  is  not  only  legal  evidence, 
but  also  that  a  well  connected 
train  of  circumstances  is  as  con- 
clusive of  a  fact  as  is  the  great- 
est array  of  positive  evidence.) 
The  value  of  this  kind  of  evidence 
consists  in  the  conclusive  nature 
and  tendency  of  the  circumstances 
relied  upon  to  establish  any  con- 
troverted facts.  In  criminal  cases 
they  must  not  only  be  consistent 
with  guilt  of  the  accused,  but  must 
be  inconsistent  with  the  innocence 
of  the  accused.  Where  a  conviction 
of  guilt  depends  upon  circumstan- 
tial evidence  alone,  the  circum- 
stances proven  should  not  only  all 
concur  to  show  that  the  prisoner 
committed  the  crime,  but  that  they 
are  all  inconsistent  with  any  ra- 
tional conclusion.  And  the  circum- 
stances proven  should  all  connect, 
or  tend  to  connect,  the  accused 
with  the  commission  of  the  al- 
leged crime,  and  the  circum- 
stances proven  should  be  of  such 
character  as  to  satisfy  the  minds 
of  the  jurors  trying  the  case  of  the 
guilt  of  the  accused  beyond  a 
reasonable  doubt.  The  circum- 
stances from  which  the  conclusion 
is    drawn    should    be   fairly    estab- 


lished. All  the  facts  should  be 
consistent  with  the  hypothesis  of 
guilt.  The  circumstances  should 
be  of  conclusive  nature  and  ten- 
dency, and  the  circumstances, 
when  alone  relied  upon  for  a  con- 
viction, should,  to  a  moral  cer- 
tainty, actually  exclude  every  hy- 
pothesis but  the  one  to  be  proved. 

The  court  said  that  it  "states 
the  rule  somewhat  stronger  -in 
favor  of  the  accused  than  our 
previous  decisions  have  gone,  and 
perhaps  stronger  than  the  law  re- 
quires," citing  Jenktns  v.  State,  35 
Fla.  737,  18  So.  182,  48  Am.  St.  267; 
Wlietson  v.  State,  31  Pla.  240,  12 
So.  661;  Kennedy  v.  State,  31  Fla. 
289,  5  So.  805. 

59— Bird  V.  State,  143  Fla.  541, 
30    So.    655    (656). 

The  supreme  court  commented 
as    follows: 

"The  court  gave,  in  connection 
with  and  immediately  following  the 
instruction,  another,  to  the  effect 
that  the  accused  is  presumed  to 
be  innocent  of  crime,  and  that  pre- 
sumption of  innocence  continues 
throughout  every  state  of  trial  un- 
til it  is  overcome  by  evidence 
which  satisfies  the  jury  of  his  guilt 
beyond  a  reasonable  doubt.  In 
other  portions  of  the  charge  and 
in  the  instructions  given  on  behalf 
of  plaintiff  in  error  the  jury  were 
repeatedly  told  that  they  must  not 
convict  the  accused  unless  they  be- 
lieved from  the  evidence  beyond  a 
reasonable  doubt  that  he  was 
guilty.  We  are  of  opinion  that,  tak- 
ing the  entire  instruction  given  to 
the  jury,  the  plaintiff  in  error  has 
no  ground  to  complain  of  the  al- 
leged  omission   in   the   instructions 


1612  FORMS  OF  INSTRUCTIONS.  [§  2497. 

(c)  Before  the  jury  can  convict  the  defendant,  they  must  be 
satisfied  to  a  moral  certainty,  not  only  that  the  proof  is  consistent 
with  the  defendant's  guilt,  but  that  it  is  wholly  inconsistent  with 
every  other  rational  conclusion;  and  unless  the  jury  are  so  convinced 
by  the  evidence  of  the  defendant's  guilt  that  they  would  each  ven- 
ture to  act  upon  that  decision  in  matters  of  the  highest  concern  and 
importance  to  his  own  interest,  then  they  must  find  the  defendant 
not  guilty.*'*' 

(d)  To  authorize  a  conviction  upon  circumstantial  evidence  alone, 
the  circumstances  must  not  only  all  be  in  harmony  with  the  guilt  of 
the  accused,  but  they  must  be  of  such  a  character  that  they  cannot 
reasonably  be  true  in  the  ordinary  nature  of  things  and  the  defend- 
ant be  innocent.*'^ 

(e)  The  court  instructs  the  jury  that  in  order  to  warrant  a  con- 
viction for  crime  on  circumstantial  evidence,  the  circumstances  taken 
together  should  be  of  a  conclusive  nature  and  tendency,  leading  on 
the  whole  to  a  satisfaetoiy  conclusion,  and  producing  in  effect  a 
reasonable  and  moral  certainty  that  the  accused  and  no  one  else  com- 
mitted the  offense  charged;  and  it  is  the  invariable  rule  of  laAV  that 
to  warrant  a  conviction  upon  circumstantial  evidence  alone,  such 
facts  and  circumstances  must  be  shown  as  are  consistent  with  the 
guilt  of  the  party  charged,  and  as  cannot,  upon  any  reasonable  theory, 
be  true  and  the  party  charged  be  innocent;  and  in  this  ease  if  all 
the  facts  and  circumstances  relied  upon  by  the  people  to  secure  a 
conviction  can  be  reasonably  accounted  for  upon  any  theory  consist- 
ent with  the  innocence  of  the  defendant,  then  the  jury  should  acquit 
the  defendant. **- 

(f)  The  court  instructs  the  jury,  that  it  is  an  invariable  rule  of 
law,  that  to  Avarrant  a  conviction  for  a  criminal  offense  upon  circum- 
stantial evidence  alone,  such  a  state  of  facts  and  circumstances  must 
be  shown  as  that  they  are  all  consistent  with  the  guilt  of  the  party 
charged,  and  such  that  they  cannot,  upon  any  reasonable  theoiy,  be 
true  and  the  party  charged  be  innocent.*'^ 

(g)  In  order  that  a  jury  may  be  warranted  in  finding  a  defendant 
guilty  on  circumstantial  evidence,  all  the  facts  and  circumstances 
necessary  to  establish  the  conclusion  of  guilt  must  be  proved  beyond 
reasonable  doubt,  all  such  facts  and  circumstances  must  be  consistent 
Avith  each  other  and  with  the,  conclusion  sought  to  be  esitablished, 
Avliieh  is  that  the  person  on  trial  committed  the  crime  as  charged.  All 
such  facts  and  circumstances  must  be  inconsistent  with  any  reasona- 
ble theory  of  tlie  innocence  of  the  defendant,  and  such  facts  and  cir- 
cumstances, taken  all  together,  must  be  of  such  conclusive  and  satis- 

montlonofl,    and    that    the    instruc-         61— Horn  v.   State,  12  Wyo.  80,  73 

tlon  compliiined  of  is  not  faulty  in      Par.  705   (725). 

the  re.'ipect   contended   for."  62— Marzen    v.    People,    173    111.    43 

60— Burton   v.   State,   107   Ala.  108,      (62),    50   N.   E.   249. 
18  So.  284  (286),  homicide  case.  63— Beavers  v.   State,  58  Ind.  530; 

Block  V.  State,  1  Tex.  App.  368. 


§  2498.]  CRIMINALr-EVIDENCB.  1613 

factory  nature  as  to  produce  in  the  minds  of  the  jurors  a  reasonable 
and  moral  certainty  that  the  person  on  trial,  and  not  some  other 
person,  committed  the  offense  charged.^* 

(h)  In  criminal  cases,  where  the  prosecution  rely  upon  circum- 
stantial evidence  alone  for  a  conviction,  it  is  not  enough  that  all  the 
circumstances  proved  are  consistent  with  and  point  to  the  defendant's 
guilt.  To  authorize  a  conviction  upon  cii'cumstantial  evidence  alone, 
the  circumstances  must  not  only  all  be  in  harmony  with  the  guilt  of 
the  accused,  but  they  must  be  of  such  a  character  that  they  cannot 
reasonably  be  true,  in  the  ordinary  nature  of  things,  and  the  defend- 
ant be  innocent.^^ 

(i)  The  test  of  the  sufficiency  of  circumstantial  evidence  in  a 
criminal  case  is  whether  the  circumstances,  as  proven,  are  capable  of 
explanation  upon  any  reasonable  hypothesis  consistent  with  the  de- 
fendant's innocence,  and,  if  they  are  capable  of  such  explanation, 
then  the  defendant  should  be  acquitted.''^ 

§  2498.  No  Reasonable  Theory  of  Innocence  Must  Be  Possible, 
(a)  It  is  necessary  for  the  prosecution  to  show,  under  all  circum- 
stances, as  a  part  of  their  own  case,  that  there  is  no  innocent  theory 
possible  which  will,  without  violation  of  reason,  accord  with  the  facts 
jDroven  in  the  case.  Circumstances  are  never  to  be  presumed.  Each 
fact  making  up  the  chain  of  circumstances  must  be  proven  beyond 
a  reasonable  doubt.  Circumstantial  evidence  is  sufficient,  and  is  often 
more  apt  to  convince  the  mind  of  the  existence  of  a  fact  than  the 
positive  evidence  of  a  witness,  who  may  be  mistaken;  whereas  a  con- 
catenation and  a  fitness  of  many  circumstances,  made  out  by  different 
witnesses,  can  seldom  be  mistaken  or  fail  to  elicit  the  truth.  But 
then  those  circumstances  should  be  as  strong  in  themselves,  should 
each  of  them  tend  to  throw  light  upon  and  prove  each  other,  and  the 
result  of  the  whole  should  be  to  leave  no  doubt  upon  the  mind  that 
the  offense  has  been  committed,  and  that  the  accused,  and  no  other, 
could  be  the  person  who  committed  it.'^^ 

(b)  The  court  instructs  you  that  when  one  seeks  to  convict  on 
circumstantial  evidence,  you  must  be  satisfied  of  the  guilt  of  the  de- 
fendant beyond  a  reasonable  doubt,  and  the  circumstances  must 
point  to  his  guilt  to  the  exclusion  of  any  other  reasonable  hypothesis. 

64— Galloway    v.     State,    44    Tex.  65— Com.   v.     Goodwin,    14     Gray 

Cr.  App.  230,  70  S.  W.  211  (212).  (Mass.)  55. 

"In     the     latter     clause     of     the  66— Bowen   v.    State,   140  Ala.    65, 

charge  we  find  this  language:     'It  37   So.   233   (234). 

is  not  permitted  to  jurors  to  re-  "The  test  of  the  sufficiency  of 
ceive  any  evidence  or  consider  any  circumstantial  evidence  for  con- 
facts  in  the  case  except  as  shown  viction,  a^s  laid  down  in  the  above 
in,  or  deducible  from,  the  testl-  charge,  is  in  substance  the  same  as 
mony  of  the  witnesses.'  This,  tak-  that  which  in  Pickins  v.  State,  115 
en  in  connection  with  the  above  Ala.  42,  50,  22  So.  551.  was  affirmed 
quoted  charge,  certainly  is  all  that  to  be  correct.  In  the  refusal  of 
appellant    could    insist    upon."  this  charge  there  was  error." 

The  court  cited  Chitister  v.  State,  67— People  v.   Foley,  64  Mich.  148, 

33  Tex.   Cr.  App.   635,  29  S.  W.  683;  31   N.   W.  94   (99). 
Lopez  v.  State.  —  Tex.  Cr.  App.  — , 
20  S.  W.  395,  28  Am.  St.  935. 


1614  FORMS  OF  INSTRUCTIONS  [§  2499, 

That  means  no  more  than  this:  Having  carefully  considered  all  the 
facts  and  circumstances,  does  your  mind  lead  you,  as  reasonable  men, 
to  the  (fonclusion  that  this  defendant  is  guilty  of  the  offense?  If  it 
does,  and  your  minds  come  to  that  conclusion  from  the  surroundings 
in  which  he  was  placed,  in  reference  to  this  matter,  then  it  would  be 
your  duty  to  write  a  verdict  of  * 'Guilty."  But  if,  after  having  calmly 
and  carefully  considered  all  the  facts  and  circumstances  of  the  case, 
you  have  a  reasonable  doubt — that  is  to  say,  if  you  can  say,  "We 
ought  not  to  find  the  defendant  guilty  because  we  have  a  reasonable 
doubt,  from  the  evidence  of  his  guilt," — then  you  will  say,  **Not 
guilty,"  because  he  is  entitled  to  the  benefit  of  every  reasonable 
doubt.  The  state  makes  out  its  ease  beyond  a  reasonable  doubt,  and 
then,  on  the  whole  case  as  made  out  by  the  state  and  the  defendant, 
he  is  entitled  to  such  doubt. ^^ 

§  2499.  A  Single  Inconsistent  Fact  Acquits.  The  jury  are  in- 
structed that  in  cases  of  circumstantial  evidence  the  jury  must  not 
only  be  satisfied  beyond  a  reasonable  doubt  that  all  the  circumstances 
proved  are  consistent  with  the  defendant  having  committed  the  act, 
but  they  must  also  be  satisfied  that  the  facts  are  such  as  to  be  in- 
consistent with  any  other  rational  conclusion  than  that  the  defendant 
is  the  guilty  person.  If  there  is  any  one  single  fact  proved  to  the 
satisfaction  of  the  jury  by  a  preponderance  of  the  evidence,  which  is 
inconsistent  with  the  defendant's  guilt,  this  is  sufficient  to  raise  a 
reasonable  doubt  and  the  jury  should  acquit  the  defendant. ^'^ 

§  2500.  Circumstances  Proven  Must  Be  Consistent  with  One  An- 
other, and,  Taking  Together,  Must  Exclude  Every  Reasonable  Hy- 
pothesis of  Innocence,  (a)  You  are  instructed  that  it  is  not  neces- 
sary to  prove  the  defendant  is  guilty  by  the  testimony  of  the  wit- 
nesses who  may  have  seen  the  offense  committed.  Guilt  may  be 
shown  by  proof  of  the  facts  and  circumstances  from  which  it  may 
be  reasonable  and  satisfactorily  inferred.  In  determining  whether- 
the  defendant  is  guilty  or  not,  you  should  take  into  consideration  all 
the  facts  and  circumstances  in  evidence,  the  acts  and  conduct  of  the 
defendant,  and  his  motive,  if  any,  for  doing  or  not  doing  the  act 
charged  as  shown  by  the  evidence;  and  if  you  find  from  all  the  facts 

68 — State  v.  Jackson,  68  S.  C.  53,  failed  to  receive  tlie  impression 
46  S.  E.  538  (539).  that  the  accused  be  convicted  only 
The  court  commented  as  follows:  in  case  they  were  convinced  no 
"Where  circumstantial  evidence  theory  of  the  testimony  could  be 
Is  relied  on,  the  absence  of  reason-  adopted  which  could  produce  rea- 
able  doubt  implies  impossibility  of  sonable  doubt.  It  is  manifest  this 
explaining  the  evidence  on  any  is  the  true  view  of  the  law.  If  the 
roasonable  hypothesis  of  innocence,  defendant  thought  the  statement 
The  effect  of  evidence  not  being  not  sufRciently  clear,  he  should 
Hufflcient  to  exclude  every  other  have  asked  from  the  court  more 
reasonable  hypothesis  than  guilt  is  specific  instructions.  State  v.  Mill- 
to  leave  doubt  of  guilt  more  or  less  ing,  35  S.  C.  16,  14  S.  E.  234;  State 
strong,  according  to  the  circum-  v.  Davenport,  38  S.  C.  348,  17  S.  E. 
8tancf-s  of  the  particular  case.     Tak-  37." 

Ing  all  the  language  here  used   to-         69— Horn    v.    State,    12    Wyo.    80, 

gather,   the  jury    could    not    have  73  Pac.  705  (725). 


§  2501.]  CRIMINAL— EVIDENCE.  1615 

and  circumstances  in  evidence  that  there  is  no  other  reasonable  con- 
clusion than  that  he  is  guilty,  you  will  so  find;  but  to  convict  the 
defendant  on  circumstantial  evidence  alone  the  circumstances  proven 
must  be  consistent  with  one  another,  and  must,  taken  together,  point 
so  conclusively  to  his  guilt  as  to  exclude  every  reasonable  hypothesis 
of  his  innocence,"*^ 

(b)  All  the  evidence  produced  by  the  state  is  circumstantial. 
There  is  no  direct  or  positive  evidence  that  the  defendant  committed 
the  crime  charged.  And  to  warrant  a  conviction  on  circumstantial 
evidence  each  fact  necessaiy  to  the  conclusion  sought  to  be  estab- 
lished must  be  proven  by  competent  evidence  beyond  a  reasonable 
doubt,  and  all  the  facts  necessary  to  such  conclusion  must  be  con- 
sistent with  each  other  and  with  the  main  fact  sought  to  be  proved, 
and  the  circumstances,  taken  together,  must  be  of  a  conclusive  na- 
ture, leading  on  the  whole,  to  a  satisfactorj'^  conclusion,  and  produc- 
ing, in  effect,  a  reasonable  and  moral  certainty  that  the  accused  and 
no  other  person,  committed  the  offense  charged.  The  mere  union  of 
a  limited  number  of  independent  circumstances,  each  of  an  imperfect 
and  inconclusive  character,  will  not  justify  a  conviction.  They  must 
be  such  as  to  generate  and  justify  full  belief  according  to  the  stand- 
ard rule  of  certainty.  It  is  not  sufficient  that  they  coincide  with  and 
render  probable  the  guilt  of  the  accused,  but  they  must  exclude  every 
other  reasonable  hypothesis.  No  other  conclusion  but  that  of  the 
guilt  of  the  accused  must  fairly  and  reasonably  grow  out  of  the 
evidence,  but  the  facts  must  be  absolutely  incompatible  with  inno- 
cence, and  incapable  of  explanation  upon  any  other  reasonable  hy- 
pothesis than  that  of  guilt. '^^ 

(c)  Crime  may  be  proven  by  circumstantial  evidence,  as  well  as  by 
direct  testimony  of  eye-witnesses ;  but  the  facts  and  circumstances  in 
evidence  should  be  consistent  with  each  other  and  with  the  guilt  of 
the  defendants,  and  inconsis-tent  with  any  reasonable  theory  of  de- 
fendants' innocence. "- 

§  2501.  Certainty  Required,  (a)  The  rule  of  law  is,  that  to 
warrant  a  conviction  on  a  criminal  charge  upon  circumstantial  evi- 
dence alone,  the  circumstances  should  be  such  as  to  produce  nearly 
the  same  degTee  of  certainty  as  that  which  arises  from  direct  testi- 
mony, and  sufficient  to  exclude  all  reasonable  doubt  of  the  party's 
guilt.  The  circumstances  ought  to  be  of  such  a  nature  as  not  to  be 
reasonably  accounted  for  on  the  supposition  of  the  prisoner's  inno- 
cence, but  be  perfectly  reconcilable  with  the  supposition  of  his  guilt. '''^ 

(b)  And  while  it  is  true,  in  cases  depending  solely  upon  circum- 
stantial evidence,  that  the  circumstances  should,  to  a  moral  certainty, 
actually  exclude  every  other  reasonable  hypothesis  but  the  guilt  of 

70— State     v.     Heusack,     189    Mo.  72— State    v.    Hendricks,    172    Mo. 

295.    88   S.    W.   21    (27).  654.  73   S.  W.   194   (196). 

71— Colbert  v.  State,  125  Wis.  73— People  v.  Padillia,  42  Cal.  535. 
423,  104   N.    W.    61   (66). 


1616  FORMS  OF  INSTRUCTIONS.  [§  2502. 

the  accused — that  is,  beyond  all  reasonable  doubt — yet  if  the  facts 
proven  coincide  with,  and  are  legally  sufficient  to  establish  the  truth 
of,  the  hypothesis  claimed,  namely,  the  guilt  of  the  accused,  and  are 
inconsistent  with  eveiy  other  reasonable  hypothesis,  then  the  jury 
would  be  authorized  to  convict,  though  upon  circumstantial  evi- 
dence.'^* 

§  2502.  Circumstantial  Evidence  Need  Not  Be  Conclusive — ^Degree 
of  Proof,  (a)  In  cases  of  circumstantial  evidence  it  is  not  neces- 
saiy  that  the  proof  shall  be  conclusive;  it  is  sufficient  if  the  juiy  be- 
lieve from  all  the  facts  and  circumstances  of  the  ease  that  the  ac- 
cused is  guilty,  and  that  they  have  no  reasonable  doubts  in  their 
minds  of  this  fact.  If  the  jury  think  that  the  facts  in  this  case  are 
all  consistent  with  the  supposition  that  the  prisoners  are  guilty,  and 
cannot  reconcile  the  circumstances  produced  in  evidence  with  any 
other  supposition  than  that  of  guilt,  it  is  their  duty  to  find  them 
guilty.  All  that  can  be  required,  is  not  absolute  and  positive  proof, 
but  such  proof  as  convinces  them  that  the  crime  has  been  made  out 
against  the  accused  beyond  a  reasonable  doubt. ''^^ 

(b)  The  court  instructs  the  jury  that,  before  they  can  convict 
the  defendant  on  circumstantial  evidence  alone,  every  material  fact 
neeessaiy  to  show  the  defendant's  guilt  must  be  proven  beyond  a 
reasonable  doubt,  and  that,  if  any  material  fact  necessary  in  this  case 
to  show  the  defendant  guilty  as  charged  in  the  indictment  has  not 
been  proven  to  the  exclusion  of  a  reasonable  dovibt,  you  should  ac- 
quit this  defendant.'^^ 

§  2503.  Only  Inferences  or  Presumptions  Necessarily  Arising  from 
Proved  Circumstances  Should  Be  Considered.  The  jury  are  instructed 
that,  while  circumstantial  evidence  is  legal  and  proper  evidence  in 
criminal  cases,  yet  no  inferences  or  presumptions  should  be  indulged 
in  by  a  jury  that  do  not  in  their  minds  necessarily  arise  from  the  cir- 
cumstances proved. '^^ 

S  2504.  Conviction  Upon  Circumstantial  Evidence  Alone — Homi- 
cide— Extenuating  Circumstances.  The  jury  is  further  instructed 
that  one  charged  with  crime  may  be  convicted  by  a  jury  upon  circum- 
stantial evidence  alone,  if  the  juiy  believe  to  a  moral  certainty,  be- 
yond a  reasonable  doubt,  by  said  circumstantial  evidence,  that  the 
person  so  charged  is  guilty  of  the  crime  alleged  against  him.  There- 
fore the  court  instructs  the  jury  in  this  case  that  they  have  the  right 
to  convict  the  defendant  upon  circumstantial  evidence  alone,  if  the 
jury  believe  from  the  said  circumstantial  evidence  the  guilt  of  the 
defendant  to  a  moral  certainty,  beyond  a  reasonable  doubt.  And 
the  coui-t  further  instructs  the  jury  that  circumstantial  evidence  in 

74— Smith  v.  State,  94  Ga.  591,  22  76— Alderson  v.  Commonwealth, 
S.    I<].   214    (215).  25  Ky.  L,.  32,  74  S.  W.  679  (681). 

7.':— Robertson    v.    State,    40    Fla.  77— Gnnnon     v.     People,     127     111. 

509.  24  So.  474   (478),  52  L.  R.  A.  751.      507   (520),    21    N.    E.   525,   11   Am.   St. 

Rep.  147. 


§  2505.]  "        CRIMINALr— EVIDENCE.  1617 

criminal  eases  is  not  only  competent  evidence,  but  is  sometimes  the 
only  mode  of  proof,  and  therefore,  if  the  jury  believe,  from  the  evi- 
dence and  circumstances  in  this  case,  to  a  moral  certainty  and  be- 
yond a  reasonable  doubt,  that  the  defendant,  S.  S.,  with  a  deadly 
weapon,  gave  to  A.  S.  a  mortal  wound,  without  any  provocation, 
from  which  wound  she  died  within  a  few  days  from  the  time  it  was 
so  inflicted,  the  said  defendant,  S.  S.,  was  guilty  of  willful,  deliber- 
ate and  premeditated  murder,  unless  he  shows  extenuating  circum- 
stances, or  they  appear  by  the  case  made  by  the  state;  and  if  he 
fails  to  show  extenuating  circumstances,  and  they  do  not  appear 
from  the  case  made  by  the  state  and  all  the  evidence  considered,  the 
jury  should  find  him  guilty  of  murder  in  the  first  degree.'^ 

§  2505.  What  Must  Be  Proved  in  Order  to  Convict.  The  court 
instructs  the  jury,  as  a  matter  of  law,  that  where  a  conviction  for  a 
criminal  offense  is  sought  upon  circumstantial  evidence  alone,  the 
People  must  not  only  show  by  a  preponderance  of  the  evidence  and 
beyond  a  reasonable  doubt,  that  the  alleged  facts  and  circumstances 
are  absolutely  incompatible  upon  any  reasonable  hypothesis  other 
than  that  of  the  guilt  of  the  accused.''^ 

§  2506.  Circumstantial  Evidence — Weight  of — How  to  Be  Consid- 
ered by  the  Jury,  (a)  The  court  instructs  the  jury  that  circumstan- 
tial evidence  is  to  be  regarded  by  the  jury  in  all  cases.  It  is  many 
times  quite  as  conclusive  in  its  convincing  power  as  direct  and  posi- 
tive evidence  of  eye-witnesses.  When  it  is  strong  and  satisfactory, 
the  juiy  should  so  consider  it,  neither  enlarging  nor  belittling  its 
force.  It  should  have  its  just  and  fair  weight  with  the  jury;  and  if, 
when  it  is  all  taken  as  a  whole,  and  fairly  and  candidly  weighed,  it 
convinces  the  guarded  judgment,  the  jury  should  act  on  such  con- 
viction.    You  are  not  to  fancy  situations  or  circumstances  which  do 

78 — State  v.   Sheppard,  49  W.  Va.  sole  consideration  of  the  jury,  un- 

582,   39  S.   E.   676    (686).  less   the   evidence   is   clearly  insuf- 

"The  instruction  merely  tells  the  ficient  to  warrant  a  verdict." 
jury  that,  in  order  to  find  the  de-  79 — Everett  v.  People,  216  111.  478 
fendant  guilty,  they  must  believe,  (486),  75  N.  E.  188. 
to  a  moral  certainty  and  beyond  a  "This  instruction,"  said  the  court, 
reasonable  doubt,  that  he  did  com-  "fully  covered  the  question,  and 
mit  the  crime,  and  that  this  con-  we  cannot  conceive  of  any  declara- 
viction  on  their  part  must  spring  tion  of  law  more  pointed  or  em- 
from  the  evidence  and  circum-  phatic  than  the  latter  part  of  the 
stances  in  the  case,  and  that  if,  given  instruction,  where  the  jury 
from  it,  they  believed  him  guilty,  are  advised  that  the  facts  and  cir- 
they  must  so  find,  notwithstanding  cumstances  must  be  such  as  are 
tJhe  evidence  was  circumstantial,  absolutely  incompatible  upon  any 
To  hold  this  instruction  improper,  reasonable  hypothesis  other  than 
it  would  be  necessary  to  say  that  that  of  the  guilt  of  the  accused, 
there  was  no  evidence  in  the  case  It  would  matter  little  how  many 
which  the  jury  might  consider,  times  that  thought  was  expressed. 
This  would  be  an  invasion  of  the  Its  clearness  could  hardly  be  ad- 
province  of  the  jury,  for  it  would  ded  to,  and  with  this  instruction 
be  a  determination  upon  the  part  given  there  was  no  occasion  for  the 
of  the  court  as  to  the  weight  of  refused  ones." 
evidence.  Which  is  a  matter  for  the 
102 


1618  FORMS  OF  INSTRUCTIONS.  [§  2507. 

not  appear  in  the  evidence,  but  you  are  to  make  those  just  and  rea- 
sonable inferences  from  circumstances  proven  as  the  guarded  judg- 
ment of  a  reasonable  man  would  ordinarily  make  under  like  circum- 
stances.®" 

(b)  The  value  of  circumstantial  evidence  depends  upon  the  con- 
elusive  nature  and  tendency  of  the  circumstances  relied  on  to  estab- 
lish any  controverted  fact.  They  [the  facts  proven]  must  not  only 
be  consistent  with  guilt  but  inconsistent  with  innocence.  Such  evi- 
dence is  insufficient  where,  assuming  all  to  be  proved  which  the  evi- 
dence tends  to  prove,  some  other  reasonable  hjrpothesis  of  innocence 
may  still  be  true,  for  it  is  the  actual  exclusion  of  every  other  reason- 
able hypothesis  but  that  of  guilt  which  invests  mere  circumstances 
with  the  force  of  proof.  What  circumstances  will  amount  to  proof 
can  never  be  matter  of  general  definition;  the  legal  test  is  the  suffi- 
ciency of  the  evidence  to  satisfy  the  understanding  and  conscience 
of  the  juiy  [beyond  a  reasonable  doubt].  Absolute,  metaphysical 
and  demonstrative  certainty  is  not  essential  to  proof  by  circum- 
stances; it  is  sufficient  if  they,  with  all  the  other  evidence,  produce 
moral  certainty  to  the  exclusion  of  every  reasonable  doubt. ®^ 

§  2507.  Weight  of — As  Conclusive  as  Direct,  (a)  Circumstan- 
tial evidence  is  to  be  regarded  by  the  jury  in  all  cases.  It  is  many 
times  quite  as  conclusive  in  its  own  convincing  power  as  direct  and 
positive  evidence  of  eye  witnesses.  When  it  is  strong  and  satisfactory, 
the  jury  should  so  consider  it,  neither  enlarging  nor  belittling  its 
force.  It  should  have  its  just  and  fair  weight  with  the  jury;  and  if, 
when  it  is  all  taken  as  a  whole,  and  fairly  and  candidly  weighed,  it 
convinces  the  guarded  judgment,  the  jury  should  act  on  such  convic- 
tion. You  are  not  to  fancy  situations  and  circumstances  which  do 
not  appear  in  evidence,  but  you  are  to  make  those  just  and  reasonable 
inferences  from  circumstances  proven  which  the  guarded  judgment 
of  a  reasonable  man  would  ordinarily  make  under  like  circum- 
stances.^2 

(b)     The  court  instructs  the  jury  that  circumstantial  evidence  is 

80 — State  v.  Elsham,  70  Iowa  531,  The  rule  as  announced  has  re- 
31  N.  W.  66  (68).  ceived  judicial  sanction  in  many- 
Si — Jenkins  v.  State,  35  Fla.  737,  other  jurisdictions.  It  does  not  ap< 
18  So.  182,  48  Am.  St.  267;  Myers  v.  pear  to  us  that  it  permits  a  con- 
state, 43  Fla.  500,  31  So.  275  (280).  viction  on  a  preponderance  of  the 
Words  in  brackets  are  modifica-  evidence,  as  suggested.  The  jury 
tions  suggested  by  the  editor  of  are  told  in  other  instructions  that 
this  edition.  tihey  must  be  convinced  of  the 
82— Smith  v.  State,  61  Nob.  296,  truth  of  the  charge  beyond  a 
85  N.  W.  49  (52).  reasonable  doubt.  The  instruction 
"It  occurs  to  us  that  this  is  a  does  not  purport  to  speak  of  the 
ronservative  statement  of  the  rule  requisite  degree  of  proof,  but  of 
announced.  The  rule,  stated  in  the  consideration  to  be  given  cir- 
Htrnnger  language  than  in  the  cumstantial  evidence,  and  the  ef- 
prosent  instance,  is  approved  in  feet  thereof.  We  find  no  error  i.a 
Dnvis  V.  State,  51  Neb.  301,  70  N.  the  giving  of  this  instruction." 
W.   984, 


§2508.]  CRIMINAI^— EVIDENCE.  1619 

legal  and  competent  in  criminal  cases,  and  if  it  is  of  such  a  charac- 
ter as  to  exclude  every  reasonable  hypothesis  other  than  that  the 
defendant  is  guilty,  is  entitled  to  the  same  weight  as  direct  testi- 
mOny.^2 

(c)  The  evidence  in  this  ease  is  what  is  known  as  "circumstan- 
tial," that  is,  no  person  who  has  testified  was  an  eye  witness  of  the 
alleged  crime,  and  the  state  seeks  to  connect  the  defendant  with  the 
crime  by  showing  a  chain  of  circumstances  leading  up  to  it,  and 
connected  with  it  and  the  defendant;  and  this  is  circumstantial  evi- 
dence. And  I  will  say  to  you  that  the  evidence  which  has  been  re- 
ceived in  this  case  is  legal  and  competent,  and  if  it  is,  in  your  mind, 
of  such  a  character  as  to  exclude  every  reasonable  theory  or  hy- 
pothesis other  than  that  of  the  defendant's  guilt  beyond  a  reasonable 
doubt,  then  and  in  that  event  it  should  be  given  the  same  weight  by 
3''ou  as  would  direct  evidence  of  the  fact  alleged Cir- 
cumstantial evidence,  when  competent  and  when  complete  and  satis- 
fying to  your  minds,  as  has  been  charged,  is  entitled  to  the  same 
weight  that  direct  evidence  is.^* 

§  2508.     Credibility  of  Circumstantial  Evidence,     (a)     The  court 

instructs  the  jury  that  in  determining  what  facts  are  proven  in  this 
case,  you  should  carefully  consider  all  the  facts  before  you  with  all 
the  circumstances  of  the  transaction  in  question  as  detailed  by  the 
witnesses;  and  you  may  find  any  fact  proven  which  you  may  believe 
may  be  rightfully  and  reasonably  inferred  from  the  evidence  given 
in  the  case,  although  there  may  not  be  any  direct  testimony  as  to 
such  facts.^^ 

(b)  While  the  plaintiff  must  prove  his  case  by  a  preponderance 
of  evidence,  still  the  proof  need  not  be  the  direct  evidence  of  per- 
sons who  saw  the  occurrence  sought  to  be  proved,  but  facts  may  also 
be  proved  by  circumstantial  evidence,   that  is,  by  proof  of  cii'cum- 

83 — Longley  v.  Commonwealth,  99  petent  in  criminal  cases,   and,  if  it 

Va.  807,  37   S.  E.   339  (340).     See  al-  is  of  such  a  character  as  to  exclude 

so  Smith  V.  State,  94  Ga.  591,  22  S.  every   reasonable    hypothesis   other 

E.  214  (215);  Myers  v.  State,  43  Fla.  than  that   the   defendant  is  guilty, 

500,   31   So.   278   (281).  it  is  entitled  to  the  same  weight  as 

84 — State    v.    Coleman,    17    S.    D.  direct    testimony."   '  Schoolcraft    v. 

594,  98  N.  W.  175  (180).  People,    117    111.    277,    7    N.    E.    649; 

"The     law     is     correctly     stated  United   States  v.   Reder   (D.   C),  69 

therein  and  such  an   instruction  iu  Fed.  965;  Carlton  v.  People,  150  111. 

a  case  dependent  entirely  upon  cir-  181,   37  N.   E.   244,   41  Am.    St.    Rep. 

(cumstantial    evidence    seems    emi-  846;  1  Greenleaf  on  Ev.   (13th  Ed.), 

nently  proper,  as  jurors  sometimes  See.  13  a." 

get      the     impression     that     unless         85 — Moulton  v.  Gibbs,  105  111.  App. 

there   is   a   direct   testimony  of  the  104   (106). 

guilt    of    the    accused   they   cannot         "If  the  refused  instruction  above 

safely  convict.  should  not  be  held  as  law  ia  every 

"Sackett  in  his  work  on  Instruc-  case    the    value    of    circumstantial 

tions   to  Juries  gives  the  following  evidence   would   be   destroyed,    and 

as  a  correct  instruction:  'The  court  no    fact    could    be   established   save 

instructs     the    jury     that     cii-cum-  by  positive  or  direct  evidence." 
stantial  evidence  is  legal  and  com- 


1620  FORMS  OF  INSTRUCTIONS.  [§  2509. 

stances,  if  any,  sueli  as  give  rise  to  a  reasonable  inference  in  the 
minds  of  the  jury  of  the  truth  of  the  facts  alleged  and  sought  to  be 
proved,  provided  such  circumstances,  together  with  all  the  evidence 
in  the  case,  constitute  a  preponderance  of  evidence.^*' 

(e)  This  kind  of  evidence,  when  strong  and  convincing,  is  often 
the  most  satisfactory  from  which  to  draw  conclusions  of  the  exist- 
ence or  non-existence  of  a  disputed  fact.^^ 

§  2509.  Murder  May  Be  Proven  By  Facts  and  Circumstances  At- 
tending the  Killing — Absence  of  Body,  (a)  The  court  instructs  the 
jui y  that  while  it  is  necessary  for  the  killing  to  be  willful,  deliberate, 
premeditated,  and  with  malice  aforethought  in  order  to  constitute 
murder  in  the  first  degree,  yet  these  elements  need  not  be  proved  by 
direct  evidence,  but  may  be  deduced  from  all  the  facts  and  circum- 
stances attending  the  killing,  and  if  you  can  satisfactorily  and  rea- 
sonably infer  their  existence  from  all  the  evidence  in  the  case,  you 
will  be  warranted  in  so  finding.^^ 

(b)  The  court  instructs  you  that  the  absence  of  the  infant,  un- 
accounted for,  does  not  prove  that  it  is  dead.^^ 

§  2510.  Failure  to  Use  Deadly  Weapon  at  Hand.  If  the  jury  find 
in  this  case  that  there  was  an  opportunity  to  use  a  deadly  weapon,  but 
that  none  was  actually  used,  this  circumstance  should  be  considered 
as  evidence  against  willful  and  premeditated  murder.^" 

§  2511.    Instruction  When  Testimony  Is  Largely    Circumstantial. 

You  are  further  instructed  in  this  case  that  there  is  no  positive  and 
direct  testimony  of  the  defendant's  guilt  except  as  to  the  evidence 
of  the  witness,  B.  The  evidence  against  him  is  largely  what  is  termed 
in  law  circumstantial  evidence.^^ 

86 — ^U.    S.    Brwg.    Co.    v.    Stolten-  circumstantial    evidence,    in    cases 

berg-,   211   III.     531    (535),     71     N.     E.  of  crime,    is   often   the   most  satis- 

1081.  factory  of  any  from  which  to  draw 

"Instructions    of    this    character  the   conclusions   of   guilt;'    and   the 

have    been    approved     of     by     this  court  said  it  was  not  objectionable, 

court  in  the  following  cases:    N.  C.  and  was  in  accord  with  the  views 

St.    R.    R.    Co.    V.    Rodert,    203    111.  of  the  ablest  writers  upon  the  sub- 

413,    67    N.    E.    812;    Miller    v.    Bal-  ject.     'In  both  cases  (civil  and  crim- 

thasser,  78  111.  302;  Slack  v.  Harris,  inal)  a  verdict  may  well  be  found- 

200   111.    96,    65  N.    E.    669;    C.    &.    E.  ed     on     circumstances     alone,     and 

I.   R.   R.  Co.  v.   Beaver,  199  111.  34,  these  often  lead  to  a  conclusion  far 

65   N.    E.    144;    Ch.    &   Atl.    Ry.    Co.  more   satisfactory   than    direct    evi- 

v.   Carey,  115  111.  115,  3  N.  E.  519."  deuce  can  produce.'     1  Greenl.    Ev. 

87 — Wheeler  v.  Chicago  M.  &  St.  para.    13;    Commonwealth   v.    Web- 

P.    Ry.    Co.,    85    la.    167,    52    N.    W.  ster,  5  Cush.  295,  52  Am.  Dec.  711." 

119  (122).  88— State  v.  Vaughan,   200  Mo.   1. 

"We  do  not  think  this  instruction  98  S.  W.  2. 

Is  opr-n   to   the  objection  urged   by  89 — Haynes  v.   State,  —  Miss.  — , 

appellant,  as  placing  a  higher  value  27  So.   601    (602). 

upon     presumptions     or    inferences  90 — State  v.   Hunt,   134   N.   C.   684, 

than  upon  positive  and  dii-ect  testi-  47    S.    E.    49    (50).      Held    properly 

mony.      Furthermore,    the    instruc-  given,  the  word  "strong"  before  the 

tioii     Is     fully     sustained     by     the  word       "evidence"       having       been 

authorities.     In   State  v.  Moelchen,  stricken   out  first. 

T,?.  la.  .310,  5  N.  W.  186.  an  instruc-  91— State  v.   Haynes,  7  N.  D.  352, 

tiou  was  in  this  language:     'Strong  75   N.   W.   267   (268). 


§2512.]  CRIMINAL— EVIDENCE.  1621 

§  2512.  Inference  of  Fact,  An  inference  must  be  founded  on  a 
fact  legally  proved,  and  on  such  a  deduction  from  that  fact  as  is 
warranted  by  a  considei'ation  of  the  usual  propensities  or  passions  of 
men.^^ 

When    the    evidence    is    circum-         92 — People   v.    Balkwell,    143   Cal. 
stantial    the    court    should   so   state     259,    76    Pac.    1017    (1019). 
to    the  jury.  "As  this  instruction  was  given  in 

Henderson    v.    State    —   Tex.    Cr.     the  exact  lang-uage  of  section   1960 
App.  — ,  96  S.  W.  37  (38),  Code    Civ.    Proc.    no   just    criticism 

can  be  made  upon  it." 


CHAPTER  LXXXVIII. 

CRIMINAL— CONFESSIONS— DEFENDANT 'S     TESTIMONY- 
INDICTMENT. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2513. 

§  2514. 
§  2515. 

§  2516. 
§  2517. 

§  2518. 

3  2319. 
3  2520. 

§  2521. 

§  2522. 
5  2523. 

§  2524. 

§  2525. 
5  2526. 

5  2527. 

5  2528. 
§  2529. 
5  2530. 
S  2531. 


§  2532.  Confession  voluntarily  and 
freely  made  and  corrobo- 
rated— Arson. 


d:sfendant's   testimony— rui.e 
various  states. 


IN 


Confessions  of  guilt— When 
admissible — Value  as  evi- 
dence—Jury judges  of  de- 
gree of  credit  to  which  en- 
titled. 

Confessions  must  be  treated 

like    other    evidence.  §  2533.  Weighing    defendant's    testi- 

Whole  of  confession  must  be  mony— Rule  in  Alabama, 

taken    together    considered  Arkansas 

with  other  evidence.  |  ^2^*-  ^^f  ^"^^.s- 

Same     subject  -  Defendant's  2o35.  Cahfornia. 

testimony  on  former  trial.  2^o6.  Colorado. 

Defendant's     admissions     in  »  '^^J^'-  ^^-onnecucut. 

former    civil    suit-Incrimi-  2538.  F  onda. 

nating  questions.  o-^n'  r   J,""'^'     r.-        n.       ■ 

Defendant's      admission      of  §  2o40.  Indiana-Indian  Territory. 

guilt-How    to    be    consid-  §  2541.  Iowa-Dakota. 

ered-Must    be    voluntarily  f  2o42.  Louisiana. 

^Q^^e  §  2o43.  Michigan. 

Statements  of  defendant  sat-  §  2544.  Mississippi, 

isfactory  as  evidence.  §  2o45.  Missouri. 

Confessions  entitled  to  great  §  2546.  Nebraska, 

weight   when   spontaneous,  ^  2547.  New   Mexico— Oklahoma, 

voluntary      and      corrobor-  f  2548.  Washington. 

a^|.g(j  §  2549.  West   Virginia. 

Casual     statements     by     de-  §  2550.  Wisconsin— Wyoming, 
fendant      to      third      party  §  2551.  United  States  Courts, 
weak  as  evidence.  §  2552.  Unsworn    statement    of    de- 
Confession  sufficient  to  con-  fendant — Georgia  statute. 

vict.  §  2553.  Defendant     competent     wit- 
Confession  must  be  corrobo-  ness. 
rated  by  other  evidence.  c  occ^    -i-w  <•„   \„^-i.  „    ^  i.-        -s^ 

Confession  received  with  §  2554.  Defendant  and  his  wife  corn- 
caution  unless  supported  by  petent  _  witnesses-Weigh- 
other  proof.  ^"^  .their    testimony-Mis- 

The    phrase    "has    sought   to  souri. 

prove"   considered.  §  2555.  Defendant  need  not  testify. 

Confession  induced  by  threat  §  2556.  Defendant's  failure  to  testify 

or   promise   by   one   in   au-  not    to    be    taken    against 

thority.  him — Louisiana. 

Statements  by  one  defendant  §2557.  Same   subject — Mississippi, 

when    not    admissible  §  2558.  Same  subject— Missouri, 

against  co-defendants.  §  2559.  Same  subject— Nebraska. 

Statements    of   defendant   as  §  2560.  Defendant's  failure  to  testify 

part  of  res  gestae.  not    to     be    alluded     to    in 

Statements    of   defendant   at  ^^^y,^  deliberations— Texas, 

time  of  arrest.  „  _,.^    -r^  ^     ^      ..          •,<•   n 

Contradictory  and  inconsist-  §  2a61.  Defendant      wilfully      sworn 

ent  .statements.  falsely. 

Verbal      confessions  —  How     §  2562.  Fabrication     of    testimony- 
considered  by  jury.                 I  By  defendant. 
1622 


§2513.] 


CRIMINAL— CONFESSIONS. 


1623 


§  2563.  Fabrication  of  evidence — 
Used   against  accused. 

§  2564.  Admission  of  otiier  crimes — 
Indiana. 

§  2565.  Conduct  of  defendant. 

INDICTMENT. 

§  2566.  Indictment  not  evidence. 


§  2567.  Indictment  and  statement  of 
counsel  —  Not  evidence  — 
Testimony  stricken  out  not 
to  be  considered. 

§  2568.  Information  mere  formal  ac- 
cusation— No  evidence  of 
guilt — Presumption  of  in- 
nocence. 


§  2513.  Confessions  of  Guilt — When  Admissible— Value  as  Evi- 
dence—Jury Judges  of  Degree  of  Credit  to  Which  Entitled.  Regard- 
ing confessions  of  guilt  in  criminal  prosecutions,  you  will  remember 
that  these  are  either  indirect  confessions,  or  confessions  inferred  from 
the  conduct,  etc.,  of  the  accused,  and  termed  ''indirect  confessions  of 
guilt."  Confessions  of  guilt  should  not  be  received  where  they  are 
not  free  and  voluntary,  but  procured  through  the  influence  of  threats 
or  the  promise  of  favor.  Both  their  admissibility  and  value  depend 
upon  their  being  deliberate  and  voluntary,  and  on  the  presumption 
that  a  rational  being  will  no't  make  admissions  prejudicial  to  his  in- 
terests and  safety  unless  impelled  to  do  so  by  the  promptings  of 
truth  and  conscience.  A  confession  of  guilt  reduced  to  writing,  and 
signed  by  the  person  making  it,  if  deliberately  made  and  signed, 
without  being  influenced  thereto  by  any  threats  and  promises  by 
others,  should  be  regarded  in  the  absence  of  evidence  to  the  con- 
trary, as  strong  and  convincing  evidence  in  the  case.  The  degree  of 
credit  due  to  them  is  to  be  estimated  by  the  jury  under  the  circum- 
stances of  the  particular  case.  The  whole  of  what  the  accused  said 
on  the  subject  at  the  time  of  making  the  confession  should  be  taken 
together.  The  jury  may  believe  that  part  which  criminates  the  ac- 
cused and  reject  that  which  is  in  his  favor  or  credit  so  much  as  is 
in  his  favor  and  discard  that  which  is  against  him,  if  they  see  suflS- 
cient  grounds,  upon  all  the  evidence,  for  so  doing,  for  the  jury  are 
at  liberty  to  judge  of  it,  like  any  other  evidence,  from  all  the  proven 
circumstances  of  the  case.^ 

§  2514.  Confessions  Must  Be  Treated  Like  Other  Evidence.  If  the 
jury  believe,  from  the  evidence,  that  the  defendant  made  the  confes- 
sion, as  alleged,  and  attempted  to  be  proved  in  this  case,  the  jury 
should  treat  and  consider  such  confession  precisely  as  they  would 
any  other  testimony';  and  hence,  if  the  juiy  believe  the  whole  con- 
fession to  be  true  they  should  act  upon  the  whole  as  true.  But  the 
jurj'  may  believe  part  of  the  testimony  and  reject  the  balance  if  they 
see  sufficient  grounds  in  the  evidence  for  so  doing;  the  jury  are  at 
liberty  to  judge  of  it  like  other  evidence,  in  view  of  all  the  circum- 
stances of  the  case  as  disclosed  by  the  evidence.^ 

§  2515.  Whole  of  Confession  Must  Be  Taken  Together,  Considered 
with  Other  Evidence,  (a)  The  court  instructs  the  jury  that  where 
a  confession  of  the  prisoner  charged  with  a  crime  is  offered  in  evi- 


l—State v.   Brinte, 
Atl.   258   (263). 


Del.  — ,   58        2— Jackson  v.  People,  18  III.  269. 


1624  FORMS  OF  INSTRUCTIONS.  [§  2515. 

dence,  the  whole  of  the  confessions  so  oifered  and  testified  to  must 
be  taken  together,  as  well  that  part  which  makes  in  favor  of  the 
accused  as  that  part  which  makes  against  him ;  and  if  the  part  of  the 
statement  which  is  in  favor  of  the  defendant  is  not  disproved  by  other 
testimony  in  the  case,  and  is  not  improbable  or  untrue,  considered  in 
connection  with  all  the  other  testimony  of  the  case,  then  that  part 
of  the  statement  is  entitled  to  as  much  consideration  from  the  jury 
as  the  parts  which  make  against  the  defendant.^ 

(b)  The  court  instructs  you  that  in  considering  the  weight  to  be 
given  to  any  alleged  confession  made  by  defendant,  you  should  con- 
sider all  the  testimony  in  the  ease  upon  that  point,  the  position  of 
the  defendant  at  the  time,  his  surroundings,  his  strength  of  mind,  as 
shown  bj'  the  evidence,  and  any  hopes  or  fears,  if  any,  that  may  have 
influenced  him.* 

(c)  You  are  instructed  that,  where  the  state  puts  a  confession  in 
evidence,  the  whole  of  said  confession  is  to  be  taken  together,  and 
the  state  bound  by  it,  unless  it  is  shown  by  the  evidence  to  be  untrue 
in  whole  or  in  part.*^ 

(d)  If  you  find  from  the  evidence  that  the  defendant  made  any 
statement  or  statements  in  relation  to  the  offense  charged  in  the  in- 
dictment after  such  offense  is  alleged  to  have  been  committed,  you 
must  consider  such  statement  or  statements  all  together.  What  the 
defendant  said  against  himself,  if  anything,  the  law  presumes  to  be 
true,  because  said  against  himself.  What  he  said  for  himself,  you 
are  not  bound  to  believe  because  said  in  a  statement  or  statements 
proved  by  the  state,  but  you  may  believe  or  disbelieve  it,  as  it  is 
shown  to  be  true  or  false  by  the  evidence  in  the  case.  It  is  for  you 
to  consider,  under  all  the  circumstances,  from  the  evidence,  how  much 
of  the  whole  statement  or  statements  of  the  defendant  proved  by  the 
state  is  worthy  of  belief.^ 

3 — Refusal  of  this  instruction  charge  was  embezzlement,  a  some- 
held  error.  Burnett  v.  People,  204  what  similar  instruction  was  ap- 
111.  208   (225),  68  N.   E.   505.  proved.      The    court    said    in    com- 

4— People  V.  Wardrip,  141  Cal.  229,  ment: 

74  Pac.  744.  "It   appears   from   the   testimony 

5 — McKinney  v.  State, — Tex.  Cr.  in   the    record    that   the    defendant 

App.  — ,  88  S.  W.  1012.  made   certain    statements    and    ad- 

"It  was  not  necessary  for  the  court  missions    as    to    the    conversion    of 

•to    have    given    this    charge,    since  the  money  collected,   and  doubtless 

there  was  other  testimony  than  the  his  instruction  was  predicated  upon 

confession.      However,    the    charge  such  statements.     It  was  an  appro- 

of  the  court  was  in  proper  form,  if  priate   instruction,   based  upon  the 

the     confession     was     relied     upon  statements   of   defendant,   and   has 

alone     for     conviction.      Pharr     v.  met  with  uniform  approval  by  this 

State,    7    Tex.    App.    472;    Jones    v.  court.      State    v.    Sushenberry,    157 

State,  29  Tex.  Cr.  App.  20,  13  S.  W.  Mo.  168,  56  S.  W.  737;  State  v.  Wis- 

990,  25  Am.  St.  715;  Slade  v.  State,  dom,    119    Mo.    bJ9,    24    S.    W.    1047; 

—  Tex.  App.  — ,  16  S.  W.  253."  State  v.   Hopper,   71  Mo.   425;  State 

6— State  V.   Brennan,  164  Mo.  487,  v.   West,    69    Mo.    401,   33   Am.    Rep. 

65  S.  W.  325  (3:51).  506;   State   v.    Carlisle,   57   Mo.    102." 

In    State   v.    Merkel,    189  Mo.   315,  And    in    State    v.    Coats,    174    Mo. 

87    S.    W.    1186,    a  case    where    the  396,  74  S.  W.  864  (869),  the  following 


?2516.]  CRIMINAL— CONFESSIONS.  1625 

(e)  The  jurj  are  instructed,  that  where  evidence  is  given  tending 
lo  show  admissions  made  by  the  defendant  in  a  criminal  case,  the 
defendant  is  entitled  to  have  the  whole  statement  or  admission  heard 
and  considered  by  the  jury.  But  the  jmy  are  not  obliged  to  believe, 
or  disbelieve,  all  of  such  statement;  they  may  disregard  such  parts 
of  it,  if  any,  as  are  inconsistent  with  the  other  testimony,  or  which 
the  jury  believe,  from  the  facts  and  circumstances  proved  on  the 
trial,  are  untrue.'^ 

(f)  In  considering  the  evidence  as  to  the  oral  admissions  of  the 
defendant  touching  the  matters  involving  the  offense  with  which  he 
is  charged,  you  will  take  into  consideration  all  the  statements  made 
by  him,  whether  for  or  against  himself,  and  give  such  statements 
fair  consideration.^ 

§  2516.     Same  Subject — Defendant's  Testimony  on  Former  Trial. 

The  court  further  instructs  the  juiy  that  in  this  case  the  People  have 
offered  in  evidence  the  testimony  of  the  defendant,  given  by  him  on 
his  examination  before  the  justice  of  the  peace,  for  the  crime  for 
which  he  is  now  on  trial,  and  that  the  whole  of  the  testimony  so  read 
must  be  taken  together,  as  well  as  that  part  which  makes  for  the 
accused,  as  that  which  may  make  against  him,  and  if  any  part  of 
such  testimony  is  in  favor  of  the  defendant,  and  is  not  apparently 
improbable  or  untrue,  when  considered  wiith  all  the  other  evidence 
in  the  ease,  then  such  part  of  his  testimony  is  entitled  to  as  much 
consideration  from  the  jury  as  any  other  part  of  his  testimony. 
The  testimony  so  offered  and  read  for  the  People,  must  be  considered 
as  the  testimony  of  the  defendant  in  the  case  so  far  as  it  goes.^ 

instruction,  which  is  the  same  in-  stances,  how  much  of  the  whole 
struction,  a  little  more  elaborate,  statement  or  statements  of  the  de- 
was  approved:  fendant,  proved  by  the  state,  the 
The  court  instructs  the  jury  that  jury,  from  the  evidence  in  this 
if  they  believe  and  find  from  the  case,  deem  worthy  of  belief.  And 
evidence  that  the  defendant  made  if  the  jury  believe,  from  the  evi- 
any  statements  in  relation  to  the  dence,  that  the  defendant,  at  the 
homicide  charged  by  this  informa-  times  he  made  the  confessions  or 
tion,  after  such  homicide  was  com-  statements  introduced  in  evidence, 
mitted,  the  jury  must  consider  such  was  insane,  then  they  should  disre- 
statement  or  statements  all  to-  gard  such  confessions  or  state- 
gether.     The   defendant   is   entitled  ments. 

to  the  benefit  of  what  he  said  for  The  court,  in  comment,  said  that 

himself,    if    true;    and    the    state    is  "it   is   sufficient   to   say   as    to    this 

entitled   to  the   benefit   of  anything  instruction    that    it    has    been    ap- 

he     said     against     himself,     if    any  proved  by  a  uniform  and  unbroken 

statement  or  statements  proved  by  line  of  decisions  of  this  court.  State 

the  state.    What  the  defendant  said  v.  Talbott,  73  Mo.  347;  State  v.  Hol- 

against   himself,  the  law  presumes  lenscheit,  61  Mo.  302;  and  numerous 

to    be    true,    because    said    against  other  cases." 

himself.     What  the  defendant  said  7— Conner   v.    State,    34   Tex.    659; 

for  himself,  the  jury  are  not  bound  Riley    v.    State,    4    Tex.    App.    538; 

to  believe  because  it  was  said  in  a  Eiland   v.   State,   52   Ala.   322;   State 

statement  or  statements  proved  by  v.   Hollenscheit,  61   Mo.   302. 

the    state,    but    the    jury    may    be-  8 — Approved    in     trinl    for    homi- 

lieve  or  disbelieve  it,  as  it  is  shown  cide:    People    v.    Wardrip,    141    Cal. 

to  be  true  or  false  by  the  evidence  229,  74  Pac.  744. 

in  this  case.     It  is  for  the  jury  to  9— Gott    v.     People,     187     111.     249 

consider     under     all     the     circum-  (262),  58  N.   E.  293. 


1626  rORMS  OP  INSTRUCTIONS.  [a  2517. 

§2517.  Defendant's  Admissions  in  Former  Civil  Suit — Incrimina- 
ting Questions.  The  court  instructs  the  jury  that  the  fact  that  the 
defendant  testified  in  an  insolvency  proceeding  in  obedience  to  a 
citation  did  not  deprive  him  of  his  right  to  refuse  to  answer  questions 
tending  to  criminate  him,  if  he  did  not  answer  any  such  questions; 
and  an  admission  made  by  him  in  such  proceeding  is  voluntary  and 
competent  evidence  in  a  criminal  prosecution  subsequently  inaugu- 
rated, where  he  w'as  not  in  custody  or  charged  with  a  criminal  offense 
when  he  made  such  admission,  if  he  did  make  any  sueh.^'' 

§  2518.  Defendant's  Admission  of  Guilt— How  to  Be  Considered- 
Must  Be  Voluntarily  Made,  (a)  If  a  person  accused  of  a  crime 
voluntarily  admits  the  accusation,  that  is  very  strong  evidence  of 
his  guilt,  because  it  would  be  unnatural  for  a  person  accused  of  crime 
to  voluntarily  admit  the  accusation  against  himself,  knowing  that  it 
would  be  used  against  himself,  unless  he  committed  the  crime ;  and 
the  only  exception  to  that  rule  would  be  where  a  person  is  so  coerced, 
or  under  such  duress  or  restraint,  as  that  he  would  make  a  confes- 
sion or  admission  involuntarily,  and  not  of  his  own  free  wull.  The 
court  has  permitted  the  evidence  in  this  case  to  come  to  the  jury 
that  the  jury  might  take  it,  analyze  it,  and  weigh  it,  to  see  what 
is  the  truth  of  the  matter;  and,  if  the  confession  or  admission  was 
made,  for  what  purpose,  with  what  motive,  and  if  it  was  true.  You 
have  the  right  to  take  into  consideration  the  testimony  of  the  re- 
spondent in  this  case  on  that  branch  of  the  case,  as  upon  all  other 
branches  of  the  ease.^^ 

(b)  In  regard  to  the  evidence  of  the  confession  of  the  defendant 
made  to  the  sheriff,  if  you  believe  there  was  any  such  confession 
made,  and  you  find  that  such  confession  was  free  and  voluntarily 
made  by  the  defendant,  after  he  had  been  cautioned  that  such  con- 
fession might  be  used  against  him,  then  you  will  consider  the  same; 
but  if  you  believe  that  the  defendant  made  such  confession,  but  it 
is  not  shown  to  be  freely  and  voluntarily  made,  or  if  it  is  shown  by 
the  evidence  to  haye  been  made  upon  compulsion  or  persuasion,  or 
under  such  undue  influence  as  to  extort  the  same,  then  I  charge  you 
that  you  will  reject  it  from  your  consideration  in  making  up  your 
verdict  in  this  case.  Should  you  consider  such  confession  or  declara- 
tion, then  I  charge  you  that,  such  confession  or  declaration  having 
been  introduced  in  evidence  by  the  state,  the  whole  of  such  confes- 
sion or  declaration  must  be  taken  together,  and  so  considered  by  the 
jurs';  and  the  state  is  bound  by  them,  unless  they  are  shown  to  be 
untrue  by  the  evidence.  Such  confessions  or  declarations,  if  any,  you 
believe  to  have  been  made  by  the  defendant,  are  to  be  taken  into 
consideration,  if  at  all,  by  the  jury,  in  connection  with  all  other 
facts  and  circumstances  of  the  case.  The  state  having  put  in  evi- 
dence the  statement  and  confession   of  the   defendant,   J.  M.,   con- 

10— State  V.  Burrell,  27  Mont.  282,  11— People  v.  Rich,  133  Mich.  14, 
70  Pac.   982   (983).  94  N.  W.  375  (376-7). 


§  2519.]  CRIMINAL— CONFESSIONS.  1627 

cerning  the  transaction,  you  cannot  convict  the  defendant  unless  you 
be  satisfied  beyond  a  reasonable  doubt  that  the  defendant's  account 
of  the  affair,  as  stated  in  such  confession,  is  not  true.^^ 

§  2519.  Statements  of  Defendant  Satisfactory  as  Evidence.  The 
court  instructs  the  jury  that  declarations  of  a  defendant  regarding 
his  connection  with  any  transaction,  when  fully  and  accurately 
proven,  constitute  a  very  satisfactory  kind  of  evidence. ^^ 

§  2520.  Confessions  Entitled  to  Great  Weight  When  Spontaneous, 
Voluntary  and  Corroborated,  (a)  If  you  believe  from  the  evidence 
that  the  confessions  or  admissions  testified  to  by  the  witnesses  as 
having  been  made  to  them  by  the  defendant  were  so  made,  and  that 
they  were  the  spontaneous  and  voluntaiy  acts  of  the  defendant,  and 
if  you  further  believe  that  such  confessions  have  been  corroborated 
by  satisfactory  proof  that  the  said  T.  S.  was  murdered,  and  that  the 
defendant  was  so  situated  that  he  had  an  opportunity  to  commit 
the  crime,  then  such  confessions  and  admissions  may  be  entitled  to 
great  weight  in  your  minds ;  and  if  you  believe  from  all  the  evidence 
beyond  a  reasonable  doubt  that  the  defendant  is  guilty,  then  you 
should  so  find  by  your  verdict.^* 

(b)  The  court  instructs  you  that  a  confession,  to  be  admissible, 
must  have  been  freely  and  voluntarily  made.  It  must  not  have  been 
induced  by  another  by  the  remotest  fear  of  injury,  or  the  slightest 
hope  of  benefit  or  reward,  or  anything  whatever.  It  must  have  been 
freely  and  voluntarily  made.  It  is  for  you  to  say  from  the  evidence 
now,  if  you  find  there  is  any  evidence  in  reference  to  confessions  in 
this  ease,  whether  they  were  voluntarily  made.  It  is  for  you  to 
judge  from  the  evidence,  and  see  whether  or  not  it  comes  up  to  the 
rules  I  have  just  given  you  in  reference  to  whether  or  not  it  was 
freely  and  voluntarily  made  by  the  accused,  provided  you  find  there 
is  any  evidence  of  a  confession  before  you.  A  confession  alone, 
\;ncorroborated,  will  not  justify  a  conviction,  but  the  confession  may 
be  corroborated  by  other  facts  and  circumstances.  Now,  in  this  case, 
I  charge  you  that,  if  you  find  that  any  confession  has  been  made, 
see  whether  or  not  it  was  freely  and  voluntarily  made,  under  the 
law  as  I  have  told  you.  Then,  if  you  find  it  has  been  freely  and  vol- 
untarily made,  you  may  consider  it  in  connection  with  other  evidence 
in  the  case.^^ 

§  2521.  Casual  Statements  by  Defendant  to  Third  Party  Weak 
as   Evidence.      Statements   or   admissions   of   a   party   satisfactorily 

12— Moore   v.    State,    44   Tex.    Cr.  crime,       'fully       and       accurately 

App.  45,  68  S.  W.   279  (281).  proven'  would  surely  be  very  satis- 

13— State  v.  Johnson,  72  la.  393,  34  factory,  for  no  rational  man  would 

N.   W.   177    (180).  ordinarily  make  such  statenr.ents  if 

"The   language  is   the  ground  of  he  were  innocent." 

an  objection  which  we  think  is  not  14— State    v.    Haworth,    24    Utah 

well     taken.      Any    declaration     or  398.  68  Pac.  155  (164). 

statement      made      by      defendant  15— Powell  v.   State,  101  Ga.  9,   29 

showing    his    connection    with    the  S.  E.  309  (313),  65  Am.  St.  277. 


1628  FORMS  OF  INSTRUCTIONS.  [§  2522. 

proven,  which  bear  upon  or  give  character  to  the  aots  of  a  party,  or 
throw  light  upon  a  pending  controversy,  are  proper  to  be  considered 
by  the  jury;  but  evidence  of  casual  statements  or  admissions  of  a 
party,  made  in  casual  conversation  to  disinterested  persons,  should 
be  considered  with  caution  by  the  jury,  in  determining  the  weight  to 
be  given  them,  in  view  of  the  liability  of  witnesses  to  misunderstand 
or  forget  just  what  was  said,  depending  upon  all  the  surrounding  cir- 
cumstances.^^ 

§  2522.  Confession  Sufficient  to  Convict.  If  the  jury  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  in  this  county,  and 
within  three  years  before  the  finding  of  this  indictment,  M.  had  18 
or  any  number  of  cows  feloniously  taken  and  carried  away,  and  that 
the  defendant  T.  confessed  that  he  was  one  of  the  persons  engaged  in 
such  felonious  taking  and  eariying  away  of  said  cows,  this  is  suffi- 
cient to  authorize  the  conviction  of  the  defendant,  without  regard 
to  the  testimony  of  the  accomplice.^^ 

§  2523.  Confession  Must  Be  Corroborated  by  Other  Evidence. 
The  jury  are  instructed  that  they  cannot  convict  defendant  alone 
upon  his  own  confession,  unless  the  same  is  corroborated  by  other 
evidence  tending  to  connect  defendant  with  the  offense  committed, 
and  the  corroboration  is  not  sufficient  if  it  merely  shows  the  com- 
mission of  an  offense.^* 

§  2524.  Confession  Received  with  Caution  Unless  Supported  by- 
Other  Proof,  (a)  The  court  further  instructs  the  jury,  for  the  de- 
fendant, that,  if  they  believe  from  the  evidence  that  the  prisoner 
made  any  confessions  or  admissions  of  guilt,  such  confessions  are  to 
be  received  by  them  with  great  caution,  and,  unless  supported  by 
other  proof  in  the  case,  are  not  sufficient  to  convict. ^^ 

(b)  In  making  up  your  verdict  you  have  a  right  to  consider  any 
statements  shown  to  have  been  made  by  the  defendant  after  the 
charge  was  made  against  him,  but  in  considering  such  statements 
you  must  consider  the  whole  statements  of  conversation  together. 
He  is  entitled  to  the  benefit  of  what  he  said  in  his  own  behalf,  if 

16— Emery  v.   State,  101  Wis.  627,  might  have  gone  further  and  said 

78  N.  W.  145  (154).  that   evidence  of  admissions   made 

The     court    said:      "The    charge  to   third   and   disinterested   persons 

criticised  is  free  from  error.     It  is  is    the    wealcest    kind    of    evidence 

a  literal  copy  of  one  considered  by  that  can   be  produced.'     As   before 

this  court  in  Haven  v.  Marlistrum,  indicated     that    is    elementary.      1 

67   Wis.    493,    30   N.    W.    720,    except  Greenl.    Ev.    (Redf.    8th    Ed.)    para, 

that,   instead   of  the   language   im-  200;   Dreher  v.    Fitchburg,   22   Wis. 

mediately  following  the  words  'dis-  643;  and   Husbrook  v.  Strawser,   14 

interested  per.sons,'  that  is,  'should  Wis.  403." 

be  considered  by  the  jury  in  deter-  17— Crittenden   v.    State,   134   Ala. 

mining   the  weight   to   be  given    to  145,  .32  So.  273   (275). 

them,'   the  following  is  used:     'Are  Note. — See  next   section, 

regarded  by  law  as  very  weak  tes-  18— Cox  v.  State,  —  Tex.  Cr.  App. 

timony.'      The    court    not    only   ap-  — ,  69  S.  W.  145  (147). 

proved   of   that   instruction,   saying  Note. — See  previous  section. 

It   was   strictly   accurate  as  far   as  19 — Haynes  v.   State,  —  Miss.   — , 

It   went,    but   said    'the    trial   court  27  So.  601. 


§  2525.1  CRIMINAL— CONFESSIONS.  1629 

you  believe  it  is  true ;  but,  if  you  do  not  believe  it  is  true,  you  are  not 
bound  to  believe  and  consider  it  because  proven  by  the  state.  You 
should  consider  such  statement,  however,  with  caution,  on  account 
of  the  liability  of  the  witness  to  forget  or  misunderstand  what  was 
really  said  or  intended.^" 

§2525.  The  Phrase,  "Has  Sought  to  Prove,"  Considered.  The 
state  has  sought  to  prove  the  defendant's  guilt  by  introducing  cer- 
tain alleged  confessions  and  admissions,  and  by  showing  that  he  was 
seen,  after  the  burglary,  cari-ying  something  under  his  coat.^^ 

§  2526.  Confession  Induced  by  Threat  or  Promise  by  One  in  Au- 
thority. The  court  instructs  the  jury  that  no  confession  is  deemed  to 
be  voluntary  if  it  appears  to  the  judge  to  have  been  caused  by  any 
inducement,  threat  or  promise  proceeding  from  a  person  in  authority, 
and  having  reference  to  the  charge  against  the  accused  person, 
whether  addressed  to  him  directly  or  brought  to  his  knowledge  in- 
directly, and  if  such  inducement,  threat  or  promise  gave  the  accused 
person  reasonable  grounds  for  supposing  that  by  making  a  confession 
he  would  gain  some  advantage  or  avoid  some  evil  in  reference  to  the 
proceedings  against  him.  The  prosecutor,  officers  of  justice  having 
the  prisoner  in  custody,  or  magistrate  are  persons  in  authority.  It  is 
time  for  the  jury  to  determine  for  themselves  whether  the  alleged 
confession  of  the  defendant  was  made  freely  and  voluntarily  without 
any  influence  of  hope  or  fear.  If  so,  they  may  consider  it.  If  not, 
it  is  no  evidence.  Any — the  slightest — menace  or  threat,  or  any  hope 
engendered  or  encouraged  that  the  prisoner's  case  will  be  lightened 
or  more  favorably  dealt  Avith  if  he  will  confess,  is  enough  to  exclude 
the  confession  thereby  superinduced;  and  any  words  spoken  in  the 
hearing  of  the  prisoner  which  may,  in  their  nature,  engender  such 
fear  or  hope,  render  it  necessary  that  a  confession  made  within  a 
reasonable  time  afterwards  shall  be  excluded,  unless  it  is  shown  by 
clear  and  full  proof  that  the  confession  was  voluntarily  made  after 
all  trace  of  hope  or  fear  had  been  fully  withdrawn  or  explained 
away.^- 

§  2527.  Statements  by  One  Defendant ;  When  Not  Admissible 
Against  Co-Defendants,  (a)  You  are  further  instructed  that  all 
statements  made  by  the  witness,  R.,  made  to  the  witnesses,  W.,  M. 
and  K.,  and  not  in  the  presence  of  defendant,  were  admitted  solely 

20 — State   v.   Weber,   156   Mo.   249,  The   phrase    'has    sought   to    prove 

56  S.  W.  729.  *  *  *   by   showing,'   very  clearly,   is 

21 — Connors  v.    State,   95  Wis.   77,  not    equivalent,    either   grammatic- 

69  N.  W.   981   (982).  ally  or  in  the  common  usage  of  the 

"It   is   claimed,"    said   the    court,  language,  to  the  phrase  'has  shown' 

"that     this     instruction     took     the  or  'has  proved.'    And  it  should  not, 

question  from  the  jury.     It  is  said  naturally,  be  so  understood  by  the 

to   be   equivalent   to   an   instruction  jury." 

that  he  was  so  seen.    A  very  simple  22 — People    v.    Clarke.    105    Mich, 

analysis  will  clearly  show  that  this  169,  62  N.  W.  1117  (lllS). 
is  not  the  effect  of  the  instruction. 


1630  FORMS  OF  INSTRUCTIONS.  [§  252S. 

1113011  the  issue  of  the  guilt  or  innocence  of  defendant,  R.,  and  can- 
not be  considered  by  you  for  any  o'ther  purpose,  if  for  any  purpose.-'' 

(b)  After  the  commission  of  a  crime  has  been  accomplished,  no 
one  engaged  in  it  can,  by  any  subsequent  declaration  or  act  of  his 
own,  not  made  or  done  in  the  presence  of  another,  affect  that  other 
person.  His  confession,  therefore,  is  not  admissible  in  evidence  as 
such  against  any  but  himself.  If  the  confession  of  one  prisoner  im- 
plicates any  other  person  by  name,  it  must  be  proved  as  it  was  made, 
not  omitting  such  name ;  but  the  court  should  instruct  the  jury,  as  we 
do  you,  that  it  is  not  evidence  against  any  but  the  prisoner  who 
made  such  confession. 2* 

§  2528.  Statements  of  Defendant  as  Part  of  Res  Gestse.  Declara- 
tions accompanying  the  act,  or  so  nearly  connected  therewith,  in 
time,  as  to  be  free  from  all  suspicion  of  device  or  afterthought,  are 
admissible  in  evidence  as  part  of  the  res  gestee,  and  subject  to  be 
judged  and  weighed  by  the  jury  under  the  same  rules  which  I  have 
given  you  for  weighing  and  considering  other  evidence  in 
the  case ;  that  is,  the  connection  of  the  defendant  with  the  ease, 
his  interest  in  it,  whether  such  declarations  are  consistent  through- 
out, or  are  conflicting  with  themselves  or  other  facts. ^^ 

§  2529.  Statements  of  Defendant  at  Time  of  Arrest.  Some  evi- 
dence has  been  offered  of  statements  made  by  the  defendant  at  the 
time  of  his  arrest,  and  I  charge  you  in  relation  thereto  that  such 
statements  made  at  the  time  of  the  arrest  are  to  be  received  with 
great  caution;  for  besides  the  danger  of  misapprehension  of  witness, 
or  the  misuse  of  words,  the  failure  of  the  party  to  express  his  own 
meaning,  and  the  infirmity  of  memory,  it  should  be  recollected  that 
the  mind  of  the  prisoner  himself  is  often  oppressed  by  the  calamity 
of  his  situation,  and  that  he  is  often  influenced  by  motive  of  hope 
or  fear  to  make  statements. ^"^ 

§  2530.  Contradictory  and  Inconsistent  Statements.  It  is  claimed 
by  the  prosecution  that  the  defendant  has  made  different  and  con- 
tradictory and  inconsistent  statements  concerning  his  whereabouts 
for  one  or  two  hours  immediately  before  the  fire  in  question ;  but, 
even  if  defendant  did  make  such  contradictory  statements,  and  they 
were  partially  or  wholly  false,  that,  of  itself,  would  not  be  sufficient 
to  convict  the  defendant;  and  you  should  very  carefully  consider 
what  the  average  young  man  of  his  condition  in  life  might  do  under 

23 — Wilkerson    v.    State,    —    Tex.  the  charge  as  a   whole  is   a  clear, 

Cr.  App.  — ,  57  S.  W.  956  (962).  correct  and   proper  presentation  of 

"The    olojection    of    appellant    to  the  law  of  this  case." 

this   paragraph   is   that   it   is   upon  24 — State  v.  Brinte,  —  Del.  — ,  58 

the  weight  of  the  evidence,  in  that  Atl.  258  (263),  citing  1  Greenleaf  on 

it   assumes   as   a  fact   proven   that  Evidence,  Sees.  218,   233. 

the  witness  R.  did  make  statements  25— Hinkle  v.  State,  94  Ga.  595,  21 

to  W.  M.  and  K.,   which  tended  to  S.  K.  595  (601). 

establish  the  guilt  or  innocence  of  26 — People  v.   McArron,   121  Mich, 

said  R.    We  do  not  think  these  con-  1,  79  N.  W.  944  (958). 
tentlous    are    correct,    but    believe 


§  2531,]  CRIMINAL— CONFESSIONS.  1631 

like  trying  eireumstanees ;  and  in  this  connection  you  should  recall 
the  fact  that  the  young  men,  C.  and  M.,  were  both  quickly  ready  to 
resort  to  falsehood  for  the  purpose  of  warding  away  suspicion,  not- 
withstanding their  acknowledged  innocence ;  and  now,  gentlemen,  if 
you  should  believe  that  this  defendant  made  contradictory  state- 
ments, and  that  some  of  them,  or  all  of  them,  were  false,  it  will  not 
be  unnatural  that  such  belief  on  your  part  may  create  prejudice  in 
your  minds  against  this  defendant.  If  such  should  be  the  ease,  it 
will  be  your  duty  to  exercise  great  care  that  you  do  not  permit  that 
prejudice  to  take  the  place  of  and  be  substituted  in  your  minds  for 
actual  evidence  and  proof  of  all  the  necessary  facts  to  constitute  the 
chain  necessaiy  to  establish  the  defendant's  guilt.-'' 

§  2531.  Verbal  Confessions — How  Considered  by  Jury,  (a)  Any 
verbal  statements  or  admissions  made  by  the  defendant  and  which 
have  been  proven  in  this  case,  may  be  taken  into  consideration  by 
you,  together  with  all  other  facts  and  circumstances  detailed  in  evi- 
dence. What  the  proof  may  show  you,  if  anything,  that  the  defend- 
ant has  said  against  himself,  the  law  presumes  to  be  true,  because 
said  against  himself;  but  anything  you  may  believe  from  the  evi- 
dence that  defendant  said  in  his  own  behalf  you  are  not  obliged  to 
believe,  but  you  may  treat  the  same  as  tiiie  or  false,  when  considered 
with  a  view  to  all  the  other  facts  and  circumstances  in  the  case.-^ 

('b)  The  court  further  instructs  the  juiy  that,  if  verbal  statements 
of  the  defendant  have  been  proven  in  this  case,  you  may  take  them 
into  consideration  with  all  the  other  facts  and  circumstances  proven. 
What  the  proof  may  show  you,  if  anything,  that  the  defendant  has 
said  against  himself,  the  law  presumes  to  be  true;  but  anything  you 
may  believe  from  the  evidence  that  the  defendant  has  said  in  his 
own  behalf  you  are  not  obliged  to  believe,  but  you  may  treat  the 
same  as  true  or  false,  when  considered  with  a  view  to  all  the  other 
facts  and  circumstances  in  the  case.-^ 

§  2532.  Confession  Voluntarily  and  Freely  Made  and  Corroborated 
— Arson.  If  the  evidence  be  clear  and  decisive,  satisfj'ing  your  minds 
beyond  a  reasonable  doubt  that  the  storehouse  was  willfully  and  ma- 
liciously burned,  and  if  you  believe  that  the  defendant  voluntarily 
and  freely  confessed  that  he  did  it,  then  such  a  confession  thus  cor- 
roborated may,  in  your  discretion,  serve  as  sufficient  corroboration 
to  authorize  a  conviction.^" 

27 — Held     error     to     refuse     this  "while  the  court  did  not  charge  as 

charge.     People  v.  Stewart,  75  Mich,  to  the  specifications  set  out  in  the 

21,  42  N.  W.  662  (665).  defendant's     statement    as     to    the 

28 — State  v.  Darling,  199  Mo.  168,  reason  for  the  fear  causing  him  to 

97  S.  W.  592.  make  the  confession,   he  did   thor- 

29 — Approved    in    homicide    case;  oughly    cover   that    branch    of   the 

Ptnte  V.  Gatlin,  170  Mo.  354  (364),  70  case.     He  instructed   the  jury  that 

S.  W.  885  (888).  they   must    not    consider   any   con- 

30— Morgan  v.   State,  120  Ga.   499,  fession    unless   they    were   satisfied 

48  S.  E.  238  (240).  that   it  had   been  made  freely   and 

The  court  said  in  comment  that  voluntarily;  that  they  were  not  con- 


1632 


FORMS  OF  INSTRUCTIONS. 


[§  2533, 


DEFENDANT'S  TESTIMONY. 

§  2533.     Weighing    Defendant's     Testimony — Rule    in    Alabama. 

The  jury  have  no  right  to  disregard  the  testimony  of  the  defendant 
on  the  ground  alone  that  he  is  a  defendant,  and  stands  charged  with 
the  commission  of  a  crime.  The  law  presumes  the  defendant  to  be 
innocent  until  he  is  proved  guilty;  and  the  law  allows  him  to  testify 
in  his  own  behalf,  and  the  jury  should  fairly  and  impartially  consider 
his  testimony,  together  with  all  the  other  evidence  in  the  case,  and  if, 
from  all  the  evidence,  the  jury  may  have  any  reasonable  doubt 
whether,  at  the  time  of  the  shooting  complained  of,  the  pistol  was 
accidentally  discharged,  they  should  give  the  defendant  the  benefit 
of  the  doubt  and  acquit  him.^^ 

§  2534.  Arkansas.  The  court  instructs  the  jury  that  under  the 
law  the  defendant,  B.,  has  the  right  to  testify  in  his  own  behalf,  but 
the  credibility  and  weight  to  be  given  his  testimony  are  matters  ex- 
clusively for  the  jury.  In  weighing  the  testimony  of  the  defendant 
in  the  case,  you  have  a  right  to  take  into  consideration  his  manner 
of  testifying,  the  reasonableness  or  unreasonableness  of  his  account 
of  the  transaction,  and  his  interest  in  the  result  of  your  verdict  as 
affecting  his  credibility.  You  are  not  required  to  receive  blindly  the 
testimony  of  the  accused  as  true,  but  you  are  to  consider  whether  it 
is  true,  and  made  in  good  faith,  or  only  for  the  purpose  of  avoiding 
eonviction.^2 


eluded  by  the  fact  that  evi- 
dence of  confessions  had  been  ad- 
mitted, but  that  if,  from  the  evi- 
dence, they  found  that  the  confes- 
sion had  not  been  freely  and  volun- 
tarily made,  they  should  disregard 
it.  The  court  went  further,  and 
charged  that  if  one  confession  had 
been  induced  by  hope  or  fear,  and 
was  therefore  not  voluntary,  no 
subsequent  confession  could  be  con- 
sidered, if  made  under  the  influ- 
ence of  the  orig-inal  improper  in- 
ducement." 

31— Moses  v.  State,  58  Ala.  117; 
see  also  Nelson  v.  Vorce,  55  Ind. 
455;  Bressler  v.  People,  117  111.  441, 
8  N.  E.  62.  In  Bohlman  v.  State, 
l.'JS  Ala.  45,  33  So.  44,  the  following 
instructions    were    approved: 

The  court  charges  the  jury  that 
in  determining  the  weight  they 
will  give  to  the  defendant's  testi- 
mony they  should  consider,  along 
with  all  the  other  circumstances 
having  any  bearing  on  the  matter, 
the  fart  that  he  is  the  defendant, 
and,   In  fact,   if   they  so   find,   that 


his  testimony  is  in  conflict  with  the 
other  testimony  in  the  case. 

The  court  charges  the  jury  that 
the  interest  the  defendant  has  in 
the  case  may  be  considered  by 
them  in  weighing  his  own  evidence. 

Approved  in  Miller  v.  State,  107 
Ala.   40,    19   So.    37    (38). 

32— Blair  v.  State,  69  Ark.  558, 
64   S.   W.   948    (950). 

Such  instructions  have  been  re- 
peatedly held  by  this  court  to  be 
correct.  Vaughan  v.  State,  58  Ark. 
353,  24  S.  W.  885;  Jones  v.  State,  61 
Ark.  88,  32  S.  W.  81;  Hamilton  v. 
State,  62  Ark.  543.  36  S.  W.  1054." 

In  Hudson  v.  State,  77  Ark.  334, 
91  S.  W.  299,  the  following  instruc- 
tion was  held  good: 

The  defendant  has  the  right  to 
testify,  and  the  jury  should  give 
his  testimony  the  same  impartial 
consideration  that  they  accord  to 
the  testimony  of  other  witnesses. 
They  should  not  arbitrarily  disre- 
gard what  he  testifies  simply  be- 
cause he  is  the  defendant,  nor,  on 
the  other  hand,   are   they  required 


§2535.] 


CRIMINAL— CONFESSIONS. 


163c 


§  2535.  California.  In  considering  the  weight  and  effect  to  be 
given  to  the  evidence  of  the  defendant,  while  you  may  consider  his 
manner,  and  the  probability  of  his  statements,  taken  in  connection 
with  all  the  evidence  in  the  case,  and,  if  convincing  and  carrying 
with  it  a  belief  in  its  truth,  act  upon  it;  if  not,  you  have  the  right  to 
reject.  But  this  does  not  mean  that  you  have  a  right  to  arbitrarily 
reject  it.  And,  in  judging  of  the  defendant  who  has  testified  before 
you,  you  are  in  duty  bound  to  presume  that  he  has  spoken  the  truth; 
and,  unless  that  presumption  has  been  legally  repelled,  his  evidence 
is  entitled  to  full  credit.^^ 

§  2536.  Colorado.  The  jury  are  instructed  that,  in  determining 
the  credibility  that  should  be  accorded  to  the  testimony  of  the  de- 
fendant, they  have  a  right  to  take  into  consideration  the  fact  that  he 


blindly  to  receive  a  fact  because 
he  says  it  is  true;  but  they  are  to 
consider  his  testimony  in  connec- 
tion with  the  other  facts  in  proof, 
in  order  to  determine  whether  his 
statements  are  true  and  made  in 
good  faith,  or  made  only  to  avoid 
conviction.  The  jury  ,ire  the  ex- 
clusive judges  of  the  weight  of  juch 
testimony.  In  considering  the  de- 
gree of  credit  to  be  given  it,  they 
may  take  into  consideration  his 
appearance  and  manner  while  tes- 
tifying, the  reasonableness  and  un- 
reasonableness of  his  statements, 
and  his  interest  in  the  result  of  the 
verdict.  After  a  due  consideration 
of  his  testimony,  in  connection  with 
the  other  evidence  in  the  case,  they 
should  give  it  such  weight  as  they 
may  deem  it  entitled  to  receive, 
their  sole  object  being  to  ascertain 
the  truth. 

33— People  v.  Hill,  1  Cal.  App.  414, 
82  Pac.  398  (399). 

"The  appellant  complains  of  this 
instruction,  but  there  is  no  merit 
in  such  complaint.  People  v.  Wells, 
145  Cal.  138,  78  Pac.  470.  The  lan- 
guage, 'if  convincing  and  carr>-ing 
with  it  a  belief  in  its  truth,  act 
upon  it,'  is  found  in  the  instruc- 
tion in  the  Cronin  case,  34  Cal. 
196,  and  that  case  has  been  often 
affirmed  upon  this  point." 

In  People  v.  Wells,  145  Cal.  138, 
78  Pac.  470  (471),  the  following  in- 
struction was  given: 

The  court  instructs  the  jury  that 
the  defendant  h!is  been  examined 
as  a  witness  in  his  own  behalf.  This 
it  is  his  right  to  be,  and  the  jury 
will  consider  his  testimony  as  they 
would  that  of  any  other  witness 
examined  before  you.  It  is  proper 
for  the   jury,   however,   to   bear   in 

103 


mind  the  situation  of  the  defend- 
ant, and  the  manner  in  which  he 
may  be  affected  by  the  verdict,  and 
the  very  grave  interest  he  must 
feel  in  it;  and  it  is  proper  for  the 
jury  to  consider  whether  his  posi- 
tion anJ  interest  may  not  affect 
his  credibility  or  color  his  testi- 
mony. But  it  is  your  duty  to  con- 
sider it  fairly  and  give  it  such 
credit  and  weight  as  you  think  it 
is  entitled  to  receive. 
In  comment  the  court  said: 
"Appellant's  counsel  objects  to 
the  above  instruction  on  the  ground 
that  it  is  unfair  to  the  defendant 
and  that  it  invades  the  province 
of  the  jury.  He  admits  that  it  is 
substantially  the  same  as  the  one 
approved  in  People  v.  Cronin.  34 
Cal.  204,  but  he  thinks  that  case  is 
not  good  law  and  should  be  modi- 
fied. In  the  recent  case  of  People 
V.  Tibbs,  143  Cal.  100,  76  Pac.  904, 
however,  this  court  said  of  a  simi- 
lar instruction:  'This  instruction 
was  in  effect  the  same  as  an  in- 
struction given  in  the  case  of  Peo- 
ple v.  Cronin,  and  there  held  to  be 
correct.  It  has  since  been  fre- 
quently held  that  where  this  in- 
struction, though  it  may  be  re- 
garded as  erroneous,  if  kept  well 
within  the  language  considered  in 
the  Cronin  case,  the  judgment  will 
not  be  reversed  on  account  of  it. 
People  V.  Van  Ewan,  111  Cal.  144, 
43  Pac.  520.  It  only  undertakes  to 
lay  down  the  guidance  of  the  jury 
a  matter  that  they  would  be  apt 
to  know  about  and  act  upon  with- 
out any  such  instruction.'  " 

Note.— From  the  comment  it 
seems  it  'has  not  the  unqualified 
approval  of  the  court. 


1634  FORMS  OF  INSTRUCTIONS.  [§  2537. 

is  interested  in  the  result  of  the  prosecution,  as  well  as  his  demeanor 
and  conduct  upon  the  witness  stand  and  during  the  trial.^* 

§  2537.  Connecticut,  He  is  to  be  regarded  by  you  as  every  other 
witness  is  to  be  regarded.  You  are  to  take  into  consideration  his 
appearance,  his  manner  of  testifying,  the  reasonableness  of  his  story, 
and,  above  all,  you  are  to  take  into  consideration  the  fact  that  he  is 
the  accused  in  the  case ;  and,  taking  those  facts  into  consideration, 
you  are  to  give  to  his  statements  in  court,  or  any  statements  made 
by  him  out  of  court,  such  effect  and  such  force  as  you  think  they 
justly  should  have.^^ 

§  2538.  Florida.  Defendants  in  criminal  eases  have  the  right  to 
take  the  stand  and  testify  in  their  own  behalf,  the  same  as  any  other 
witnesses,  and  their  testimony  goes  to  you  to  be  weighed  and  judged 
upon  the  same  rules  as  you  would  judge  the  evidence  of  any  other 
witness  testifying  in  the  case.  In  weighing  the  testimony  of  any  wit- 
ness you  should  take  into  consideration  the  interest,  if  any,  the 
witness  may  have  in  the  result  testified  about;  the  reasonableness  or 
unreasonableness  of  the  testimony  as  judged  by  your  canons  of  com- 
mon sense ;  the  manner  of  the  witness  on  the  witness  stand ;  and,  in 
fact,  all  the  circumstances  surrounding  the  witness  are  to  be  con- 
sidered by  you  in  arriving  at  your  judgment  on  this  matter.  If,  after 
carefully  and  conscientiously  considering,  on  your  oaths  as  jurors  all 
the  evidence  in  the  case,  you  have  a  reasonable  doubt  of  the  guilt 
of  the  defendant,  you  must,  under  your  oaths  as  jurors,  give  him 
the  benefit  of  such  doubt  and  acquit  him.  If,  on  the  other  hand, 
after  such  careful  and  conscientious  consideration,  you  feel  that  you 
have  an  abiding  conviction  to  a  moral  certainty  that  the  charge  is 
true,   then   the   charge   has  been  made   out   to   the   exclusion   of  and 

34 — Boykin  v.  People,  22  Colo.  496,  the  Purdy  cases.    A  critical  exami- 

45  Pac.  419  (420),  hoi.-icide.  nation  of  the  decision  in  the  Purdy 

"The  instruction  given  by  the  case  shows  that  the  defendant  was 
trial  court,  as  to  that  part  now  the  only  witness  in  his  own  behalf, 
under  consideration,  is  identical  and  this  fact,  and  the  further  fact 
in  language  with  one  approved  by  that  the  court  was  in  grave  doubt 
the  supreme  court  of  Illinois  in  as  to  the  sufficiency  of  the  circum- 
Hirschman  v.  People.  101  111.  568,  stantial  evidence  to  warrant  a  con- 
and  also  in  Rider  v.  People,  110  111.  viction,  led  the  court  to  hold  that 
11.  In  the  subsequent  case  of  Purdy  the  instruction  did  not  fully  and 
V.  People,  140  111.  46,  29  N.  E.  700,  fairly  submit  to  the  jury  the  ques- 
an  instruction  containing  the  same  tion  of  defendant's  credibility.  "We 
language  is  condemned  as  to  the  are  unable  to  harmonize  the  de- 
words  'during  the  trial.'  Again  in  cision  in  the  Purdy  case  with  the 
Riebert  v.  People,  143  111.  571.  32  two  earlier  cases,  unless  the  former 
N.  E.  431,  the  same  instruction,  rule  announced  is  to  be  confined  to 
omitting,  however,  the  words  'dur-  the  peculiar  state  of  facts  of  that 
Ing  the  trial,"  received  the  sanction  case,  and  possibly,  as  so  restricted, 
of  the  court,  which,  in  the  imme-  it  might  not  be  objectionable.  We 
diate  connection,  refers  approving-  are,  however,  of  the  opinion  that 
ly  to  the  two  cases  supra,  from  101  the  instruction  as  given  by  the  trial 
and  110  111.,  and  says  that  there  court  in  the  case  at  bar  is  correct, 
was  no  intention  in  the  Purdy  case  certainly  as  applicable  to  the  facts 
to  change  the  rule   of  law  in   said  in  this  case." 

two   earlier   cases,    and    that   there         35 — State   v.    Piske,   63   Conn.    388, 

was  no  conflict  between   them  and  28  Atl.  572  (573). 


2539. 


CRIMINAL— CONFESSIONS. 


1635 


bej-ond  a  reasonable  doubt,  and  it  is  then  equally  your  duty  to  con- 
vict the  defendant.-''*^ 

§  2539.  Illinois.  The  defendant  is  a  competent  witness  in  her 
own  behalf,  and  you  have  no  right  to  discredit  her  testimony  from 
caprice,  nor  merely  because  she  is  the  defendant.  You  are  to  treat 
her  the  same  as  any  other  witness,  and  subject  her  to  the  same  tests, 
and  only  the  same  tests,  as  are  legally  applied  to  other  Avitnesses; 
and  while  you  have  the  right  to  take  into  consideration  the  interest 
she  may  have  in  the  result  of  this  trial,  you  have  also  the  right,  and 
it  is  your  duty,  to  take  into  consideration  the  fact,  if  such  is  the  fact, 
that  she  has  been  corroborated  by  other  credible  evidence.^^ 


36— Lang  v.  State,  42  Fla.  612,  28 

So.   856   (857). 

In  Olive  v.  State,  34  Fla.  203,  15 
So.  925  (927),  and  in  Bond  v.  State, 
21  Fla.  738,  the  following  was  ap- 
proved: 

The  statement  of  the  prisoner  is 
evidence  before  you,  to  be  allowed 
such  weight,  and  such  only,  as  you 
see  fit  to  give  it. 

37— In  McElrov  v.  People,  202  111. 
473  (478),  66  N.  E.  1058,  it  was  held 
error  to  refuse  this  instruction. 
The  charge  was  embezzlement. 

In  Regent  v.  People,  96  111.  App. 
189  (198),  it  was  held  proper  to  in- 
struct as  follows: 

The  court  instructs  you  that  in 
this  state  the  law  declares  that  a 
defendant  in  a  criminal  case  may 
be  a  witness  in  his  own  behalf. 
This  is  no  idle  form  of  law,  but  is 
a  substantial  privilege  guaranteed 
to  the  defendant. 

In  Bressler  v.  The  People,  117  III. 
422,  8  N.  E.  62,  the  following  was 
approved: 

The  court  instructs  the  jury 
that  although  the  law  makes  the 
defendants  in  this  case  competent 
witnesses,  still,  the  jury  are  the 
judges  of  the  weight  which  ought 
to  be  attached  to  their  testimony; 
and,  in  considering  what  weight 
should  be  given  it,  the  jury  should 
take  into  consideration  all  the  facts 
and  circumstances  surrounding  the 
case,  as  disclosed  by  the  evidence, 
and  give  the  defendants'  testimony 
only  such  weight  as  they  believe 
it  entitled  to,  in  view  of  all  the 
facts  and  circumstances  proved  on 
the  trial. 

In  Hirschman  v.  People,  101  111. 
568,  it  was  held  not  error  to  charge 
as  follows: 

The  jury  in  criminal  cases  are 
not  bound  to  believe  the  testimony 
of  the  defendant  any  further  than 


it  may  be  corroborated  by  other 
credible  evidence  in  the  case. 

In  Johnson  v.  People,  140  111. 
350  (353).  29  N.  E.  895,  the  following 
instruction  was  given: 

The  court  instructs  the  jury  that, 
by  the  law  of  this  state,  the  de- 
fendant is  made  a  competent  wit- 
ness upon  the  trial  in  this  case, 
but  it  is  left  entirely  with  the  jury 
to  judge  of  his  credibility  as  such 
witness;  and  in  judging  of  the 
credit  to  be  given  to  such  witness, 
it  is  proper  for  the  jury  to  take 
into  consideration  the  probability 
or  improbability  of  his  statements 
as  such  witness  in  view  of  all  the 
testimony   in   the   case. 

Approving  it  the  supreme  court 
said: 

"The  ground  of  the  objection 
urged  is  that  the  jury  were  not 
told  that  they  were  to  take  into 
consideration  the  manner  and  ap- 
pearance of  the  witness  while  tes- 
tifying. But  this  instruction  does 
not  assume  to  lay  down  a  general 
rule  for  determining  the  credibil- 
ity of  the  witness.  It  simply  calls 
attention  to  a  circumstance  that 
may  legitimately  affect  the  testi- 
mony of  the  witness  either  sus- 
taining or  depreciating  it.  This  is 
proper  for  the  consideration  of  the 
jury,  and  that  is  fair  to  each  side." 

In  Johnson  v.  People,  supra,  the 
following,   also,   was  approved: 

The  jury  are  instructed  that  the 
relatrix  in  this  case  is  interested 
in  the  event  of  this  case,  and  that 
the  defendant  is  interested,  and 
the  interest  of  these  parties  may 
be  considered  in  determining  their 
credibility  as  witnesses. 

In  Henry  v.  People,  198  111.  162, 
65  N.  E.  120,  the  following  was  ap- 
proved: 

The  court  instructs  the  jury 
that,      although      the      defendants 


1636 


FORMS  OF  INSTRUCTIONS. 


[§2540. 


§  2540.  Indiana — Indian  Territory.  In  determining  the  weight  to 
be  given  to  the  testimony  of  the  different  witnesses,  you  should  take 
into  account  the  interest  or  want  of  interest  they  have  in  the  case, 
their  manner  on  the  stand,  the  probability  or  improbability  of  their 
testimony,  with  all  other  circumstances  before  you  which  can  aid 
you  in  weighing  their  testimony.  The  defendant  has  testified  as  a 
witness,  and  you  should  weigh  his  testimony  as  you  weigh  that  of 
any  other  witness.  Consider  his  interest  in  the  result  of  the  case, 
his  manner,  and  the  probability  or  improbability  of  his  testimony.^^ 


have  a  right  to  be  sworn  and  to 
testify  in  their  behalf,  the  jury- 
are  not  bound  to  beheve  their  tes- 
timony, but  they  are  bound  to  give 
it  such  weight  as  they  believe  it  is 
entitled  to,  and  their  credibility, 
and  the  weight  to  be  attached  to 
their  testimony,  are  matters  ex- 
clusively for  the  jury,  and  the  de- 
fendants' interest  in  the  result  of 
the  trial  is  a  matter  proper  to  be 
taken  into  consideration  by  the 
jury  in  determining  what  weight 
ought  to  be  given  to  their  testi- 
mony. 

The  court  said:  "The  instruction 
thus  complained  of  is  a  literal 
copy  of  instruction  numbered  six, 
set  forth  in  Bressler  v.  People,  117 
111.  422,  8  N.  E.  62,  and  there  ap- 
proved by  this  court.  In  Hirsch- 
man  v.  People,  101  111.  568,  this 
court  said  (p.  576):  'The  jury  were 
not  bound  to  believe  the  evidence 
of  the  defendant  any  further  than 
it  may  have  been  corroborated  by 
other  credible  evidence  (Gainey  v. 
People,  97  111.  270,  37  Am.  Rep.  109), 
and  we  see  no  impropriety  in  say- 
ing so  to  them.'  The  instruction, 
in  substance,  is  sustained  by  Crab- 
tree  v.  Hagenbaugh,  25  111.  233,  79 
Am.  Dec.  324;  Yundt  v.  Hartrunft, 
41  111.  9;  Miller  v.  People,  39  Id. 
457;  see  also  Rulliner  v.  People,  95 
111.  394;  Chambers  v.  People,  105  Id. 
409." 

In  Doyle  v.  People,  147  111.  394 
(397),  35  N.  E.  372,  the  following 
was  approved: 

The  jury  are  instructed  that 
while  it  is  true  that,  under  the 
law  of  this  state,  defendants  in 
criminal  cases  are  competent  wit- 
ne.sses  in  thoir  own  cases,  yet  you 
are  instructed  that  their  credibil- 
ity^ is  left,  by  the  statute,  to  the 
consideration  of  the  jury;  and  in 
considering  the  amount  of  credit 
or  value  you  will  give  to  the  testi- 
mony of  Tj.  L.  in  this  case,  you 
may  take  into  consideration  his  in- 
terest   in    the    case,    his    desire    to 


avoid  punishment  for  the  crime 
with  which  he  is  charged,  and  all 
other  interests  or  motives  that 
would  likely  surround  or  affect  the 
testimony  of  a  person  similarly 
surrounded   or  situated. 

38 — Anderson  v.  State,  104  Ind. 
467,  4  N.  E.  64  (66),  5  N.  E.  711,  5 
Am.  Cr.  Rep.  601. 

The  court  cited  Nelson  v.  Vorce, 
55  Ind.  455;  Canada  v.  Curry,  73 
Ind.  246;  Fisher  v.  State,  77  Ind. 
42;  Woolen  v.  Whitacre,  91  Ind. 
502;  Dodd  v.  Moore,  Id.  522;  Over- 
ton V.  Rogers,  99  Ind.  595. 

In  Mcintosh  v.  State,  151  Ind. 
251,  51  N.  E.  354  (355),  the  trial 
court  gave  the  following  instruc- 
tion: 

The  law  gives  persons  accused  of 
crime  the  right  to  .testify  on  their 
own  behalf,  but  their  credibility 
and  the  weight  to  be  given  to 
their  testimony  are  matters  ex- 
clusively for  the  jury.  Therefore, 
in  weighing  the  testimony  of  the 
defendant  in  this  case,  you  have 
the  right  to  take  into  consideration 
the  manner  of  his  testifying,  the 
reasonableness  or  unreasonable- 
ness of  his  account  of  the  trans- 
action, and  his  interest  in  the  re- 
sult of  the  case,  as  affecting  his 
credibility.  You  are  not  required 
to  receive  blindly  the  testimony  of 
such  accused  person  as  true, 
neither  are  you  at  liberty  to  disre- 
gard his  testimony,  but  you  are  to 
give  it  due  consideration,  and  to 
determine  whether  or  not  his  state- 
ments are  true,  and  made  in  good 
faith,  or  only  for  the  purpose  of 
avoiding  conviction. 

Affirming  judgment  of  convic- 
tion, the  court  said:  "While  this 
instruction  standing  alone  cannot 
be  said  to  be  a  complete  or  accu- 
rate statement  to  the  jury  of  the 
rules  by  which  they  ought  to  be 
guided  in  weighing  the  testimony 
of  the  defendant,  and  while  it  may 
also  be  said  that  if  is  possibly 
open  to  the  criticism  that  it  singles 


§2541.] 


CRIMINAL— CONFESSIONS. 


1637 


§  2541.  Iowa — Dakota.  Under  our  statute  a  person  charged  witli 
the  commission  of  a  crime  is  a  competent  witness  and  may  testify  in 
his  own  behalf.  The  defendant  in  this  case  has  availed  herself  of 
this  privilege,  and  in  determining  her  guilt  or  innocence,  you  must 
consider  her  testimony.  She  testifies  as  an  interested  witness,  and 
from  an  interested  standpoint,  and  as  such  you  should  consider  her 
testimony;  and  when  you  do  this,  together  with  all  the  other  sur- 
rounding circumstances  developed  by  the  evidence,  give  the  testimony 
of  the  defendant  such  weight,  in  connection  with  the  other  evidence 
in  the  case,  as  you  may  think  it  entitled  to,  and  no  more.^^ 


out  the  defendant  and  directs  the 
admonition  or  advice  therein  given 
alone  to  his  testimony,  yet,  in  the 
absence  of  the  evidence,  we  would 
not  be  in  a  position  to  adjudge  that 
appellant  was  prejudiced  in  any 
of  his   substantial  rights   thereby." 

The  court  instructs  you  that, 
under  the  law  the  defendant  is  a 
proper  witness  in  his  own  behalf, 
and  you  should  take  into  consid- 
eration his  evidence  in  determin- 
ing the  guilt  or  innocence  of  the 
defendant;  but  in  determining  what 
weight  you  will  give  the  evidence 
of  the  defendant,  you  should  take 
into  consideration  the  fact  that  he 
is  the  defendant,  the  interest  he 
has  in  the  result  of  the  suit,  his 
intelligence  or  lack  of  intelligence, 
his  appearance  and  manner  of  tes- 
tifying while  on  the  stand,  and, 
taking  all  of  these  facts  into  con- 
sideration, you  should  give  his  evi- 
dence such  weight  as  you  think  it 
entitled  to  under  all  the  circum- 
stances  of  the  case. 

Helms  V.  United  States,  2  Ind. 
Ter.  595,  52  S.  W.  60  (63). 

The  court  said:  "While  we  find 
no  reversible  error  in  this  charge, 
we  think  the  better  practice,  in- 
stead of  singling  out  the  defend- 
ant, and  giving  the  jury  the  rule 
by  which  his  testimony  is  to  be 
measured,  is  to  lay  down  the  rule 
as  to  the  testimony  of  all  the  wit- 
nesses including  that  of  the  de- 
fendant." 

39— State  v.  Hossack,  116  Iowa 
194,  89  N.  W.  1077  (1081),  homicide 
case. 

"This  language  seems  to  have 
been  taken  from  an  instruction  ap- 
proved by  this  court  in  State  v. 
Sterrett,  71  Iowa  386,  32  N.  W.  387. 
We  cannot  agree  that  the  exist- 
ence of  the  marital  relation  alters 
the  rule  as  to  the  credibility  of  de- 
fendant as  a  witness,  although  it 
may  have  strengthened  the  pre- 
sumption of  her  innocence  " 


In  State  v.  Harris,  97  Iowa  407, 
66  N.  W.  728  (729),  the  following 
instruction  was  approved  by  the 
court: 

The  defendant  'has  the  right  to 
testify  in  his  own  behalf,  and  he 
has  availed  himself  of  that  privi- 
lege. The  character  of  the  defend- 
ant as  a  witness  has  been  attacked, 
and  evidence  offered  tending  to 
show  his  moral  character  is  bad. 
You  have  a  right  to  consider  his 
evidence,  but  you  have  also  the 
right,  in  determining  what  weight 
you  give  to  the  evidence,  to  con- 
sider his  interest  in  the  case,  the 
temptation  to  shield  himself  from 
the  consequences  of  crime.  Also 
you  may,  in  that  connection,  con- 
sider the  evidence  offered  tending 
to  show  his  bad  moral  character, 
and  give  to  the  evidence  just  such 
weight  as  you  may  think  the  same 
entitled    to. 

In  State  v.  Wisnewski,  13  N.  Dak. 
649,  102  N.  W.  883  (884),  the  follow- 
ing instruction  was  given: 

The  defendant  shall,  at  his  own 
request,  and  not  otherwise,  be 
deemed  a  competent  witness;  but 
his  neglect  or  refusal  to  testify 
shall  not  create  or  raise  any  pre- 
sumption of  guilt  against  him,  nor 
shall  such  neglect  or  refusal  be  re- 
ferred to  by  any  attorney  prose- 
cuting the  case,  or  considered  by 
the  court  or  jury  before  whom  the 
trial  takes  place.  Therefore,  under 
the  law,  the  mere  fact  that  the 
defendant  has  not  testified  in  this 
case  shall  not  create  any  presump- 
tion of  guilt  in  your  minds  against 
the  defendant,  and  should  not  be 
considered  by  you  in  this  case. 

Approving  it  the  court  said:  "A 
defendant's  failure  to  become  a 
witness  might  well  be  considered  as 
a  circumstance  unfavorable  to  ihe 
defendant,  nnd  to  advise  them  [the 
jury]  it  shall  not  be  so  considered 
is  not  the  subject  of  prejudice  or 
exception.     Enc.   PI.   &   Pr.  vol.   II, 


1638 


FORMS  OF  INSTRUCTIONS. 


[§  2542. 


§  2542.  Louisiana.  The  court  instructs  the  jury  that  while  our 
statute  permits  parties  accused  of  crime  to  testify  in  their  own  be- 
half, still  the  jurors  are  the  judges  of  the  credibility  (creditableness) 
and  weig-ht  of  such  testimony;  and,  in  determining  such  weight  and 
credibility,  the  fact  that  such  witnesses  are  interested  in  the  result 
of  the  cause  may  be  taken  into  account  by  the  juiy,  and  you  may 
give  the  same  such  w^eight  as  you  think  it  justly  entitled  to  under 
all  the  circumstances  of  the  case,  and  in  view  of  the  interest  of  such 
witnesses.*** 

§  2543.  Michigan.  In  the  beneficence  of  our  modern  statutes  in 
this  state,  one  on  trial  for  a  crime  is  allowed  to  testify  under  oath 
in  his  own  behalf.    His  interest  in  the  result  of  the  trial,  that  would 


p.  352;  State  v.  Weems,  96  Iowa 
448,  65  N.  W.  387;  Fulcher  v.  State. 
28  Tex.  App.  465,  13  S.  W.  750; 
State  V.  Landry,  85  Me.  95,  26  Atl. 
998. 

40— State  v.  "Wiggins,  50  La.  330, 
23    So.    334   (336). 

"An  accused  person  who  does 
not  go  on  the  stand  is  entitled  to 
have  the  judge  charge  the  jury- 
that  the  fact  that  he  declines  to 
avail  himself  of  the  privilege  gives 
rise  to  no  inference  against  him. 
State  V.  Walsh,  44  La.  Ann.  1134, 
11  So.  811;  W'hart.  Cr.  Ev.  p.  435; 
Act  No.  29  of  1886.  So,  too,  if  he 
goes  on  the  stand  as  a  witness,  the 
Judge  may  charge  the  jury  that, 
in  weighing  his  testimony,  they 
are  entitled  to  take  into  account 
the  fact  of  interest  in  the  result 
of  the  trial.  29  Am.  &  Eng.  Enc. 
Law,  p.  677;  Pruitt  v.  State,  92 
Ala.  41,  9  So.  406;  Reagan  v.  U.  S., 
157  U.  S.  301,  15  Sup.  Ct.  610;  State 
V.  Tartar,  26  Ore.  38,  37  Pac.  53; 
People  V.  Resh,  107  Mich.  251,  65 
N.  W.  99;  State  v.  Fiske,  63  Conn. 
388,  28  Atl.  572;  Sackett  Instruct. 
Juries,  p.  43,  §§  20,  21.  Nor  is  such 
instruction  prejudicial  error  be- 
cause it  singles  out  the  accused 
from  the  other  witnesses  in  the 
case.  No  other  witness  occupied 
the  same  position  as  did  the  ac- 
cused, and  the  instruction,  there- 
fore, does  not  apply  to  him  a  test 
of  credibility  which  could  have 
been  applied  to  others.  Doyle  v. 
Pf'ople,  147  111.  394,  35  N.  E.  372. 
This  was,  in  effect,  charging  one 
or  more  of  the  general  rules  of 
evidence,  viz.,  that  the  motive  or 
bias  of  a  witness — his  interest  in 
the  outcome  of  the  trial — may  af- 
fect, more  or  less,  his  evidence  for 
crrdibility,  and  the  jury  are  the 
jndyrr.s  of  the  effect  and  value,  the 
weight  and   sufficiency,  of  the  evi- 


dence addressed  to  them.  The 
statute  (Act  29  of  1886)  specifically 
requires  the  judge  to  charge  the 
jury  that  such  testimony  shall  be 
weighed  and  considered  according 
to  the  general  rules  of  evidence.  It 
was  intended,  of  course,  that  the 
judge  should  not  merely  say  to 
the  jury,  'You  are  to  weigh  and 
consider  the  testimony  of  the  ac- 
cused according  to  the  general 
rules  of  evidence,'  but  should 
explain  to  them  what  the  partic- 
ular general  rules  of  evidence  are 
that  are  applicable  to  testimony 
given  by  an  accused  person.  This 
is  what  the  judge  in  the  instant 
case  did.  This  court  said  in  State 
V.  Walsh,  supra,  that  'the  weight 
of  the  testimony  (of  the  accused) 
is  left  to  the  jury.'  Whart.  Cr. 
Ev.  Pars.  429,  434,  436.  If  it  is  left 
to  the  jury  it  is  proper  for  the 
judge  to  tell  them  so.  The  words 
'but  all  testimony  shall  be  weighed 
and  considered  according  to  the 
general  rules  of  evidence,  in  the 
concluding  clause  of  section  2  of 
the  act  of  1886,  have  reference, 
clearly,  to  all  the  testimony  given 
by  accused  persons  under  the  per- 
mission of  the  act.  The  judge  is 
to  charge  that  all  such  evidence — 
i.  e.  that  given  by  defendants  in 
criminal  causes — 'shall  be  weighed,' 
etc.  It  was  not  necessary  to  use 
that  language  as  to  the  testimony 
of  other  witnesses  in  a  case,  for  it 
has  always  been  the  law  that  their 
evidence  is  to  be  weighed  and  con- 
sidered by  the  general  rules  of 
evidence.  This  demonstrates  that 
the  lawmaker  intended  to  apply 
the  language  used  in  the  statute 
to  the  testimony  of  accused  per- 
sons. It  is  with  reference  to  ac- 
cused persons  only  that  section  2  of 
the   acts    speaks." 


§  2544.] 


CRIMINAL— CONFESSIONS. 


1639 


formerly  preclude  his  so  testifying,  now  has  not  that  effect,  and  it 
is  the  duty  of  jurors,  where  this  is  done,  to  give  his  testimony  such 
weight  as,  in  view  of  all  the  facts  and  circumstances  shown,  it  shall 
appear  to  them  to  be  entitled  to.  His  interest  is  to  be  considered  only 
so  far  as  it  affects  his  credit.  His  testimony  is  to  be  scanned  and 
tested  the  same  as  that  of  other  witnesses.  If  rational,  natural  and 
consistent,  it  may  outweigh  the  testimony  of  other  witnesses.  If 
inconsistent  with  established  facts,  or  with  his  prior  statements,  you 
will  treat  it  the  same  as  you  would  that  of  any  other  witness  whose 
testimony  is  thus  defective.*^ 

§  2544.  Mississippi.  The  court  instructs  the  juiy  that  under  the 
law  the  defendant  is  a  competent  witness  in  his  own  behalf,  and  his 
testimony  is  entitled  to  whatever  weight  the  juiy,  as  the  judges  of 
the  evidence,  may  see  fit  to  give  it.^^ 

§  2545.  Missouri.  The  defendant  is  a  competent  witness  in  his 
own  behalf,  and  his  testimony  is  to  be  received  by  you  and  weighed 
by  the  same  rules  as  the  testimony  of  any  other  witness.  In  deter- 
mining what  weight  you  will  give  to  his  testimony,  you  may  take 
into  consideration  the  fact  that  he  is  the  defendant  on  trial,  and  his 
interest  is  the  result  of  the  trial.*^ 


41— People  V.  Willett,  105  Mich. 
110,    62  N.    W.  1115   (1116). 

The  court  found  no  error  in  an 
instruction  given  in  People  v. 
Resh,  107  Mich.  251,  65  N.  W.  99 
(100)    as    follows: 

The  respondent  has  been  a  wit- 
ness before  you,  as  he  had  a  right 
to  be;  and  you  have  a  right  to 
weigh  his  testimony,  and  give  it 
such  credit  as  you  think  it  fairly 
entitled  to.  We  have  a  right  to 
take  into  consideration,  in  weigh- 
ing the  testimony,  his  relation  to 
the  offense  charged  in  the  in- 
formation. 

The  court  cited  Housh  v.  State, 
43  Neb.  163,  61  N.  W.  571;  St.  Louis 
V.  State,  8  Neb.  405,  1  N.  W.  371; 
Murphy  v.  State.  15  Neb.  383,  19  N. 
W.  489. 

In  People  v.  McArron,  121  Mich. 
1,  79  N.  W.  944.  the  following  in- 
struction was  given: 

The  defendant,  under  our  statute, 
is  allowed  to  testify  under  oath  in 
his  own  behalf,  and  it  is  the  duty 
of  the  jurors,  where  he  has  done 
so.  to  give  his  testimony  such 
weight  as,  in  view  of  all  the  facts 
and  circumstances  shown,  it  shall 
appear  to  them  to  be  entitled  to. 
His  testimony  is  to  be  tested  the 
same  as  that  of  other  witnesses.  If 
rational,  natural,  and  consistent,  it 
may  outweigh  the  testimony  of  all 
other  witnesses. 


42— McVay  v.  State,  —  Miss.  — , 
26    So.    947. 

43— State  v.  Bond,  191  Mo.  555,  90 
S.  W.   830   (831). 

In  State  v.  Maupin,  196  Mo.  164, 
93  S.  W.  379  (383),  the  following 
was  given: 

The  court  instructs  the  jury  that 
the  defendant  is  a  competent  wit- 
ness in  his  own  behalf,  and  you 
may  consider  his  testimony,  but  in 
determining  what  weight  and  cred- 
it you  will  give  his  testimony  you 
may  take  into  consideration  that 
fact  that  he  is  the  defendant  on 
trial  and  interested  in  the  result 
of  the  trial. 

In  State  v.  Hughes,  149  Mo.  514, 
51  S.  W.  89,  the  following  was  ap- 
proved: 

Under  the  law,  the  defendant  is 
a  competent  witness  in  his  own  be- 
half, and  you  should  take  his  tes- 
timony in  account,  and  give  It 
such  weight  as  you  deem  it  en- 
titled to  receive,  in  passing  upon 
his  guilt  or  innocence;  but,  in  de- 
termining what  weight  you  will 
attach  to  his  testimony,  you  may 
take  into  consideration  the  fact 
that  he  is  the  defendant  in  the 
cause,  testifying  in  his  own  behalf, 
and  his  interest  in  the  result  of  this 
trial. 

The  defendants  are  competent 
witnesses  in  their  own  behalf,  but 
the  fact  that  they  are  the  defend- 


1640 


FORMS  OP  INSTRUCTIONS. 


[§  254G. 


§  2546.  Nebraska — ^Murder.  Under  the  law  of  this  state  the  ac- 
cused is  a  competent  witness  in  his  own  behalf,  and  you  are  bound 
to  consider  his  testimony;  but  in  determining  Avhat  weight  to  give  to 
his  testimony,  you  may  weigh  it  as  you  would  the  testimony  of  any 


ants,  and,  as  such,  interested  in 
the  result  of  this  case,  may  be 
considered  by  you  in  determining 
the  credibility  of  their  testimony. 
Approved  in  State  v.  Vaughan,  200 
Mo.    1,    98    S.    W.    2. 

The  court  instructs  the  jury  that 
the  defendant  is  a  competent  wit- 
ness in  his  own  behalf,  but  the  fact 
that  he  is  the  accused  party  on 
trial,  and  testifying  in  his  own 
behalf,  may  be  considered  by  the 
jury  in  determining  wihat  weight 
and  credit  they  will  give  to  his 
testimony.  Approved  in  State  v. 
Smith,   164  Mo.  567,  65  S.   W.  270. 

The  defendant  is  a  coinpetent 
witness  in  the  case,  and  in  arriv- 
ing at  your  verdict  you  must  con- 
sider his  testimony,  but  in  deter- 
mining what  weight  and  credibil- 
ity you  will  give  to  his  testiinony 
you  may  take  into  consideration  the 
fact  that  he  is  the  accused  party 
on  trial,  testifying  in  his  own  be- 
half, and  the  interest  he  has  in 
the  result  of  the  trial.  Approved  in 
State  v.  Darling,  199  Mo.  168,  97  S. 
W.  592.  A  similar  instruction, 
slightly  differently  worded,  was  ap- 
proved in  State  v.  Gatlin,  170  Mo. 
354,    70    S.    W.    885    (888). 

The  court  instructs  the  jury  that 
the  defendant  is  a  competent  wit- 
ness in  his  own  behalf,  and  you 
should  consider  his  testimony  in 
connection  with  the  other  evidence, 
given  on  the  trial.  In  determining 
what  weight  you  will  give  to  de- 
fendant's testimony,  you  may  take 
into  consideration  the  fact  that  he 
Is  the  defendant  on  trial,  and  in- 
terested in  the  result  of  the  prose- 
cution. Approved  in  State  v.  May, 
172  Mo.  630,  12  S.  W.  918  (920),  a 
murder  case. 

The  defendants  are  competent 
witnesses  in  their  own  behalf,  and 
their  testimony  is  to  be  received 
by  you  and  weighed  by  the  same 
rules  as  the  testimony  of  any 
other  witnesses.  In  passing  upon 
what  weight  you  will  give  to  their 
tostlmoiiy,  you  may  take  into  con- 
.sideration  the  fact  that  they  are 
the  defendants  on  trial,  and  their 
interest  in  the  result  of  the  trial. 
Approved  in  Slate  v.  Hale,  156  Mo. 
102,    r,(i    S.    W.    881    f882). 

In    State   v.    Miller,   190   Mo.    449, 


89  S.  W.  377,  the  jury  were  in- 
structed as  follows: 

You  are  further  instructed  that 
you  are  the  sole  judges  of  the 
ci'edibility  of  the  witnesses  and  of 
the  weight  to  be  given  to  their  tes- 
timony. In  determining  such  cred- 
ibility and  weight,  you  will  take 
into  consideration  the  character  of 
the  witness,  his  manner  in  the 
stand,  his  interest,  if  any,  in  the 
result  of  the  trial,  his  relation  to 
or  feeling  towards  the  defendant, 
and  the  probability  and  improba- 
bility of  his  statements,  as  well  as 
all  the  facts  and  circumstances 
given  in  evidence.  In  this  con- 
nection you  are  further  instructed 
that,  if  you  believe  that  any  wit- 
ness has  knowingly  sworn  falsely 
to  any  material  fact,  you  are  at 
liberty  to  reject  all  or  any  portion 
of  such  witness'  testimony.  The 
defendant  is  a  competent  witness 
in  his  own  behalf,  but  the  fact  that 
he  is  a  witness  testifying  in  his 
own  behalf  and  the  interest  he  has 
at  stake  in  the  case  may  be  con- 
sidered by  you  in  determining  the 
credibility   of   his   testimony. 

The  court,  in  comment,  said  of 
the   above  instruction: 

"Objection  is  made  to  this  in- 
struction because,  in  that  portion 
referring  to  the  credibility  of  wit- 
nesses, it  includes  simply  the  rela- 
tion to  the  feeling  towards  the  de- 
fendant. The  instruction  is  set  out 
in  full  in  the  accompanying  state- 
ment, and  we  think  is  not  obnox- 
ious to  the  criticism  made  upon  it 
in  this  respect.  The  words  'his  re- 
lation to  or  feeling  towards  the  de- 
fendant' necessarily  contemplate 
whether  the  witness  was  friendly 
or  unfriendly  to  the  defendant. 
The  instruction  was  well  enough 
as  it  was  written. 

A  further  objection  to  this  in- 
struction is  that,  in  speaking  of 
the  competency  of  the  defendant, 
the  court  told  the  jury  "he  was  a 
competent  witness  in  his  own  be- 
half, but  the  fact  that  he  was  a 
witness  testifying  in  his  own  be- 
half might  be  considered  by  the 
jury."  Complaint  is  made  to  the 
use  of  the  conjunction  "but"  in- 
stead nf  "and",  which  it  is  conced- 
ed   would   have   been   proper.     We 


§2546.] 


CRIMINAL— CONFESSIONS. 


1641 


other  witness,  and  you  make  take  into  consideration  his  interest  in 
the  result  of  the  trial,  his  manner,  and  the  probability  or  improba- 
bility of  his  testimony,  and  giving  to  his  testimony  such  weight  as, 
under  all  the  circumstances,  you  think  it  entitled  to.'** 


are  unable  to  concur  in  this  criti- 
cism of  the  evidence  of  the  de- 
fendant testifying  in  his  own  be- 
half. This  identical  formula  was 
approved  in  State  v.  Zorn,  71  Mo. 
415,  and  we  think  the  distinction 
sought  to  be  made  is  entirely  too 
nice  to  be  of  practical  benefit  to 
the  defendant  on  trial." 

In  State  v.  Weber,  156  Mo.  249,  56 
S.  W.  729,  the  court  instructed  the 
jury: 

The  defendant  is  a  competent 
witness  in  his  own  behalf,  and  his 
testimony  should  be  considered  by 
you  in  making  up  your  verdict; 
but  in  determining  what  weight 
you  will  give  to  his  testimony  you 
may  consider  the  fact  that  he  is 
the  defendant,   and   on  trial. 

44— Housh  V.  State,  43  Neb.  163, 
61    N.    W.    571    (573), 

The  court  said: 

"Were  the  question  an  open  one 
at  this  time,  the  writer  would  with 
reluctance  sanction  a  practice 
which  permits  any  reference  by 
the  court  to  the  subject  of  the 
prisoner's  credibility  as  a  witness. 
There  is,  on  principle,  no  more 
reason  to  call  the  attention  of  the 
jury  to  him,  and  to  caution  them 
to  consider  his  interests  as  affect- 
ing his  credibility,  than  for  like 
caution  with  respect  to  any  other 
witness.  But  that  question  has 
been  fully  settled  in  this  court  by 
decisions  in  conformity  with  the 
practice  in  this  case,  which  we  are 
constrained  to  follow.  See  St. 
Louis  V.  State,  8  Neb.  405,  1  N.  W. 
371;  Murphy  v.  State,  15  Neb.  383, 
19  N.  W.   489." 

In  Philamalee  v.  State,  58  Neb. 
320,  78  N.  W.  625  (626),  the  follow- 
ing was  approved: 

The  jury  are  instructed  that, 
when  the  defendant  testified  in  this 
case,  he  became  as  any  other  wit- 
ness, and  his  credibility  is  to  be 
tested  by,  and  subjected  to,  the 
same  tests  as  are  legally  applied 
to  any  other  witness;  and  in  de- 
termining the  degree  of  credibil- 
ity that  shall  be  accorded  to  his 
testimony,  the  jury  have  a  right  to 
take  into  consideration  the  fact 
that  he  is  interested  in  the  result 
of  this  prosecution,  as  well  as  his 
demeanor  upon  the  stand,  and  the 


fact  that  he  has  been  contradicted 
by  other  witnesses. 

The  court  cited  Johnson  v.  State, 
34  Neb.  257,  51  N.  W.  835;  Housh  v. 
State,  43  Neb.  163,  61  N.  W.  571; 
St.  Louis  V.  State,  supra;  Murphy 
V.   State,  15  Neb.  383,  19  N.   W.  489. 

In  Carleton  v.  State,  43  Neb. 
373,  61  N.  W.  699  (713),  a  homicide 
case,    the   following   was  approved: 

The  jui-y  are  instructed  that  they 
have  no  right  to  disregard  the 
testimony  of  the  defendant  on 
the  ground  alone  that  he  is  a  de- 
fendant and  stands  charged  with 
the  commission  of  a  crime.  Nor 
are  the  jury  required  to  receive 
blindly,  the  testimony  of  the  de- 
fendant as  true,  but  the  jury  are 
fully  and  fairly  to  consider  wheth- 
er it  is  true  and  made  in  good 
faith;  and  for  this  purpose  the 
jury  have  a  right  to  consider  the 
interest  of  the  defendant  in  this 
prosecution.  The  law  presumes  the 
defendant  to  be  innocent  until  he 
is  proved  guilty  by  the  evidence 
beyond  a  reasonable  doubt,  and 
the  law  allows  him  to  testify  in  his 
own  behalf,  and  the  jury  should 
fairly  and  impartially  consider  his 
testimony,  together  with  all  the 
other  evidence  in  the  case  and  if, 
from  all  the  evidence,  the  facts 
and  circumstances  proved,  the  jury 
have  any  reasonable  doubt  of  the 
guilt  of  the  defendant  as  charged 
in  the  information,  then  the  jury 
should  give  the  defendant  the 
benefit  of  the  doubt,  and  acquit 
him. 

In  Johnson  v.  State,  34  Neb.  257, 
51  Nev.  835  (836),  the  court  ap- 
proved this  instruction: 

The  court  instructs  the  jury  that 
the  law  makes  the  defendant  a 
competent  witness  in  his  own  be- 
half, and  the  jury  should  not  dis- 
credit ihis  testimony  for  the  sole 
reason  that  he  is  the  defendant; 
still  the  jury  are  the  judges  of  the 
weight  which  ought  to  attach  to 
his  testimony;  and,  in  considering 
what  weight  should  be  given  his 
testimony,  the  jury  sihould  take  in- 
to consideration  all  the  facts  and 
circumstances  surrounding  the 
case  as  disclosed  by  the  evidence, 
and  the  interest  of  the  defendant 
in  the  result  of  the  trial,  and  give 


1642 


FORMS  OF  INSTRUCTIONS. 


[§  2547. 


§  2547.  Mexico — Oklahoma.  The  defendant  is  a  competent  wit- 
ness in  his  own  behalf^  and  when  he  testified  as  a  witness  in  this 
case  he  became  as  any  other  witness,  and  his  credibility  is  to  be 
tested  by,  and  is  subject  to,  the  same  tests  as  are  legally  applied  to 
any  other  witness;  and  in  determining  the  degree  of  credibility  that 
should  be  accorded  to  the  testimony  of  the  defendant,  the  jury  have 
a  right  to  take  into  consideration  the  fact  that  he  is  interested  in 
the  result  of  the  prosecution  as  well  as  his  demeanor  and  conduct  on 
the  witness  stand.*^ 

§  2548.  Washington.  You  are  further  instructed  that,  while  the 
law  makes  the  defendant  a  competent  witness  in  this  ease,  yet  you 
have  the  right  to  take  into  consideration  his  situation  and  interest 
in  the  result  of  your  verdict,  and  all  the  circumstances  which  sur- 
round him,  and  give  to  his  testimony  only  such  weight  as,  in  your 
judgment,  it  is  fairly  entitled  to.*^ 


the  testimony  of  the  defendant 
only  such  weight  as  they  believe  it 
entitled  to,  in  view  of  the  facts 
and  circumstances  proven  on 
trial. 

The  court  said: 

"In  St.  Louis  V.  State,  8  Neb. 
418,  1  N.  W.  Rep.  371,  the  trial 
court  has  instructed  the  jui-y  that 
they  were  at  liberty  to  take  into 
consideration  the  great  interest 
which  the  accused  has  in  the  re- 
sult. Lake,  J.,  in  discussing  the 
question  raised  by  the  instruc- 
tions, says,  'Not  only  were  the 
jury,  as  told  by  the  court,  at  lib- 
erty to  consider  this  interest,  but 
It  was  their  duty  to  do  so  in  de- 
termining the  credit  to  be  given  to 
the  prisoner's  testimony.'  In  Mur- 
phy V.  State,  15  Neb.  389,  19  N.  W. 
Rep.  489,  Reese,  J.,  says:  'It  would 
have  been  proper  for  the  court  to 
have  instructed  the  jury  that,  in 
weighing  his  (defendant's)  testi- 
mony, they  should  consider  his  in- 
terest in  the  result  of  the  trial.' 
The  instruction  in  question  is  in 
harmony  with  the  rule  which  has 
prevailed  in  this  state  ever  since 
St.  Louis  v.  State,  and  we  can  see 
no  sufficient  reason  for  reversing  it 
now." 

45— Territory  v.  Taylor,  11  N.  M. 
F.88.  71  Pac.  489  (493). 

"The  objection  to  this  instruction 
Is  not  well  founded.  Except  in  the 
two  states  of  Kentucky  and  Mis- 
Fl.«sippi,  it  is  established  that  the 
trial  court  may,  in  ci\'il  and  crim- 
inal cases,  Instruct  the  jury  that 
they  are  authorized  to  take  into 
consideration  the  interest  of  the 
party,    or   th^    relationship    of    the 


witness  testifying  to  the  party  in 
interest  in  determining  his  credi- 
bility. 11  Enc.  PI.  &  Prac.  315. 
One  instruction  somewhat  similar 
to  this  although  stronger  has  been 
directly  passed  upon  and  approved 
by  this  court  in  the  case  of  Faulk- 
ner V.  Territory,  6  N.  M.  464,  30 
Pac.  905.  We  can  see  no  objection 
to   this   instruction." 

In  Wells  V.  Territory,  14  Okla. 
436,  78  Pac.  124  (129),  the  following 
was  approved: 

A  defendant  in  a  criminal  case 
may  be  sworn  and  may  testify  in 
his  own  behalf.  In  such  a  case  the 
jury,  in  judging  the  credibility  and 
weight  to  be  given  his  testimony, 
may  take  into  consideration  the 
fact  that  he  is  the  defendant,  and 
the  nature  and  enormity  of  the 
crime  of  which  he  is  accused.  You 
are  instructed  that  you  have  no 
right  to  disregard  the  testimony 
of  the  defendant  on  the  ground 
alone  that  he  is  the  defendant,  and 
stands  charged  with  the  commis- 
sion of  a  crime.  The  law  presumes 
the  defendant  to  be  innocent  until 
he  is  proved  guilty  by  the  evi- 
dence beyond  a  reasonable  doubt, 
and  the  law  allows  him  to  testify 
in  his  own  behalf;  and  the  jury 
should  fairly  and  impartially  con- 
sider his  testimony,  under  the  in- 
structions above  given,  together 
with  all  the  other  evidence  in  the 
case,  and  if,  from  all  the  evidence, 
the  jury  have  a  reasonable  doubt 
as  to  the  guilt  of  the  defendant, 
it  is  your  duty  to  acquit  him. 

46— State  v.  Melvern,  32  Wash.  7, 
72  Pac.  489. 

"Instructions     substantially     like 


§2549. 


CRIMINAL— CONFESSIONS. 


1643 


§  2549.  West  Virginia.  The  court  instructs  the  jury  that  they  have 
no  right  to  arbitrarily  disbelieve  the  testimony  of  the  prisoner,  but 
that  they  should  weigh  and  consider  his  testimony  the  same  as  any 
other  witness  in  the  case,  giving  it  such  weight  as  they  think  it  is 
entitled  to.*^ 

§  2550.  Wisconsin — Wyoming.  Under  the  laws  of  this  state  the 
defendant  is  a  competent  witness  in  his  own  behalf.  Notwithstand- 
ing that  fact,  however,  the  jurj^  have  a  right  to  consider  the  situa- 
tion, his  interest  in  the  result  of  the  trial,  the  temptation  that  ex- 
ists under  the  circumstances  to  testify  falsely,'  and  everj'thing  ap- 
pearing in  the  ease  bearing  on  his  credibility;  and  it  is  your  duty  to 
give  his  testimony  such  weight  as  you  believe  it  entitled  to  receive. 
It  should  be  considered  in  connection  with  all  the  other  evidence  in 
the  case,  and  the  same  tests  that  are  applied  to  his  testimony  for  the 
purpose  of  determining  its  credibility  should  be  applied  to  the  tes- 
timony of  each  and  every  other  witness.*^ 


that  above  quoted  have  been  fre- 
quently sustained  by  the  courts. 
See  State  v.  Sterrett,  71  Iowa  386, 
32  N.  W.  387;  People  v.  Calvin,  60 
Mich.  113,  26  N.  W.  851;  Haines  v. 
Territory,  3  Wyo.  167,  13  Pac.  8; 
State  v.  Elliott,  90  Mo.  350,  2  S.  W. 
411;  Territory  v.  Gonzales,  11  N. 
M.  301,  68  Pac.  925;  People  v.  Cro- 
nin,  34  Cal.  204;  Anderson  v.  State, 
104  Ind.  467,  4  N.  E.  63.  5  N.  E.  711, 
5  Am.  Cr.  Rep.  601;  State  v.  San- 
ders, 76  Mo.  35;  2  Thompson  on 
Trials,  par.  2445.  In  Haines  v. 
Territory,  supra,  the  instruction 
objected  to  was  practically  similar 
to  that  here  under  consideration, 
and  in  reg'ard  thereto  the  court 
said:  'It  is  conceded  that  the  above 
instruction  contains  nothing-  but 
sound  legal  propositions,  and  the 
only  complaint  made  is  that  de- 
fendants were  singled  out  by  the 
court  from  the  body  of  witnesses 
for  comment.  We  do  not  think 
the  court  erred  in  giving-  the  in- 
struction as  it  did.'  " 

In  State  v.  Deathenage,  35  "Wash. 
326,  77  Pac.  504  (506),  the  following 
was  approved: 

While  the  statute  of  this  state 
provides  that  a  person  charged 
with  crime  may  testify  in  his  own 
behalf,  he  is  under  no  obligation 
to  do  so,  and  the  statute  expressly 
makes  it  the  duty  of  the  court  to 
instruct  the  jury  that  no  inference 
of  guilt  shall  arise  ag-ainst  the  ac- 
cused if  the  accused  shall  fail  or 
refuse  to  testify  as  a  -u'itness  in 
his  own  behalf,  and  the  court  so 
instructs    the   jury   in    this   case.    ' 


See  also  State  v.  Mitchell.  32 
Wash.    64,   72   Pac.    707. 

47— State  v.  Dodds,  54  W.  Va. 
289,   46   S.    E.    228    (230). 

In  State  v.  Dodds,  supra,  the  fol- 
lowing -was  also  approved: 

The  court  instructs  the  jury  that 
in  considering  all  the  evidence  in 
this  case  they  may  consider  the 
evidence  of  the  prisoner,  and  how 
far,  if  at  all,  his  interest  in  the 
case  might  bias  his  testimony,  and 
to  g-ive  his  evidence  and  all  other 
evidence  in  the  case  just  such 
weight  as  they  may  think  it  en- 
titled  to. 

48— Grabowski  v.  State,  126  Wis. 
447,   105   N.    W.   809. 

"Certainly  this  charge,  as  so 
given,  is  not  open  to  the  criticism 
of  discriminating  against  a  single 
witness  as  claimed  by  counsel,  in 
Schutz  v.  State,  125  Wis.  452,  104 
N.  W.  90,  93,  and  cases  there  cited. 
The  portion  of  the  charg-e  as  so 
given  was  proper." 

In  Emery  v.  State,  101  Wis.  627, 
78  N.  W.  145  (154),  the  following 
was  approved: 

Under  the  law  of  this  state,  the 
defendants  are  competent  witnesses 
in  their  own  behalf.  They  have 
given  their  testimony,  and  it  is 
before  you  to  consider  with  the 
other  evidence  in  the  case.  They 
are  directly  interested  in  the  re- 
sult of  this  trial.  In  determining 
the  weight  to  be  given  to  their 
testimony  it  is  proper  for  you  to 
take  such  interest  into  considera- 
tion. You  are  to  give  their  testi- 
mony such  weight  as  under  all  cir- 


1644 


FORMS  OP  INSTRUCTIONS. 


[§  2551. 


§  2551.  U.  S.  Courts.  The  defendant  goes  upon  the  stand  before 
you  and  he  makes  his  statement;  tells  his  story.  Above  all  things, 
in  a  case  of  this  kind  you  are  to  see  whether  that  statement  is  cor- 
roborated substantially  and  reliably  by  the  proven  facts;  if  so,  it  is 
strengthened  to  the  extent  of  its  corroboration.  If  it  is  not  strength- 
ened in  that  way,  you  are  to  weigh  it  by  its  own  inherent  truthful- 
ness, its  own  inherent  proving  power  that  may  belong  to  it.*^ 

§  2552.    Unsworn  Statement  of  Defendant — Georgia  Statute.     The 

defendant  in  this  case  avails  himself  of  this  statute :  In  all  criminal 
trials  in  this  state,  the  prisoner  shall  have  the  right  to  make  the 
court  and  juiy  such  statement  in  the  case  as  he  or  she  may  deem 
proper  in  his  or  her  defense,  said  statement  not  to  be  under  oath, 
and  to  have  such  force  only  as  the  jury  may  think  right  to  give  it ; 
and  the  jury  may  believe  such  statement  in  preference  to  the  sworn 
testimony  in  the  case :  provided  the  prisoner  shall  not  be  compelled 
to  answer  any  question  on  cross-examination  should  he  or  she  think 
proper  to  decline  to  answer  such  question. ^*^ 


cumstances,  you  think  it  entitled 
to.  If  otlier  witnesses  have  any 
such  interest  disclosed  by  the  evi- 
dence, it  is  your  duty  to  consider 
it  in  determining-  the  degree  of 
credit  that  should  be  given  their 
testimony.  You  are  cautioned, 
however,  that  interest  in  the  result 
of  the  trial  creates  no  presumption 
that  such  witnesses  will  swear 
falsely. 

In  Younger  v.  State;  12  Wyo.  24, 
73  Pac.  551  (553),  this  instruction 
was  .ipproved:    , 

The  jury  have  no  right  to  dis- 
regard the  testimony  of  the  de- 
fendant on  the  ground  alone  that 
he  is  the  defendant  and  has  been 
charged  with  the  commission  of  a 
crime.  The  law  presumes  the  de- 
fendant to  be  innocent  until  he 
has  been  proved  guilty,  and  the 
law  allows  a  man  to  testify  in  his 
own  behalf,  and  the  jury  should 
fairly  and  impartially  consider  his 
testimony,  together  with  all  the 
other  evidence  in  the  case. 

In  Younger  v.  State,  supra,  the 
following  was  approved: 

The  defendant  has  offered  him- 
self as  a  witness  on  his  own  be- 
half in  this  trial,  and  in  consider- 
ir.g-  the  weight  and  effect  to  be 
given  his  evidence,  in  addition  to 
noticing  his  manner  and  the  prob- 
ability of  his  statements,  taken  in 
connection  with  the  evidence  with- 
in the  cause,  you  should  consider 
his  relation  and  situation  under 
which  he  gave  his  testimony,  the 
couaequences  to  him  relating  as  a 


result  from  this  trial,  and  all  of 
the  inducements  and  temptations 
which  would  ordinarily  influence  a 
person  in  his  situation.  You  should 
carefully  determine  the  amount  of 
credibility  to  which  the  witness  is 
entitled.  If  convincing-  and  carry- 
ing with  it  a  belief  in  its  truth  act 
upon  it;  if  not,  you  have  a  right  to 
reject   it. 

The  court  said  that  similar  in- 
structions had  been  approved  in 
the  following   cases: 

"Norris  v.  State,  87  Ala.  85,  6 
So.  371;  Bressler  v.  People,  117 
111.  439,  8  N.  E.  62;  State  v.  Adair, 
160  Mo.  391,  61  S.  W.  187;  State  v. 
Miller,  159  Mo.  113,  60  S.  W.  67; 
State  V.  Wisdom,  84  Mo.  190;  Ran- 
dall v.  State,  132  Ind.  539,  32  N.  E. 
305;  Haines  v.  Territory,  3  Wyo. 
168,    13    Pac.    8." 

49 — Johnson,  alias  Overton  v.  U. 
S.,  157  U.  S.  320  (323),  15  S.  Ct.  614. 
Compare  an  instruction  on  the 
same  point  in  Hicks  v.  U.  S.,  150 
U.   S.  442  (450),  14  Sup.  Ct.  144. 

50— Hinkle  v.  State,  94  Ga.  595,  21 
S.  E.  595  (601).     A  homicide  case. 

In  Smith  v.  State,  94  Ga.  591,  22 
S.  E.  214  (216),  homicide  case,  the 
following  was  approved: 

The  law  declares,  in  all  criminal 
cases  in  this  state  defendant  shall 
make  to  the  court  and  jury  just 
such  statement  in  his  defense  as 
he  thinks  proper  to  make.  Such 
statement  is  not  to  be  under  oath, 
a'ld  is  to  have  just  such  force  and 
effect  only  as  the  jury  think  prop- 
er to  give  it;  but  the  jury  may  be- 


2553.] 


CRIMINAL— CONFESSIONS. 


1645 


§  2553.  Defendant  Competent  Witness.  The  defendant  is  a  com- 
petent witness  in  his  own  behalf,  and  his  testimony  is  to  be  weighed 
by  the  same  rules  that  govern  the  testimony  of  other  witnesses;  but 
in  weighing  his  testimony  the  jury  may  take  into  consideration  the 


lieve  it  in  preference  to  the  sworn 
testimony,  if  they  think  proper  to 
believe  it,  provided  the  defendant 
shall  not  be  subject  to  cross-exami- 
nation, except  by  his  own  consent. 

In  Walker  v.  State,  120  Ga.  491, 
48  S.  E.  184,  the  following  was  held 
unobjectionable  as  "amounting  to 
an  instruction  that  the  jury  were 
authorized,  if  they  saw  fit,  to  con- 
sider the  statement  in  connection 
with  the  evidence,  and  weigh  it  all 
together,  to  see  what  credit  should 
be  given  to  each." 

The  court  instructs  the  jury  that 
the  defendant  on  trial  is  allowed 
to  make  a  statement  in  'his  own 
behalf.  The  statement  is  a  volun- 
tary statement  not  made  under 
oath,  and  made  by  the  defendant 
in  his  own  behalf;  but  the  state- 
ment is  allowed  to  go  to  the  jury, 
to  be  considered  by  them  and  given 
such  weight  and  credit  as  the  jury 
see  proper  to  give  it.  The  jury 
have  the  right  to  believe  the  state- 
ment of  the  defendant  in  prefer- 
ence to  all  the  sworn  evidence  in 
the  case,  if  they  see  proper  to  do 
so,  or  the  jury  have  the  right  to 
believe  the  sworn  testimony  in 
preference  to  the  voluntaiT  state- 
ment of  the  defendant,  if  they  see 
proper  to  do  so.  The  jury  have 
the  right  to  believe  portions  of 
the  statement  and  portions  of  the 
sworn  evidence  in  arriving  at  a 
verdict  in  the  case.  It  should  be 
the  object  and  purpose  of  an  im- 
partial jury  impaneled  and  sworn 
to  try  the  case  between  the  state 
and  the  defendant  to  find  a  true 
verdict,  and  in  their  deliberations 
they  should  accept  the  truth  of 
the  transaction,  whether  it  comes 
from  the  statement  of  the  de- 
fendant or  from  the  sworn  testi- 
mony. You  should  consider  care- 
fully the  statement  made  by  the 
defendant,  so  as  to  determine 
whether  it  is  the  truth  about  the 
manner  of  the  killing.  Consider  it 
in  connection  with  all  the  other 
facts  and  circumstances  proven  to 
your  satisfaction,  and  see  if  it  is 
.  corroborated  by  the  sworn  evi- 
dence or  any  physical  facts  proven 
to  your  satisfaction,  or  whether  it 
is  inconsistent  with  or  contradicted 


by  other  facts  and  circumstances 
proven  to  be  true  in  the  case  to 
your  satisfaction  beyond  all  reason- 
able doubt;  and  when  you  have 
carefully  considered  the  statement 
and  explanation  of  the  defendant 
as  to  how  the  killing  occurred  in 
connection  with  and  along  with  the 
sworn  testimony  submitted  to  you, 
then  you  will  determine  what 
weight  and  credit  you  will  give  to 
the  defendant's  statement.  You 
will  then  determine,  as  rational, 
reasonable  jurors,  whether,  under 
all  the  evidence  submitted  to  you, 
considered  in  connection  with  the 
defendant's  statement,  you  are  sat- 
isfied beyond  all  reasonable  doubt 
as  to  the  defendant's  guilt,  under 
the  law  which  I  will  read  to  you, 
applied  to  what  you  find  to  be  the 
facts   in  regard  to   the  killing. 

In  Barnes  v.  State,  113  Ga.  716,  39 
S.  E.  488,  the  following  insti'uction 
was  approved,  although  a  dissent- 
ing opinion  held  it  erroneous  on 
the  ground  that  the  prisoner  had 
the  right  to  have  his  statement 
considered  by  itself  without  test- 
ing its  correctness  by  the  other 
evidence. 

The  court  instructs  the  jury  that 
the  prisoner  has  the  right  to  make 
a  statement  not  under  oath.  It  is 
your  province  and  duty  to  consider 
his  statement  in  connection  with 
the  sworn  testimony  in  the  case, 
and  give  it  such  weight  as  you 
think  pi-oper.  If  you  find  the  state- 
ment consistent  and  true,  you  have 
the  right  to  believe  it  in  preference 
to  the  sworn  testimony  in  the  case. 
You  should  do  so  not  carelessly 
and  capriciously,  but  under  your 
oath  as  jurors,  considering  the 
statement  in  connection  with  the 
sworn  testimony  in  the  case,  and 
testing  it  in  the  light  of  that  testi- 
mony, giving  it  such  weight  as  you 
think  proper.  That  is  a  matter 
exclusively  for  your  determination. 

In  Mason  v.  State,  97  Ga.  388, 
23  S.  E.  831,  the  following  was  ap- 
proved : 

To  this  statement  you  can  give 
just  credit  as  you  think  it  is  en- 
titled to.  You  may  believe  the 
whole  of  it,  or  any  part  of  it.  You 
may  reject  the  whole  of  it  or  any 
part  of  it.    You  may  go  to  the  ex- 


1646 


FORMS  OF  INSTRUCTIONS. 


[§  2554. 


fact  that  he  is  the  defendant  in  the  case,  and  his  interest  in  the 
result  of  the  trial.^i 

§  2554.  Defendant  and  His  Wife  Competent  Witnesses — Weighing 
Their  Testimony — Missouri.  The  court  instructs  tlie  jury  that  the 
defendant  and  his  wife  are  competent  witnesses  in  his  behalf,  but  the 
fact  that  he  is  the  defendant,  and  that  she  is  his  wife,  on  trial,  and 
the  interest  he  has  in  his  own  case,  and  she  has  as  his  wife  in  same, 
may  be  considered  by  the  jury  in  estimating  the  weight  to  be  given 
to  their  testimony.^- 

§  2555.  Defendant  Need  Not  Testify,  (a)  The  defendant  in  this 
ease  had  a  right  to  go  upon  the  witness  stand  to  testify  in  his  own  be- 
half, if  he  chose  to  do  so.  The  law,  however,  expressly  provides  that 
no  presumption  adverse  to  him  is  to  arise  from  the  mere  fact  that  he 
does  not  place  himself  upon  the  witness  stand.  So,  in  this  case,  the 
mere  fact  that  this  defendant  has  not  availed  himself  of  the  privilege 
which  the  law  gives  him,  should  not  be  permitted  by  you  to  prejudice 
him  in  any  way.  It  should  not  be  considered  as  evidence  either  of  his 
guilt  or  innocence.  The  failure  of  the  defendant  to  testify  is  not 
even  a  circumstance  against  him,  and  no  presumption  of  guilt  can  be 
indulged  in  by  the  jury  on  account  of  such  failure  on  his  part.^^ 


tent  of  believing-  it  in  preference 
to  the  sworn  testimony  in  tlae  case, 
provided  you  believe  it  to  be  the 
truth. 

In  Westbrook  v.  State,  97  Ga.  189, 
22  S.  E.  398,  it  was  held  there  was 
no  error  in  giving  the  following: 

Find  out  what  the  truth  of  the 
case  is;  what  the  real  facts  are; 
and  look  to  the  evidence  for  that 
purpose,  and  to  the  prisoner's 
statement,  if  you  think  it  is  worthy 
of  credit. 

"It  is  not  necessary  to  state  that 
a  reasonable  doubt  may  arise  from 
the  prisoner's  statement,  when  the 
jury  are  instructed  generally  as  to 
the  weight  to  be  given  to  that 
statement.  Walker  v.  State,  118 
Ga.   34,   44  S.   E.   850." 

51— State  V.  McCarver,  194  Mo. 
717.    92    S.    W.    684. 

52— State  v.  Milligan,  170  Mo. 
215.  70  S.  W.   473. 

53 — People  v.  Provost,  144  Mich. 
17.  107  N.   W.   716. 

"The  statute  in  this  state  which 
makes  a  defendant  in  a  criminal 
case  a  competent  witness  reads: 
'No  person  shall  be  disqualified  as 
a  witness  in  any  criminal  cise  or 
proceeding,  by  reason  of  his  in- 
terest In  the  event  of  the  same  as 
a  party  or  otherwise,  or  by  reason 
of  hl.s  having  been  convicted  of 
any   crime;   but     such    interest     or 


conviction  may  be  shown  for  the 
purpose  of  affecting  his  credibility; 
provided  however,  that  a  defend- 
ant in  a  criminal  case  or  proceed- 
ing shall  only  at  his  own  request 
be  deemed  a  competent  witness, 
and  his  neglect  to  testify  shall  not 
create  any  presumption  against 
him  nor  shall  the  court  permit 
any  reference  or  comment  to  be 
made  to  or  upon  such  neglect.'  Sec- 
tion  10,    211,    Comp.    Laws   1897. 

The  consideration  of  statutes 
similar  to  this  has  been  before  the 
courts  of  several  states.  It  will 
be  noted  that  the  statutes  of  some 
of  these  states  differ  in  some  re- 
spects from  the  statute  in  this 
state.  In  Missouri  and  Minnesota, 
both  court  and  counsel  are  pro- 
hibited by  statute  from  making 
any  comments  whatever  upon  the 
fact  that  a  defendant  has  not  tes- 
tified. State  V.  Robinson,  117  Mo. 
649,  23  S.  W.  1066;  State  v.  Pearce. 
56  Minn.  226,  57  N.  W.  652,  1065.  In 
Iowa  and  Texas,  where  the  statute 
prohibits  the  attorney  for  the  state 
from  referring  to  the  fact  that  the 
defendant  has  not  testified,  and 
makes  such  reference  a  misde- 
meanor and  cause  for  new  trial, 
the  courts  hold  that  a  charge  in- 
structing the  jury  that  such  a  fail- 
ure to  testify  raises  no  presump- 
tion against  him  was  not  prohibit- 
ed.    State  v.   Weems,   96  Iowa  426, 


§  2556.] 


CRIMINAL— CONFESSIONS. 


1647 


(b)  The  court  instructs  the  jury  that  a  defendant  in  a  criminal 
action  or  proceeding  cannot  be  compelled  to  be  a  witness  against 
himself,  and  if  the  defendant  does  not  claim  the  right  to  be  sworn 
and  does  not  testify,  this  fact  must  not  be  used  to  his  prejudice.^* 

§  2556.  Defendant's  Failure  to  Testify  Not  to  Be  Taken  Against 
Him — Louisiana.  You  are  instructed  that  while  under  the  statute 
the  accused  is  permitted  to  testify,  yet  it  does  not  require  him  to  tes- 
tify, and  if  the  defendant  does  not  testify,  such  fact  is  not  to  be 
taken  against  him.^^ 


65  N.  W.  387;  Fulcher  v.  State,  28 
Tex.  App.  465,  13  S.  W.  750;  see  al- 
so State  V.  Skinner,  34  Kan.  256, 
8  Pac.  420.  The  same  was  held  in 
Ohio  under  a  statute  practically 
the  same  as  in  this  state.  Sulli- 
van V.  State,  9  Ohio  Cir.  Ct.  Rep. 
652,  4  Cir.  Dec.  451.  In  New  York 
a  charge  given  by  the  court,  on  its 
own  motion,  broader  than  the 
charge  requested  in  the  case  at 
bar,  was  held  not  to  be  erroneous. 
People  V.  Hayes,  140  N.  T.  485,  35 
N.  E.  951,  23  L.  R.  A.  830,  37  Am. 
St.  Rep.  572,  citing  and  approving, 
Ruloff  V.  People,  45  N.  Y.  213.  See 
also,  People  v.  Fitzgerald,  20  App. 
Div.  139,  46  N.  Y.  Supp.  1020.  In 
several  states  it  has  been  held 
proper  to  give  such  a  charge,  but 
not  error  to  omit  it  in  the  absence 
of  a  request  to  do  so.  People  v. 
Flynn,  73  Cal.  511,  15  Pac.  102;  Metz. 
V.  State,  46  Neb.  547,  65  N.  W.  190; 
Felton  V.  State,  139  Ind.  531,  39  N. 
E.  228.  In  Maine  and  Illinois  the 
question  raised  the  case  at  bar 
was  squarely  before  the  courts.  In 
State  V.  Landry,  85  Me.  95,  26  Atl. 
998,  the  court  said:  'The  request- 
ed instruction  should  have  been 
given.  It  was  in  exact  verbal  ac- 
cordance with  the  rule  laid  down 
in  State  v.  Banks.  78  Me.  490,  7 
Atl.  269.  The  legal  proposition  was 
relevant  to  the  issue.  It  was  found- 
ed upon  the  statutory  provision 
that  the  fact  that  the  person  ac- 
cused does  not  testify  in  his  be- 
half shall  not  be  taken  as  evidence 
of  his  guilt.  The  respondent  was 
entitled  to  have  the  jury  know  of 
the  existence  of  the  statute  and  un- 
derstand the  effect  of  it.  If  not  so, 
then  a  statute  expressly  created 
for  the  benefit  of  a  class  of  per- 
sons is  wholly  useless  to  them.  The 
natural  inclination  of  the  jury 
would  lead  them  to  adopt  the  pre- 
sumption which  the  statute  was 
designed    to    prevent. 

It  is  contended  that  in  the  Maine 
and     Illinois     cases     the      circum- 


stances were  such,  that  such  a 
charge  was  made  necessary,  and 
the  decisions  are  to  be  accounted 
for  on  that  ground.  We  do  not  so 
construe  these  opinions.  In  both 
states  the  courts  hold  defendants 
were  entitled  to  have  the  law  in 
this  regard  stated  to  the  jury.  The 
peculiar  circumstances  are  men- 
tioned as  emphasizing  the  proposi- 
tion. Where  such  a  request  to 
charge  has  been  made,  we  find  no 
authority  warranting  its  refusal. 
The  contention  of  respondent  in 
this  case  is  founded  both  upon 
reason  and  authority.  A  respond- 
ent is  protected  in  his  right  under 
the  statute  to  elect  not  to  testify. 
A  jury,  upon  his  request,  should 
be  informed  of  that  right,  to  pre- 
vent the  creation  in  their  minds 
of  any  presumption  of  guilt  by 
reason  of  his  silence.  The  court 
was  in  error  in  refusing  to  give 
the   request   as    presented." 

54— State  v.  Fuller,  —  Mont.  — 
85   Pac.    369   (375). 

"Criticism  is  made  of  this  part 
of  the  charge  in  that  it  comments 
upon  and  calls  the  attention  of 
the  jury  to  the  fact  that  the  ap- 
pellant did  not  testify,  and  also 
informed  the  jury  that  the  appel- 
lant might  have  testified  had  he  so 
desired,  but  that  the  state  could 
not  compel  him  to  do  so.  The  de- 
fendant was  not  sworn  as  a  wit- 
ness. This  fact  was  apparent  to 
the  jury.  The  court  was  perhaps 
not  bound  to  instruct  the  jury  with 
reference  to  this  fact.  It  was  en- 
tirely proper,  •however,  if  the  court 
chose  to  do  so,  to  inform  the  jury 
as  it  did,  that  the  fact  that  the 
defendant  failed  to  testify  could 
not  be  used  to  his  prejudice.  In 
any  event,  the  instruction  was 
favorable  to  the  defendant,  and 
for  that  reason  he  has  no  right  to 
complain  of  it." 

55 — State  v.  Johnson,  54  La.  Ann. 
138,    23    So.    199. 
"Ingenious  .  counsel    for    the    ac- 


1648 


FORMS  OP  INSTRUCTIONS. 


[§  2557. 


§  2557.  Mississippi — Same  Subject.  It  does  not  devolve  upon  the 
defendant  to  account  for  or  to  show  the  whereabouts  of  the  infant 
in  question,  and  the  fact  that  he  does  not  testify  in  this  cause  is  not 
to  be  considered  unfavorably  to  him  by  the  jury.^" 

§  2558.  Missouri — Same  Subject.  The  court  instructs  the  jury 
that  the  fact  that  the  defendant  did  not  testify  should  not  be  con- 
sidered by  the  jury  in  arriving  at  a  verdict  in  this  case,  and  no  juror 
shouKl  be  prejudiced  against  the  defendant  because  he  did  not  testify 
in  the  ease.^^ 


cused,  in  the  brief,  state  that  no 
judge  would  presume  to  comment 
upon  the  fact  that  a  witness  had 
not  been  called  by  the  accused, 
and  that,  even  if  the  other  evi- 
dence in  the  case  plainly  showed 
that  a  certain  person  knew  all 
about  the  matter,  still,  if  the  ac- 
cused failed  or  refused  to  place  the 
person  on  the  stand,  the  judge 
could  not  legally  call  the  atten- 
tion of  the  jury  to  the  fact;  that 
he  would  not  be  allowed  to  say: 
'There  seems  to  have  been  a  wit- 
ness who  knew  all  about  this  mat- 
ter. He  could  have  been  produced 
by  the  accused.  Indeed,  the  ac- 
cused was  the  only  one  who  could 
have  made  him  a  witness.  No  one 
else  could  have  done  so.  But, 
gentlemen  of  the  jury,  that  j:act 
must  not  be  construed  against  the 
accused.  He  was  not  bound  to 
do  so.'  The  affirmative  statement 
of  the  court,  as  put  by  counsel  in 
argument,  is  so  pronounced,  and 
so  directly  bears  on  the  case  of  an 
accused  for  not  producing  a  wit- 
ness, that  it  renders  of  no  effect 
all  subsequent  admonition  of  the 
court.  Here  the  case  is  different. 
*  *  *  The  accused  remained  silent, 
and  the  judge  informed  the  jury 
that  the  privilege  of  silence  should 
not  occasion  question  or  suspicion 
of  any  kind.  We  would  not  be 
justified  in  assuming  that  the  jury 
took  a  contrary  view,  and  upon 
his  silence  found  him  guilty,  de- 
spite the  instruction  of  the  court." 
Among  the  cases  cited  against 
the  instruction  was  State  v.  Carr, 
25  La.  Ann.  408.  Counsel  for  de- 
fendant cites  Wilson  v.  U.  S.,  149 
U.  S.  60,  13  Sup.  Ct.  765;  Austin  v. 
People,  102  111.  261-264,  and  State  v. 
Cameron,  40  Vt.  556.  See  also 
Tines  v.  Commonwealth,  25  Kv. 
Law,  123.3,  77  S.  W.  363  (364),  hold- 
ing that  it  is  error  for  the  court 
to  state  the  terms  of  the  statute 
to  the  jury,  the  prisoner  being  en- 


titled to  absolute  silence  on  that 
subject. 

In  State  v.  Marceaux,  50  La. 
1137,  24  So.  611  (614)  the  following 
was  approved: 

The  court  instructs  the  jury  that, 
while  the  law  provides  that  a  per- 
son charged  with  a  crime  may  tes- 
tify in  his  own  behalf,  yet  he  is 
under  no  obligation  to  do  so,  and 
the  law  expressly  declares  that  his 
failure  to  testify  should  not  be 
construed  for  or   against  him. 

56 — Haynes  v.  State,  —  Miss.  — , 
27  So.  601   (602). 

57— State  v.  DeWitt,  186  Mo.  61 
(65),  84  S.  W.  956.     Rape  case. 

"Our  statute  (section  2638,  Rev. 
St.  1899)  provides  that:  'If  the  ac- 
cused shall  not  avail  himself  or 
herself  of  his  or  her  right  to  testi- 
fy or  of  the  testimony  of  the  wife 
or  husband  on  the  trial  in  the  case, 
it  shall  not  be  construed  to  affect 
the  innocence  or  guilt  of  the  ac- 
cused, nor  shall  the  same  raise 
any  presumption  of  guilt  nor  be  re- 
ferred to  by  any  attorney  in  the 
case  nor  be  considered  by  the 
court  or  jury  before  whom  the  trial 
takes  place.'  Counsel  for  defend- 
ant urges  that  the  giving  of  the 
foregoing  instruction  was  a  viola- 
tion of  section  2638,  supra,  and 
was  a  comment  on  the  evidence. 
The  latter  objection  is  clearly  not 
tenable.  Certainly  it  was  not  a 
prejudicial  comment  to  defendant. 
Was  it  a  violation  of  the  statute 
to  mention  the  failure  to  testify? 
Every  juror  knows  that  the  de- 
fendant may  testify  if  ne  sees  fit, 
and  we  have  often  ruled  that  it  is 
reversible  error  for  counsel  for  the 
state  to  comment  upon  such  fail- 
ure; but  does  this  instruction  in 
any  way  fall  within  the  mischiefs 
which  we  have  so  often  con- 
demned? We  think  not.  By  it  the 
jury  were  cautioned  and  prohibited 
from  using  such  fact  in  arriving 
at  a  verdict.  The  jury  are  required 


2559.] 


CRIMINAL— CONFESSIONS. 


1649 


§  2559.  Same  Sul)ject — Nebraska.  You  are  instructed  that,  while 
the  statute  of  this  state  provides  that  a  person  charged  with  crime 
may  testify  in  his  own  behalf,  yet  he  is  under  no  obligation  to  do 
so,  and  the  statute  expressly  declares  that  his  neglect  to  do  so  shall 
not  create   anj^  presumption  against  him.°^ 

§  2560.  Defendant's  Failure  to  Testify  Not  to  Be  Alluded  to  in 
Jury's  Deliberations — Texas.  The  jury  are  instructed  that  any  de- 
fendant in  a  criminal  action  shall  be  permitted  to  testify  in  his  own 
behalf  therein,  but  the  failure  of  any  defendant  so  to  testify  shall 
not  be  taken  as  a  circumstance  against  him.  And  in  this  case  the 
jury  should  not  take  into  consideration  the  fact  that  the  defendant 
has  failed  to  testify  as  a  witness  in  his  own  behalf,  and  the  jury 


to  accept  the  law  of  the  case  from 
the  court,  and  when  the  court  posi- 
tively directs  them  they  shall  not 
consider  a  certain  fact  how  can  it 
be  said  that  such  a  chai'ge  is  pre- 
judicial error.  We  are,  however, 
confronted  with  what  was  said  in 
State  V.  Robinson,  117  Mo.  649,  23 
S.  "W.  1066.  In  that  case  the  de- 
fendant prayed  an  instruction  that 
his  failure  to  testify  should  not 
create  any  presumption  against 
him,  which  was  refused,  and  the 
refusal  was  assigned  as  error  In 
this  court.  It  was  held  not  er- 
ror, and  it  was  added,  'If  the  court 
had  given  such  an  instruction,  it 
would  have  disobeyed  the  spirit,  if 
not  the  letter,  of  the  law.'  That 
such  an  instruction  is  not  neces- 
sary, and  that  it  would  not  be  er- 
ror to  refuse  it,  we  may  concede; 
but  is  it  reversible  error  to  give  it 
in  the  form  in  which  this  instruc- 
tion w'as  given  in  this  case?  Upon 
a  full  reconsideration  of  the  point 
we  are  satisfied  it  was  not  preju- 
dicial to  the  defendant.  It  is  the 
law  that  the  jury  shall  not  con- 
sider the  failure  of  the  defendant 
to  testify,  and  how  can  it,  in  rea- 
son, be  held  error  for  the  court  to 
caution  the  jury  against  consider- 
ing that  which  the  law  forbids? 
Taking  the  whole  section  together, 
and  the  purpose  of  its  enactment, 
we  think  it  was  designed  to  pre- 
vent the  indulging  of  any  adverse 
presumption  by  court  or  jury  from 
the  failure  of  defendant  to  testify 
and  to  prohibit  any  adverse  com- 
ment on  that  account;  but  to 
say  that  when  a  court  directs  a 
jury  they  shall  not  consider  such 
a  failure  to  testify  in  making  up 
their  verdict  amounts  to  an  ad- 
verse comment  is  illogical  and  un- 
reasonable,    and    we    must    reject 

104 


such  a  conclusion.  We  think  that 
while  it  was  unnecessary  to  give 
the  instruction  it  was  not  revers- 
ible  error   to   do   so." 

58— Lamb  v.  State,  69  Neb.  212, 
95  N.   W.   1050. 

"It  may  well  be  doubted  whether 
the  beneficent  purpose  of  the  stat- 
ute is  not  in  some  measure  thwart- 
ed by  the  giving  of  an  instruction 
which  pointedly  directs  the  atten- 
tion of  the  jury  to  the  fact  that 
the  accused  might  have  been,  but 
was  not,  a  witness  in  his  own  be- 
half. However,  it  is  now  settled 
doctrine  in  this  state  that  the  giv- 
ing of  an  instruction  like  the  one 
above  set  out  is  not  error.  Metz  v. 
State,  46  Neb.  547,  65  N.  W.  190; 
Ferguson  v.  State,  52  Neb.  432,  72 
N.  W.  590,  66  Am.  St.  Rep.  512. 
The  jury  may  be  told  that  the 
failure  of  defendant  to  testify  does 
not  create  any  presumption  against 
him,  but  our  decisions  give  no 
countenance  to  the  claim  that  the 
court  must,  if  requested,  direct 
them  to  refrain  from  commenting 
on  the  fact  that  he  did  not  avail 
himself  of  his  statutory  privilege. 
The  prohibition  against  reference 
to,  or  comment  upon,  the  failure 
of  ctn  accused  person  to  testify 
was  evidently  intended  as  a  re- 
straint upon  the  public  prosecutor, 
and,  with  the  exception  indicated 
by  our  previous  decisions,  upon 
the  court  as  well.  State  v.  Robin- 
son, 117  Mo.  663,  23  S.  W.  1066; 
State  V.  Weems.  96  Iowa  426,  65 
N.  W.  387;  State  v.  Pearce,  56 
Minn.  226,  57  N.  W.  652,  1065;  Sul- 
livan V.  State,  9  Ohio  Cir.  Ct.  R. 
652;  Enc.  PI.  &  Pr.  .352.- 

The  statutory  provision  of  Ne- 
braska is  as  follows:  "  *  *  *  nor 
shall  the  neglect  or  refusal  to 
testify     create     any     presumption 


1650  FORMS  OF  INSTRUCTIONS.  [§  2561. 

are  further  instructed  not  to  allude  to  this  fact  in  their  deliberations 
in  arriving  at  a  verdict. ^^ 

§  2561.  Defendant  Willfully  Swearing  Falsely.  If  the  jury  believe 
from  the  evidence  that  any  witness  in  this  cause  has  willfully  sworn 
falsely  on  this  trial  as  to  any  matter  or  thing  material  to  the  issues 
in  the  ease,  then  the  jury  are  at  liberty  to  disregard  his  entire  testi- 
mony except  in  so  far  as  it  has  been  corroborated  by  other  evidence, 
or  by  the  facts  and  circumstances  proved  on  the  trial.  The  defend- 
ant in  this  case,  having  gone  upon  the  stand  as  a  witness  in  his  own 
behalf,  subjects  himself  to  all  the  rules  governing  the  credibility  of 
other  witnesses,  and  this  instruction  applies  equally  to  him  as  well  as 
to  any  other  witness."" 

§  2562.    Fabrication  of  Testimony  by  Defendant.     The  jury  are 
instructed,  that  if  they  believe,  from  the  evidence,  that  the  accused 
believed  that  the  circumstances  surrounding  him  were  calculated  to\ 
awaken  suspicion  against  him,  and  that  he  was  ignorant  of  the  na-  > 
ture  and  course  of  criminal  proceedings,  and,  under  such  belief,  was  ' 
induced  by  his  friends  to  fabricate   testimony,  then,  the  jury  may 
take  these  facts  into  consideration  in  considering  the  conduct  of  the 
defendant  in   relation   to   fabricating  such   testimony,  and  in   deter- 
mining his  guilt  or  innocence.*'^ 

§  2563.    Fabrication  of  Evidence — Used    Against    Accused.     You 

will  understand  that  your  first  duty  in  the  ease  is  to  reject  all  evi- 
dence that  you  may  find  to  be  false;  all  evidence  that  you  may  find 
to  be  fabricated,  because  it  is  worthless ;  and  if  it  is  purposely  and 
intentionally  invoked  by  the  defendant  it  is  evidence  against  him; 
it  is  the  basis  for  a  presumption  against  him,  because  the  law  says 
that  he  who  resorts  to  perjury,  he  who  resorts  to  subornation  of  per- 
juiy  to  accomplish  an  end,  this  is  against  him,  and  you  may  take 
such  action  as  the  basis  of  a  presvimption  of  guilt.*'^ 

§  2564.  Admission  of  Other  Crimes — Indiana.  In  this  ease,  as 
in  all  other  criminal  cases,  the  law  provides  that  the  defendant  is  a 
competent  witness  in  his  own  behalf,  and  that  his  testimony  is  to 
be  received  and  weighed  'by  the  jury  as  in  the  case  of  the  testimony 
of  any  other  witness ;  and  if,  in  this  case,  the  defendant  has  elected 
to  testify  in  his  own  behalf,  and  in  so  doing  has  testified  to  the  com- 
mission of  any  other  or  different  crime  from  the  one  here  charged 

ag-ainst   him,   nor   shall    any   refer-  in    the   above   instruction.      It    cer- 

en'^e  be  made  to,  nor  any  comment  tuinly    states     the     law     correctly, 

upon,     such      neglect    or    refusal."  and  it  would,  therefore  seem  to  be 

Sec.  473  Neb.  Crim.  Code.  unobjectionable.      Rider  v.    People, 

59— "This  charge  was  proper,  and  110  111.  13.     See  also,   Spies  v.  Peo- 

the    court    did    not    err    in    giving  pie,  122  111.  1,  12  N.  E.  865,  17  N.  B. 

the     same."     McCoy     v.     State,    —  898,   3  Am.   St.   Rep.   320,  5  Am.   Cr. 

Tex.   Cr.   App.   — .  81   S.   W.   46   (47).  Rep.  637,  6  Am.   Cr.   Rep.  570." 

60— State  v.  Melvern,  32  "Wash.  7,  61— Yoe  v.  People,  49  Til.  410. 

72   Pac.    489   (496).  62— Allen   v.    U.    S.,   164   U.    S.   492 

"Nor   do   we   perceive   any   error  (499),    17   S.    Ct.    154. 


§  2565.]  CRIMINAL— INDICTMENT.  1651 

in  the  indictment,  you  will  not,  nor  have  you  the  right  to,  consider 
such  testimony  for  the  purpose  of  punishing  him  for  the  crime  here 
charged,  nor  must  you  talk  about  it  in  your  jury  room  for  that  pur- 
pose, but  must  wholly  free  your  mind  from  any  such  thing,  and  not 
permit  it  to  prejudice  5'ou  or  bias  your  judgment  against  the  cause 
of  the  defendant.  But  you  may  consider  such  evidence,  if  any  there 
be,  in  this  case,  in  determining  what  credibility  should  be  given  to 
the  defendant's  testimony  in  this  case."^ 

§2565.  Conduct  of  Defendant.  The  defendant  has  testified  to 
his  actions  and  conduct  the  night  of  the  fire.  You  are  to  inquire 
whether  this  is  indicative  of  innocence  or  guilt  and  whether  it  is  con- 
sistent with  the  hj'pothesis  that  the  defendant  did  not  criminally 
cause  the  death  of  these  parties.*^* 


INDICTMENT. 

§  2566.  Indictment  Not  Evidence,  (a)  The  jurors  are  instructed 
that  the  indictment  in  this  case  is  of  itself  a  mere  formal  accusation 
or  charge  against  the  defendant,  and  is  not  of  itself  any  evidence  of 
the  guilt  of  the  defendants,  or  of  any  one  of  them;  and  no  juror 
should  permit  himself  to  be  to  any  extent  influenced  against  any  of 
the  defendants  because  or  on  account  of  the  indictment  in  the  case, 
nor  by  reason  of  the  fact  that  they  were  convicts  in  the  penitentiaiy 
when  the  killing  charged  in  the  indictment  occurred.®^ 

(b)  The  indictment  preferring  this  charge  against  defendant  is 
no  evidence  whatever  of  his  guilt;  it  is  simply  an  accusation  or 
charge ;  and  no  juror  should  suffer  himself  to  be  influenced  in  the 
slightest  degree  by  the  fact  that  this  indictment  has  been  returned 
against   the  defendant.''^ 

(c)  The  juiy  are  instructed  that  the  indictment  in  this  case  is 
of  itself  a  mere  formal  accusation  or  charge  against  the  defendant, 
and  it  is  not  of  itself  any  evidence  of  defendant's  guilt,  and  no  juror 

63 — Boyle    v.    State,    105    Tnd.    469,  error  of  which  the  appellant  could 

5  N.  E.  203   (208),   55  Am.   Rep.  218.  avail  himself  for  a  reversal  of  the 

Homicide  case.  judgment." 

"It  has  been  the  law  in  this  64— Schwantes  v.  State,  127  Wis. 
state  since  1852  that  the  conviction  160,  106  N.  W.  237. 
of  an  infamous  crime  may  be  "It  is  suggested  that  the  Ian- 
proved  against  the  credibility  of  a  guage  tended  to  convey  to  the 
witness,  and  for  hundreds  of  years  jury  that  the  trial  court  believed 
it  was  the  rule  of  the  common  law  the  accused  to  be  guilty.  No  good 
that  the  conviction  of  an  infamous  reason,  in  fact,  no  reason  at  all,  is 
crime  rendered  a  person  incom-  given  in  support  of  that  sugges- 
petent   to    testify."  tion.     "We   cannot   discover  any." 

In    Conrad   v.    State,   132  Ind.   254,  65— State   v.  Vaughan,  200  Mo.  1, 

31   N.   E.   805   (806),    it  was   held    not  98  S.  W.  2. 

to  be  error  to  refuse  a  .substantial  In  State  v.  McCarver,  194  Mo.  717, 

copy     of     this     instruction.        The  92  S.  W.  684,   the  court  approved  a 

onurt  held  that  all  that  was  decid-  similar  instruction, 

ed  in  the  Boyle  case  was  "that  the  66— State    v.    Moore,   168   Mo.   432, 

riving   of   the  instruction   was  not  68  S.  W.  358  (360). 


1652  FORMS  OF  INSTRUCTIONS.  [§  2567. 

should  permit   himself   to   be   to    any   extent   influenced   against   the 
defendant  because  or  on  account  of  the  indictment  in  the  ease. 

(d)  The  fact  that  the  indictment  was  found  by  the  grand  jury, 
or  the  indictment  itself,  cannot  be  considered  by  the  jury  in  making 
their  verdict.^^ 

(e)  You  are  instructed,  that  while  an  indictment  can  be  found 
by  the  grand  jury  only  after  the  hearing  of  evidence,  still  the  in- 
dictment in  this  case  is  a  mere  accusation  or  charge  against  the  de- 
fendant, and  is  not  of  itself  any  evidence  in  this  case  that  the  de- 
fendant is  guilty  of  the  crime  therein  charged  and  set  forth,  but  the 
prosecution  must  have  shown  to  your  satisfaction,  beyond  a  rea- 
sonable doubt,  that  the  defendant  is  guilty  as  therein  charged. ^^ 

(f)  The  court  instructs  the  jury  that  the  indictment  in  this  ease 
is  a  mere  formal  charge,  and  is  no  evidence  whatever  of  defendant's 
guilt.''^ 

(g)  The  court  further  instructs  the  jury  that  the  law  presumes  the 
defendant  to  be  innocent  of  the  charge  preferred  against  him  by  the 
indictment  returned  to  the  court  by  the  grand  jury,  until  all  of  the 
allegations  in  such  indictment  have  been  proven  to  be  true,  beyond  a 
reasonable  doubt,  and  the  law  is  that  he  is  entitled  to  have  this 
jury  indulge  in  such  presumptions  of  innocence  towards  him  until 
you  may  believe  from  all  the  evidence,  that  he  has  been  proven  guilty 
beyond  a  reasonable  doubt,  and  the  fact  that  he  has  been  indicted 
by  the  grand  jury  upon  a  charge  of  murder  and  is  now  being  tried 
upon  that  charge  is  not  evidence  of  his  guilt,  and  you  are  not  to 
consider  that  fact,  or  the  indictment  in  this  cause,  any  evidence  of 
his  guilt,  and  if  you  convict  the  defendant  you  must  do  so  upon  all 
the  evidence  in  the  case,  and  you  cannot  give  any  weight  to  any 
belief  to  which  you  may  arrive,  unless  that  .belief  be  founded  upon 
the  facts  in  evidence  introduced  before  you  in  this  ease.  And  if, 
after  you  have  heard  all  the  evidence,  you  then  have  a  reasonable 
doubt  in  your  minds  as  to  the  defendant's  guilt,  then  it  is  your  duty 
to  find  him  not  guilty.''^° 

§  2567.  Indictment  and  Statement  of  Counsel,  Not  Evidence — 
Testimony  Stricken  Out  Not  to  Be  Considered.  The  indictment  in 
this  ease  is  a  mei'e  formal  charge,  and  is  not  in  itself  any  evidence 
against  the  defendant.  Statements  of  counsel  are  not  evidence  and 
should  not  be  so  considered.  Offers  to  prove  certain  alleged  facts 
which  may  have  been  made  in  your  presence  are  not  evidence,  and 
you  should  not  take  the  same  into  consideration,  nor  allow  yourselves 
to  be  in  any  manner  influenced  thereby.  Neither  should  the  jury 
consider  any  testimony  stricken  out  by  the  court. ''^^ 

67— State     V.     Hollinffsworth,     156  70— Parsons     v.    People,     218     111. 

Mo.    178,    r,6    S.    W.    1087.  386   (396,   398),   75  N.    E.   993. 

68— Padflfld     v.     People,     146    111.  71— State    v.    Hudspeth,    159    Mo. 

660   (662),   35   N.   E.   469.  178,   60   S.    W.   136. 

69— State  v.   May.    172  Mo.  630,  72 
S.    W.    918    (920).     Murder    case. 


§  2568.]  CRIMINAI^INDICTMENT.  1653 

§  2568.  Information  Mere  Formal  Accusation — No  Evidence  of 
Guilt — Presumption  of  Innocence,     (a)     The  information  in  this  case, 

fiied  on  the day  of ,  1905,  charges  the  defendant  with  the 

crime  of  murder  in  the  first  degree.  To  this  charge  defendant  pleads 
not  guilty.  In  making  up  your  verdict  in  this  case,  the  jury  will  be 
governed  by  the  instructions  given  by  the  court,  as  follows:  The 
information  in  this  case  is  a  mere  formal  accusation  against  the  de- 
fendant. It  is  no  evidence  of  his  guilt,  and  no  juror  should  permit 
himself  to  be  influenced  against  the  defendant  because  or  on  account 
of  said  information.  The  law  presumes  the  defendant  to  be  inno- 
cent, and  this  presumption  of  innocence  attends  him  throughout  the 
trial  until  his  guilt  is  established  by  the  evidence  beyond  a  reason- 
able doubt.  If,  therefore,  upon  a  consideration  of  all  the  evidence, 
you  have  a  reasonable  doubt  of  the  guilt  of  the  defendant,  you  should 
acquit  him,  but  a  doubt  to  authorize  an  acquittal  on  that  ground 
should  be  a  substantial  doubt  touching  the  guilt  of  defendant,  and 
not  a  mere  possibility  of  his  innocence. '^^ 

(b)  The  information  in  this  case  is  a  mere  formal  charge  against 
the  defendant,  and  of  itself  is  no  evidence  whatever  of  his  guilt, 
i)nd  no  juror  should  permit  himself  to  be  in  any  degree  or  to  any 
extent  influenced  by  it."^ 

(c)  The  court  instructs  the  jury  that  the  infonnation  filed  in  this 
case  is  a  mere  formal  accusation,  and  raises  no  presumption  against 
the  defendant,  and  the  jury  should  not  permit  themselves  to  be  in- 
fluenced thereby  against  the  defendant  on  account  of  said  informa- 
tion.'^* 

(d)  The  information  in  this  cause  is  a  mere  formal  accusation, 
and  does  not  of  itself  constitute  any  evidence  of  guilt. '^^ 

72— State  v.  Darling,  199  Mo.  168,  74— State  v.  Todd,  194  Mo.  377,  92 
97  S.    W.   592.  S.    W.    674. 

73— State  v.  Privitt,   175  Mo.  207,         75— State    v.    Gatlin,    170    Mo.    354, 

75    S.    W.    457  (460).  70   S.   W.   S85   (888,   890). 


CHAPTER  LXXXIX. 

CRIMINAL— INSANITY  — INTOXICATION— JURY    JUDGES    OF 
THE  LAW  AND  FACTS  IN  SOME  STATES— MALICE. 

See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2569.  Insanity  —  Presumption  — 
Burden  of  proof. 

§  2570.  Insanity— Test  of  criminal 
responsibility. 

§  2571.  Insanity  as  a  means  to 
evade  the  law — Should  be 
examined  with  care. 

§  2572.  Insanity — Question  of  law 
determined    by    the    jury. 

§  2573.  Distinguishing-  right  from 
wrong. 

§  2574.  Knowledge  of  right  and 
wrong  the  test. 

§  2575.  Obliterating  the  sense  of 
right   and   wrong. 

§  2576.  Defendant  not  conscious  of 
nature  of  act  must  be  ac- 
quitted. 

§  2577.  Want  of  power  to  realize 
nature   and  quality  of  act. 

§  2578.  Want  of  will  power  by 
reason  of  some  insane  im- 
pulse   sufficient    defence. 

§  2579.  Excitement,  passion  and  re- 
venge distinguished  from 
insanity. 

§  2580.  Excitement,  frenzy,  irresist- 
ible impulse  no  defence. 

§  2581.  Uncontrollable    impulse. 

§  2582.  Irresistible  impulse — Essen- 
tial  element  of. 

§  2583.  Irresistible  impulse  must  re- 
sult from  mental  disease — 
Knowing  right  and  wrong. 

§  2584.  Whether  mere  weakness  of 
mind  may  amount  to  in- 
sanity —  Irresistible  im- 
pulse. 

5  2585.  Emotional   insanity    defined. 

S  2586.  Partial  insanity — Laboring 
under   mental   delusion. 

§  2587.  When  insane  delusion  is  a 
sufficient   defence. 

§  2588.  Erroneous  conclusion  dis- 
tinguished from  insane  de- 
lusion. 

§  2589.  Distinction  between  perma- 
nent and  temporary  in- 
sanity— Delirium  tremens. 

1654 


2590. 

2591. 

2592. 
2593. 

2594. 

2595. 

2596. 

2597. 

2598. 
2599. 
2600. 
2601. 

2602. 
2603; 
2604. 
2605. 

2606. 

2607. 


Insanity — From  use  of  drugs 
—  Requisites  —  Burden  of 
proof. 

Insanity  or  idiocy — Must  be 
"clearly  proved" — Requi- 
sites  of  defence. 

Killing  must  be  the  direct 
consequence    of    insanity. 

Insanity  once  shown  pre- 
sumed to  continue  until 
disproved  beyond  reason- 
able   doubt. 

Reasonable  doubt  as  to  san- 
ity of  defendant  acquits 
him. 

Prisoner  need  only  create 
reasonable  doubt  to  cast 
burden  on  state. 

Sanity  presumed  —  Unless 
evidence  "clearly  estab- 
lishes"  insanity. 

Insanity— Defendant  must 
establish  by  preponder- 
ance. 

Burden  of  proof — Alabama 
statutory    plea   of   insanity. 

Insanity — Need  not  be  prov- 
en   by    direct    evidence. 

Insanity  at  time  of  trial — 
Jury    not    to    determine. 

Evidence  as  to  ancestor's 
insanity  admissible  only  in 
corroboration. 

Insanity  of  defendant's 
mother  must  be  considered. 

Insanity — Suicide  not  neces- 
sarily  evidence   of. 

Children  poisoned  by  mother 
of    suicidal    tendency. 

Insanity — Hypothetical  case 
put   to  experts. 


INTOXICATION. 

drunkenness 


no 


Voluntary 

excuse. 
Getting    intoxicated    with    a 

view   of  committing  crime. 


§  2569. 


CRIMINAL— INSANITY. 


1655 


§  2608.  Intoxication  procured  by  ar- 
tifice of  deceased — Not  vol- 
untary. 

§  2609.  Irresistible  impulse  from 
voluntary  drunkenness  no 
defense. 

§  2610.  Insanity — Not  the  immediate 
effect    of    intoxicants. 

§  2611.  Delirium    tremens. 

§  2612.  Intoxication  not  amounting 
to  insanity  no  defence. 

§  2613.  Insanity  produced  by  intox- 
ication  an   excuse. 

§  2614.  Temporary  insanity  pro- 
duced by  use  of  intoxicat- 
ing liquors  in  mitigation — 
Murder. 

§  2615.  Intoxication  not  inconsistent 
with   premeditation. 

S  2616.  Intent — Intoxication  as  af- 
fecting   intention — Larceny. 

S  2617.  Voluntary  intoxication  will 
not  excuse  any  grade  of 
homicide  except  murder  in 
first  degree. 

5  2618.  Intoxication  may  reduce 
from  murder  to  man- 
slaughter. 

§  2619.  Drunkenness — Evidence  as 
to  must  raise  a  reasonable 
doubt  as  to  mental  capac- 
ity. 


§  2620.  Duty  of  jury  to  receive  the 
law  the  court  states. 

§  26Sl.  Instruction — Same  weight 
for  both  state  and  defend- 
ant— Adoption  by  court  of 
instructions. 

§  2622.  Jury  judges  of  the  law  as 
well  as  of  the  facts — 
Georgia. 

§  2623.  Same    subject— Illinois. 

§  2624.  Same    subject — Indiana. 

§  2625.  Jury  should  give  instruc- 
tions of  court  respectful 
consideration — Indiana. 

MALICE. 

§  2626.  Definition  of  malice. 

§2627.  Malice  aforethought  —  De- 
fined. 

§2628.  Malice  aforethought  —  A 
question  of  fact. 

§  2629.  Malice   express   and    implied. 

§  2630.  Express   malice   defined. 

§  2631.  Malice — Difference  between 
implied  or  constructive 
malice  and  express  malice. 

§  2632.  Defining  "deliberately,  felo- 
niously, willfully,  premedi- 
tatedly,  malice,  and  malice 
aforethought" — Missouri. 

§  2633.  Malice  presumed  from  use 
of  deadly  weapon. 


INSANITY. 

§  2569.  Insanity — Presumption — Burden  of  Proof,  (a)  The  court 
instructs  the  jury  that  the  hiw  presumes  every  man  sane  until  the 
contrary  is  shown  by  the  evidence,  and  before  the  defendant  can  be 
excused  on  the  grounds  of  insanity  the  jury  must  believe  from  the 
evidence  that  the  defendant  at  the  time  of  the  killing  was  without 
sufficient  reason  to  know  what  he  was  doing,  or  that,  as  the  result  of 
mental  unsoundness,  he  had  not  then  sufficient  will  power  to  govern 
bis  action  by  reason  of  some  insane  impulse  which  he  could  not 
resist  or  control.^ 

(b)  You  are  instructed  that  eveiy  m'an  is  presumed  to  be  sane, 
and  to  intend  the  natural  and  usual  consequences  of  his  own  acts. 
As  the  law  presumes  a  man  to  be  sane  until  the  contrary  is  shown,  I 
charge  you  that  the  burden  of  proving  insanity  as  a  defense  to  a 
crime  is  upon  the  defendant  to  establish  by  a  preponderance  of  the 


1 — Mathley  v.  Commonwealth, 
120   Ky.   389,   86   S.  W.   988  (989). 

"The  above  instruction  is  object- 
ed to  because  it  places  the  burden 
of  proving  his  own  insanity  upon 
the  accused.  This  instruction  is 
approved  in  Abbott  v.  Common- 
wealth,  107   Ky.    624,   55    S.   W.   196; 


Ball  V.  Commonwealth,  81  Ky.  662; 
Brown  v.  Commonwealth,  14  Bush., 
Ky..  1400,  and  "Wright  v.  Common- 
wealth, 24  Ky.  L.  1838.  72  S.  W.  240, 
nnd  must  now  be  considered  as  af- 
fording, when  applicable,  the  cor- 
rect rule." 


1656  FORMS  OF  INSTRUCTIONS.  [§  2570. 

evidence,  and  unless  insanity  is  established  by  a  fair  preponderance 
of  the  evidence  the  presumption  of  sanity  must  prevail.^ 

(c)  Every  presumption  is  in  favor  of  the  innocence  of  the  defend- 
ant; the  only  presumption  against  him  being  that  he  is  of  sound 
mind  and  discretion,  and  hence  responsible  for  his  acts.^ 

§  2570.  Insanity — Test  of  Criminal  Responsibility.  The  question 
of  the  insanity  of  the  defendant  has  exclusive  reference  to  the  act 
with  which  he  is  charged  and  the  time  of  the  commission  of  the 
same.  If  he  was  sane  at  the  time  of  the  commission  of  the  act,  he  is 
punishable  by  law.  If  he  was  insane  at  the  time  of  the  commission 
of  the  act,  he  is  entitled  to  be  acquitted.  A  safe  and  reasonable 
test  is  that  whenever  it  shall  appear  from  all  the  evidence  that  at 
the  time  of  committing  the  act  the  defendant  was  sane,  and  this  con- 
clusion is  proven  to  the  satisfaction  of  the  jury,  taking  into  con- 
sideration all  the  evidence  in  the  case,  beyond  a  reasonable  doubt, 
he  will  be  held  amenable  to  the  law.  Whether  the  insanity  be  gen- 
eral or  partial,  whether  continuous  or  periodical,  the  degree  of  it  must 
have  been  sufficiently  great  to  have  controlled  the  will  of  the  ac- 
cused at  the  time  of  the  commission  of  the  act.  Where  reason  ceases 
to  have  dominion  over  the  mind  proven  to  be  diseased,  the  person 
reaches  a  degree  of  insanity  where  criminal  responsibility  ceases  and 
accountability  to  the  law  for  the  purpose  of  punishment  no  longer 
exists.* 

S  2571.  Insanity  as  a  Means  to  Evade  the  Law — Should  Be  Ex- 
amined with  Care,  (a)  The  jury  should  be  careful  that  it  (mean- 
ing insanity  or  the  plea  of  insanity)  is  not  used  as  a  means  to  evade 
the  law,  as  well  as  to  see  to  it  that  a  person  irresponsible  should  not 
be  punished.^ 

(b)  The  defense  of  insanity  is  one  which  may  be,  and  sometimes 
is,  resorted  to  in  cases  where  the  proof  of  the  overt  act  is  so  full 
and  complete  that  any  other  means  of  avoiding  conviction  and  es- 
caping punishment  seems  hopeless.  While,  therefore,  this  is  a  de- 
fense to  be  weighed  fully  and  justly,  and,  when  satisfactorily  estab- 
lished, must  recommend  itself  to  the  favorable  consideration  of  the 
humanity  and  justice  of  the  jury,  they  are  to  examine  it  with  care, 
lest  an  ingenious  counterfeit  of  such  mental  disorder  should  furnish 
protection  to  guilt.^ 

2— State  V.   Clark,   34  Wash.  485,  the  stren^h  of  People  v.  Pico,  62 

76  Pac.  98  (101).  Cal.    50.     "In    People   v.    Dennis,    39 

3— State   V.    Mills,   116   N.   C.    992,  Cal.    625,    and    in    People   v.    Bum- 

21  S.  Vj.  106   (107).  berger,   45   Cal.   650,    it   was   held   to 

4— Hotema   v.   United    States,   186  be  proper  for  the  trial  court  to  In- 

U.  S.  413  (416),  22  S.  Ct.  895.  struct    the   jury    to    'view    the    evi- 

o — Braham    v.    State,   143  Ala.   28,  dence  upon  the  defense  of  insanity 

:J8   So.    919    (926).  with    cure,     lest     feig-ned     insanity 

6 — People     V.     Donlan,     135     Cal.  might  shield  a  defendant  from   the 

489,  67   Pac.  761   (762),   citing  People  just  consequences  of  his  guilt.'  " 

V.    Larrabee,    115    Cal.    159,    46    Pac.  The  court  said: 

923;    where    an    instruction    almost  "This    instruction    met    with    un- 

identical  in  terms  was'  approved  ou  qualified    approval    in     Sawyer    v. 


§  2572.] 


CRIMINAL— INSANITY. 


1657 


§  2572.     Insanity— Question  of  How  Determined  by  the  Jury.     In 

determining  the  question  wliether  the  defendant  was  insane  at  the 
time  of  the  alleged  commission  of  the  act,  the  jury  are  to  consider 
all  his  acts  at  the  time  of,  before,  and  since  the  alleged  commission 
of  the  act,  as  such  acts  and  conduct  have  been  shown  by  the  evidence, 
and  the  jury  have  the  right  to  consider  the  defendant's  appearance 
and  actions  during  the  trial  as  a  circumstance  in  detei'mining  his 
insanity  at  the  time  of  the  homicide." 

§  2573.  Distinguishing  Right  from  Wrong,  (a)  If  you  believe 
from  the  evidence  beyond  a  reasonable  doubt  that,  at  the  time  of 
doing  the  alleged  acts,  the  defendant  was  able  to  distinguish  right 
from  wrong,  then  j^ou  cannot  acquit  him  on  the  ground  of  insanity. 

(b)  If  you  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant  committed  the  crime  in  manner  and  form  as 
charged  in  the  indictment,  and  at  the  time  of  committing  such  act 
was  able  to  distinguish  right  from  wrong,  you  should  find  him  guilty. 

(c)  If  from  all  the  evidence  in  the  case,  you  believe,  beyond  a 
reasonable  doi^bt,  that  the  defendant  committed  the  crime  of  which 
he  is  accused  in  manner  and  fonn  as  charged  in  the  indictment,  and 


State,  35  Ind.  SO;  and  the  principle 
therein  enunciated  has  been  refer- 
red to  approvingly  in  Sanders  v. 
State,  94  Ind.  147;  and  Butler  v. 
State,  97  Ind.  378.  It  can  hardly  be 
said  to  contain  the  statement  of 
any  proposition  of  law,  but  it  Is 
rather  in  the  nature  of  a  general 
disparagement  of  the  defense  of 
insanity,  which  the  accused  had 
pleaded,  as  provided  by  statute.  A 
case  might  possibly  arise  in  which 
such  a  statement  could  be  appro- 
priately made  by  the  court.  As  the 
judgment  in  the  present  case  must 
be  reversed  for  other  reasons,  we 
do  not  determine  whether  or  not  it 
constituted  reversible  error  in  this 
case.  It  is  sufficient  to  say  that, 
as  at  present  constituted,  the 
court  does  not  regard  with  favor 
any  statements  by  the  trial  court 
which  are  designed  to  cast  dis- 
credit or  suspicion  upon  any  de- 
fense which  is  recognized  by  the 
law  as  legitimate,  and  which  an 
accused  person  is  making  in  ap- 
parent good  faith.  In  this  respect, 
w'e  are  unable  to  appreciate  any 
well-grounded  distinction  between 
the  defense  of  insanity,  self-de- 
fense, or  alibi.  Line  v.  State,  51 
Ind.  172,  1  Am.  Cr.  Rep.  615;  Safer 
v.  State,  56  Ind.  378;  Albin  v. 
State,  63  Ind.  599,  3  Am.  Cr.  Rep. 
295;  Simmons  v.  State,  61  Miss. 
243;  Dawson  v.  State.  62  Miss.  241; 
Thomp.  Trials,  para.  2433.  In  those 
jurisdictions  where  judges  are  per- 


mitted to  comment  upon  the  weight 
and  value  of  evidence,  it  has  been 
held  proper  for  the  court  to  cau- 
tion the  jury  concerning  a  defense 
which  judicial  experience  has 
shown  to  be  often  attempted  by 
contrivance  and  perjury.  Com.  v. 
Webster,  5  Cush.  295,  52  Am.  Dec. 
711;  Thomp.  Trials,  para.  2434.  This 
rule  does  not  prevail  in  Indiana. 
Unruh  v.  State,  105  Ind.  117,  4  N 
E.  453." 

This  instruction,  however,  was 
held  error  in  State  v.  Shuff,  9  Ida- 
ho 115.  72  Pac.  664  (670),  13  Am.  Cr. 
Rep.  443,  where  the  court  said: 

"In  all  other  matters  except  that 
of  insanity,  the  defendant  is  en- 
titled to  every  reasonable  doubt. 
It  is  a  well-settled  principle  that 
trial  courts  should  be  guarded 
from  any  expression,  in  the  pres- 
ence or  hearing  of  the  jury,  that 
can  in  any  way  be  construed  into 
an  expression  of  their  views  on 
any  evidence  that  may  be  before 
the  jury.  Aszman  v.  State,  123 
Ind.  347,  24  N.  E.  123,  8  L.  R.  A.  33; 
Dawson  v.  State,  62  Miss.  241; 
Thompson  on  Trials,  vol.  2,  par.' 
2433.  An  inspection  of  the  above 
authorities  will  disclose  that  it  was 
error  to  give  this  instruction.  The 
last  paragraph  of  the  instruction 
wns  misleading,  also,  and  should 
not  have  been  given." 

7— People  v.  Donlan,  135  Cal.  489 
67  Pac.  761   (763). 


1658  FORMS  OF  INSTRUCTIONS.  [§2574. 

that  at  the  time  of  the  commission  of  such  crime,  the  defendant 
knew  that  it  was  wrong  to  commit  such  crime,  and  was  mentally 
capable  of  choosing  either  to  do  or  not  to  do  the  acts  constituting 
such  crime,  and  of  governing  his  conduct  in  accordance  with  such 
choice,  then  it  is  your  duty  under  the  law  to  find  him  guilty,  even 
though  you  should  believe  from  the  evidence  that  at  the  time  of  the 
commission  he  was  not  entirely  and  perfectly  sane.^ 

(d)  If  the  jury  believe,  from  the  evidence,  that  at  the  time  when 
the  fatal  blow  is  alleged  to  have  been  struck,  the  defendant  was 
so  far  affected  in  his  mind  and  memoi-y  that  he  was  not  able  to 
distinguish  right  from  wrong,  and  had  not  knowledge  and  under- 
standing of  the  character  and  consequences  of  his  act  and  power  of 
will  to  abstain  from  it,  then  he  was  not  a  legally  responsible  being, 
and  the  jury  should  find  him  not  guilty.^ 

(e)  The  law  does  not  excuse  unless  the  insanity  is  of  such  a 
character  that  it  actually  renders  the  person  incapable  of  distinguish- 
ing between  right  and  wrong  in  respect  to  the  particular  act  charged, 
at  the  time  of  its  commission.^** 

§  2574.  Knowledge  of  Right  and  Wrong  the  Test,  (a)  If  you 
tihould  find  beyond  a  reasonaible  doubt  that  the  defendant  took  the 
life  of  Ella  Q.  as  charged  in  the  indictment,  and  that  at  the  time  of 
such  homicide  he  knew  and  understood  that  it  was  -wrong  to  take 
her  life,  and  was  able  to  comprehend  and  understand  the  conse- 
quences of  such  act,  then,  and  in  that  event,  it  will  be  your  duty 
to  find  the  defendant  guilty  of  murder  as  charged  in  the  indictment. 
But,  on  the  other  hand,  if  you  should  find  that  he  was  not  able  to 
know  that  the  act  of  taking  her  life  was  wrongful  and  was  not  able 
to  comprehend  and  understand  the  consequences  of  such  act,  then 
you  should  find  the  defendant  not  guilty.^i 

8— Hornish   v.   People,  142  111.   620  of    sound   mind    and    memory,    and 

(624),  32  N.  E.  677.  Charged  assault  capable    of    committing-    crime, 

with'  intent  to   murder.  Brinkley  v.  The  State,  58  Ga.  296, 

9 — The     same     instructions    were  is  authority  for  the  above  instruc- 

approved    in    Dunn    v.    People,    109  tion,  but  it  ignores  the  fact  that  an 

111.  635,  4  Am.  Cr.  Rep.  52;  State  v.  insane  person  may  be  able  to  dis- 

Mewherter,    46    Iowa    88;    Com.    v.  tinguish,  but  not  to  choose,  between 

Rogers     7    Mete.    500;     Freeman    v.  right    and    wrong.      State   v.    Keerl, 

People,    4    Denio    10;    State   v.    Hu-  29    Mont.    568,    75    Pac.    362    (363);    a 

ting,  21  Mo.  464;  Willis  v.  People,  5  like    instruction    was    approved    in 

Tiffany   715;   Anderson   v.    State,    45  State  v.  Mewherter,  46  Iowa  88,  as 

Ga.   11;  People  v.   Coffman,  24  Cal.  follows: 

230.  *  *  *  This  would  not  exempt  him 

10_state  V.  Coats,  174  Mo.  396,  74  from    liability    for   his    acts,    if    the 

S.   W.   864    (870).  jury  believe,  from  the  evidence,  be- 

The   jury     are    instructed,     as     a  yond    a    reasonable   doubt,    that    he 

matter    of    law,    that    if    a    person  intentionally    fired    the    shot    which 

has   capacity   and    reason    sufficient  killed    the    deceased,    and    that    he 

to    enable    him    to    distinguish    be-  knew   and    was     conscious     at     the 

tween    right   and    wrong    as   to   the  time,    that    the    act    he    was    doing 

particular  act  in  question— that  is,  was  wrong  and   punishable  by  the 

If   he    has   knowledge    and   is    con-  laws   of   the   land, 

scious   that   the   act   he  is   doing  is  11— Queenan  v.  Territory,  11  Okla. 

wrong   and    would    deserve   punish-  261.    71   Pac.   218    (225),    61   L.    R.   A. 

ment— he  is,  in  the  eye  of  the  law,  324.     Homicide  case. 


§  2575.]  CRIMINAL— INSANITY.  1659 

(b)  If  one  has  sufficient  mind  and  understanding  to  know  right 
from  wrong  regarding  the  particular  act,  and  is  able  to  comprehend 
and  understand  the  consequences  of  such  act,  the  law  recognizes  him 
as  sane,  and  holds  him  responsible  for  such  act.^- 

(c)  If,  from  all  the  evidence  in  the  case,  you  believe,  beyond  a 
reasonable  doubt,  that  the  defendant  committed  the  crime  of  which 
he  is  accused,  in  manner  and  form  as  charged  in  the  indictment,  and 
that  at  the  time  of  the  commission  of  such  crime  the  defendant  knew 
that  it  was  wrong  to  commit  such  crime,  and  was  mentally  capable  of 
choosing  either  to  do  or  not  to  do  the  act  or  acts  constituting  such 
crime,  and  of  governing  his  conduct  in  accordance  with  such  choice, 
then  it  is  your  duty,  under  the  law,  to  find  him  guilty,  even  though 
you  should  believe^  from  the  evidence,  that  at  the  time  of  the  com- 
mission of  the  crime  he  was  not  entirely  and  i^erfectly  sane,  or  that 
he  was  greatly  excited  or  enraged,  or  under  the  influence  of  intoxi- 
cating liquor.^^ 

(d)  If,  from  all  the  evidence  in  the  case,  A'ou  believe  beyond  a 
reasonable  doubt  that  the  defendant  committed  the  act  of  which  he  is 
accused,  in  the  manner  and  form  as  charged  in  the  indictment,  and 
that  at  the  time  of  the  commission  of  said  crime  the  defendant  knew 
that  it  was  wrong  to  commit  it,  and  that  he  was  mentallj'  capable 
of  choosing  either  to  do  or  not  to  do  the  act  constituting  such  crime, 
and  of  governing  his  conduct  according  to  such  choice,  then  it  is 
your  duty,  under  the  law,  to  find  him  guilty.^* 

§  2575.  Obliterating  the  Sense  of  Right  and  Wrong.  You  are  in- 
structed, if  you  believe  from  the  evidence,  that  the  act  charged 
against  the  defendant  in  the  indictment  was  committed  by  him  as 
therein  charged,  but  that  at  the  time  of  committing  the  same  the 
defendant  was  a  lunatic  or  insane  to  the  extent  of  obliterating  the 
sense  of  right  or  wrong  as  to  the  particular  act  done,  you  should  so 
find  A^our  verdict. ^^ 

§  2576.  Defendant  Not  Conscious  of  Nature  of  Act  Must  Be  Ac- 
quitted. The  court  instructs  you  that,  if  this  prisoner  was  of  un- 
sound mind  to  such  an  extent  that  he  was  not  conscious  of  the  nature 
of  the  act  he  was  committing,  then  you  ought  to  acquit  him  on  the 
ground   of  insanity.^^ 

§  2577.  Want  of  Power  to  Realize  Nature  and  Quality  of  Act.  If 
you  find  from  the  evidence  that  at  the  time  of  the  alleged  commis- 
sion of  the  offense,  the  defendant  was  suffering  from  mental  aberra- 

"We   think    that   this    instruction  13— Dunn   v.    People,    109    III.    635, 

fairly  and  correctly  states  the  law  4  Am.  Cr.  Rep.  52. 

applicable  to  this  case,   and   comes  14— State  v.  Lyons,  113  La.  959,  37 

within  the  rule   announced  by  this  So.  890  (903-4). 

court     in     Maas     v.     Territory,     10  15 — Hornish     v.    People,     142     111. 

Okla.  714,   63   Pac.   960,   53  L.    R.  A.  620  (624),  32  N.  E.  677;  assault  with 

814."  intent  to  kill. 

12 — Queenan  v.  Oklahoma,  190  U.  16 — Commonwealth    v.    Hollinger, 

S.  548  (550),  23  S.  Ct.  762.     Homicide  190  Pa.  155,  42  Atl.  548  (550). 
case. 


1660  FORMS  OP  INSTRUCTIONS.  [§  2578. 

tion  or  sickness  of  mind  produced  by  any  cause,  and  by  reason  thereof 
his  judgment,  memory  and  reason  were  so  perverted  that  he  did  not 
realize  the  nature  and  quality  of  the  act  he  was  doing,  or  that  he 
did  not  realize  that  it  was  wrong,  you  must  find  that  he  was  insane, 
and  for  that  reason  not  guilty.^^ 

§  2578.  Want  of  Will  Power  by  Reason  of  Some  Insane  Impulse, 
Sufficient  Defence,  (a)  The  law  presumes  every  man  sane  until  the 
contrary  is  shown  by  the  evidence ;  and,  before  the  defendant  can 
be  excused  on  the  ground  of  insanity,  the  jury  must  believe  from 
the  evidence  that  the  defendant  was  at  the  time  of  the  killing  without 
sufficient  reason  to  know  what  he  was  doing,  or  had  not  sufficient 
reason  to  know  riglit  from  wrong,  or  that,  as  the  result  of  mental 
unsoundness,  he  had  not  then  sufficient  will  power  to  govei'n  his  ac- 
tions, by  reason  of  some  insane  impulse  which  he  could  not  resist  or 
control.^^ 

(b)  Insanity  means  such  a  perverted  and  deranged  condition  of 
the  mental  and  moral  faculties  as  to  render  a  person  incapable  of 
distinguishing  between  right  and  wrong,  or  not  conscious  at  the  time 
of  the  nature  of  the  act  which  he  is  committing;  and  where,  though 
conscious  of  it,  and  able  to  distinguish  between  right  and  wrong,  and 
knowing  that  the  act  is  wrong,  yet  his  will — by  which  is  meant  the 
governing  power  of  his  mind — has  been,  otherwise  than  voluntarily, 
so  completely  destroyed  that  his  actions  are  not  subject  to  it,  but  are 
be^^ond  his  control.'^ 

§  2579.  Excitement,  Passion  and  Revenge  Distinguished  from  In- 
sanity. The  jury  are  further  instructed  that  excitement,  passions 
and  angered  feeling,  or  revenge,  produced  by  motives  of  anger 
hatred  or  revenge,  is  not  insanity,  and  that  the  law  holds  the  wrong- 
doer of  an  act  under  such  conditions  responsible  for  his  acts,  and  the 
jury  have  no  right  to  excuse  or  in  any  wise  justify  or  mitigate  de- 
fendant 's  act  in  the  taking  of  W.  's  life,  except  they  can  so  do  under 
and  according  to  the  law.^" 

§  2580.  Excitement,  Frenzy,  Irresistible  Impulse  to  Avenge  No 
Defence.  In  order  to  hold  the  defendant  criminally  resiDonsible  for 
taking  the  life  of  W.,  it  is  only  necessary  that  the  jury  be  satisfied 
from  all  the  evidence  [beyond  a  reasonable  doubt]  that  he  had  suf- 
ficient mental  capacity  to  distinguish  between  right  and  wrong  as  to 
the  particular  act  with  which  he  so  stands  charged.  *  *  *  Excite- 
ment or  frenzy  arising  from  the  passion  of  anger,  hatred  or  revenge, 

17— Schissler    v.    State,    122    Wis.  W.   590;    Eckert  v.    State,   114  Wis. 

365,  99  N.   W.  593  (599).  160    (163-164),    89    N.    W.    826.     Sub- 

18 — Abbott  v.  Commonwealtli,  107  stantially  the  s.ame  instruction  was 

Ky.  624,  55  S.  W.  196  (198).  approved      in      Davis      v.      United 

19— "Sucli     ruling    has     been     ex-  States,  165  U.   S.  373   (378).  17  S.  Ct. 

pressly   sanctioned    by   this   court."  360. 

T^owe  v.   State,  118  Wis.   641,   96   N.  20— State   v.    Privitt,    175   Mo.   207, 

W.     417     (424).       CitiiiR-     Rutler     v.  75  S.  W.  457  (459). 
State,  102  Wis.   364   (366,  367),  78  N. 


§  2581.]  CRIMINAL— INSANITY.  1661 

no  matter  how  furious,  if  not  the  result  of  a  diseased  mind,  is  not 
legal  insanity,  and  the  juiy  should  not  confound  excitement,  anger 
or  wrath,  or  acts  done  or  committed  in  either  or  both,  or  in  revenge, 
with  actual  insanity — insanity  recognized  by  law,  because  it  is  only 
legal  insanity,  a  disease  of  the  brain,  rendering  a  person  incapable 
of  distinguishing  between  right  and  wrong  with  respect  to  the  offense 
charged,  that  excuses  the  commission  of  such  act.  The  doing  of  such 
act  in  frenzy,  hatred  or  revenge,  or  by  reason  of  some  irresistible 
impulse  to  avenge  some  former  wrong  or  grudge,  does  not  excuse. ^^ 

§  2581.  Uncontrollable  Impulse.  The  real  test,  as  I  understand  it, 
of  liability  or  nonliability  rests  upon  the  proposition  whether  at  the 
time  the  homicide  was  committed  H.  had  a  diseased  brain,  and  it  was 
not  partially  diseased  or  to  some  extent  diseased,  but  diseased  to  the 
extent  that  he  was  incapable  of  forming  a  criminal  intent,  and  that 
the  disease  had  so  taken  charge  of  his  brain  and  had  so  imi:)elled  it 
that  for  the  time  being  his  will  power,  judgment,  reflection  and  con- 
trol of  his  mental  faculties  were  impaired  so  that  the  act  done  was  an 
irresistible  and  uncontrollable  impulse  with  him  at  the  time  he  com- 
mitted the  act.  If  his  brain  was  in  this  condition,  he  cannot  be  pun- 
ished by  law.'2 

§  2582.  Irresistible  Impulse — Essential  Elements  of.  Agaii^,  if  the 
accused  knew  that  he  was  doing  wrong,  yet,  acting  under  an  irresist- 
ible impulse,  having  lost  his  power  of  self-control,  kills  the  party,  he 
will  not  be  criminally  liable.  It  must  be  the  irresistible  impulse  of  a 
lunatic,  and  not  the  violent  passion  of  a  sane  man,  prompted  by  re- 
venge, hatred,  jealousy,  envy,  etc.,  w^hieh  does  not  exempt  from  crim- 
inal liability  nor  confer  irresponsibility.-^ 

§  2583.  Irresistible  Impulse  Must  Result  from  Mental  Disease — 
Knowing  Right  and  Wrong.  If  the  defendant  did  shoot  A.  B.,  but 
at  the  time  he  did  so  the  defendant  had  mental  capacity  sufficient  to 
enable  him  to  know  right  from  Avrong,  and  if  at  the  time  he  had  will 
power  sufficient  to  enable  him  to  choose  'between  shooting  and  re- 
fraining from  shooting  said  A.  B.,  the  defendant  was  of  sound  mind; 
and  if  the  defendant  did  shoot  A.  B.,  but  at  the  time  he  did  so  the 
defendant  had  mental  capacity  sufficient  to  enable  him  to  know  right 
from  wrong,  and  if  his  mind  was  free  from  disease,  then  no  impulse 
to  shoot  said  A.  B.,  no  matter  hoAv  violent,  and  no  matter  how  com- 
pletely it  dominated  the  will  of  the  defendant,  Avas  unsoundness  of 
mind.24 

21— State  V.   Privitt.   175   Mo.   207,  37    So.    890    (903);    charge    of   homi- 

75  S.  W.  457  (459-460).  homicide.     It  cide. 

is     suggested     that     the    words    in  24— In      McCarty      v.       Common- 

hrackets  should  be  Inserted  in  this  wealth,    24   Ky.    Law   Rep.    1427,    71 

Instruction.  S.    W.    656    (657);    homicide. 

22— Hotema    v.    U.    S.,    186    U.    S.  The    court    said    of    this    instruc- 

413  (416),  22  Sup.  Ct.,  895;  charge  of  tion: 

homicide.  "It  must  be  the  contention  of  ap- 

23 — State    v.    Lyons,    113    La.    959,  pellant's  counsel,  that  any  impulse 


1662  FORMS  OF  INSTRUCTIONS.  [§2584. 

S  2584.  Whether  Mere  Weakness  of  Mind  May  Amount  to  Insanity 
— Irresistible  Impulse.  Depression  or  weakness  following  from  phys- 
ical illness,  and  such  as  in  all  respects  ordinarily  takes  place  with  men 
possessing  fair  ave];age  mental  power,  is  not  of  itself  insanity,  but  if 
disease,  of  whatever  kind  or  character,  leave  the  patient  in  such 
weakened  mental  condition  that  he  cannot  resist  the  impulse  to  com- 
mit a  crime,  he  is  not  of  sound  mind.  A  person  may  have  sufficient 
mental  capacity  to  know  right  from  wrong,  and  be  able  to  compre- 
hend the  nature  and  consequences  of  his  act,  and  yet  not  be  crimi- 
nally responsible;  for  to  make  him  criminally  responsible,  he  must 
not  only  be  able  to  know  and  apprehend  right  from  wrong,  but  also 
to  have  the  will  power  to  control  and  resist  an  impulse  to  commit 
crime. -•'' 

§  2585.  Emotional  Insanity  Defined.  Emotional  insanity  depends 
upon  the  mere  emotions  of  the  time  arising  from  some  defective  or 
perverted  moral  sense,  which  begins  on  the  eve  of  the  crime  and  ends 
when  it  is  finished.-'' 

$  2586.     Partial  Insanity — ^Laboring  under  Mental  Delusion,      (a) 

The  court  instructs  the  jury  that  the  law  recognizes  partial  as  well 
as  general  insanity;  that  a  person  may  be  insane  upon  one  or  more 
subjects,  and  sane  as  to  others ;  that  he  may  be  laboring  under  a 
mental  delusion  upon  some  particular  matter,  or  regarding  a  par- 
ticular person,  and  generally  sane  upon  all  other  subjects;  and  that 
the  law  made  no  difference,  as  regards  the  guilt  of  the  party  charged, 
whether  the  act  charged  was  produced  by  general  insanity  or  by  men- 
tal delusion  regarding  some  particular  subject  or  person. ^'^ 

that  at  the  time  may  be  irresis-  If  the  defendant  did  shoot  A.  B., 
tible,  will  excuse  homicide.  Hap-  but  at  the  time  he  shot  her  the 
pily  for  society,  this  is  not  the  defendant  did  not  have  mental  ca- 
law.  *  *  *  The  irresistible  im-  pacity  sufficient  to  enable  him  to 
pulse  recognized  by  the  law  is  know  and  understand  that  it  was 
that  only  resulting  from  mental  wrong  to  shoot  said  A.  B.,  the  de- 
diseases, — from  the  derangement  fendant  was  of  unsound  mind;  or, 
of  the  mind  caused  by  a  disease  if  the  defendant  did  shoot  said  A. 
of  the  mind.  It  is  not  material  B.,  but  at  the  time  he  shot  her  the 
how  recently  the  derangement  may  defendant  was  prompted  to  do 
have  occurred.  A  person  acts  such  shooting  by  an  impulse,  re- 
under  an  insane,  irresistible  im-  suiting  from  a  diseased  mind,  of 
pulse  when^  by  reason  of  the  du-  such  violence  that  it  'overcame  the 
ress  of  meMal  disease,  he  has  lost  will  of  the  defendant,  and  con- 
the  power  to  choose  between  right  strained  him  to  shoot  said  A.  B., 
and  wrong,  to  avoid  doing  the  when  he  did  not  wish  to  shoot 
act  in  question,  his  free  agency  her,  the  defendant  was  of  unsound 
being    at    the    time    destroyed.      1  mind. 

Bish.    Cr.    Law,    par.    387;    JParsons  25— Wheeler  v.  State,  158  Ind.  68V, 

v.    State,    81    Ala.    577,    2   So.    854,   60  63   N.   E.   975   (980). 

Am.    Rep.    193;    Portwood   v.    Com.,  26— Genz    v.     State,    58    N.    J.    L. 

104   Ky.   496,  47  S.   W.   339;   Graham  482,    34    Atl.    816. 

v.  Com.,  16   B.   Mon.   587;   Brown  v.  27— Thurman    v.     State,     32    Neb. 

Com.,  14  Bush.  398;  Mnore  v.  Com.,  224,    49   N.    W.    338   (338-9).     Charge: 

92   Ky.   637,   18   S.   W.   833."  Assault  with  intent  to  murder,  ap- 

In    McCarthy   v.    Commonwealth,  proves     the     above,     supplemented 

supra,     the     following     instruction  with   the  following: 

was  also  approved:  Something   has   been   said  in   the 


§  2587.]  CRIMINAL— INSANITY.  1663 

(b)  The  court  further  instructs  j'ou  that  if  you  find  the  accused 
was  possessed  of  a  partial  delusion  only,  and  was  not  in  other  re- 
spects insane,  then  he  must  be  considered  in  the  same  situation,  as 
to  responsibility,  as  if  the  facts  with  respect  to  which  the  delusion 
exists  were  real.  For  example,  if,  under  the  influence  of  his  delusion, 
he  supposed  another  man  to  be  in  the  act  of  attempting  to  take  away 
his  life,  and  he  killed  that  man,  as  he  supposed,  in  self-defense,  he 
would  be  exempt  from  punishment,  but  if  his  delusion  was  that  the 
deceased  had  done  a  serious  injury  to  his  character  or  person,  and 
he  killed  him  in  revenge  for  such  supposed  injuiy,  he  would  be  liable 
to  punishment.-^ 

§  2587.  When  Insane  Delusion  Is  a  Sufficient  Defense.,  (a)  When 
a  monomania  or  insane  delusion  is  the  species  of  insanity  set  up  by 
the  accused,  it  may  operate  as  an  excuse  for  a  criminal  act  only 
when  the  delusion  is  such  that  the  person  under  its  influence  has  a 
real  and  firm  belief  in  some  fact,  not  true  in  itself,  but  which,  if  it 
were  true,  would  excuse  the  act,  as  when  the  belief  is  that  the  party 
killed  has  an  immediate  design  on  his  life,  and  under  that  belief  the 
insane  man  kills  his  supposed  enemy  in  supposed  self-defense. 

(b)  But  if  the  delusion  held  by  the  defendant  was  that  the  party 
whom  he  killed  had  acted  dishonestly  towards  him,  or  had  not  prop- 
erly attended  to  his  business — in  fact,  had  committed  any  act  which 
did  not  expose  defendant's  life  to  imminent  danger  or  did  not  subject 
his  pei'son  to  great  bodily  harm — such  delusion  would  not  justify  an 
acquittal,  as,  even  though  such  delusion  existed,  it  would  not  be  of 
such  a  character,  even  if  it  were  true,  as  to  justify  homicide.^^ 

(c)  The  court  further  instructs  you  that,  if  you  find  that  the  ac- 
cused was  possessed  of  a  delusion  or  delusions,  you  are  carefully  to 
bear  in  mind  that  it  is  not  every  delusion  that  can  be  considered  an 

instructions     about     insane     delu-  cuse  on  the  ground   of  insane   de- 

sions.      It    is    not    every    delusion  luslons,    because,    if    thie    fact    had 

that   can   be   considered   an    insane  really  been  that  the  man  had  done 

delusion.     The  delusion  must  be  of  the     person     a     mean     trick,     just 

such    a    character,    that,    if    things  imagined,   it  would   not  justify  the 

were     as     the     delusion     imagined  shooting.      An    insane    delusion    is 

them  to  be,  they  would  justify  the  like   a   waking   dream;    the   subject 

act    springing    from    the    delusion,  can    neither   be   reasoned    into   nor 

To     illustrate:       If     a     person     be  out  of  it.     I  may  throw  some  light 

under  the  insane  delusion   that  he  on   the   application    of   the   subject 

is   the   Almighty   himself,   or  is   di-  to    this    case    to    consider    whether 

rectly       commissioned       or       com-  a    conviction    in    this    case    would 

manded   by    the   Almighty   himself  have  a  tendency   to  prevent   repe- 

to   shoot   a   particular   person   that  tition  of  such  acts, 
the    Almighty    has    decided    must         Citations:      1    Whart.    Cr.     Law, 

be    shot,    and    is    moved    by    such  Sec.  37;   Commonwealth  v.   Rogers, 

delusion   alone   to  do   the  shooting,  7     Mete.      (Mass.)     500;     Hadfield's 

that   would   be  an   insane   delusion,  Case,   27    How.,    St.    Fr.    1282;    Stef- 

tieciuse,    if   true,    it    would   justify  fens   Dig.    Crim.   Law,   160. 
the   shooting.     But  if  a   person   be         28— State  v.   Keerl,   29  Mont.   508, 

imder  the  delusion  that  some  man  75   Pac.    362   (363). 
has    done    him    a   mean    trick,    and         29 — State    v.    Lyons,    113    La.    959, 

tnat    he    ought    to    be    shot    for   it,  37    So.    890    (903);    charge    of    homi- 

and  the  delusion  moves  the  person  cide. 
to  shoot  the   man,   that   is  no   ex- 


1664  FORMS  OF  INSTRUCTIONS.  [§  2588. 

insane  delusion.  The  delusion  must  be  of  such  a  character  that,  if 
things  were  as  the  person  possessed  of  such  delusion  imagined  them 
to  be,  they  would  justify  the  act  springing  from  the  delusion.^*^ 

§  2588.    Erroneous  Conclusion  Distinguished  from  Insane  Delusion. 

There  is  evidence  in  this  case  tending  to  show  that  H.  believed  in 
witches,  and  that  such  belief  was  taught  by  the  Bible,  and  had  the 
belief  that  his  people  and  tribe  were  being  affected  by  witches,  and 
that  the  deaths  that  were  occurring  in  the  neighborhood  were  due  to 
the  evil  influence  of  witches,  and  that  the  party  he  slew  was  a  witch. 
Upon  this  phase  of  the  case  you  are  instructed  that  if  the  evidence 
shows  that  the  defendant  H.  believed  in  witches,  and  that  it  was  the 
result  of  his  investigation  and  belief  as  to  what  the  Scriptures  taught^ 
and  that  he  acted  upon  that  belief,  thinking  he  had  the  right  to  kill 
the  party  he  is  charged  with  killing,  because  he  thought  she  was  a 
witch,  but  at  the  time  he  knew  it  was  a  violation  of  human  law  and 
he  would  be  punished  therefor,  in  that  event  it  would  not  be  an  in- 
sane delusion  upon  the  part  of  H.,  but  would  be  an  erroneous  con- 
clusion, and,  being  so,  would  not  excuse  him  from  the  consequences  of 
his  act.^^ 

§  2589.  Distinction  between  Permanent  and  Temporary  Insanity — 
Delirium  Tremens.  Insanity  of  a  permanent  nature,  when  once  shown 
to  exist,  is  presumed  to  continue  until  the  contrary  appears;  but 
where  delirium  tremens  is  set  up  as  a  defense,  the  delirium  must  ex- 
ist at  the  time  the  act  was  committed,  as  there  is  no  presumption  of 
its  existence  from  antecedent  fits  from  which  the  party  has  recovered, 
for  this  is  a  mere  transient  derangement  of  the  mind,  and  there  is 
no  presumption  of  its  recurrence  or  continuanee.^- 

§  2590.  Insanity — From  Use  of  Drugs — Requisites — Burden  of 
Proof.  The  court  instructs  the  jury  that  if  you  further  believe  it  has 
been  shown  by  a  preponderance  of  the  evidence  that  at  the  time  of 
the  killing  defendant,  by  the  continued  or  recent  use  of  moiphine  or 
cocaine  or  both,  or  by  such  use  of  either  or  both  of  said  drugs,  com- 
bined with  whiskey,  or  from  any  other  cause,  except  the  voluntary 
recent  use  of  ardent  spirits  alone,  as  heretofore  explained  to  you,  was 
rendered  temporarily  insane,  and  while  in  such  state  of  insanity 
killed  deceased,  and  that  defendant's  mind  was  at  the  time  of  such 
killing  so  affected  with  insanity  that  he  did  not  understand  the  nature 

30— State   v.    Keerl,   29   Mont.    508,  literal    copy   of    an    instruction    ap- 

7n    Pac.    362    (363).  proved     in     the    case    of    Goodwin 

.31— Hotema  v.   United  States,  186  v.   State,  96  Ind.  550  (560),"  and  the 

U.  S.  413  (419),  22  S.   Ct.  895;  homi-  fact  that  the  evidence  showed  fre- 

cide.  quent  attacks  of   delirium  tremens 

32 — WagTier  v.  State,  116  Ind.  181,  and     that     such     frequent    attacks 

18   N.   E.   833    (836).     Affirmin,?  con-  would    have    the   effect   of  weaken- 

viction    for   assault    with    intent    to  inj^  the  mind   did   not  render  it  in- 

kill.     The  court  said   that,  applicable    or    so    erroneous    as    to 

"With   the   exception   of   the   last  require    a    reversal    of    the    judg- 

two   sentences,    the    foregoing   is   a  ment. 


§  2591.]  CRIMINAL— INSANITY.  1665 

and  quality  and  character  of  the  act  of  killing  deceased  and  its  con- 
sequences, or  if  his  mind  at  the  time  of  such  killing  was  in  such 
diseased  and  unsound  condition  that  for  the  time  being  his  reason, 
conscience,  and  judgment  was  overwhelmed  to  such  an  extent  that 
he  did  not  know  such  act  was  wrong  and  criminal,  and  would  sub- 
ject him  to  punishment,  or  create  in  the  mind  of  the  defendant  an 
uncontrollable  and  irresistible  impulse  to  kill  deceased,  which  because 
of  such  unsound  condition  of  his  mind,  he  had  not  sufficient  reason, 
judgment,  and  will  power  to  resist,  then  you  will  acquit  defendant.^^ 

§2581.  Insanity  or  Idiocy — Must  Be  "Clearly  Proved" — Requi- 
sites of  Defense.  Among  other  defenses  made  in  this  case  is  that  of 
insanity  or  idiocj'.  You  ai-e  charged  that  only  a  person  with  a  sound 
memory  and  discretion  can  be  punishable  for  a  crime,  and  that  no  act 
done  in  a  state  of  insanity  or  idiocy  can  be  held  punishable  as  an  of- 
fense. Every  man  is  presumed  to  be  sane  until  the  contrary  appears 
to  the  jury  trj-ing  him.  He  is  presumed  to  entertain,  until  this  ap- 
pears, a  sufficient  degree  of  reason  to  be  responsible  for  his  acts;  and 
to  establish  a  defense  on  the  ground  of  insanity  or  idiocy  it  must  be 
clearly  proved  that  at  the  time  of  committing  the  act  the  party  ac- 
cused was  laboring  under  such  defect  of  reason,  from  diseases  of 
mind,  as  not  to  know  the  nature  or  quality  of  the  act  he  was  doing; 
or,  if  he  did  know  that,  he  did  not  know  he  was  doing  wrong — that 
is,  that  he  did  not  know  the  difference  between  the  right  and  wrong 
as  to  the  particular  act  charged  against  him.  The  insanity  or  idiocy 
must  have  existed  at  the  very  time  of  the  commission  of  the  offense, 
and  the  mind  must  have  been  so  dethroned  of  reason  as  to  deprive  the 
person  accused  of  a  knowledge  of  the  right  and  wrong  as  to  the  par- 
ticular act  done.  You  are  to  determine  from  the  evidence  in  this  case 
the  matter  of  insanity  or  idiocy,  it  being  a  question  of  fact,  controlled, 
so  far  as  the  law  is  concerned,  by  the  instructions  herein  given  you. 
In  case  you  find  from  the  evidence  that  the  defendant  was  insane  or 
an  idiot  at  the  time  of  the  commission  of  the  act,  and  you  acquit  him 
under  the  instructions  heretofore  given  you,  you  will  state  in  your 
verdict  that  you  have  acquitted  defendant  on  the  grounds  of  insanitj'' 
or  idiocy;  and  the  burden  of  proof  to  establish  his  plea  of  insanity  or 
idiocy  devolves  upon  defendant.^* 

§  2592.  Killing  Must  Be  the  Direct  Consequence  of.  Insanity  will 
only  excuse  the  commission  of  a  criminal  act  when  it  is  made  to  ap- 
pear, affirmatively,  by  a  preponderance  of  the  evidence,  that  the  per- 
son committing  it  was  insane,  and  that  the  offense  was  the  direct  con- 
sequence of  his  insanity.^^ 

33 — "This   charge  is   correct,   an<3  34 — "The  charge  of  the  court   is 

is  the  law  of  this  state."     Cannon  correct."     Nugent  v.  State,  46  Tex. 

V.    State,   41   Tex.    Cr.    App.    467,    56  Cr.   App.   67,   80   S.   W.   84. 

S.    W.    351    (361);    citiner    Leache    v.  35— State  v.  Stickley,  41  Iowa  232. 

State,    22    Tex.    App.    279,    3    S.    W.  This   states   the   law  only   in   those 

539,  58  Am.  Rep.  638;  King  v.  State,  juripdictions   where  the  defence  of 

9  Tex.   App.   515.  insanity  must  be  established  by  a 
105 


1666  FORMS  OF  INSTRUCTIONS.  [§  2593. 

§  2593.  Insanity  Once  Shown  Presumed  to  Continue  Until  Dis- 
proved beyond  Reasonable  Doubt.  The  jury  are  instructed  that  a 
reasonable  doubt  as  to  the  sanity  of  the  defendant  may  arise  upon 
the  evidence  of  the  state,  whether  the  defendant  introduce  any  evi- 
dence on  the  subject  or  not,  and,  wherever  insanity  has  once  been 
shown  to  exist,  it  will  be  presumed  to  have  continued  until  the  con- 
trary has  been  shown  by  the  evidence  (beyond  a  reasonable  doubt). ^° 

§  2594.    Reasonable  Doubt  as  to  Sanity  of  Defendant  Acquits  Him. 

(a)  But  if  you  find  from  the  evidence,  or  have  a  reasonable  doubt  in 
regard  thereto,  that  his  brain  at  the  time  he  committed  the  act  was 
impaired  by  disease,  and  the  homicide  was  a  product  of  such  disease, 
and  that  he  was  incapable  of  forming  a  criminal  intent,  and  that  he 
had  no  control  of  his  mental  faculties  and  the  will  power  to  control 
his  actions,  but  simply  slew  V.  C.  because  he  was  laboring  under  a 
delusion  which  absolutely  controlled  him,  and  that  his  act  was  one  of 
irresistible  impulse  and  not  of  judgment,  in  that  event  he  would  be 
entitled  to  an  acquittal.^'^ 

(b)  Every  person  is  presumed  to  be  sane  until  the  contrary  is 
shown.  If  no  evidence  of  insanity  had  been  given,  then  you  would 
presume  the  respondent  to  be  responsible  for  her  acts.  When  evi- 
dence is  introduced  upon  that  question,  then  the  question  of  whether 
or  not  the  respondent  is  responsible  for  her  act  becomes  a  question 
for  you  to  determine  from  all  the  evidence  bearing  upon  it;  and  if, 
after  carefully  considering  all  of  such  evidence,  there  should  remain 
any  reasonable  doubt  as  to  whether  or  not  she  was  responsible,  then 
your  verdict  should  be  "Not  guilty,  because  of  insanity. "^^ 

(c)  It  is  claimed  by  the  defendant  that  at  the  time  of  the  com- 
mission of  the  act  he  was  insane,  and  therefore  not  legally  responsi- 
ble for  the  act.  You  are  instructed  that  where  the  defense  of  in- 
sanity is  set  up,  it  does  not  devolve  upon  the  defendant  to  prove 
that  he  was  insane  at  the  time  of  the  commission  of  the  alleged  of- 
fense by  the  preponderance  of  the  evidence  introduced  on  the  trial, 
together  with  all  the  legal  presumptions  as  explained  in  these  in- 
structions ;  but  if,  under  the  evidence  the  jury  entertains  a  reasonable 
doubt  as  to  whether  the  defendant  was  sane  or  insane,  then  in  that 
ease  he  must  be  acquitted. ^^ 

(d)  The  court  instructs  the  jury  that,  if  the  evidence  in  the  case  is 

preponderance     of     the     evidence,  proof     concerning-     the     same,     we 

Davis    V.    U.    S.,    160   U.    S.    469,    16  cannot   believe   that   the   failure   of 

Sup.    Ct.    353,    40   L.    Ed.    499.  the  court  to  repeat  the  words  'be- 

36— Blume   v.    State,   154   Ind.   343,  yond   a  reasonable  doubt'   opernted 

56   N.    E.   771    (774);   citing   Hauk   v.  to      the      prejudice     'Of      appellant. 

State,    148    Ind.    238,    46    N.    E.    127,  Goodwin    v.    State,    96    Ind.   562." 

47  N.   E.   465.     It  was   argued   that  37— Hotema   v.   United   States,  186 

this  instruction  was  erroneous,  be-  U.    S.    413    (416),   22   Sup.    Ct.    895. 

cause  it  did  not,  as  given,  contain  38— People   v.    Quimby,   134    Mich. 

thf-  words  in    brackets.  625,   96    N.    W.   1061    (1065). 

The  court  said:     "In  view  of  the  39— State  v.   McCoy,  70   Kan.   672, 

full   and  careful   instructions   upon  79  Pac.  156  (158);  homicide, 
the     issue     of     insanity,     and     the 


§2595.]  CRIMINAL— INSANITY.  1667 

sufficient  to  raise  a  reasonable  doubt  as  to  the  sanity  of  the  defend- 
ant, then  the  jury  will  find  the  defendant  not  guilty.'*" 

(e)  The  law  presumes  every  man  who  has  reached  the  years  of 
discretion  to  be  of  sound  mind;  and  this  presumption  continues  until 
arrested  by  evidence  tending  to  establish  insanity,  which  evidence 
should  be  sufficient,  to  raise  in  the  minds  of  the  prudent,  careful  juror 
a  reasonable  doubt  of  the  sanity  of  the  accused.  When,  however, 
evidence  of  insanity  has  been  introduced,  the  burden  of  proof  is  upon 
the  state  to  satisfy  the  jury,  by  competent  evidence,  beyond  any  rea- 
sonable doubt,  that  the  accused  was  possessed  of  a  sound  mind  at  the 
time  he  committed  the  act  complained  of.  You  should  bear  in  mind, 
gentlemen,  however,  that  the  burden  of  proof  in  criminal  cases  is 
always  upon  the  state,  and  never  shifts  from  the  state  to  the  de- 
fendant; that  is,  the  making  out  of  a  prima  facie  ease  against  the 
defendant  does  not  shift  the  burden  of  proof  to  the  defendant.  In 
such  a  case  it  is  only  necessaiy  for  the  defendant  to  offer  proof  suf- 
ficient to  create  in  the  minds  of  the  jury  a  reasonable  doubt  of  his 
guilt.41 

§  2595.  Prisoner  Need  Only  Create  Reasonable  Doubt  to  Cast 
Burden  on  State,  (a)  While  the  law  presumes  all  men  to  be  sane, 
yet  this  presumption  may  be  overcome  by  evidence  tending  to  prove 
insanity  existed  at  the  time  of  the  commission  of  the  alleged  offense. 
When  such  evidence  is  introduced,  then  the  presumption  of  sanity 
ceases,  and  the  prosecution  is  bound  to  prove  the  sanity  of  the  ac- 
cused beyond  a  reasonable  doubt.  So  in  this  case  where  the  defense 
of  insanity  is  interposed,  if  the  jury  after  considering  all  the  evidence 
entertain  a  reasonable  doubt  of  the  sanity  of  the  defendant  at  the 
time  of  the  alleged  offense,  then  he  must  be  acquitted.'*- 

(b)  In  order  to  sustain  the  defense  of  insanity  it  is  not  necessary 
that  the  insanity  of  the  accused  be  established,  by  a  preponderance 
of  evidence ;  if,  upon  the  whole  evidence,  the  jury  entertain  a  reason- 
able doubt  as  to  the  sanity  of  the  accused  they  must  acquit  him.*^ 

(c)  While  it  is  true  the  law  presumes  eveiy  man  to  be  sane  and 

40 — Jamison  v.  People,  145  111.  357  legal    presumption    may    be    over- 

(380),    34   N.    E.   4S6.  come  by  evidence  tending  to  prove 

41— Hill   v.    State,   42   Neb.   503,   60  insanity    of    the    accused    which    is 

N.    W.    916    (920);    People   v.    Wells,  sufficient     to     raise     a     reasonable 

145   Cal.   138,   78   Pac.   470   (472);   as-  doubt    of    his    sanity   at    the    time 

sault.  of   the   commission   of   the   act   for 

42 — Jamison  v.  People,  145  111.  357  which  he  is  sought  to  be  held  ac- 

(380),    34    N.    E.    486;   affirming   con-  countable.     When  that  is  done,  the 

viction  and  sentence  of  death.  presumption   of   sanity  cea.ses,  and 

"The    instruction    is    in    harmony  the    burden    shifts    to    the   prosecu- 

with   what    is    laid   down   in   Dacey  tion,    and    it    is    then    required    to 

V.   People,   116   111.    555.   6   N.   E.  165,  prove    his     sanity     as    an    element 

6  Am.    Cr.   Rep.   461.   where   it  was  necessary    to    constitute    crime    be- 

said:     'The   presumption   of  sanity  yond  a  reasonable  doubt.'  " 

inheres     at     every     stage     of     the  43 — Hopps    v.    People.    31    111.    385; 

trial   until  insanity  is  made  to  ap-  People  v.  Wilson,  49  Cal.  13;  State 

pear  by  the  evidence.     The  law  in  v.    Bruce.   48   la.    530;    See    State  v. 

this  .st.ite  undoubtedly  is  that  this  Wingo,  66  Mo.  181. 


J668  FORMS  OF  INSTRUCTIONS.  [§  2596. 

responsible  for  his  acts  until  the  contrary  appears,  from  the  evidence, 
still,  if  there  is  evidence  in  the  case  tending  to  rebut  this  presump- 
tion sufficient  to  raise  a  reasonable  doubt  upon  the  issue  of  insanity, 
then  the  burden  of  proof  is  upon  the  people  to  show,  by  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  was  sane,  as  explained 
in  these  instructions,  at  the  time  the  alleged  offense  was  committed.*^ 

§2596.  Sanity  Presumed  Unless  Evidence  "Clearly  Establishes" 
Insanity,  (a)  You  are  instructed  that  every  person  is  presumed  to 
be  sane  and  rational,  unless  the  fact  is  proven  otherwise  by  a  pre- 
ponderance of  the  evidence,  and  you  are  to  treat  the  acts  of  the  de- 
fendant at  and  subsequent  to  the  fire,  as  shown  by  the  e-\ddence,  as 
the  acts  of  a  sane  and  rational  man,  unless  the  evidence  shows  not 
only  a  possibility  that  his  mental  condition  was  otherwise,  but  fur- 
ther shows  by  a  fair  preponderance  of  the  evidence  in  the  case,  that 
the  defendant  was  then  in  fact  irrational,  or  suffering  from  mental 
[!]  abeiTation  of  the  mind.  You  are  not  required  to  find  that  the 
defendant  was  irrational  or  insane  at  such  time,  unless  the  evidence 
clearly  establishes  such  fact,  and  should  only  find  him  insane  or  irra- 
tional at  the  time  of  the  fire  and  subsequent  thereto,  upon  evidence  of 
a  reliable  character,  which  convinces  you  that  such  fact  is  proven  by 
a  fair  preponderance  of  all  the  evidence  in  the  ease  bearing  thereon.'*^ 

(b)  It  devolves  upon  defendant  to  establish  his  defense  of  in- 
sanity by  a  preponderance  of  the  evidence,  clearly  to  the  satisfaction 
of  the  jury.^s 

§  2597.  Insanity — Defendant  Must  Establish  by  Preponderance. 
The  presumption  is  that  at  the  time  of  committing  this  crime,  W. 
was  sane,  and  the  burden  of  proof  of  insanity  being  upon  him,  the 
defendant,  he  must  satisfy  the  jury  by  a  fair  preponderance  of  the 
evidence  submitted  to  them  that,  at  the  time  he  committed  the  act, 
be  was  insane  to  such  an  extent  that  insanity  controlled  his  will,  and 
made  the  commission  of  the  act  he  committed  appear  to  him  a  duty 
of  overruling  necessity,  or  deprived  him  of  all  freedom  of  agency. 

44 — Cone    v.    McKie,    1    Gray    61;  nature    of    an    affirmative    defense, 

Greenl.  Ev.,  13  Ed.  §  81.  'except     by     a     preponderance     of 

45— State  v.  Novak,  109  Iowa  717,  proof,  or  (which  is  the  same)  satis- 

79  N.  W.  465  (475);  homicide.  factory     evidence     of     his     sanity.' 

The    court    said:      "In    People   v.  That  preponderance  which  amounts 

Hamilton,  62  Cal.  377,   in  consider-  to   satisfactory   evidence   of  a  fact 

Ing  the   weight  of  evidence  to  es-  must  be  such  as  clearly  establishes 

tablish    insanity,    and    in    passing  the    fact.      We    discover    no    error 

upon   an    instruction   in    which   the  in  the  instruction." 

words     'clearly     established'     were  46— Carlisle   v.   State,  —  Tex.   Cr. 

used,    it    is    said:      'In    the   connec-  App.  — ,  56  S.  W.  365  (366).     "There 

tion    in    which    they    are    used,    to  is    no    error   in    this    charge,    as    it 

say  that   insanity   must   be  clearly  is  the  law."  Citing  Webb  v.   State, 

established   is   not   to   say   that   the  5    Tex.    App.    595;    Glebel    v.    State, 

evidence     must     more     than     pre-  28    Tex.    App.    151,    12    S.    W.    591; 

ponderate,   but   only   that   the   pre-  Smith   v.    State,   22   Tex.   App.    317, 

ponderance  must  be  plainly  appar-  3    S.    W.    684;    Hurst    v.    State,    40 

ent.'    In  State  v.  Felter,  32  Iowa  49,  Tex.    Cr.    R.    378,    46    S.    W.    635,    50 

U   Is   said   that   the   fact   of   sanity  S.    W.   719. 
cannot  be  avoided,  it  being  in  the 


§  2598.]  CRIMINAL— INSANITY.  1669 

If  he  fail  to  do  so, — if  the  fair  preponderance  of  the  testimony  does 
not  satisfy  the  juiy  of  such  insanity,  but  only  creates  a  doubt  of 
his  sanity,  or  reasonable  doubt  of  his  sanity, — it  is  insufficient  to  jus- 
tify an  acquittal,  and  the  juiy  should  return  a  verdict  of  guilty  in 
such  case.*'' 

§  2598.  Burden  of  Proof — Alabama  Statutory  Plea  of  Insanity. 
]n  the  trial  of  a  homicide  case,  where  the  plea  of  not  guilty  and 
the  statutoiy  plea  of  not  guilty  by  insanity  are  both  intei'posed,  the 
burden  of  proof  as  to  the  first  plea  is  upon  the  state  to  satisfy  the 
jury  beyond  a  reasonable  doubt  of  the  guilt  of  the  defendant ;  but,  as 
to  the  second  plea,  the  burden  of  proof  is  upon  the  defendant  to 
establish  the  plea  of  not  guilty  by  reason  of  insanity  to  the  reasonable 
satisfaction  of  the  jury,  by  a  preponderance  of  the  evidence,  and  a 
reasonable  doubt  is  not  sufficient  to  acquit  the  defendant  under  this 
plea.  The  rule  as  to  the  weight  and  sufficiency  of  the  evidence  as  to 
the  one  plea  is  that  the  state  must  satisfy  the  jui'y  beyond  a  reason- 
able doubt,  whereas,  as  to  the  other,  the  defendant  must  reasonably 
satisfy  the  juiy  by  a  preponderance  of  the  evidence.'*^ 

§  2599.  Insanity — Need  Not  Be  Proven  by  Direct  Evidence.  The 
court  instructs  the  jury  that,  to  establish  the  insanity  of  the  defend- 
ant with  respect  to  the  act  charged  against  him  in  the  infoi'mation, 
positive  and  direct  proof  of  it  is  not  required.  To  entitle  him  to  an 
acquittal  by  reason  of  his  insanity  at  the  time  of  the  killing  of  said 
W.  by  defendant,  circumstantial  evidence  which  reasonably  satisfies 
the  mind  of  its  existence  is  sufficient.  As  the  law  presumes  the  de- 
fendant innocent,  the  burden  of  proving  him  guilty  rests  with  the 
state;  and  before  you  should  convict  him  his  guilt  must  be  established 
beyond  all  reasonable  doubt. *^ 

§  2600.  Insanity  at  Time  of  Trial — Jury  Not  to  Determine.  You 
are  not  required  to  decide  whether  or  not  the  defendant  is  insane  at 
the  present  time,  but  j'ou  are  to  consider  him  as  now  sane.  A  person 
charged  with  crime  cannot  be  legally  tried  for  such  crime  unless  he 
be  sane  at  the  time  of  the  trial.  The  defendant  has  presented  the 
issue  to  you  that  at  the  very  time  of  the  alleged  commission  of  the 
homicide  he  was  insane.  The  law  presumes  that  he  was  sane,  and 
therefore  the  burden  of  proving  his  insanity  at  the  time  rests  upon 
him.50 

§  2601.  Evidence  as  to  Ancestors'  Insanity  Admissible  Only  in 
Corroboration.     It  is  never  allowed  to  infer  insanity  in  the  accused 

47— Commonwealth    v.    Wireback,  49— State   v.    Privitt,   175   Mo.   207, 

190    Pa.    138.    42    Atl.    542    (547).    70  75    S.    W.    457    (460). 

Am.     St.    625.      In     some    jurisdic-  50 — Held    that    this    was    not    or 

tlons  this  instruction  would  be  er-  invasions    of   the    province    of    thi 

roneous,    as    they    hold    that    it    is  jury  in   a  case   where   no  question 

only   necessary   to   raise   a   reason-  was  made  as   to  the  sanity  of  the 

able    doubt    of    the    sanity    of    the  defendant  at  the  time  of  the  trial, 

accused.     See  §  2596  post.  People   v.    Donlan,    135    Cal.    4S9,    67 

48_From    the   opinion   in  Parrish  Pac.     761     (763),     citing     People     v. 

V.    State,    139    Ala.    16,    36    So.    1012  Schmidt,    106   Cal.    50,    39   Pac.    205. 
(1017-8-9). 


1670  FORMS  OP  INSTRUCTIONS.  [§  2602. 

from  the  mere  fact  of  its  existence  in  the  ancestors.  But  when  testi- 
mony is  given  directly  tending  to  prove  insane  conduct  on  the  part 
of  the  accused,  this  kind  of  proof  is  admissible  as  corroborative  of  the 
other.  And  therefore  it  is  that  the  defense  has  been  allowed  to  in- 
troduce evidence  to  you  covering  the  whole  life  of  the  accused  and 
reaching  to  his  family  antecedents.^^ 

§  2602.  Insanity  of  Defendant's  Mother  Must  Be  Considered.  If 
the  juiy  believe  that  the  defendant's  mother,  in  her  lifetime,  was 
insane,  and  that  insanity  is  hereditary,  they  must  take  that  fact  into 
consideration  in  detennining  the  question  of  defendant's  insanity 
at  the  moment  of  shooting.^- 

§  2603.  Insanity — Suicide  Not  Necessarily  Evidence  of.  Now,  evi- 
dence has  been  introduced  here  tending  to  show  that  the  father  and 
brother  of  this  respondent  committed  suicide.  Suicide  of  itself  alone, 
is  not  evidence  of  insanity.  It  may  be  considered  with  other  facts 
and  circumstances  in  determining  the  question  of  sanity. ^^ 

§  2604.  Children  Poisoned  by  Mother  of  Suicidal  Tendency.  The 
only  question  is,  if  she  administered  morphine  to  those  children  with 
the  intent  to  cause  their  death,  did  she,  at  the  time  of  doing  it,  know 
it  was  wrong  to  so  kill  them,  and  could  she  have  refrained  from  doing 
it  if  she  had  chosen  to  do  so.^* 

§  2605.  Insanity — Hypothetical  Case  Put  to  Experts.  Whether 
the  hypothetical  case  upon  which  the  opinions  of  the  experts  are 
based  corresponds  to  and  coincides  with  the  ease  of  the  defendant,  the 
jury  alone  must  determine,  in  the  light  of  the  testimony  presented  on 
this  trial.  And  whenever  it  supposes  facts  not  given  in  evidence,  it 
should  be  disregarded  by  the  jury.^^ 


INTOXICATION. 

§  2606.  Voluntary  Drunkenness  No  Excuse,  (a)  The  jury  are 
instructed,  that  under  our  law  voluntary  drunkenness  is  no  excuse  for 
the  commission  of  a  crime.  Where,  without  intoxication,  the  law 
would  impute  a  criminal  intent,  proof  of  drunkenness  will  not  avail 
to  disprove  such  intent. -"^^ 

(b)  The  jury  are  instructed,  that  voluntary  intoxication  or  drunk- 
enness is  no  excuse  for  crime  committed  under  its  influence,  nor  is  any 

51— This  extract  from  the  charge  46;    State   v.    Mason,   24    Mont.    341, 

of  Judge  Cox  in  the  Guiteau  case,  61  Pac.   861. 

10    Fed.    Rep.    161,    was    held    error  52— People   v.    Tuczkewitz,   149   N. 

in   Montana,   where  the  trial  judge  Y.    240,   43    N.    E.    548    (543). 

is  prohibited   from   commenting  on  53 — People   v.   Quimby.   134   Mich, 

the    evidence.      State    v.    Keerl,    29  625,    96    N.   W.    1061    (1065). 

Mont.  .508,  75  Pac.  362  (365).     Citing  54— People   v.    QuimTiy,    134    Mich, 

State    v.    Sullivan,    9    Mont.    174,    22  625,   96  N.   W.   1061   (1065-6). 

Pac.  1088;  State  v.   Gleim,  17  Mont.  55— State    v.    Coats,    174    Mo.    396, 

17,    41    Pac.    998,    .31    L.    R.    A.    294,  74    S.    W.    864    (870). 

52   Am.    St.    655,    10    Am.    Cr.    Rep.  5fr— Rafferty  v.  The  People,  66  111. 

118. 


§  2607.]  CRIMINAL— INTOXICATION.  1671 

state  of  mind  resulting  from  drunkenness,  short  of  actual  insanity  or 
loss  of  reason,  any  excuse  for  a  criminal  aet.^^ 

(e)  The  court  instructs  the  jury  that  drunkenness  or  voluntary 
intoxication  is  no  excuse  for  crime,  although  such  drunkenness  may 
be  the  result  of  long-continued  and  habitual  drinking  without  any 
purpose  to  commit  crime,  and  may  have  produced  a  temporary  insan- 
ity, during  the  existence  of  which  the  criminal  act  is  committed;  in 
other  words,  a  person,  whether  he  be  an  habitual  drinker  or  not,  can- 
not voluntarily  make  himself  so  drunk  as  to  become  on  that  account 
irresponsible  for  his  conduct  during  such  drunkenness.^^ 

(d)  It  is  immaterial  in  this  case  whether  the  defendant  was  drink- 
ing or  intoxicated  at  the  time  of  the  homicide  spoken  of  in  the  evi- 
dence, as  drunkenness  neither  excuses,  palliates  nor  affects  a  crime.^^ 

§  2607.    Getting  Intoxicated  with  a  View  of  Committing   Crime. 

If  a  person  voluntarily  becomes  intoxicated,  with  a  view  of  commit- 
ting a  crime,  and  while  so  intoxicated,  commits  the  crime,  total  insan- 
ity, if  the  immediate  result  of  such  intoxication,  would  not  excuse  the 
criminal  act  committed  while  under  the  influence  of  such  intoxica- 
tion; for  the  law  will  not  permit  a  person  to  so  shield  himself  under 
the  cloak  of  drunkenness  for  the  purpose  of  violating  the  law  of  the 
land.60 

§  2608.  Intoxication  Procured  by  Artifice  of  Deceased,  Not  Volun- 
tary. You  are  instructed  that  if  you  find  that  the  defendant,  at  the 
time  of  the  alleged  shooting,  was  intoxicated,  but  that  his  intoxication 
had  been  procured  by  the  artifice  or  fraud  of  the  deceased  or  other 
persons,  then,  and  in  such  event,  it  would  not  be  a  voluntary  intoxi- 
cation in  the  eye  of  the  law ;  and  in  such  event,  if  you  so  find,  if  the 
intoxication  was  to  such  an  extent  as  to  absolutely  destroy  the  reason 
for  the  time  being,  so  far  as  his  knowledge  of  his  acts  is  concerned, — 
that  is,  place  the  defendant  in  such  a  mental  condition  that  he  had  no 
knowledge  of  the  nature  or  character  of  his  acts,  or  whether  right  or 
wrong, — then,  and  in  such  event,  you  are  iusti'ucted  that  you  should 
acquit  the  defendant.*'^ 

§  2609.  Irresistible  Impulse  from  Voluntary  Drunkenness  No  De- 
fense, The  court  instructs  the  jury  that  although  they  may  believe 
from  the  evidence  that  the  defendant  at  the  time  of  the  killing  of  E. 
W.  was  without  sufficient  power  to  govern  his  action  by  reason  of 

57— State  v.  Coleman,  27  La.  Ann.  59— State  v.   May,  172  Mo.  630,  72 

691;   Beasley   v.    State,    50   Ala.   149;  S.  W.  918  (920).     Murder  case. 

State    v.    Thompson,    12    Nev.    140;  60— Hill   v.   State,   42   Neb.   503,   60 

Fitzpatrick    v.    People,    98    111.    270;  N.    W.    916    (920). 

Cobbath  v.   State,   2  Tex.   App.   391.  61— State  v.  Wright,  112  Iowa  436, 

58— Longley  v.  Commonwealth,  99  84  N.  W.  541  (545).     The  court  said: 

Va.    807,    37    S.    E.    339    (340);    State  "We     think     this    states     correctly 

V.  Wright,  112  Iowa  436,   84  N.  W.  the    law    relating   to    voluntary   in- 

541    (544).     But    see    instructions   in  toxication.    and    that    the    mention 

People   V.    Fellows,   122   Cal.   333,   54  made  of  this  subject  by  the  court 

Pac.  830.    §  2613  post,  in   its   own   charge   was   not   broad 


1672  FORMS  OF  INSTRUCTIONS.  [§  2610. 

some  impulse  which  he  could  not  resist  or  control,  yet  if  they  further 
believe  from  the  evidence  that  such  lack  of  reason  to  know  right  from 
wrong,  or  such  insufficient  will  power  to  govern  his  actions  or  to 
control  his  impulses,  arose  alone  from  voluntary  drunkenness,  but 
not  from  unsoundness  of  mind,  they  should  not  acquit  the  defendant 
on  the  grounds  of  insanity. *^- 

§  2610.  Insanity — Not  the  Immediate  Effect  of  Intoxicants.  If  the 
jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  committed  the  act  charged,  in  manner  and  form  as  charged 
in  the  indictment,  still,  if  the  jury  further  believe,  from  the  evidence, 
that  the  defendant,  at  the  time,  was  in  such  a  state  of  mental  in- 
sanity (not  produced  by  the  immediate  effects  of  intoxicating  drink) 
as  not  to  have  been  conscious  of  what  he  was  doing,  or  that  the  act 
itself  was  wrong,  then  they  should  find  the  defendant  not  guilty. *^^ 

§  2611.  Delirium  Tremens.  The  jury  are  instructed,  that  although 
they  may  believe,  from  the  evidence,  that  the  defendant  committed 
the  criminal  act,  in  manner  and  form  as  charged  in  the  indictment, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  at  the  time 
he  so  committed  the  act  he  was  so  affected  by  what  is  known  as 
delirium  tremens  that  he  did  not  know  the  nature  of  the  act,  nor 
whether  it  was  wrong  or  not,  and  that  such  delirium  was  induced 
by  antecedent  and  long-continued  use  of  intoxicating  drinks,  and  not 
as  the  immediate  effect  of  intoxication,  then  the  defendant  cannot  be 
held  criminally  responsible  for  such  act,  and  the  jury  should  find  the 
defendant  not  guilty.®* 

§  2612.  Intoxication  Not  Amounting  to  Insanity  No  Defense — 
Presumption,  (a)  If  the  evidence  as  a  whole  fails  to  show  beyond 
a  reasonable  doubt,  that  H.  was  of  sound  brain,  or  at  least  to  that 
extent  that  he  knew  right  from  wrong,  and  was  capable  of  forming 

and   full  enough   to  cover  the   fact  and     the     want     of     these     mental 

here  presented."  powers    arising    from    unsoundness 

62 — Mathley     v.     Commonwealth,  of  mind.     The  instruction  tells  the 

120    Ky.     389,    86    S.    W.    988    (989).  jury     plainly     that     if     appellant's 

"This  Instruction  is  criticised  be-  lack  of  reason  or  will  power  arose 

cause  it  is  said  that  it  takes  from  alone  from  voluntary  drunkenness, 

the  jury  the  right   to  find   the  de-  but  not  from  unsoundness  of  mind, 

fendant    insane,    although   his  mind  they  should  not   acquit  him  on  the 

may  have  been  so  diseased  by  long  grounds  of  insanity.     This  instruc- 

drunkenness  as   to  deprive  him   of  tion   is   copied    from   one   approved 

th    power    of    knowing    right    from  by    this    court   in    Wright   v.    Com- 

wrong,    or  of  will    power   sufficient  monwealth,   24   Ky.    Law  Rep.  1838, 

to_   govern     his    actions,     provided  72    S.    W.    340,    and    we    adhere    to 

this     condition     was     superinduced  it    as    a    sound    exposition    of    the 

alone  from  voluntary  drunkenness,  liw    on    the    subject    of    which    it 

If     the     Inference     which     counsel  treats." 

drn.w    from    the    language    of    this  63— U.    S.  'v.    Drew,    5   Mason    U. 

ln.«trur-tion    is   correct,    their   objec-  S.  Rep.  28;  Carter  v.  State,  12  Tex. 

tlon    to    It    Is    well    founded;    but  ROO;    Maconnehey   v.    State,    5   Ohio 

an    nnaly."3is    of    It    .shows    that    it  St.    77;    Bales   v.    State,    3   W.    Va. 

clearly    distinguishes    between    the  6S.'i;  Fisher  v.   State,  64  Ind.  435. 

lark  of  reason  or  will   power  aris-  64 — Bailey  v.   State,  26  Ind.  422. 
ifig    from     voluntary     dninkf-nness 


§  2612.]  CRIMINAL— INTOXICATION.  1673 

and  carrying  into  execution  a  criminal  intent,  he  would  be  entitled  to 
be  acquitted,  no  matter  what  amount  of  whiskey  he  had  drunk;  but, 
in  arriving  at  that  conclusion,  the  jury  are  to  look  to  all  the  evidence, 
and  if,  from  all  the  evidence,  they  are  satisfied  that  he  slew  V.  by 
reason  of  the  whiskey  he  had  drunk,  and  not  as  a  result  of  an  insane 
delusion  above  referred  to,  in  that  event  it  would  be  your  duty  to 
convict  the  defendant;  but  if  you  have  a  reasonable  doubt  with  re- 
gard to  this  matter,  you  will  resolve  it  in  favor  of  the  defendant 
and  acquit  him.'^^ 

(b)  The  court  instnicts  the  jury  that  if  the  person  is  sober  enough 
and  has  mind  enough  to  form  a  design  to  take  the  life  of  another,  and 
in  pursuance  of  such  design  does  actually  shoot  and  kill,  without  any 
justification  therefor,  then  the  law  presumes  that  such  person  is 
sober  enough  and  of  sufficient  mind  to  form  the  specific  intention  to 
kill,  and  in  such  ease,  where  he  attempts  to  take  life  or  does  take 
life,  he  is  criminally  responsible  for  his  acts.®^ 

(c)  The  court  instructs  the  jury  that  voluntary  intoxication  or 
drunkenness  is  no  excuse  for  crime  committed  under  its  influence, 
short  of  actual  insanity  or  loss  of  reason ;  and  if  a  person  is  sober 
enough  to  intend  to  shoot  at  another,  and  actually  does  shoot  at  and 
hit  him,  without  justification  therefor,  then  the  law  presumes  that 
such  person  is  sober  enough  to  form  the  specific  intent  to  kill  the  one 
shot  at,  and  in  such  ease  is  criminally  responsible  for  his  act.  If, 
therefore,  you  find  from  the  evidence  that  the  defendant  was  in  such 
a  state  of  intoxication  or  drunkenness  at  the  time  of  the  shooting  as 
to  be  incapable  of  forming  an  intent,  or  of  distinguishing  between 
right  and  wrong,  it  is  a  defense  for  a  crime  committed  while  in  that 
condition  as  to  all  degree  of  the  crime  wherein  an  intent  was  neces- 
sary to  complete  the  degree  of  the  offense.  But  if  you  find  from  the 
evidence  that  the  defendant  was  sufficiently  sober  at  the  time  of  the 
shooting  to  distinguish  right  from  wrong,  and  to  form  a  specific  in- 
tent, then  the  defense  of  drunkenness  cannot  avail  him.®'' 

(d)  The  court  instructs  j'ou  that  you  should  bear  in  mind  that 
under  our  law  voluntary  drunkenness  is  no  excuse  for  the  perpetra- 
tion of  crime,  and  that  where,  without  intoxication,  the  law  would 
impute  a  criminal  intent,  mere  proof  of  drunkenness  will  not  avail 
to  disprove  such  intent,  and  that  it  is  only  in  cases  where  the  con- 
stant and  excessive  use  of  alcoholic  stimulants  has  produced  actual 
insanity,  resulting  in  derangement  of  the  mental  and  moral  faculties 
to  such  an  extent  as  to  render  the  person  so  afflicted  incapable  of  dis- 
tinguishing right  from  wrong  that  crime  may  be  excused  thereby.®^ 

65— Hotema  v.  United   States,  186  115,    97   N.    W.    992    (995).      Estes   v. 

U.    S.    413    (418),    22    S.    Ct.    895.  State.    55    Ga.    31,    1    Am.    Cr.    Rep. 

66— Hill   v.   State,   42   Neb.   503,   60  596,   is   authority   for   the   following' 

N.    W.    916    (920).  instruction,   which  is  really  a  part 

67— Commonwealth   v.    McGowan,  of    the    instruction    given    in     the 

189  Pa.  641,  42  Atl.  365  (366),  69  Am.  text: 

St.    830.  In    relation    to    the    question    or 

68— State    v.    Williams,    122    Iowa  drunkenness  as  an  excuse  for  crime. 


1674 


FORMS  OF  INSTRUCTIONS. 


[§  2613. 


§  2613.  Insanity  Produced  by  Intoxication  an  Excuse,  (a)  In- 
sanity produced  by  intoxication  does  not  destroy  responsibility  where 
the  party,  when  sane  and  responsible,  made  himself  voluntarily  in- 
toxicated. 

(b)  The  jury  is  further  instructed  that,  while  mere  voluntary  in- 
toxication is  no  excuse  or  justification  for  the  commission  of  a  crime, 
still  insanity  although  produced  immediately  by  intoxication  is  a 
defense.  Under  our  Code  an  insane  person  is  incapable  of  committing 
a  crime;  that  is  to  say,  if  a  man  kills  another  while  insane,  or  if 
his  mind  is  unsound  it  is  no  crime,  and  this  is  so  whether  his  insanity 
is  produced  or  brought  on  by  intoxication  or  the  use  of  intoxicating 
liquors,  or  by  any  other  cause.^^ 

(c)  Although  drunkenness,  in  itself,  is  no  excuse  or  palliation  for 
crime  committed  while  under  its  influence,  yet  mental  unsoundness, 
superinduced  by  excessive  drunkenness,  and  continuing  after  the  in- 
toxication has  subsided,  may  be  an  excuse;  provided  such  mental 
derangement  be  sufficient  to  deprive  the  accused  of  the  ability  to  dis- 
tinguish between  right  and  wrong.'^*^ 

§  2614.  Temporary  Insanity  Produced  by  Use  of  Intoxicating 
Liquors  in  Mitigation — Murder,  (a)  Now,  if  you  believe  from  the 
evidence  in  this  case  that  the  defendant,  at  the  time  of  the  commis- 
sion of  the  offense  for  which  he  is  on  trial,  if  you  find  him  guilty  of 


the  court  instructs  the  jury,  that 
if  a  person  is  sober  enough  to  in- 
tend to  shoot  at  another,  and  ac- 
tually does  shoot  at  and  hit  him, 
without  any  justification  therefor, 
then  the  law  presumes  that  such 
person  is  sober  enough  to  form  the 
specific  intention  to  kill  the  one 
shot  at,  and,  in  such  case,  he  is 
criminally   responsible   for   his  act. 

69— Hill  v.  State,  42  Neb.  503,  60 
N.  W.  916  (920);  People  v.  Fellows, 
122  Cal.  333,  54  Pac.  830  (832). 

"Upon  the  subject  of  intoxication 
as  an  excuse  for  crime  the  court 
of  its  own  motion  gave  the  in- 
struction first  considered  in  People 
v.  Lewis,  36  Cal.  531,  and  since 
then  reviewed  and  approved  upon 
many  recurrent  occasions.  People 
v.  Williams,  43  Cal.  344;  People  v. 
Jones,  63  Cal.  168;  People  v.  Ferris, 
.^)5  Cal.  588;  People  v.  Blake,  65 
Cal,  275,  4  Pac.  1;  People  v.  Frank- 
lin, 70  Cal.  641,  11  Pac.  797;  Peo- 
ple v.  Vincent,  95  Cal.  425,  30  Pac. 
581." 

See  to  the  contrary,  Longley  v. 
Commonwealth,  99  Va.  807,  37  S.  E. 
339. 

In  Wagner  v.  State,  116  Ind.  181, 


18  N.  E.  833  (836),  the  following 
instruction  was  given: 

Mental  incapacity  produced  by 
voluntary  intoxication  existing  only 
temporarily,  but  at  the  time  of  the 
commission  of  the  offense,  is  no 
excuse  for  crime,  nor  a  defense 
for  a  prosecution  therefor.  But 
where  the  habit  of  intoxication, 
though  voluntary,  has  been  long 
continued,  and  has  produced  dis- 
ease which  has  perverted  or  de- 
stroyed the  mental  faculties  of  the 
accused  so  that  he  was  incapable 
at  the  time  of  the  commission  of 
the  alleged  crime,  on  account  of 
the  disease,  of  acting  from  motive, 
or  distinguishing  right  from  wrong, 
— in  short,  insane, — he  will  not  be 
held  accountable  for  the  act 
charged  as  a  crime  committed  while 
in  such  condition. 

Held,  that  while  not  couched  in 
the  most  specific  and  appro<priate 
language,  defendant  could  not  com- 
plain of  giving  the  above  instruc- 
tion. "The  proof  is  conclusive  that 
at  the  time  he  did  the  shooting 
he  was  not  in  such  a  condition  of 
intoxication  as  that  his  knowledge 
of  right  and  wrong  was  affected 
thereby." 

70— Beasley  v.  The  State,  50  Ala. 
149. 


§2615.]  CRIMINAI^-INTOXICATION.  1675 

such  offense,  was  laboring  under  temporary  insanity  as  above  defined, 
produced  by  the  voluntaiy  recent  use  of  ardent  spirits,  you  will  take 
such  temporary  insanity  into  consideration  in  determining  the  grade 
of  the  offense,  if  any,  that  the  defendant  may  be  found  guilty  of, 
and  in  mitigation  of  the  penalty  attaching  to  the  offense,  if  any.''^ 

(b)  If  you  believe  that  at  the  time  of  the  commission  of  the  act 
with  which  defendant  is  charged,  and  is  on  trial  before  you,  that  he 
was  temporarily  insane,  and  that  such  temporary  insanity,  if  such 
there  was,  was  produced  by  the  voluntary  recent  use  of  ardent  spir- 
its, it  would  afford  no  excuse  for  the  commission  of  the  act  charged 
against  him,  if  the  act  was  otherwise  criminal.  But  such  temporary 
insanity  produced  by  voluntary  recent  use  of  ardent  spirits  alone,  if 
you  find  there  was  such  insanity  so  produced,  should  be  considered  in 
mitigation  of  the  penalty  attached  to  the  offense  of  which  you  will 
find  him  guilty. '^^ 

§  2615.    Intoxication  Not  Inconsistent  with  Premeditation.    A  man 

may  be  intoxicated,  and  still  have  mind  enough  to  plan,  deliberate, 
and  premeditate.  If  the  intention  to  kill  is  deliberately  formed, — is 
premeditated,  then  the  mere  fact  that  defendant  was  drunk  will  not 
make  the  crime  murder  in  the  second  degree.''^ 

§  2616.  Intent — Intoxication  as  Affecting  Intention— Larceny. 
(a)  The  intent  just  referred  to  and  explained  can  only  exist  when 
the  party  is  competent  to  form  an  intent,  and  purposely  takes  the 
property  alleged  to  have  been  stolen.  Testimony  has  been  received 
in  this  ease  tending  to  show  that  these  defendants  were  intoxicated  at 
the  time  of  the  alleged  larceny.  While  mere  intoxication  is  not  an  ex- 
cuse for  crime,  nor  a  defense  to  a  criminal  charge,  yet  when  a  specific 
intent  is  necessaiy,  as  in  the  case  of  larceny,  the  question  of  intoxi- 
cation becomes  important,  in  determining  whether  the  person  charged 
was  or  was  not  in  such  a  state  of  mind  as  to  be  able  to  form  such 
specific  intent.  As  already  explained,  the  mere  taking  of  property  of 
another  does  not  constitute  larceny,  unless  the  intent  permanently  to 
deprive  the  OAvner  thereof  existed  at  the  time  of  its  taking.  You  may 
therefore  consider  whether  or  not  the  defendants  or  either  of  them, 
were  so  intoxicated  at  the  time  of  the  alleged  larceny  as  to  be  in- 
capable of  forming  the  felonious  intent  which  is  a  necessary  element 
of  the  crime.  If  you  find  that  they  were,  or  if  you  have  a  reasonable 
doubt  as  to  whether  they  were  or  not,  then  they  are  not  guilty  of 
the  charge  and  must  be  acquitted.'^* 

(b)     The  defendant  claims  that,  at  the  time  he  disposed  of  the  ring 
in  question,  he  was  so  under  the  influence  of  liquor  that  he  was  in- 

71_Campos  v.   State,  —  Tex.   Cr.  72— Edwards  v.  State,  —  Tex.  Cr. 

App.   — ,   97   S.   W.   100.  App.    — ,    54    S.    W.    589    (590),    homi- 

The     court      said     this      "charge  cide. 

given   was   in   accordance  with   the  73— State   v.    McDaniel.   115   N.    C. 

rule  laid   down   in    Evers   v.    State,  807,  20  S.  E.  622  (623). 

31    Tex     Cr.    R.    31S,    20    S.    W.    744,  74— Cnllins   v.    Stnte,   115  Wis.   596, 

18   L.    R.    A.    421,    37   Am.    St.    Rep.  92  N.  W.  266  (268),  95  Am.  St.  954, 
811." 


1676  FORMS  OF  INSTRUCTIONS.  [§  2617. 

capable  of  fonning  an  intent  to  steal,  and  for  that  reason  be  claims 
he  is  not  guilty.  Drunkenness  is  no  excuse  for  crime.  If  the  state 
lias  proved,  beyond. a  reasonable  doubt,  that  defendant,  at  and  -vvithin 
the  county  of  Douglas,  and  state  of  Nebraska,  at  or  about  the  time 
named  in  the  information,  temporarily  obtained  the  property  in 
question  from  the  said  B.,  that,  while  holding  the  possession  of  the 
property,  he  unlawfully  and  feloniously  converted  said  property  to 
his  own  use,  without  the  consent  of  the  said  B.,  by  disposing  of  said 
property  at  a  i>awn  shop,  with  the  intent  feloniously  to  permanently 
appropriate  the  same  to  his  own  use,  against  the  will  of  said  B., 
then  the  burden  would  rest  upon  the  defendant  to  satisfy  you  by 
evidence  that  he  was  so  under  the  influence  of  liquor  at  the  time  that 
he  was  mentally  unable  to  form  an  intent  in  his  mind  to  steal  said 
property,  or  raise  a  reasonable  doubt  in  your  minds,  after  careful 
weighing  and  considering  all  the  evidence  in  the  case,  whether  he  is 
guilt}^,  because  of  such  a  state  of  intoxication  at  the  time  as  not  to 
be  able  to  form  an  intent  to  steal.  You  are  to  determine  this  matter 
from  all  the  evidence  in  the  case.'^^ 

§  2617.  Voluntary  Intoxication  Will  Not  Excuse  Any  Grade  of 
Homicide  Except  Murder  in  First  Degree,  (a)  Voluntary  intoxica- 
tion will  not  excuse  the  commission  of  any  grade  of  unlawful  homi- 
cide below  murder  in  the  first  degree,  and  you  will  consider  the  evi- 
dence with  reference  to  determining  the  defendant's  guilt  or  inno- 
cence as  to  all  grades  of  unlawful  homicide  below  murder  in  the 
first  degree,  without  reference  to  whether  he  was  or  was  not  intoxi- 
cated, or  as  to  the  degree  of  intoxication,  if  any.'^^ 

(b)  Drunkenness  voluntarily  produced  does  not  excuse  crime.  Yet 
when  a  homicide,  admitting  of  different  degrees  of  punishment  under 
the  law,  has  been  committed  by  a  person  in  such  a  condition  of  drunk- 
enness as  to  render  him  incapable  of  a  willful,  deliberated  and  pre- 
meditated purpose,  the  jury  cannot  find  the  prisoner  guilty  of  murder 
in  the  first  degree. 

(c)  If  the  jury  believe  from  the  evidence  that  L.  killed  B.  as 
charged  in  the  indictment,  and  at  the  time  of  such  killing,  L.  was 
under  the  influence  of  liquor  voluntarily  taken  by  him,  then  said 
intoxication  so  produced  is  in  law  no  excuse  for  the  act  done  by  L,, 
unless  they  believe  from  the  evidence  that  such  intoxication  was  such 
as  did  in  fact  deprive  him  at  the  time  of  killing  of  the  mental  capac- 

75— Ford    v.    Sfnte,    46    Neb.    390,  a   defense,    and   the   fact   that   the 

64  N.  W.  1082  (1085).  court  informed  the  jury  that  it  was 

In  comment  the  court  said:    "Ob-  no  excuse  for  crime  In  no  manner 

j'^'^tion     is    made    to    the    sentence  tended  to  belittle  the  prisoner's  de- 

'Drunkenness  is  no  excuse  for  fense,  as  in  the  brief  sng-ar'^sted." 
r-rime.'       The     soun'rlness     of     this        7^— Thomns  v.    Stpte,   47   Fla.    99, 

statement    cannot    be    successfuHy  "6    Fo.    161    (164).      The    court    said: 

controverted.    3  Rice,  Cr.  Ev.  para.  "This   charge  is  correct  under  the 

.^87;    Hopt   V.   Utah,   104   U.   S.   631;  decision  in  Garner  v.  State.  28  Fla. 

Hill    v.    State,    42    Neb.    503,    60    N.  113,    9    So.    835,    29    Am.     St.    Rep. 

"W.  916.    Drunkenness  was  urged  as  232." 


2618.] 


CRIMINALf— INTOXICATION. 


1677 


ity  to  form  a  malicious  purpose  to  kill,  in  which  event  they  may  find 
L.  guilty  of  murder  in  the  second  degree  or  manslaughter.'^^ 

(d)  If  you  find  from  the  evidence  that  defendant  fired  the  shot 
which  killed  his  wife,  and  if  when  he  did  so  he  was  in  such  a  condi- 
tion from  the  use  of  spirituous  liquors  that  he  was  not  capable  of 
forming  a  premeditated  intent  to  kill  her,  then  you  should  consider 
the  question  of  intoxication  and  you  cannot  convict  him  of  murder  in 
the  first  degree.  But  if  he  was  able  to  fonn  that  intent  to  kill,  will- 
fully, deliberately,  and  premeditatedly,  when  he  fired  the  shot,  then 
you  must  have  nothing  more  to  do  with  the  question  of  his  drinking, 
and  you  should  give  it  no  further  thought  or  consideration  in  the 
case,  for  then  it  cuts  no  further  figure. '^^ 

§  2618.  Intoxication  May  Reduce  from  Murder  to  Manslaughter, 
(a)  There  is  some  evidence  as  to  the  drunkenness  of  defendant  at 
the  time  of  the  killing.  If  the  defendant,  at  the  time  of  the  killing, 
was  so  intoxicated  as  not  to  be  callable  of  forming  the  design  to  take 
life,  or  of  entertaining  malice,  such  drunkenness  would  then  reduce 
the  offense  which  might  otherwise  be  murder  to  manslaughter.  The 
mere  fact  that  a  party  is  drunk  or  intoxicated  alone  will  not  reduce 
the  crime  of  murder  to  manslaughter,  but  it  must  be  to  the  extent  of 
depriving  the  party  of  the  capacity  of  malice  or  intent  to  take  life. 


77 — Approved  in  Long-ley  v.  Com- 
monwealth, 99  Va.  807,  37  S.  E.  339 
(340),  in  whicii  case,  the  following 
instructions  on  intoxication  were 
given  upon  request  of  the  prosecu- 
tion: 

Drunkenness  or  voluntary  intoxi- 
cation is  no  excuse  for  crime, 
although  such  drunkenness  may  be 
the  result  of  long-continued  and 
habitual  drinking  without  any  pur- 
pose to  commit  crime,  and  may 
have  produced  a  temporary  in- 
sanity during  the  existence  of 
which  the  criminal  act  is  com- 
mitted. In  other  words  a  person, 
whether  he  be  an  habitual  drinker 
■or  not,  cannot  voluntarily  make 
himself  so  drunk  as  to  become 
on  that  account  irresponsible  for 
his  conduct  during  such  drunken- 
ness. *  *  *  In  cases  like  this, 
where  the  prisoner  sets  up  the  de- 
fense of  insanity  or  irresponsibility 
produced  by  voluntary  intoxica- 
tion, he  cannot  rely  simply  on  hav- 
ing raised  a  rational  doubt  in  the 
minds  of  the  jury  as  to  whether 
he  was  so  drunk  at  the  time  he 
committed  the  crime  as  not  to  be 
responsible  therefor,  for  the  bur- 
den is  upon  him  to  prove  this 
fact  to  the  satisfaction  of  the  jury 
as  fairly  results  from  all  evi- 
dence. 

As    to    the    Commonwealth's    In- 


structions compare  Ragsdale  v. 
State,  134  Ala.  24,  32  So.  674  (677); 
Henson  v.  State,  112  Ala.  41  (46), 
21    So.    79. 

78— Hempton  v.  State,  111  Wis. 
127,  86  N.  W.  596  (600),  12  Am.  Cr. 
Rep.  657;  Bernhardt  v.  State,  82 
Wis.  23,  51  N.  W.  1009;  Cross  v. 
State,  55  Wis.  261,  12  N.  W.  425; 
Terrill  v.  State,  74  Wis.  278,  42  N. 
W.  243;  People  v.  Rogers,  18  N.  Y. 
9,   72  Am.   Dec.   482. 

Approving  this,  the  court  said, 
in  the  Hempton  case:  "Courts 
have  been  very  slow  to  break  down 
the  old  common-law  doctrine  as 
regards  the  effect  of  voluntary  in- 
toxication of  a  person  at  the  time 
of  the  commission  of  a  criminal 
offense  by  him.  Formerly  it  was 
held  to  aggravate  rather  than  to 
mitigate  the  offense.  Now,  if  from 
passion  stimulated  by  intoxication 
or  from  any  other  cause,  a  person, 
for  the  moment,  is  unable  to  exer- 
cise his  reason,  and  while  he  is 
in  such  condition,  though  conscious 
of  what  he  is  doing  and  not  so 
completely  bereft  of  reason  as  to 
be  legally  irresponsible,  he  is  un- 
controllably moved  thereby  to  and 
does  wrongfully  kill  another,  he 
cannot  be  convicted  of  murder  in 
the  first  degree.  Clifford  v.  State, 
58  Wis.   477,   17  N.   W.   304. 

"It    is   the   condition,    no    matter 


1678  FORMS  OF  INSTRUCTIONS.  [§  2619. 

(b)  Slight  drunkenness  or  intoxication  might  tend  to  aggravate 
a  crime,  instead  of  to  lessen  it.'^^ 

(c)  It  is  a  general  principle  of  law  that  intoxication  is  no  excuse 
for  crime,  but  this  general  principle  has  this  important  qualification 
or  modification,  so  far  as  it  relates  to  murder  in  the  first  degree.  A 
particular  or  specific  intent  is  absolutely  essential  to  the  commission 
of  this  crime,  and  if  the  mind  of  the  person  doing  the  killing  is  una- 
ble, because  of  intoxication,  at  the  time  of  the  killing  to  form  this 
particular  or  specific  intent,  there  can  be  no  murder  in  the  first  de- 
gree, unless  the  person  doing  the  killing  became  voluntarily  intoxi- 
cated for  the  purj^ose  of  killing  while  intoxicated.^*' 

§  2619.  Drunkenness — Evidence  as  to  Must  Raise  a  Reasonable 
Doubt  as  to  Mental  Capacity,  (a)  You  are  further  instructed  that, 
as  a  rule  of  law,  voluntary  intoxication  is  no  excuse  for  crime  com- 
mitted under  its  influence,  and  that,  to  excuse  the  commission  of  a 
crime,  or  in  a  case  like  the  one  now  on  trial  before  you,  where  de- 
liberation and  premeditation  are  elements  charged  in  the  informa- 
tion, to  'be  available  as  a  defense  or  excuse,  the  evidence  of  drunken- 
ness or  intoxication  at  the  time  of  the  killing  should  be  sufficient  to 
raise  in  the  minds  of  the  jury  a  reasonable  doubt  as  to  whether  the 
defendant  or  person  charged  with  crime  was  capable  of  forming  in 
his  mind,  before  the  killing,  a  willful,  deliberate  and  premeditated 
design  to  take  the  life  of  another,  and  that  in  eases  where  drunken- 
ness is  inteiposed  as  a  defense,  before  the  same  can  be  considered, 
there  should  be  evidence  in  support  of  such  defense  sufficient  to  cre- 
ate a  reasonable  doubt  in  the  minds  of  the  jury  of  the  accused's  abil- 
ity to  distinguish  between  right  and  wrong  at  the  time  of  the  com- 
mission of  the  crime  charged.*^ 

(b)  While  voluntary  intoxication  is  no  excuse  or  palliation  for 
any  crime  actually  committed,  yet  if,  upon  the  whole  evidence  in 
this  cause,  you  shall  have  such  reasonable  doubt  whether,  at  the  time 
of  the  killing, — if  you  should  find  from  the  evidence  accused  did  kill 
A.  B., — he  had  sufficient  mental  capacity  to  deliberately  think  upon 
and  rationally  to  determine  so  to  kill  deceased,  then  you  cannot  find 
him  guilty  of  murder  in  the  first  degree,  although  such  inability  was 
the  result  of  intoxication. ^^ 

(e)     You  are  instructed  that  on  the  question  of  the  intoxication 

how  caused,  overpowering  and  con-  347,  24  N.  E.  123  (124),  8  L.  R.  A. 
trolling  reason,  which  reduces  the  33,  judgment  of  conviction  was  re- 
offense  to  some  lesser  degree  of  versed  because  the  above  instruc- 
criminal  homicide."  tion    was   refused   and    because   the 

79— Winter    v.    State,    123    Ala.    1,  trial  court  told  the  jury,  that  "The 

26    So.    949    (950).  condition    of    mind    which    usually 

80— Cook   v.    State.   46  Fla.   20,    35  and    immediately    follows    the    ex- 

So.  665  (669),  citing  Garner  v.  State,  cessive    use   of   alcoholic    liquors    is 

28    Fla.    113,    9    So.    835,    29   Am.    St.  not  the  unsoundness  of  mind  meant 

232.  by    our    law."     To    like    effect,    see 

81— Hill     v.     State,     42    Neb.     503,  Carr    v.    State,    23    Neb.    749,    37    N. 

60  N.  W.  916  (920).  W.    630   (634). 

82— In  Aszman  v.  State,  123  Ind. 


§  2620.]  CRIMINAI^DUTY    OF    JURY.  1679 

of  the  defendant  at  the  time  of  the  alleged  killing,  if  you  find  from 
the  evidence  he  was  intoxicated,  you  must  be  satisfied  beyond  a  rea- 
sonable doubt  that  such  intoxication  did  not  incapacitate  him  from 
forming  a  deliberate  purpose  to  kill  the  deceased;  and  if  you  have 
any  reasonable  doubt  on  this  question,  you  must  give  the  prisoner  the 
benefit  of  such  doubt,  and  find  him  not  guilty  of  murder  in  the  first 
degree. ^^ 


JURY  JUDGES  OF  LAW  AND  FACT  IN  SOME  STATES. 

§  2620.    Duty  of  Jury  to  Receive  the  Law  from  the  Court,     (a) 

You  should  receive  the  law  as  I  state  it  to  be,  notwithstanding  you 
may  firmly  believe  that  I  am  wrong,  and  that  the  law  is  or  should 
be,  otherwise.** 

(b)  The  credibility  of  witnesses  and  the  conclusions  of  fact  which 
you  will  draw  from  the  evidence  are  questions  which  you  must  settle. 
The  law  of  the  ease  you  must  take  from  the  court.  If  the  court  lays 
down  the  law  incorrectly,  the  defendant  will  have  his  remedy  by  ap- 
pealing to  a  higher  court.  But,  if  jurors  disregard  the  law  as  laid 
down  by  the  court,  the  administration  of  justice  would  soon  become 
a  mockery,  and  no  man  would  be  safe  in  his  person  or  property.*^ 

(e)  It  is  the  duty  of  the  court  to  instruct  you  on  all  questions  of 
law  arising  in  this  ease,  and  it  is  your  duty  to  receive  such  instruc- 
tions as  the  law  of  the  case,  and  find  the  defendant  guilty  or  not 
guilty,  according  to  the  law  as  declared  by  the  court  and  the  evi- 
dence as  you  have  received  it  under  the  instructions  of  the  court.** 

(d)  The  law  you  will  take  from  the  court,  but  you  are  the  sole 
judges  of  the  facts  in  this  ease.  You  will  determine  the  facts  from 
the  testimony  in  the  case,  and  render  a  true  verdict  upon  the  facts 
found  by  you,  regardless  of  all  other  considerations.  While  you  are 
the  sole  judges  of  the  facts  found  by  you,  the  law  has  left  the  pen- 
alty to  be  imposed  with  the  court  alone  to  determine,  and  this  respon- 
sibility is  with  the  judge  after  your  verdict  has  been  found.  It  is 
your  duty  only  to  determine  the  guilt  or  innocence  of  the  defendant.*^ 

§  2621.  Instructions — Same  Weight  for  Both  State  and  Defendant 
— Adoption  by  Court  of  Instructions.  The  court  instructs  the  jury 
that  instructions  asked  and  given  by  the  court  upon  the  motion  of 

83— Carr  v.  State,  supra.  general    verdict,    'they   are    bound, 

84_People    v.    Worden,    113    Cal.  nevertheless,     to     receive     as     law 

569,    45    Pac.    844    (845).  what  is   laid  down   as  such  by  the 

"The  latter  part  of  the   sentence  court.'  " 

was  unnecessary,  but  it  in  no  way  85— Roesel  v.    State,   62  N.   J.   216. 

affects  the  correctness  of  the  prop-  41   Atl.   408   (417-418). 

osition  that  the  jury  must  take  the  86— State   v.    Privitt,   175   Mo.   207, 

lav  from  the  court,  as  declared  in  75  S.   W.  457   (458). 

section    1126    of    the    Penal     Code,  87— State  v.  Vance,  29  Wash.  435, 

which   provides  that,   although   the  70   Pac.    34    (45). 


jury    have   the   power  to   return 


1680  FORMS  OF  INSTRUCTIONS.  [§  2622. 

the  state,  or  upon  the  motion  or  request  of  the  defendant,  should 
have  the  same  weight  with  the  jury,  and  the  juiy  should  be  guided 
thereby  just  the  same  as  if  given  by  the  court. ^^ 

§  2622.  Jury  Judges  of  the  Law  as  Well  as  of  the  Facts — Georgia, 
(a)  I  charge  you  that  you  are  the  judge  of  the  law  and  the  facts 
in  this  case;  that  is,  j'ou  are  the  exclusive  judges  of  the  evidence. 
With  that  I  have  nothing  to  do.  I  give  you  the  law  in  charge,  and 
you  take  the  court's  construction  of  the  law,  and  apply  it  to  the 
facts,  and  pass  upon  the  ease.  While  you  are  the  judges  of  the  law, 
you  take  the  court's  construction  of  the  law,  and  then  apply  it  to 
the  facts.89 

(b)  The  court  cannot  express  an  opinion,  and  has  no  official  opin- 
ion, and  has  no  personal  care  about  what  you  find  in  this  case  to 
be  the  truth.  The  court  cannot  give  you  any  help  in  that, — cannot 
do  anything  but  give  you  in  charge  certain  rules  of  law,  which  are  to 
aid  3'ou  in  the  consideration  of  the  evidence  and  in  arriving  at  your 
verdict;  and,  after  you  get  those  rules,  you  are  the  judges  of  the 
law  and  the  fact, — that  is  to  say,  you  determine  how  the  law,  as  given 
you  in  charge,  is  to  be  applied  to  the  facts  under  the  evidence,  and 
when  you  so  determine  the  facts  you  make  your  verdict.^** 

§  2623.  Same  Subject — Illinois,  If  the  jury  can  say,  upon  their 
oaths,  that  they  know  the  law  better  than  the  court  does,  they  have 
the  right  to  do  so;  but  before  assuming  so  solemn  a  responsibility 
they  should  be  sui-e  that  they  are  not  acting  from  caprice  or  preju- 
dice; that  they  are  not  controlled  by  their  will  or  their  wishes,  but 
from  a  deep  and  confident  conviction  that  the  court  is  wrong  and  that 
they  are  right.  Before  saying  this  upon  their  oaths  it  is  their  duty 
to  reflect  whether  from  their  habits  of  thought,  their  study  and  ex- 
perience,  they   are   better   qualified   to   judge   of   the   law    than   the 

88— Dixon    v.    State,    46   Neb.    298,  the   duty   of   counsel   even    in   civil 

64  N.  W.   691  (9G4).  cases    to    endeavor    to    procure    a 

"It  is  argued  that  in  a  criminal  distortion  of  the  law;  but  a  pros- 
case  the  prosecuting-  attorney  has  ecuting  attorney  may,  owing  to  his 
no  right  to  request  instructions,  independent  position,  be  expected  to 
and  that,  therefore,  this  instruc-  exercise  a  more  dispassionate  judg- 
tion  should  not  have  been  given,  ment,  and  assume  a  less  partisan 
We  know  no  principle  of  law,  of  attitude.  But  he  has  the  right 
no  statute,  and  of  no  consideration  and  it  is  his  duty  to  request  such 
of  policy,  which  prevents  the  prose-  instructions  as  he  believes  present 
cuting  attorney,  in  a  criminal  case,  the  principles  of  law  applicable  to 
from  submitting  to  the  court  a  the  evidence,  and,  having  re- 
request  for  any  instruction  which  quested  them,  the  court,  in  giving 
he  thinks  well  founded  in  law  and  them,  adopts  such  instructions  as 
applicable  to  the  evidence.  A  its  own.  Instructions  given  at  the 
prosecuting  attorney,  with  proper  request  of  counsel  should  have  the 
sense  of  his  duty,  stands,  of  course,  same, — no  less  and  no  inore, — force 
not  entirely  in  the  .attitude  of  coun-  as  the  instructions  given  by  the 
sr-l  in  a  civil  action.  It  is  his  court  of  its  own  motion,  and  it  is 
duty  to  enforce  the  criminal  law.  not  error  to  so  tell  the  jury." 
It  is  not  his  duty  to  procure  a  89 — Powell  v.  State,  101  Oa.  9,  29 
wrongful  determination  of  ques-  S.  E.  309  (313),  65  Am.  St.  277. 
tions  of  criminal  law,  or  to  urge  90— Ford  v.  State,  97  Ga.  365,  23 
a    wrongful   conviction.      It   is    not  S.  E.  996. 


§2624.]  CRIMINAL— DUTY    OF    JURY.  1681 

court.  If,  under  all  these  circumstances,  they  are  prepared  to  say 
that  the  court  is  wrong  in  its  exposition  of  the  law,  the  statute  has 
given  them  the  right.^^ 

§  2624.  Same  Suhject — Indiana,  (a)  You  are  the  judges  of  the 
law  as  well  as  of  the  facts.  You  can,  take  the  law  as  given  and  ex- 
plained to  you  by  the  court,  but,  if  you  see  fit,  you  have  the  legal 
and  constitutional  right  to  reject  the  same  and  construe  it  for  your- 
selves. Notwithstanding  you  have  the  legal  right  to  disagree  with 
the  court  as  to  what  the  law  is,  still  you  should  weigh  the  instructions 
given  you  in  the  case  as  you  weigh  the  evidence,  and  disregard  neither 
without  proper  reason. ^^ 

(b)  In  this  case  you  are  the  sole  judges  of  the  law,  and  the  right 
to  determine  the  law  goes  to  this  extent :  that,  even  if  all  the  facts 
alleged  in  the  indictment  are  established  by  the  evidence  beyond  a 
reasonable  doubt,  you  have  still  the  right  to  determine  whether  or  not 
such  facts,  when  so  established,  constitute  a  public  offense,  under  the 
laws  of  this  state,  and  if  you  determine  they  do  not,  you  have  the 
right  to  acquit  the  defendant.  You  are  not  bound  by  the  instructions 
given  you  by  the  court  as  to  the  law,  but  are  at  liberty  to  disregard 
such  instructions,  if  you  see  fit  to  do  so,  and  determine  the  law  for 
yourselves.^^ 

§  2625.  Jury  Should  Give  Instructions  of  Court  Respectful  Consid- 
eration— Indiana.  If,  however,  you  have  no  well-defined  opinion  or 
convictions  as  to  what  the  law  is  relating  to  any  particular  matter 
or  matters  at  issue  in  the  case,  then,  in  determining  what  it  is,  you 
should  give  the  instructions  of  the  court  respectful  consideration.*** 

91 — Schnier  v.  The  People,  23  111.  dence,  and  determine  the  facts  ar- 

17;   see  also,   Mullinix  v.   The   Peo-  bitrarily  and  without   cause." 
pie,    76   111.    211;    Spies  v.   The   Peo-         93— Anderson    v.     State,    104    Ind. 

pie,    122    III.    1,    12    N.    E.    865,    17    N.  467,  4  N.   E.   63,   5  N.  E.   711,  5  Am. 

E.    898,    3    Am.    St.    320,    5    Am.    Cr.  Cr.    Rep.    601. 
Rep.  637,  6  Am.  Cr.  Rep.  570.  94— Bird    v.     State,    107    Ind.    154, 

92— Blaker   v.   State,   130  Ind.   203,  8    N.    E.    14    (15). 
29  N.  E.  1077.  "It     is     undoubtedly     true     that 

"This    instruction    is    fully    sus-  in    this    state    the    jury    may    dis- 

tained    by    Anderson    v.    State,    104  reg-ard  the  instructions  of  the  court 

Ind.  467,  4  N.   E.  Rep.  63  and  5  N.  in  a  criminal  case,  and  follow  their 

E.    Rep.    711,    5   Am.    Cr.    Rep.    601,  own    convictions;    but    it    must    be 

and    is    correct    on   principle.     The  true,    also,    that    the    jury    should 

constitution     gives     to     juries     in  give   the   instructions   of  the   court 

criminal    cases    the    right    to    de-  a    respectful    consideration    in    all 

termine    the    law    as    well    as    the  cases,    and    especially   if    they    are 

facts.     It   does   not,   however,    give  in    doubt    as    to    what    the    law    in 

to  them  the  right  to  disregard  the  the   case  may  be.     It  is  made  the 

law.     To  aid  them  in  correctly  de^  duty   of   the   court   to   instruct   the 

.  termining  the  law,   it  is  made  the  jury.    It  would  seem  to  follow  that 

duty  of  the  court  to  instruct  them,  the    jury    should    at    least    give    to 

They    have    no    more    right   in    de-  the   instructions   a   respectful    con- 

termining  the  law  to  disregard  and  sideration.     Keiser  v.  State.  83  Ind. 

ignore   the  court's   instructions  ar-  234;    Lynch    v.    State,    9    Ind.    541; 

bitrarily    and    without    cause,    than  Powers  v.  State,  87  Ind.  144;  Nuzum 

to    disregard    and.   ignore    the    evi-  v.  State,  88  Ind.  599;  Dong  v.  State, 


95  Ind.  481." 


106 


1682  FORMS  OF  INSTRUCTIONS.  [§  2626. 


MALICE. 

Note. — In  this  subdivision  there  ai'e  only  a  few  general  instructions 
on  malice.  For  further  instructions  on  this  subject,  see  the  chapters 
on  Specific  Crimes,  viz..  Homicide,  etc. 

§  2626.  Definition  of  Malice,  (a)  The  jury  are  instructed  that 
malice  includes  not  only  anger,  hatred  and  revenge,  but  every  other 
unlawful  and  unjustifiable  motive.  Malice  is  not  confined  to  ill-will 
towards  an  individual,  but  is  intended  to  denote  an  action  flowing 
from  any  wicked  and  corrupt  motive — a  thing  done  with  a  wicked 
mind,  where  the  fact  has  been  attended  with  such  circumstances  as 
evince  plain  indications  of  a  heart  regardless  of  social  duty,  and  fa- 
tally bent  on  mischief;  hence  malice  is  implied  from  any  deliberate 
or  cruel  act  against  another,  however  sudden,  which  shows  an  aban- 
doned and  malignant  heart.^^ 

(b)  Malice  is  not  confined  to  ill-will  towards  an  individual,  but  it ; 
is  intended  to  denote  an  action  flowing  from  any  wicked  and  cor-' 
rupt  motive.  A  thing  done  with  a  wicked  mind,  and  attended  with 
such  circumstances  as  plainly  indicate  a  heart  regardless  of  social 
duty,  and  fully  bent  on  mischief,  indicates  malice  within  the  mean- 
ing of  the  law ;  hence,  malice  is  implied  from  any  deliberate  and  cruel 
act  against  another,  however  sudden,  which  shows  an  abandoned  and 
malignant  heart.^^ 

(c)  The  court  instructs  the  jury,  that  malice,  within  the  mean- 
ing of  the  law,  includes  not  only  anger,  hatred  and  revenge,  but  every 
other  unlawful  and  unjustifiable  motive.^'' 

(d)  Malice  is  that  state  or  condition  of  mind  indicated  by  a 
wicked  and  malicious  purpose,  which  characterizes  the  perpetration 
of  a  wrongful  act  intentionally  committed,  and  without  lawful  excuse 
or  justification.  It  is  that  quality  or  frame  of  mind  which  prompts 
the  unlawful,  premeditated  and  intentional  act,  and  which  shows  a 
heart  regardless  of  social  duty  and  fatally  bent  on  mischief.®^ 

(e)  I  charge  you,  gentlemen  of  the  jury,  that  malice,  in  its  com- 
mon acceptation,  means  ill  will  against  a  person,  but  in  its  legal 
sense  means  a  wrongful  act,  done  intentionally  without  just  cause  or 
excuse.'*'' 

9n— Parsons  v.  People,  218  111.  386  "correctly     defines     malice     in     its 

(■390).    75    N.    E.    993.  leg-al  sense  and  was  properly  given. 

"Tills    instruction    was    approved  Clark,    Man.    Cr.    Law,    p.    75,    §  470 

by    this    court    in    Jackson    v.    Peo-  and    cases    cited.      Roscoe    Cr.    Ev. 

pie,  IS  III.  269,  and  McCoy  v.  Peo-  (7th  Ed.)  p.  21;  Broom,  Leg.  Max., 

pie,   175  id.  224,  51   N.   E.  777."  top  of  page  315." 

96— Archey  v.   State,  64  Ind.  56.  In   People   v.    Borgetts,   99   Mich. 

97— State  v.  Goodenow,  65  Me.  30;  336,    58    N.    W.    328,    the    following 

State  V.  Weenors,  66  Mo.  13.  instruction   was  given: 

98— Territory  v.  Outierez,  —  N.  M.  Malice   is   here   used   in   a   techni- 

— .  79  Pac.  716  (717).  cal  sense,  including  not  only  anger, 

99— Boulden  v.  State,  102  Ala.  78,  hatred  and  revenge,  but  every  un- 

15    So.    341    (344).      Held    that    this  lawful  and  unjustifiable  motive.   It 


§  2627.]  CRIMINAL— MALICE.  1683 

§  2627.  Malice  Aforethought  Defined.  (a)  The  jui-y  are  in- 
structed that  the  deliberate  intention,  called  malice  aforethought,  need 
be  only  such  deliberation  and  thought  as  enables  a  person  to  appre- 
ciate and  understand,  at  the  time  the  act  was  committed,  the  nature 
of  his  act  and  its  probable  results. 

(b)  To  constitute  malice  aforethought,  no  particular  time  need  in- 
tervene between  the  formation  of  the  intention  and  the  act;  it  is 
enough  if  the  intent  to  commit  the  act,  with  a  full  appreciation  of 
the  result  likely  to  follow,  was  present  at  the  time  the  act  was  com- 
mitted, and  that  the  act  was  not  the  result  of  some  sudden  heat  of 
passion,  provoked  by  some  cause  calculated  to  override  the  judgment, 
and  before  sufficient  time  elapsed  for  reason  to  resume  its  sway.^"*' 

(c)  Malice  aforethought  is  a  condition  of  mind  in  which  one  man 
does  an  intentional  injury  to  another  in  the  willful  disregard  of  the 
legal  rights  of  the  other,  and  it  is  to  be  inferred  from  acts  committed 
or  words  spoken.  It  exists  when  one  does  a  cruel  act  voluntarily, 
and  without  excuse,  justification  or  extenuation,  and  does  not  neces- 
sarily include  hatred  towards  the  person  injured.^ 

§  2628.  Malice  Aforethought  a  Question  of  Fact.  Whether  the 
defendant  does  or  does  not  act  with  malice  aforethought  is  always  to 
be  inferred  from  the  circumstances  surrounding  the  case.^ 

§  2629.  Malice— Express  and  Implied.  Murder  is  the  unlawful 
killing  of  a  human  being  with  malice  aforethought.  Such  malice  may 
be  express  or  implied.  It  is  express  when  there  is  manifested  a  de- 
liberate intention  unlawfully  to  take  away  the  life  of  a  fellow  crea- 
ture.    It   is   implied  when   no   considerable   provocation   appears,   or 

is  not  confined  to  particular  ill  of  the  term  'malo  animo'  is  so  ex- 
will  to  the  deceased,  but  it  is  in-  plained  by  the  context  that  it  was 
tended  to  denote  an  action  flowing  not  likely  to  mislead  an  unlearned 
from  a  wicked  and  corrupt  motive;  juror.  We  discover  no  error  in 
a    thing    done,    as    the    books    say,  the   charge."  _ 

"malo  animo."  Note.  Latm  words  m  an  m- 
The  court  said:  struction  have  been  held  to  be 
"Unlike  the  "case  of  Nye  v.  error,  except  such  common  words 
People,  35  Mich.  16,  the  court,  as  "prima  facia."  „,  ,,.  ^  ,^ 
in  this  case  did  not  stop  with  100— Nye  v.  People,  35  Mich  16. 
the  bare  definition  of  'malice'  con-  1-Stevens  v  State  42  Tex.  Cr. 
tained  in  the  first  part  of  the  quo-  App.  154,  59  S.  W.  545  (.549). 
tation  ending  with  the  word  'mo-  "T^e  usual  definition  (and  we 
tive  '  'but  it  included  the  qualifi-  specially  commend  the  same,  be- 
cation  of  that  language  by  what  cause  it  has  been  frequently  ap- 
followed.  In  the  case  of  Nye,  the  proved  by  this  court)  is  as  fol- 
jury  were  told  that  the  offense  lows:  'Malice  is  a  condition  of 
would  be  murder  if  Nye  and  Betts,  the  mind  which  shows  a  heart  re- 
or  Betts  alone,  began  the  attack,  gardless  of  social  duty  and  fatally 
Again  the  charge  in  the  case  of  bent  on  mischief,  the  existence  of 
Nye  lost  sight  of  the  distinctions  which  is  inferred  from  acts  corn- 
between  murder  and  manslaughter,  mitted  or  words  spoken.'  We 
which  here  were  carefully  de-  think  the  definition  given  m  the 
scribed  This  definition  of  'malice'  court's  charge  substantially  agrees 
is  one  common  to  the  books,  being  with  the  definition  JU^t  quoted, 
enunciated  by  a  celebrated  judge  2— People  v.  Glover,  141  Cal.  233, 
in  a   celebrated   case,   and   the  use  74  Pac.  745   (749). 


1684  FORMS  OP  INSTRUCTIONS.  [§  2630. 

when  the  circumstances  attending  the  killing  show  an  abandoned  and 
malignant  heart.^ 

§  2630.  Express  Malice  Defined.  The  term  malice  means  that  the 
homicide  was  the  result  of  a  formed  design,  based  upon  a  wicked  and 
depraved  spirit,  and  is  maliciously  conceived  and  wickedly  and  ma- 
liciously executed  without  justifiable  or  lawful  excuse.  The  most 
usual  illustrations,  and  the  ones  best  understood  generally  of  the  term 
"express  malice,"  are  such  as  lying  in  wait  for  the  intended  victim, 
and  when  he  approaches  he  is  slain,  or  the  preparation  and  adminis- 
tration of  poison  for  the  purpose  of  taking  life,  because  in  such 
instances  the  acts  clearly  show  the  formed  design  and  the  unlawful 
intent  and  its  execution,  and  therefore  is  said  to  be  killing  upon 
express  malice.  These  are  only  illustrations  of  what  is  meant  by 
the  terms  ''express  malice,"  and  any  homicide  that  is  shown  to 
have  been  the  result  of  willful  intent  and  committed  without  legal  ex- 
cuse is  said  to  be  a  killing  upon  express  malice.* 

§  2631.  Malice— Difference  Between  Implied  or  Constructive  Mal- 
ice and  Express  Malice.  Implied  or  constructive  malice  is  an  infer- 
ence or  conclusion  of  law  from  the  facts  found  by  the  jury;  and, 
among  these,  the  actual  intention  of  the  prisoner  becomes  an  impor- 
tant and  material  fact  for,  though  he  may  not  have  intended  to  take 
away  life  or  to  do  any  personal  harm,  yet  he  may  have  been  engaged 
in  the  perpetration  of  some  other  felonious  or  unlawful  act  from 
which  the  law  raises  the  presumption  of  malice.  It  is  the  difference 
between  express  and  implied  or  constructive  malice  aforethought 
which  distinguishes  murder  of  the  first  from  murder  of  the  second 
degree,  except,  however,  that  under  our  statute  murder  of  the  first 
degree  may  be  committed  when  the  malicious  killing  is  done  in  per- 
petrating or  attempting  to  perpetrate  any  crime  punishable  with 
death,  as  rape  or  arson  is  in  this  state,  although  from  such  a  felonious 
act  malice  is  merely  implied  or  presumed  by  law.  Therefore  murder 
of  the  second  degree  is  held  to  be  proved  where  it  is  not  satisfactorily 
shown  by  the  evidence  submitted  to  the  jury  that  the  killing  was  done 
with  a  deliberately  formed  design  to  take  life,  or  in  perpetrating  or 
attempting  to  perpetrate  any  crime  punishable  with  death,  but  is  so 
shown  that  it  was  done  suddenly,  without  justification  or  excuse,  and 
without  any  provocation,  or  without  provocation  sufficient  to  reduce 
the  homicide  to  the  grade  of  manslaughter,  or  was  done  in  perpe- 
trating or  attempting  to  perpetrate  a  felony  not  capitally  punishable, 
or  any  unlawful  act  of  violence  from  which  the  law  raises  the  pre- 
sumption of  malice.'' 

S2632.  Defining  "Deliberately,  Feloniously,  Premeditatedly,  Mal- 
ice, and  Malice  Aforethought" — Missouri.  As  used  in  the  indict- 
ment  and   these  instructions,   "feloniously"  means   wrongfully   and 

3— People  V.   Mendenhall,  135  Cal.        5— State  v.  Brinte,  Del.  , 

344,    67    Pac.    325.  58    Atl.    258    (262). 

4— Hotema    v.    United    States,    186 
U.    S.    413    (414),    22    S.    Ct.    895. 


§2633.]  CRIMINAL— MALICE.  1685 

wickedl}',  and  also  refers  to  the  punishment  imposed  by  law.  "Will- 
fully" means  intentionally,  and  not  done  by  accident.  "Premedi- 
tatedly"  means  thought  of  beforehand,  for  any  length  of  time,  how- 
ever short.  "Deliberately"  means  done  in  a  cool  state  of  the  blood, 
not  in  sudden  passion  engendered  by  lawful  or  some  just  cause  of  prov- 
ocation. And  the  court  instructs  the  jury  that  in  this  case  there  is 
no  evidence  tending  to  show  the  existence  of  any  passion  or  provo- 
cation. "Malice"  means  that  condition  of  the  mind  which  prompts 
one  to  do  a  wrongful  act  intentionally,  and  to  take  the  life  of  an- 
other without  legal  justification  or  excuse.  It  does  not  mean  mere 
spite,  hatred,  or  ill  will,  but  it  signifies  the  state  of  disposition  which 
shows  a  heart  regardless  of  social  duty  and  fatally  bent  on  mischief, 
and  "malice  aforethought"  means  that  the  act  was  done  with  malice 
and  premeditation.  "Malice,"  as  used  here,  may  be  presumed  from 
the  intentional  use  of  a  deadly  weapon  in  a  manner  likely  to  produce 
death.® 

§  2633.  Malice  Presumed  from  Use  of  Deadly  Weapon,  (a)  The 
law  presumes  malice  from  the  use  of  a  deadly  weapon  and  casts  on 
the  defendant  the  onus  of  repelling  the  presumption  unless  the  evi- 
dence which  proves  the  killing,  shows  also  that  it  was'  done  without 
malice.''' 

(b)  "Malice"  means  that  condition  of  mind  which  prompts  one 
to  do  a  wrongful  act  intentionally,  without  legal  justifieation  or  ex- 
cuse. It  does  not  mean  mere  spite,  hatred,  or  ill  will,  but  signifies 
that  state  of  disposition  which  shows  a  heart  regardless  of  social 
duty  and  fatally  bent  on  mischief;  and  "malice  aforethought"  means 
that  the  act  was  done  with  malice  and  premeditation.  "Malice,"  as 
used  here,  may  be  presumed  from  the  intentional  use  of  a  deadly 
weapon  in  a  manner  likely  to  produce  death.^ 

(e)  Malice  may  be  implied  from  an  unlawful  use  of  a  deadly 
weapon — not  from  the  mere  circumstance  that  a  deadly  weapon  is 
used,  because  a  man  may  use  it  in  self-defense;  but  it  is  the  unlawful 
use  of  a  deadly  weapon,  whereby  life  is  taken,  from  which  the  law 
presumes  malice.^ 

6— state   v.   Vaughan,   200  Mo.  12,  120,  13  S.  E.  319,  27  Am.  St.  799.    As 

98  S.  W.  2.  every  sane  person   is  presumed   to 

Substantially    the    same    instruc-  intend    the    ordinary    and    probable 

tions,     slightly    differently    worded  consequences  of  his  acts,  an  intent 

were    approved    in:      State   v.    Mc-  to    kill   is   presumed    from   the    un- 

Carver,   194   Mo.    717,   92   S.   W.   684;  lawful    use    of    a    deadly    weapon 

State    V.    Darling-,    199    Mo.    168,    97  whereby  life  is  taken.     The  use  of 

S.   W.   592;    State  v.   Todd,   194   Mo.  a  deadly  weapon  in  taking  human 

377,  92  S.  W.  674.  life  is  unlawful,  when  it  is  without 

7— Karr   v.    State,    106   Ala.   1,   17  legal    excuse    or    justification.      In 

So.    328    (329).  the  law  of  homicide,   malice  is  im- 

8 — State    V.    Privitt,    175    Mo.    207,  plied  from  'a  wrongful  act  done  in- 

75  S.  W.  457  (458).  tentionally   without    just    cause    or 

9— State   V.    Foster,    66   S.    C.    469,  excuse."  " 
45  S.  E.  1  (4).  Implied  malice  may  be  explained 

The  court  said:  away  by  countervailing  evidence. 

"The    charge   complained    of   was         Harris   v.    State,    155   Ind.    265,    58 

In  accordance  with  the  law  as  de-  N.  E.  75  (77). 
Glared  in  State  v.  Levelle,  34  S.  C. 


CHAPTER   XC. 

CRIMINAI^-PRESUMPTION    OF    INNOCENCE— REASONABLE 

DOUBT. 

See  Erroneous  Instructions,   same  chapter  head.   Vol.   III. 


5  2634.  Presumed  to  be  innocent  un- 
until  contrary  appears  be- 
yond a  reasonable  doubt — 
Every  reasonable  doubt 
construed  in  defendants 
favor. 

5  2635.  Same  subject— Must  be  a 
substantial  doubt — Not  a 
mere  possibility  of  inno- 
cence. 

S  2636.  Presumption  of  innocence — 
Defendant  to  be  given  full 
benefit  of. 

§  2637.  Presumption — Matter  of  evi- 
dence. 

5  2638.  Presumption  of  innocence 
overcome  only  by  proof — 
Proof  required. 

§  2639.  Presumption  of  innocence — 
Continues  until  every  ma- 
terial element  is  proven. 

§  2640.  Presumption  of  innocence — 
Every  ingredient  must  be 
proven. 

§  2641.  Duty  of  jury  to  infer  inno- 
cence rather  than  guilt. 

§  2642.  Presumption  of  innocence — 
Not  a  mere  form — Defend- 
ant  must  be  given   benefit. 

§  2643.  Jury  compelled  to  bear  the 
presumption  of  innocence 
in   mind. 

§  2644.  Presumption  of  innocence 
not  a  shield  from  convic- 
tion. 

§  2645.  Refusal  to  instruct  on  the 
presumption  of  innocence 
is  error  in  many  states. 

§  2646.  Presumption      of     Innocence 
continues     throughout     the 
trial. 
REA.SONABLE    DOUBT. 

§  2647.  Reasonable  doubt      defined 

and   explained — Reason  for 

rule. 

5  2648.  Reasonable  doubt    defined — 

Alabama. 

§  2649.  Reasonable  doubt    defined — 

Arkansas. 


§  2650. 

Reasonable 
California. 

doubt 

defined— 

§  2651. 

Reasonable 
Delaware. 

doubt 

defined — 

§  2652. 

Reasonable 
Florida. 

doubt 

defined — 

§  2653. 

Reasonable 
Georgia. 

doubt 

defined — 

§  2654. 

Reasonable 
Illinois. 

doubt 

defined — 

§  2655. 

Reasonable 
Indiana. 

doubt 

defined^ 

§  2656. 

Reasonable 
Iowa. 

doubt 

defined^ 

§  2657. 

Reasonable 
Kansas. 

doubt 

defined — 

§  2658. 

Reasonable 

doubt  —  K  e  n- 

tucky. 

§  2659. 

Reasonable 
Louisiana. 

doubt 

defined — 

§  2660 

Reasonable 

doubt 

defined — 

Massachusetts. 

§  2661. 

Reasonable 
Michigan. 

doubt 

defined — 

§  2662. 

Reasonable 

Mississipp 

doubt 

defined — 

§  2663. 

Reasonable 
Missouri. 

doubt 

defined — 

§  2664. 

Reasonable 
Nebraska. 

doubt 

defined — 

§  2665. 

Reasonable 
New  Yoi'k 

doubt 

defined— 

§  2666. 

Reasonable 
Oklahoma. 

doubt 

defined — 

§  2667. 

Reasonable 

doubt 

defined — 

South  Carolina. 

S  2668. 

Reasonable 

doubt 

defined — 

South  Dakota. 

§  2669. 

Reasonable 
Tennessee 

doubt 

defined — 

§  2670. 

Reasonable 

doubt— 

-Texas. 

§  2671. 

Reasonable 

doubt- 

-Virginia. 

§  2672. 

Reasonable 

doubt 

defined — 

West  Virginia. 

§  2673. 

Reasonable 
Wisconsin 

doubt 

defined — 

§  2674. 

Reasonable 

doubt 

defined— 

U.  S.  courts. 


1686 


CRIMINAL— PRESUMPTION. 


1687 


§  2675.  Presumption  of  innocence — 
Reasonable  doubt — Suspi- 
cion of  probability  of  guilt 
not  sufRcient  to  convict — 
Insanity  or  irresponsibility 
must   be   proven. 

§  2676.  Reasonable  doubt — Presump- 
tion of  innocence — Circum- 
stantial evidence — Links  in 
the  chain  of  circumstances. 

§  2677.  Reasonable  doubt — R  u  1  e 
where  evidence  is  circum- 
stantial. 

§  2678.  Every  material  fact  or  link 
in  the  chain  of  circum- 
stances must  be  proved  be- 
yond a  reasonable  doubt. 

§  2679.  Reasonable  doubt— Evidence 
required    to    convict. 

§  2680.  Absolute  certainty  not  re- 
quired to  convict. 

§  2681.  Reasonable  doubt — Not  one 
produced  by"  undue  sensi- 
bility or  trivial  and  fan- 
ciful suppositions. 

§  2682.  Reasonable  doubt  abiding 
conviction  to  a  moral  cer- 
tainty. 

§  2683.  Must  be  an  actual,  substan- 
tial, fixed  and  reasonable 
doubt,  not  imaginary,  con- 
jectural, vague  or  whimsi- 
cal. 

§  2684.  Reasonable  doubt  must  not 
be  mere   speculation. 

§  2685.  Reasonable  doubt  should  be 
a  substantial  doubt  arising 
from    the   evidence. 

§2686.  Reasonable  doubt  defined— 
Compared  to  conduct  in 
important  affairs  of  life. 

§  2687.  Reasonable  doubt — Conscien- 
tious belief. 

§  2688.  Caution  against  conviction 
from  prejudice. 

§  2689.  Appealing  to  individual  jur- 
ors. 

§  2690.  Reasonable  doubt  by  one 
juryman  will  prevent  con- 
viction. 

§  2691.  Reasonable  doubt — Doctrine 
does  not  apply  to  mere 
subsidiary  evidence. 

§  2692.  Reasonable  doubt— Arising 
from  part  of  the  evidence 
after  consideration  of  the 
whole. 

§  2693.  Reasonable  doubt  should 
arise  from  the  evidence  as 
a  whole — Possibility  of  the 
defendant's  innocence  will 
not    warrant    an    acquittal. 

§  2694.  Reasonable  doubt  as  to  any 
material  fact. 


§  1^695.  Reasonable  doubt — May  arise 
from   want  of  evidence. 

§  2696.  Reasonable  doubt— "Doubt" 
must  be  within  the  evi- 
dence. 

§  2697.  Reasonable  doubt— Probabil- 
ity of  innocence. 

§  2698.  Reasonable  doubt — May  arise 
from  evidence  of  previous 
good  character. 

§  2699.  Reasonable  doubt — Indepen- 
dent circumstances  identi- 
fying defendant. 

§  2700.  Reasonable  doubt— Where 
testimony  is  limited  by 
election. 

§  2701.  Reasonable  doubt  to  acquit 
must  relate  to  precise 
crime  charged. 

§  2702.  Reasonable  doubt  —  Guilty 
only  as  to  count  proven. 

§  2703.  Only  allegations  of  indict- 
ment need  be  proven  be- 
yond  reasonable   doubt. 

§  2704.  R'?asonable  doubt  as  to 
which  of  several  killed  de- 
ceased. 

§  2705.  Doubting  as  a  juror  what 
one   believes   as   a  man. 

§  2706.  If  reasonable  doubt  of  de- 
gree of  offense,  verdict 
should  be  guilty  of  the 
less    offense. 

§  2707.  If  reasonable  doubt  whether 
murder  or  manslaughtei 
verdict  should  be  man- 
slaughter— First  or  second 
degree. 

§  2708.  Reasonable  doubt  —  Every 
reasonable  hypothesis  of 
innocence  excluded. 

§  2709.  Duty  of  jury  to  adopt  hy- 
pothesis of  defendant's  in- 
nocence. 

§  2710.  Proof— Must  be  inconsistent 
with  any  reasonable  hy- 
pothesis of  defendant's  in- 
nocence. 

§  2711.  Jury  must  acquit  if  evi- 
dence consistent  with  de- 
fendant's innocence. 

§  2712.  Proof  of  every  fact  neces- 
sary to  establish  guilt  be- 
yond reasonable  doubt,  and 
inconsistent  with  every 
other  reasonable  hypothe- 
sis. 

§  2713.  Reasonable  doubt  defense  of 
alibi   established  by. 

§  2714.  Reasonable  doubt  as  to  san- 
ity acquits. 


1688 


FORMS  OF  INSTRUCTIONS. 


[§  2634. 


2715.  Reasonable  doubt  that  charge 

was    caused    by    hallucina- 

tiODS. 

2716.  Reasonable      doubt      as      to 

malice. 

2717.  Reasonable    doubt— Self    de- 

fense— Instruction   may   as- 
sume admitted  facts. 


§  2718.  Self  defense— Defendant  need 
only  create  reasonable 
doubt. 

§  2719.  Reasonable  doubt — Conspir- 
acy. 

§2720.  Reasonable  doubt — Homicide. 

§  2721.  Larceny — Husband  and  wife. 

§  2722.  Reasonable   doubt— Slander. 


§  2634.  Presumed  to  Be  Innocent  Until  Contrary  Appears  Beyond 
a  Reasonable  Doubt — Every  Reasonable  Doubt  Construed  in  Defend- 
ant's Favor,  (a)  You  are  further  instructed  that  the  defendants 
are  presumed  to  be  innocent  until  the  contrary  appears  beyond  a 
reasonable  doubt,  and  that  every  reasonable  doubt  or  presumption 
arising  from  the  evidence  must  be  construed  in  their  favox'.^ 

(b)  The  court  charges  you  that  the  law  presumes  the  defendant 
innocent  until  proven  guilty  beyond  a  reasonable  doubt.  That  if 
you  can  reconcile  the  evidence  before  you  upon  any  reasonable  hy- 
pothesis consistent  with  the  defendant's  innocence,  you  should  do  so, 
and  in  that  case  find  him  not  guilty.  You  are  further  instructed 
that  you  cannot  find  the  defendant  guilty  unless  from  all  the  evi- 
dence you  believe  him  guilty  'beyond  a  reasonable  doubt.- 

(c)  Defendant  in  a  criminal  case  is  presumed  to  be  innocent  until 
his  guilt  is  established  by  legal  evidence  beyond  a  reasonable  doubt, 
and  in  case  you  have  a  reasonable  doubt  as  to  the  defendant's  guilt 
you  will  acquit  him,  and  say  by  your  verdict,  "Not  guilty."^ 

(d)  The  defendant  is  presumed  by  the  law  to  be  innocent  until 
his  guilt  is  established  by  legal  evidence  beyond  a  reasonable  doubt, 
and  if  you  have  a  reasonable  doubt  as  to  his  guilt  you  will  acquit 
him.* 

(e)  Evei-y  person  charged  with  crime  is  presumed  to  be  innocent 
until  his  guilt  has  been  established  beyond  a  reasonable  doubt.^ 


1 — Cochran  v.  United  States,  157 
U.    S.    286    (298),    15    S.    Ct.    628. 

2— Hopt  V.  Utah,  120  U.  S.  430 
(439),    7    S.    Ct.    614. 

S — Adams  v.  State,  —  Tex.  Cr. 
App.    — .    84    S.    W.    231    (233). 

"The  objection  to  this  charg-e  is 
that  it  is  not  a  correct  statement 
of  the  law,  and  is  prejudicial  to 
the  defendant.  How  or  in  what 
way  it  could  possibly  be  prejudi- 
cial to  defendant,  or  is  not  a  cor- 
rect statement  of  the  law,  we  are 
at  a  loss  to  know,  it  being  the 
stereotyped  statement  of  the  reas- 
onable doubt  approved  by  this 
court    in    many   cases." 

4— Hughes  V.  State,  43  Tex.  Crim. 
App.    .^,11,    67   S.   W.   104    (105). 

.')— Dalzell  V.  State,  7  Wyo.  450, 
5."?  Pac.  297;  a  larceny  case. 

"It  is  urged  that  the  failure  of 
the  court  to  insfrt  in  this  and  simi- 


lar instructions  the  statement  that 
such  guilt  must  be  established  by 
'competent  evidence'  or  equivalent 
words  was  misleading,  and  left  the 
jury  to  indulge  presumptions 
against  the  defendant  not  war- 
ranted by  the  evidence.  It  is 
of  course  true  that  the  guilt  of 
the  defendant  can  be  established 
lawfully  only  by  competent  evi- 
dence; and  if  anything  in  the 
progress  of  the  trial  or  the  circum- 
stances of  the  case  should  cause 
it  to  appear  necessary  that  the 
attention  of  the  jury  should  be  par- 
ticularly called  to  this  principle, 
or  the  defendant  shoiild  request 
that  the  jury  be  specially  in- 
structed in  regard  to  it,  it  might 
be  error  to  refuse  it.  But  it  is 
not  necessary  that  a  jury  shall 
be  informed  as  to  the  whole  scope 
of    their    duties    in    each    instruc- 


§  2635.]  CRIMINAL— PRESUMPTION.  1689 

(f )  You  are  instructed  that  the  defendant  in  a  criminal  action  is 
presumed  to  be  innocent  until  the  contrary  is  proved,  and,  in  case 
of  a  reasonable  doubt  whether  his  ^ilt  is  satisfactorily  shown,  he 
is  entitled  to  acquittal.'' 

§  2635.  Same  Subject — Must  Be  Substantial  Doubt,  Not  a  Mero 
Possibility  of  Innocence,  (a)  The  court  declares  the  law  to  be  that 
the  defendant  is  presumed  to  be  innocent  until  proven  guilty  beyond 
a  reasonable  doubt;  but  a  doubt,  to  authorize  an  acquittal,  must  be 
substantial  doubt  of  defendant's  guilt  and  not  a  mere  possibility  of 
his  innocence. ''^ 

(b)  The  defendant  is  presumed  to  be  innocent,  and  this  presump- 
tion remains  until  the  state,  by  evidence,  establishes  his  guilt  to  your 
satisfaction,  and  beyond  a  reasonable  doubt.  If,  therefore,  upon  a 
consideration  of  all  the  evidence,  you  have  a  reasonable  doubt  of  the 
defendant's  guilt,  you  should  give  him  the  benefit  of  such  a  doubt, 
and  acquit  him;  but,  to  authorize  an  acquittal  on  the  ground  of 
doubt  alone,  it  must  be  a  reasonable  doubt,  and  not  the  mere  possi- 
bility of  defendant's  innocence.^ 

(c)  The  court  instructs  the  jui*y  that,  before  they  can  convict 
the  defendant,  they  must  be  satisfied  of  his  guilt  beyond  a  reasonable 
doubt.  Such  doubt,  to  authorize  an  acquittal  upon  a  reasonable 
doubt,  must  be  substantial  doubt  of  the  defendant's  guilt,  with  a 
view  to  all  the  evidence  in  the  case,  and  not  a  mere  possibility  of  the 
defendant's  innocence. 

(d)  The  court  instructs  the  jury  that  the  law  presumes  the  inno- 
cence, and  not  the  guilt,  of  the  defendant,  throughout  the  trial,  and 
at  the  end  entitles  the  defendant  to  an  acquittal,  unless  the  evidence 

tion   or   even   in   each   case.     Much  in   subsequent    decisions.     State   v. 

is    safely    left   to    their   intelligence  Gibbs,    10    Mont.    213,    25    Pac.    289, 

and    knowledge    of   their   duties."  10  L.   R.  A.  749;   State  v.   Gleim,  17 

A     similar    instruction     was    ap-  Mont.   17,    41   Pac.   998,   31   L.   R.   A. 

proved     in     State     v.     Harness,     10  294,  52  Am.  St.  655,  10  Am.  Cr.  Rep. 

Idaho  18,   76  Pac.  788  (792).  46;   State  v.   Harrison,  23   Mont.   79, 

In     Winfield     v.     State,     44     Tex.  57    Pac.    647;    State    v.    Bristol,    21 

Grim.    App.    475,    72   S.    W.    182,    the  Mont.    578,    55    Pac.    107;    State    v. 

jury  were  instructed  that:  Clancy,    20    Mont.    498,    52   Pac.    267; 

The  defendant  is  presumed  to  be  State  v.  Vineyard,  16  Mont.  138,  40 

innocent    until    his    guilt    is    estab-  Pac.  173. 

lished    to    the    sati.sfaction    of    the  "The    above    quoted     instruction 

jury    beyond    a    reasonable    doubt,  is  a  verbatim   copy  of  section  2072 

and    unless    you    are    so    satisfied,  of   the   Penal    Code,    and    is,   when 

you   will   find   him    not   guilty.  read    in    connection    with    instruc- 

6 — State  V.    Martin,  29   Mont.   273,  tion   No.   4,   substantially  the   same 

74    Pac.    725    (727).  in    form    and    meaning    as    the    in- 

The  court  said:  struction    requested    by    defendant. 

"In  another  instruction  the  court  This    instruction    is    therefore    not 

gave    the    definition    of    reasonable  open  to  the  objection  made  by  ap- 

dnubt  as  contained  in  Territory  v.  pellant." 

McAndrews.  3  Mont.  158,  and  which  7— State  v.  Davis,  194   Mo.  485,  92 

WIS  taken   from  Commonwealth  v.  S.   W.   484;    State   v.    Bond,   191   Mo. 

■We>iste^,   5  Cush.    295.   52  Am.   Dec.  555.    90    S.    W.    830. 

711,  .ind  Commonwealth  v.  Costley,  8 — StTte    v.    "Weber,    156    Mo.    249, 

118    Mass.    1.    and    which    has    been  56   S.   W.  729. 
repeatedly    indorsed    by    this    court 


1690  FORMS  OF  INSTRUCTIONS.  [§  2636. 

in  the  ease,  when  taken  as  a  whole,  satisfies  you  of  defendant's  guilt 
beyond  a  reasonable  doubt,  as  defined  in  these  instructions.^ 

§  2636.  Presumption  of  Innocence — Defendant  to  Be  Given  Full 
Benefit  of.  (a)  The  law  presumes  that  the  defendant  is  innocent 
of  the  crime  charged  against  him  in  this  indictment,  and  it  is  your 
duty,  in  considering  this  case,  to  give  him  the  full  benefit  of  that 
presumption.  If  he  is  convicted  at  all  of  either  of  such  crimes,  it 
must  be  upon  the  testimony  which  has  been  produced  here  upon  this 
trial." 

(b)  The  law  presumes  that  persons  charged  with  crime  are  inno- 
cent until  thej^  are  proven  by  competent  evidence  to  be  guilty.  To 
the  benefit  of  this  presumption  the  defendants  are  all  entitled,  and 
this  presumption  stands  as  their  sufficient  protection  unless  it  has 
been  removed  by  evidence  proving  their  guilt  beyond  a  reasonable 
doubt." 

(c)  The  jury  are  instructed  that  the  law  is,  that  a  defendant 
charged  with  a  criminal  offense  is  presumed  to  be  innocent  until  his 
guilt  is  established  by  the  evidence,  beyond  a  reasonable  doubt.^^ 

(d)  The  law  presumes  every  man  innocent,  and  desires  no  con- 
viction if  the  jury,  or  any  one  of  them,  entertains  a  reasonable  doubt 
of  his  guilt ;  for  while  the  jury,  or  any  one  of  them,  entertains  a 
reasonable  doubt  as  to  the  guilt  of  the  defendant  of  the  crime  charged 
he  cannot,  without  a  great  violence  to  his  conscience  and  sense  of 
right,  agree  upon  a  verdict  of  conviction. ^^ 

9— State  v.  Hudspeth,  159  Mo.  178,  if.    after    a    full    and    fair    review 

60   S.   W.   136    (139.   144).  of   all    the   evidence   in   the    cause, 

In    State   v.   Fisher,    162   Mo.   169,  you   entertain    a    reasonable   doubt 

62    S.    W.    690    (691),    the    court    in-  of      the      defendant's      guilt,      you 

structed   as   follows:  should  give  him  the  benefit  of  such 

"The  law  presumes  the  defendant  doubt  and  acquit  him;  but  such 
to  be  innocent  of  the  offense  doubt,  to  authorize  you  to  acquit 
charged.  It  devolves  upon  the  him  on  that  ground  alone,  should 
state  to  prove  him  guilty  beyond  be  a  substantial  doubt  founded  on 
a  reasonable  doubt.  If  you  have  the  evidence,  and  not  a  mere  possi- 
a  reasonable  doubt  of  his  guilt,  bility  of  his  innocence. 
you  should  acquit  him;  but  a  In  State  v.  Hale,  156  Mo.  102,  56 
doubt,  to  authorize  an  acquittal  on  S.  W.  8S1  (882),  the  court  instruct- 
that  ground,  should  be  a  substan-  ed  the  jury: 

tial   doubt   founded    upon   the   evi-  The    law    presumes    the    defend- 

dence    and   not   a    mere    possibility  ants'  innocence  until  the  state  has 

of  'innocence.'  "  proven  their  guilt  beyond  a  reason- 

The  court  said:                                    '  able   doubt,    and,    unless   the    state 

"This  is  substantially  the  instruc-  has  so  proven  their  guilt,  you  will 

tion  given  in  State  v.   Nueslein,  25  acquit  them.     But  such  a  doubt,  to 

Mo.    Ill,   which   has   been   so   often  authorize     an     acquittal     on     that 

commended   by    this   court.     There  ground  alone,  should  be  a  substan- 

was  no  error  in  giving  it."  tial  doubt  of  guilt,  and  not  a  mere 

In    State    v.    Lcntz,    184    Mo.    223  possibility   of   their   innocence. 

(232),   83   S.   W.   970   (971),   the   court  10— Boykin  v.  People,  22  Colo.  496, 

Instructed  the  jury  that:  45  Pac.  419   (420). 

The  law  pre.sumes  the  defendant  11 — CofHn    v.    United    States,    156 

Innocent     of     the     crime     charged  U.  S.  432  (452),  15  S.  Ct.  396. 

against    him    in    this    information,  12 — Padfield     v.     People,    146     111. 

and    the    burden    of    proving    him  660  (662),  35  N.  E.  469. 

guilty  thereof  beyond  a  reasonable  13 — Franklin     v.     State,     92    "Wis. 

doubt  rests  upon  the  state.     Now,  269,  66  N.  W.  107. 


§  2637.] 


CRIMINAI^-PRESUMPTION. 


1691 


§  2637.  Presumption — Matter  of  Evidence,  (a)  In  the  absence 
of  evidence  to  the  contrary,  the  law  presumes  every  one  charged  with 
the  commission  of  a  crime  to  be  innocent;  and  this  legal  presumption 
of  innocence  is  a  matter  of  evidence,  to  the  benefit  of  which  the  de- 
fendants are  entitled  in  this  case.^* 

(b)  In  the  absence  of  evidence  to  the  contrary,  the  law  presumes 
every  one  innocent;  and  this  legal  presumption  of  innocence  is  a 
matter  of  evidence,  to  the  benefit  of  which  the  party  is  entitled.  The 
burden  of  proof  is  on  the  state  to  satisfy  the  jury  of  his  guilt.  Even 
if  he  introduces  no  evidence  at  all  to  overcome  or  explain  that  against 
him,  the  jury  should  acquit  him,  unless  the  evidence  introduced  by 
the  state  satisfies  you,  beyond  a  reasonable  doubt,  that  he  is  guilty, 
as  charged  in  this  indictment.^^ 

(e)  Gentlemen  of  the  jury,  the  legal  presumption  of  innocence 
is  to  be  regarded  by  the  jury  in  every  case  as  a  matter  of  evidence, 
to  the  benefit  of  which  the  accused  is  entitled,  and  as  a  matter  of 
evidence  it  attends  the  accused  until  his  guilt  is  by  the  evidence, 
placed   beyond   all  reasonable   doubt. ^^ 

§  2638.  Presumption  of  Innocence  Overcome  Only  by  Proof — Proof 
Required,  (a)  All  persons  accused  of  crime  are  presumed  by  law 
to  be  innocent  until  they  are  proven  to  be  guilty.     The  consequence 


"We  are  constrained  to  hold  that 
the  refusal  to  give  such  instruc- 
tion, or  its  equivalent,  was  error. 
'The  true  rule  is  that  the  burden 
of  proof  is  upon  the  state  to  prove 
the  guilt  of  the  defendant,  and 
that  he  is  presumed  innocent  un- 
less the  whole  evidence  in  the  case 
satisfies  the  jury,  beyond  a  reason- 
able doubt,  that  he  is  guilty.'  Cril- 
ley  V.  State.  20  Wis.  232;  Baker  v. 
State,  80  Wis.  421,  50  N.  W.  518; 
Fossdahl  v.  State,  89  Wis.  482,  486, 
62  N.  W.  185.  This  rule  was  sanc- 
tioned by  Shaw,  C.  J.,  in  Com.  v. 
Kimball,  24  Pick.  366,  374.  See  also 
State  V.  Flye,  26  Me.  312;  State  v. 
Tibbetts,  35  Me.  81;  Ogletree  v. 
State,  28  Ala.  693.  Thus  it  was  held 
error  to  refuse  an  instruction  to* 
the  effect  that  the  presumption  of 
innocence  prevails  throughout  the 
trial,  and  that  it  is  the  duty  of  the 
jury,  if  possible,  to  reconcile  the 
evidence  with  this  presumption. 
Farley  v.  State,  127  Ind.  419.  26  N. 
E.  898.  True,  the  court  charged 
the  jury  to  the  effect  that  they 
could  not  convict  unless,  from  all 
the  evidence,  there  was  left  in 
their  minds  no  reasonable  doubt  of 
the  guilt  of  the  accused.  But  this 
is  not  equivalent  to  the  instruction 
refused.  People  v.  Ma  card,  73 
Mich.   15,   40   N.   W.    784;   People  v. 


Potter,  89  Mich.  353,  50  N.  W.  994." 

14— McVey  v.  State,  57  Neb.  471, 
77  N.  W.  nil  (1113);  Bartley  v. 
State,  53  Neb.  310,  73  N.  W.  744, 
following  Garrison  v.  People,  6 
Neb.  285. 

15— Long  v.  State,  23  Neb.  33,  36 
N.  W.  310  (319). 

"The  jury  were  not  informed  that 
the  legal  presumption  of  innocence 
was  a  matter  of  evidence,  to  the 
benefit  of  which  plaintiff  in  error 
was  entitled.  This  part  of  the  in- 
struction was  evidently  copied 
from  the  syllabus  of  the  opinion 
w^ritten  by  the  present  chief  justice 
in  Garrison  v.  People,  6  Neb.  275. 
It  should  have  been   given." 

16— Harris  v.  State,  123  Ala.  69, 
26   So.   515   (516). 

"This  charge  was  copied  from 
the  case  of  Bryant  v.  State,  116 
Ala.  446,  23  So.  40,  where  it  was 
held  to  assert  a  correct  proposition 
of  law  on  the  authority  of  Newsom 
v.  State,  107  Ala.  134,  18  So.  206. 
The  court  erred  in  refusing  it." 

It  w'as  likewise  held  error  to  re- 
fuse this  instruction  in  Amos  v. 
State,  123  Ala.  50,  26  So.  524  (525), 
compare  Long  v.  State,  42  Fla.  612, 
28  So.  775.  where  the  court  doubted 
whether  this  presumption  is  to  be. 
regarded  as  evidence. 


1692  FORMS  OP  INSTRUCTIONS.  [§  2639. 

of  this  rule  of  law  is  that  they  are  not  required  to  prove  their  inno- 
cence, but  may  rest  upon  the  presumption  in  their  favor  until  it  is 
overcome  by  positive  affirmative  proof.  It  is  therefore  the  duty  of 
the  state  to  establish  to  your  satisfaction,  beyond  a  reasonable  doubt, 
every  essential  ingredient  necessary  to  constitute  the  guilt  of  the 
prisoners  of  the  crime  charged.^''' 

(b)  The  court  instructs  the  jury,  that  the  defendant  is  presumed 
to  be  innocent  until  his  guilt  is  established  by  such  evidence  as  will 
exclude  every  reasonable  doubt.  Therefore,  the  law  requires  that 
no  man  shall  be  convicted  of  a  crime,  until  each  and  every  one  of  the 
juiy  is  satisfied  by  the  evidence  in  the  case,  to  the  exclusion  of  every 
reasonable  doubt,  that  the  defendant  is  guilty  as  charged.  If  anyone 
of  the  jury,  after  having  duly  considered  all  the  evidence,  and  after 
having  consulted  with  his  fellow  juiymen,  should  entertain  such  rea- 
sonable doubt,  the  jury  cannot  in  such  case  find  the  defendant 
guilty.^® 

(e)  The  jury  are  instructed  that  the  indictment  contains  the  for- 
mal statement  of  the  charge,  but  is  not  to  be  taken  as  any  evidence 
of  defendant's  guilt.  The  law  presumes  the  defendant  to  be  inno- 
cent, and  this  presumption  continues  until  it  has  been  overcome  by 
evidence  which  establishes  his  guilt  to  j'our  satisfaction  and  beyond 
a  reasonable  doubt.  And  the  burden  of  proving  his  guilt  rests  with 
the  state.  If,  however,  this  presumption  has  been  overcome  by  the 
evidence,  and  the  guilt  of  the  defendant  established  to  a  moral  cer- 
tainty and  beyond  a  reasonable  doubt,  your  duty  is  to  convict.  If, 
upon  consideration  of  all  the  evidence,  you  have  a  reasonable  doubt 
of  the  defendant's  guilt,  you  should  acquit;  but  a  doubt,  to  authorize 
an  acquittal  on  that  ground,  ought  to  be  a  substantial  doubt  touching 
the  defendant's  guilt,  and  not  a  mere  possibility  of  his  innocence.^® 

(d)  The  court  instructed  the  jury  that  the  defendants  are  pre- 
sumed to  be  innocent  until  their  guilt  is  established  by  proof,  and 
that  they  are  entitled  to  the  benefit  of  any  and  all  reasonable  doubts, 
and  cannot  be  convicted  of  any  crime  unless  the  jury  are  convinced 
by  the  evidence  in  the  case  beyond  all  reasonable  doubt,  etc.-*^ 

§  2639.  Presumption  of  Innocence  Continues  Until  Every  Material 
Element  Is   Proven,      (a)      The   law   in  its  humanity,  presumes   all 

17— State  v.  Nicholls  et  al.,  50  La.  IS— Painter  v.   People,  147  111.  444 

699,  23  So.  980  (982).  (470),   35  N.   E.  64. 

In    People    v.    Stewart.    75    Mich.  19— State   v.    Miller,    190   Mo.    449, 

21,   42  N.   W.   662,   the  following  in-  89  S.  W.  377. 

struction  was  given:  20 — People  v.   Miles,   143  Cal.   636, 

You  will  start  out  in  the  trial  of  77  Pac.  566  (668). 

this  case  with  the  presumption  that  "The    objection    to    this    instruc- 

the    defendant    is    wholly    innocent  tion   is   that   the   word    'reasonable' 

of  the  crime  charged,  and  that  pre-  before      the      word       'satisfaction' 

sumption     must    be    overcome    by  therein    should    have    been    added, 

evidence    so    convincing    that    you  The  instruction   is   correct   without 

ran    sny,    beyond    any    reasonable  the  addition  of  thnt  word,  and  has 

doubt,  that  the  defendant  Is  guilty  uniformly     received     the     .sanction 

as  charged.  and  approval  of  this  court." 


§  2640.]  CRIMINAL— PRESUMPTION.  1693 

persons  charged  with  the  commission  of  crime  to  be  innocent,  and 
this  humane  presumption  continues  until  every  material  element  that 
constitutes  the  crime  is  proven  to  the  satisfaction  of  the  juiy  trying 
such  persons,  beyond  a  reasonable  doubt. -^ 

(b)  The  defendant,  in  the  first  instance,  is  presumed  to  be  inno- 
cent of  the  offense  charged  until  he  is  proven  guilty  according  to  the 
forms  of  law.  His  plea  of  *'not  guilty"  puts  in  issue  every  material 
allegation  of  the  indictment,  and  he  cannot  be  rightfully  convicted 
unless  the  state,  by  the  evidence,  has  overcome  the  presumption  of 
innocence  in  defendant's  favor  and  has  made  out  every  material 
allegation  of  the  indictment  to  your  satisfaction,  and  beyond  all 
reasonable  doubt.  Clear  and  satisfactory  proof  is  required.  No 
mere  weight  or  preponderance  of  testimony  will  be  sufficient  to  war- 
rant a  conviction  herein,  unless  it  be  so  strong  and  convincing  as  to 
remove  from  your  minds  all  reasonable  doubt  of  the  defendant's 
guilt.22 

(c)  The  court  instructs  the  jury,  that  the  law  raises  no  pre- 
sumption against  the  prisoner,  but  every  presumption  of  the  law  is  in 
favor  of  his  innocence ;  and,  in  order  to  convict  him  of  the  crime  al- 
leged in  the  indictment,  or  of  any  lesser  crime  included  in  it,  every 
material  fact  necessary  to  constitute  such  crime  must  be  proved  be- 
yond a  reasonable  doubt;  and  if  the  jury  entertain  any  reasonable 
doubt  upon  a  single  fact  or  element  necessary  to  constitute  the  crime, 
it  is  your  duty  to  give  the  prisoner  the  benefit  of  such  doubt,  and 
acquit  him.^^ 

§  2640.  Presumption  of  Innocence — Every  Ingredient  Must  Be 
Proven.  The  law  presumes  every  man  to  be  innocent  until  his  guilt 
is  proven  beyond  a  reasonable  doubt.  Every  ingredient  necessary 
to  constitute  an  offense  must  be  proven  beyond  a  reasonable  doubt 
before  you  can  return  a  verdict  of  guilty  against  the  defendants. 2* 

§  2641.  Duty  of  Jury  to  Infer  Innocence  Rather  than  Guilt,  (a) 
Gentlemen  of  the  jury,  I  charge  you,  that  if  the  testimony  in  this 
case  in  its  weight  and  effect  be  such  as  two  conclusions  can  be  rea- 
sonably drawn  from  it,  the  one  favoring  the  defendant's  innocence, 

21 — Kirby  v.   State,  44  Fla.  81,  32  no   mere   weight   or  preponderance 

So.  837.  is    ever   strong-    enough    to    exclude 

22 — State  v.   Brown,   100  Iowa  50,  such  doubt;  but  it  is  not  so  stated 

69  N.  W.  277.    (The  charge  was  lar-  in    argument.      The    instruction    is 

ceny.)  not  open  to  a  meaning  other  than 

"The  instruction  is  said  to  be  er-  that   the   weight   or   preponderance 
roneous  because  of  the  expression,  must    be    sufficient    to    exclude    all 
'mere   weight    or   preponderance   of  reasonable  doubt.     The  jury  doubt- 
evidence.'     And   it  is  said  that  the  less  so  understood  it." 
jury    might    infer    that    the    court  23 — Snyder  v.  State,  59  Ind.  105. 
means  just  the  opposite  of  what  it  24 — Bassett  et  al.  v.  State,  44  Fla. 
said,  for  in  plain  terms  the  instruc-  2,  33  So.  262   (263). 
tion    forbids    a    conviction    upon    a  "The    form    of    this    charge    has 
weight    or    preponderance    of    evi-  been    approved    by    this    court    in 
dence  not  strong  enough  to  exclude  Lovett  v.   State,  30  Fla.  142,  11   So. 
all  reasonable  wioubt  of  guilt.     The  550,  17  L.  R.  A.  705." 
thought  of  counsel,   likely,   is  that 


1694  FORMS  OF  INSTRUCTIONS.  [§  2642. 

and  the  other  tending  to  establish  her  guilt,  law,  justice  and  hu- 
manity alike  demand  that  the  jury  shall  adopt  the  former,  and  find 
the  accused  not  guilty.^^ 

(b)  Where  two  conclusions  can  be  drawn  from  a  single  circum- 
stance, one  tending  to  establish  guilt  and  the  other  tending  towards 
the  innocence  of  the  accused,  the  law  makes  it  your  duty  to  accept 
the  conclusion  tending  towards  innocence,  rather  than  the  one  tending 
towards  guilt.-^ 

(c)  The  jui-y  are  instructed  that,  when  a  man's  conduct  may  be 
as  consistently  and  as  reasonably,  from  the  evidence,  referred  to  one 
of  two  motives,  one  criminal  and  the  other  innocent,  it  is  your  duty 
to  presume  that  such  conduct  is  actuated  by  the  innocent  motive 
and  not  by  the  criminal.^^ 

(d)  Where  the  act  or  language  of  a  person  may  be  attributed  to 
two  motives,  one  criminal,  the  other  not,  the  law  will  ascribe  it  to 
that  which  is  innocent.  This  is  a  general  rule,  and  applies  in  this 
ease,  unless  the  testimony  convinces  the  jury  the  criminal  motive  is 
the  true  one.^^ 

§  2642.  Presumption  of  Innocence — Not  a  Mere  Form — Defendant 
Must  Be  Given  Benefit.  The  jury  are  further  instructed  that  the 
presumption  of  innocence  is  not  a  mere  form,  to  be  disregarded  by  the 
jury  at  pleasure,  but  it  is  an  essential,  substantial  part  of  the  law  of 
the  land,  and  binding  on  the  jury  in  this  case,  as  in  all  criminal 
cases;  and  it  is  the  duty  of  the  jury  to  give  the  defendant  in  this 
case  the  full  benefit  of  this  presumption,  and  to  acquit  the  defendant, 
unless  the  evidence  in  the  case  convinces  theni  of  his  guilt  as  charged, 
beyond   all  reasonable  doubt.^^ 

§  2643.  Jury  Compelled  to  Bear  the  Presumption  of  Innocence  in 
Mind.  The  defendant  comes  before  you  clothed  with  the  presumption 
of  innocence,  and  this  presumption  is  a  substantial  part  of  the  law 
of  the  land;  and  you  are  compelled  under  your  oaths,  to  caiTy  this 
presumption  in  your  minds  during  every  stage  of  the  trial,  and  give 
the  defendant  the  benefit  of  it  until  such  time  as  you  may  be  con- 

25 — Bryant  v.   State,  116  Ala.  445,  innocent  of  the  charge  until  proven 

23  So.  40  (41).  beyond   a   reasonable    doubt   to    be 

Compare  Miller  v.  State,  107  Ala.  'guilty.     This  presumption  of  inno- 

40,  19  So.  37.  cence  is  not  a  mere  form,  to  be  dis- 

26 — People  v.  Gilmore,  —  Cal.  — ,  regarded   by   the  jury   at   pleasure. 

53  Pac.  806  (807).     Not  reported.  It  is  an  essential,   substantial  part 

27— McCoy   v.    People,   175   111.    224  of  the   law   of  the   land,   and   bind- 

(233),  51  N.   E.  777.  ing  upon  the  jury  in  this  case;  and 

28— State    v.    Jackson,    129    N.    C.  it  is  the  duty  of  the  jury   to  give 

558,  40  S.  E.  41.  to  the  defendant  the  full  benefit  of 

29 — People  v.  Fitzgerald,  138  Cal.  this    presumption,    and    to    acquit 

39.  70   Pac.   1014   (1017).  him,    unless   you    feel   compelled    to 

The    following,    which    is    nearly  find    him    guilty    as    charged,    and 

similar  to  the  text  Instruction,  was  the   evidence   so   convinces   you   be- 

approved  in  Allen  v.  State,  70  Ark.  yond    all    reasonable    doubt    of   his 

337.  68  S.  W.  28  (29-30):  guilt. 

The  defendant  is  presumed  to  be 


§  2644.] 


CRIMINAI^PRESUMPTION. 


1695 


vinced  by  the  sworn  testimony  in  this  case,  and  beyond  all  reasonable 
doubt,  of  his  guilt,  as  charged  in  the  indictment.^'' 

§  2644.  Presumption  of  Innocence  Not  a  Shield  from  Conviction. 
The  rule  of  law  which  throws  around  the  defendant  the  presumption 
of  innocence,  and  requires  the  state  to  establish  bej'ond  a  reasonable 
doubt  every  material  fact  averred  in  the  indictment,  is  not  intended 
to  shield  those  who  are  actually  guilty  from  just  and  merited  pun- 
ishment ;  but  it  is  a  humane  pi'ovision  of  the  law,  which  is  intended 
for  the  protection  of  the  innocent,  and  to  guard,  so  far  as  human 
agencies  can,  against  the  conviction  of  those  unjustly  accused  of 
crime.^^ 

§  2645.  Refusal  to  Instruct  on  the  Presumption  of  Innocence  Is 
Error  in  Many  States.  The  law  presumes  the  defendant  innocent, 
and  this  presumi^tion  of  innocence  attends  and  surrounds  him  through 
every  stage  of  the  case,  until  the  jury  shall  finally  render  its  ver- 
dict.32 


30— Kennard  v.  State,  42  Fla.  581, 
28   So.   858    (861). 

31— Anderson  v.  State,  104  Ind. 
467,  4  N.  E.  64  (66),  5  N.  E.  711,  5 
Am.  Cr.  Rep.  601. 

"The  above  instruction  is  noth- 
ing- more  than  a  substantial  repeti- 
tion of  what  has  heretofore  in  some 
form  received  the  approbation  of 
this  court,  and  notably  so  in  the 
recent  case  of  Stout  v.  State,  90 
Ind.  1.  See  also  Turner  v.  State, 
102  Ind.  425.  1  N.  E.  Rep.  869,  5  Am. 
Cr.   Rep.   360." 

32— State  v.  Kennedy,  154  Mo. 
268,   55   S.   W.   293  (299). 

"No  doubt,  we  take  it,  can  no 
longer  exist  that  the  presumption 
of  innocence  is  indulged  in  favor 
of  every  person  charged  with 
crime,  and  that  his  guilt  must  be 
established  beyond  a  reasonable 
doubt;  but  the  question  is,  if  the 
court  properly  and  fully  instructs 
the  jury  on  reasonable  doubt,  will 
its  failure  to  instruct  the  jury  that 
the  defendant  is  presumed  to  be 
innocent  until  his  guilt  is  estab- 
lished constitute  reversible  error, 
in  and  of  itself?  On  the  side  of 
the  defendant  is  to  be  found  the 
supreme  court  of  the  United  States 
in  Coffin  v.  U.  S.,  156  U.  S.  432,  15 
Sup.  Ct.  394.  39  L.  Ed.  481,  on  writ 
of  error  to  the  district  court  of  the 
United  States  for  Indiana.  In  an 
opinion  by  Justice  "White,  the  re- 
fusal of  an  instruction  in  all  re- 
spects similar  to  the  one  refused 
in  this  case  was  held  reversible 
error.  The  learned  justice  traced 
the  history  of  the  presumption  of 
innrippnre.  nnd  drew  the  distinc- 
tion betueen  reasouable  doubt  and 


the  presumption  of  innocence.  As 
indicating  the  want  of  unanimity 
of  judicial  opinion,  he  says:  'The 
authorities  upon  this  question  are 
few  and  unsatisfactory.'  He  cites 
cases  from  Texas  and  Indiana  hold- 
ing it  necessary  to  state  to  the 
jury  the  presumption  of  innocence, 
but  concedes  that  in  both  states 
statutes  required  it.  In  Michigan 
it  has  been  ruled  error  to  refuse 
it  when  asked,  but  a  failure  to 
give  it  when  not  prayed  was  not 
error.  People  v.  Potter,  89  Mich. 
353,  50  N.  W.  994;  People  v.  Graney, 
91  Mich.  646,  52  N.  W.  66.  On  the 
other  hand,  it  has  been  expressly 
ruled,  after  full  consideration,  in 
Ohio,  that  it  is  not  error  to  refuse 
to  charge  the  presumption  of  inno- 
cence, where  the  court  correctly 
instructed  on  the  doctrine  of  rea- 
sonable doubt.  In  Morehead  v. 
State,  34  Ohio  St.  212,  Judge  Mc- 
Uvaine,  for  the  court,  said:  'Un- 
questionably, the  defendant  was 
entitled  to  the  benefit  of  the  legal 
presumption  of  innocence.  We 
think,  however,  it  was  given  to 
him.  The  benefit  of  the  presump- 
tion of  innocence  was  fully  and 
practically  secured  to  him  in  the 
instruction  that  the  state  must 
prove  the  material  elements  of  the 
crime  beyond  a  reasonable  doubt.' 
The  court  of  appeals  of  Kentucky 
also  had  the  identical  proposition 
before  it  in  Stevens  v.  Com.  45 
S.  W.  76,  and  held,  just  as  the  Ohio 
court  did,  that,  while  the  presump- 
tion of  innocence  might  have  prop- 
erly been  stated  to  the  jury,  he 
had  the  full  practical  benefit  in  the 
requirement  that  his  guilt  must  ba 


1696 


FORMS  OF  INSTRUCTIONS. 


[§  2646. 


§  2646.    Presumption  of  Innocence  Continues  Throughout  the  Trial. 

(a)  The  defendant  is  presumed  to  be  innocent  of  the  crime 
charged  against  him,  and  so  strong  is  this  presumption  that  it  clings 
to  him,  surrounds,  shields  and  protects  him,  through  the  entire  trial 
of  this  case,  and  until  such  presumption  is  overcome  by  evidence 
which  proves  him  guilty  beyond  a  reasonable  doubt.^^ 

(b)  The  court  instructs  the  jury  that  you  must  presume  the 
defendant  to  be  innocent  until  his  guilt  is  fully  established  by  legal 
evidence,  beyond  a  reasonable  doubt,  and  the  presumption  of  inno- 
cence prevails  throughout  the  trial,  and  it  is  your  sworn  duty  as 
jurors  trying  this  case,  to  reconcile,  if  possible,  the  evidence  in  this 
case  with  this  presumption.^* 


proved  beyond  a  reasonable  doubt. 
In  Alabama  and  California,  the 
presumption  of  innocence  and  rea- 
sonable doubt  are  seemingly  treat- 
ed as  synonymous.  Ogletree  v. 
State,  28  Ala.  693;  Moorer  v.  State, 
44  Ala.  15;  People  v.  Lenon,  79 
Cal.  625,  21  Pac.  967. 

"In  this  state  it  has  been  ruled, 
in  at  least  three  cases,  that  it  is 
not  reversible  error  to  refuse  an 
instruction  stating  the  presump- 
tion of  innocence,  when  the  court 
had  fully  instructed  on  the  doctrine 
of  reasonable  doubt.  State  v. 
Young,  105  Mo.  640,  16  S.  W.  408; 
State  v.  Harper,  149  Mo.  514,  51 
S.  W.  89;  State  v.  Heinze,  66  Mo. 
App.  136.  While  it  is  now  usual, 
and  we  think  the  proper  course,  to 
instruct  the  jury  that  the  law  pre- 
sumes the  innocence  of  the  defend- 
ant, and  before  the  jury  can  con- 
vict him  they  must  find  him  guilty 
beyond  a  reasonable  doubt,  yet 
when  the  court  has,  as  in  this 
case,  fully  instructed  in  his  favor 
on  the  doctrine  of  reasonable  doubt, 
and  the  evidence  so  abundantly 
sustains  the  verdict  of  the  jury,  we 
do  not  think  the  sentence  should 
be  reversed  solely  for  the  failure 
to  state  the  presumption.  We 
cited  Coffin  v.  U.  S.,  156  U.  S.  432, 
15  Sup.  Ct.  394,  39  L.  Ed.  481;  in 
State  V.  Hudspeth,  150  Mo.  12,  51 
S.  W.  483,  arguendo,  to  show  that 
the  trial  court  in  that  case  er- 
roneously required  the  defendant 
to  prove  his  innocence,  but  the 
question  now  before  us  did  not 
arise  in  that  case.  We  adhere  to 
our  previous  decisions  on  this 
point.  It  is  not  easy  to  determine 
when  the  courts  of  this  state  first 
bogan  to  state  this  presumption  in 
their  instruction  to  juries,  but  it  is 
true   that   for   many   years  It  was 


the  opinion  of  both  bench  and  bar 
that  the  instruction  that  'before 
the  jury  could  convict,  they  must 
be  satisfied  of  the  guilt  of  the  de- 
fendant beyond  a  reasonable 
doubt,'  secured  to  him  the  full 
benefit  of  the  presumption.  Bald- 
win V.  State,  12  Mo.  223;  Gardiner 
v.  State,  14  Mo.  98;  State  v.  Nuel- 
sein,  25  Mo.  Ill;  State  v.  Lewis,  69 
Mo.  92;  State  v.  Edwards,  71  Mo. 
312." 

33— State  v.  Privitt,  175  Mo.  207, 
75  S.  W.  457  (461). 

34— Parsons  v.  The  People,  218 
111.   (386,   396),   75  N.  E.   993. 

In  the  same  case  the  following 
was  approved: 

The  court  instructs  the  jury  that 
the  defendant  at  the  outset  of  the 
trial  is  presumed  by  the  law  to  be 
an  innocent  man,  and  he  is  not  re- 
quired to  prove  himself  innocent  or 
to  put  in  any  evidence  at  all  upon 
that  subject.  And  in  considering 
the  testimony  in  this  case,  you 
must  look  at  the  testimony  and 
view  it  in  the  light  of  the  presump- 
tion with  which  the  law  clothes 
the  defendant,  that  he  is  inno- 
cent, and  it  is  a  presumption  that 
abides  with  him  throughout  the 
entire  trial  of  the  case  until  the 
evidence  convinces  you  beyond  a 
reasonable  doubt  to  the  contrary. 

In  Edwards  v.  State.  69  Neb.  386, 
95  N.  W.  1038  (1039),  the  court  in- 
structed the  jury  as  follows: 

The  law  raises  no  presumption 
against  the  defendant.  On  the  con- 
trary, the  presumption  of  law  is  in 
favor  of  his  innocence.  This  pre- 
sumption of  innocence  continues 
through  the  trial  until  every  ma- 
terial allegation  in  the  information 
is  established  by  the  evidence  to 
the  exclusion  Of  all  reasonable 
doubt. 


§  2646. 


CRIMINAL— PRESUMPTION. 


1697 


(c)  The  court  instructs  the  jury  that  the  law  presumes  the  inno- 
cence, and  not  the  guilt,  of  the  defendant,  and  this  presumption  of 
innocence  attends  the  defendant  throughout  the  trial,  and  at  the 
end  entitles  the  defendant  to  an  acquittal,  unless  the  evidence  in  the 
ease,  when  taken  as  a  whole,  satisfies  you  of  defendant's  guilt  be- 
yond a  reasonable  doubt,  as  defined  in  these  instructions.^^ 

(d)  The  court  instructs  the  jury  that  the  defendants  are  pre- 
sumed to  be  innocent,  and  this  presumption  attends  them  throughout 
the  progress  of  the  whole  trial,  until  it  is  overcome  by  evidence  prov- 
ing their  guilt  beyond  any  reasonable  doubt;  and,  before  the  jury 
can  convict,  the  state  must  establish  the  guilt  of  the  defendants  be- 
yond a  reasonable  doubt  that  the  defendants  are  guilty  as  charged. ^^ 


An  instruction  similar  to  the  fore- 
going was  approved  in  the  earlier 
case  of  Bartley  v.  State,  53  Neb. 
310,  73  N.  W.  744  (760). 

In  McVey  v.  State,  57  Neb.  471, 
77  N.  W.  1111  (1113),  the  instruction 
contained   this   clause: 

The  law  presumes  the  defendant 
innocent,  and  this  presumption  con- 
tinues throughout  the  trial  until 
they  are  proven  guilty  beyond  a 
reasonable  doubt. 

In  Aszman  v.  State,  123  Ind.  347, 
24  N.  E.  123  (127),  the  following  in- 
struction was   given: 

The  law  presumes  the  defendant 
to  be  innocent  of  the  commission 
of  any  crime,  and  this  presumption 
continues  in  his  favor  throughout 
the  trial  of  the  cause,  step  by  step; 
and  you  cannot  find  the  accused 
guilty  of  any  of  the  crimes  covered 
by  the  indictment  until  the  evi- 
dence in  the  cause  satisfies  you  be- 
yond a  reasonable  doubt  of  his 
guilt.  And  so  long  as  you,  or  any 
one  of  you,  have  a  reasonable 
doubt  as  to  the  existence  of  any 
of  the  several  elements  necessary 
to  constitute  the  several  crimes 
above  defined,  the  accused  cannot 
be  convicted   of  such   crime. 

The  court  said: 

"In  Castle  v.  State,  75  Ind.  146, 
a  judgment  of  conviction  for  an 
assault  and  battery  with  intent  to 
commit  murder  was  reversed  for 
no  other  reason  than  the  refusal 
of  the  court  to  give  an  instruction 
substantially  like  the  above.  "While 
we  might  hesitate  to  reverse  a 
judgment  which  was  correct  in  all 
other  respects,  we  can  see  no  good 
reason  why  such  an  instruction 
should  be  refused,  when  season- 
ably requested,  unless  the  subject 
of  the  individual  responsibility  of 
each  juror  has  been  adequately 
covered  in  some  other  charge." 
107 


35— State  v.  Hottman,  196  Mo.  110, 
94  S.  W.  242. 

36— State  v.  Hendricks,  172  Mo. 
654,  73   S.   W.   194   (197). 

"The  court  simply  did  what  it 
was  appropriate  for  it  to  do,  and 
made  the  instruction  follow  the  old 
beaten  path  and  conform  to  the 
recognized  and  approved  form  of 
instructions  on  that  subject." 

In  State  v.  Milligan,  170  Mo.  215, 
70  S.  W.  473  (475),  the  following  in- 
struction was  approved: 

The  court  instructs  the  jury  that 
the  law  presumes  the  defendant 
to  be  innocent  of  the  crime 
charged,  and  this  presumption  sur- 
rounds and  protects  him  through- 
out the  entire  trial,  until  it  is  over- 
come by  the  evidence  in  the  case 
that  establishes  and  proves  his 
guilt  to  your  satisfaction,  beyond 
a  reasonable  doubt.  A  juror  is  un- 
derstood to  entertain  a  reasonable 
doubt  when  he  does  not  have  an 
abiding  conviction  of  the  truth  of 
the  charge  to  a  moral  certainty, 
and,  unless  you  are  thus  convinced, 
you  must  find  the  defendant  not 
guilty. 

In  Campbell  v.  State,  100  Ga. 
267,  28  S.  E.  71  (72),  the  court  in- 
structed the  jury  as  follows: 

Notwithstanding  the  indictment 
in  this  case,  the  defendants  enter 
into  this  trial  with  the  presump- 
tion of  innocence  in  their  favor, 
which  presumption  rests  with  them 
throughout  the  trial  until  the  state, 
by  satisfactory  evidence,  overcomes 
that  presumption,  and  establishes 
their  guilt  upon  each  material  al- 
legation contained  in  the  indict- 
ment, and  bej'ond  all  reasonable 
doubt. 

The  court  said  the  exception  to 
"this  charge  is  by  the  use  of  the 
word  'until'  in  this  connection,  and 
followed  by  the  subsequent  clauses 


1698 


FORMS  OF  INSTRUCTIONS. 


[§  26i7. 


(e)  The  court  instructs  the  jury  that  the  defendant  is  presumed 
to  be  innocent,  and  that  this  presumption  continues  throughout  the 
trial  and  until  overthrown  by  the  evidence,  and  that  it  is  the  duty 
of  the  jury,  if  it  can  consistently  be  done,  to  reconcile  the  evidence 
upon  the  theory  that  the  defendant  is  innocent.^^ 

REASONABLE  DOUBT. 

§  2647.  Reasonable  Doubt  Defined  and  Explained — Reason  for 
Rule.     The  rule  of  law  which  clothes  every  person  accused  of  crime 


set  out,  the  court  intimated  to  the 
jury  an  opinion  that  this  presump- 
tion of  innocence  had  been  over- 
come. We  do  not  thinli  the  excep- 
tion well  taken.  It  would  have  been 
better  to  have  used  the  word  'un- 
less' instead  of  'until,'  but  the  evi- 
dent meaning  of  the  charge  is  that 
the  presumption  of  innocence  rests 
or  remains  with  the  defendants 
throughout  the  trial,  or  until  or 
up  to  the  time  that  the  state 
overcomes  it,  etc.  The  present, 
and  not  the  past,  tense,  is  used 
throughout  this  part  of  the  charge. 
It  says  that  the  defendants  enter 
(not  entered)  into  their  trial  with 
the  presumption  of  innocence  in 
their  favor;  and  this  presumption 
rests  (not  rested)  with  them  until 
the  state  overcomes  (not  overcame) 
it,  and  establishes  (not  established) 
their  guilt  beyond  all  reasonable 
■doubt.  This  language  is  not  the 
construction  that  the  presumption 
of  innocence  has  been  overcome  by 
the  evidence  of  the  state,  and  the 
jury  could  not  have  so  erroneously 
understood." 

37— Musser  v.  State,  157  Ind.  423, 
61  N.  E.  1  (8). 

In  Connor  v.  Commonwealth,  26 
Ky.  398,  81  S.  W.  259,  the  following 
was  approved: 

The  court  instructs  the  jury  that 
the  defendant  is  presumed  inno- 
cent until  proven  guilty  to  the  ex- 
clusion of  a  reasonable  doubt,  and 
this  presumption  attends  him  at 
every  stage  of  the  trial,  and,  if  the 
jury  entertain  a  reasonable  doubt 
as  to  whether  the  defendant  is 
proven  guilty,  they  should  acquit 
him. 

In  Murphy  v.  State,  108  Wis.  Ill, 
83  N.  W.  1112  (1114),  the  jury  were 
Instructed  as  follows: 

The  defendant  in  this  case  entered 
upon  this  trial  with  the  presump- 
tion of  innocence  in  his  favor,  and 
thPt  prcriumption  remains  in  his 
favor  through  the  entire  trial,  and 
rp  to  the  time  you  shall  agree  upon 
yr.iir    k'ordict. 

In  comment  the  court  said:    "The 


subject  was  fully  considered  in 
Emery  v.  State,  101  Wis.  627,  78  N. 
W.  145,  where  it  is  said  that  strict 
accuracy  may  be  attained  by  stat- 
ing that  the  presumption  of  inno- 
cence attends  the  accused  from  the 
beginning  to  the  end  of  the  trial 
and  must  prevail  unless  overcome 
by  evidence  so  as  to  establish  guilt 
of  the  offense  charged  beyond  a 
reasonable  doubt.  The  instances 
where  courts  have  held  that  a  re- 
fusal to  instruct  the  jury  in  that 
regard,  in  addition  to  the  general 
instruction  that  the  accused  is  en- 
titled to  an  acquittal  unless  the 
jury  are  satisfied  from  the  evidence 
beyond  a  reasonable  doubt  that  he 
is  guilty,  is  error,  are  grounded 
upon  the  omission  to  give  the  ac- 
cused the  benefit  of  the  legal  pre- 
sumption of  innocence.  That  prin- 
ciple was  fully  stated  to  the  jury 
in  this  case,  unlike  Franklin  v. 
State,  92  Wis.  269,  66  N.  W.  107, 
upon  which  counsel  for  plaintiff  in 
error  seems  to  reply.  The  jury  hav- 
ing been  told  that  there  was  a  legal 
presumption  of  innocence  which  en- 
titled the  accused  to  an  acquittal 
unless  overcome  by  the  evidence,  a 
refusal  to  repeat  the  idea  in  differ- 
ent language  suggested  by  counsel 
for  the  accused,  though  such 
language  might  have  more  definite- 
ly impressed  such  idea  upon  the 
minds  of  the  jurors,  was  not  re- 
versible error.  However,  it  would 
have  been  better  to  have  so  given 
it.  Buel  V.  State,  104  Wis.  132,  80 
N.  W.  7S." 

In  Suckow  V.  State,  122  Wis.  156, 
99  N.  W.  410  (441),  the  court  gave 
this  instruction: 

The  accused  came  into  court  and 
entered  upon  the  trial  with  the 
presumption  that  he  was  innocent, 
and  such  presumption  of  innocence 
attended  him  throughout  the  trial 
of  the  case  and  should  prevail  un- 
less overcome  by  evidence  suffi- 
ciently strong  and  convincing  to 
satisfy  you  beyond  a  reasonable 
doubt  of  his  guilt. 


2648.] 


CRIMINAL— PRESUMPTION. 


1699 


with  the  presumption  of  innocence,  and  imposes  upon  the  state  the 
burden  of  establishing  his  guilt  beyond  a  reasonable  doubt,  is  not 
intended  to  aid  any  one  who  is  in  fact  guilty  of  crime  to  escape, 
but  is  a  humane  provision  of  law,  intended,  so  far  as  human  agencies 
can,  to  guard  against  the  danger  of  any  innocent  person  being  un- 
justly punished.  A  doubt,  to  justify  an  acquittal,  must  be  reason- 
able, and  it  must  arise  from  a  candid  and  impartial  investigation  of 
all  the  evidence  in  the  case;  and  unless  it  is  such  that,  were  the 
same  kind  of  doubt  interposed  in  the  graver  transactions  of  life,  it 
would  cause  a  reasonable  and  prudent  man  to- hesitate  and  pause,  it 
is  insufficient  to  authorize  a  verdict  of  not  guilty.  If,  considering  all 
the  evidence,  you  can  say  j-ou  have  an  abiding  conviction  of  the 
truth  of  the  charge,  you  are  satisfied  beyond  a  reasonable  doubt.^^ 

§  2648.  Reasonable  Doubt — Defined — Alabama,  (a)  A  probabil- 
ity of  innocence  is  the  equivalent  of  a  reasonable  doubt,  and  requires 
the  acquittal  of  the  defeudant.^^ 


38— Willis  v.  State,  43  Neb.  102, 
61   N.    W.   254   (256). 

"In  Polin  V.  State,  14  Neb.  540,  16 
N.  W.  898,  Polin  was  prosecuted 
for  murder.  The  district  court  in- 
structed the  jury  that  'the  proof 
is  deemed  to  be  beyond  a  reason- 
able doubt  when  the  evidence  is 
sufficient  to  impress  the  judgment 
and  understanding  of  ordinarily 
prudent  men  with  a  conviction  on 
which  they  would  act  in  their  most 
important  concerns  or  affairs  in 
life.'  And  this  court  held  the  in- 
struction to  be  correct.  In  May  v. 
People,  60  111.  119,  a  reasonable 
doubt  was  defined  as  follows:  'A 
reasonable  doubt,  beyond  which 
the  jury  should  iDe  satisfied  in  a 
criminal  case  before  finding-  the 
accused  guilty,  is  one  arising  from 
a  candid  and  impartial  investiga- 
tion of  all  the  evidence,  and  such 
as  in  the  graver  transactions  of 
life  would  cause  a  reasonable  man 
to  hesitate  and  pause.'  See,  also, 
Dunn  V.  People.  109  111.  635,  4  Am. 
Cr.  Rep.  52.  The  instruction  as- 
sailed  was   correct." 

39— Whitaker  v.  State,  106  Ala. 
30.  17  So.  456  (457). 

The  court  said:  "The  sixth  (a) 
Instruction  requested  by  the  de- 
fendant ought  to  have  been  given. 
It  merely  reaffirms  the  proposition 
which  ought  now  to  be  familiar, 
that  a  probability  of  innocence  is 
the  equivalent  of  a  reasonable 
doubt  and  requires  the  acquittal  of 
the  defendant.  Bain  v.  State,  74 
Ala.  38;  Winslow  v.  St.ate,  76  Ala. 
42,  52  Am.  Rep.  314,  5  Am.  Cr.  Rep. 


43;  Smith  v.  State,  92  Ala.  30,  9  So. 
408,  25  Am.  St.  Rep.  20;  Croft  v. 
State,  95   Ala.   3,   10   So.   517." 

See  also  Shaw  v.  State,  125  Ala. 
80,   28  So.   390. 

In  Hicks  v.  State,  123  Ala.  15,  26 
So.  337  (338),  the  court  approved 
a  charge  that: 

The  state  is  not  required  to  prove 
the  guilt  of  defendant  to  a  mathe- 
matical certainty. 

In  Jackson  v.  State,  136  Ala.  22, 
34  So.  188  (190),  homicide,  the  fol- 
lowing instructions  were  approved: 

I  charge  you,  gentlemen  of  the 
jury,  if  you  believe  from  the  evi- 
dence beyond  a  reasonable  doubt 
that  the  defendant  is  guilty, 
though  j'ou  also  believe  it  possible 
that  he  is  not  guilty,  you  must 
convict  him.  Citing  Prater  v. 
State,   107   Ala.   27,    18    So.   238: 

I  charge  you,  gentlemen  of  the 
jury,  that  the  doubt  must  be,  that 
which  will  justify  an  acquittal,  ac- 
tual and  substantial,  not  a  mere 
possible  doubt.  Because  everything 
relating  to  human  affairs  and  de- 
pending on  moral  evidence  is  open 
to  some  possible  or  imaginary 
doubt.  Citing  McKleroy  v.  State, 
77  Ala.  95;  Winter  v.  State,  123  Ala. 
1,  12,  26  So.  949: 

I  charge  you,  gentlemen  of  the 
jury,  that  if,  after  considering  all 
the  evidence,  you  have  fixed  con- 
viction of  the  truth  of  the  charge, 
you  are  satisfied  beyond  a  reason- 
able doubt,  and  it  is  your  duty  to 
convict  the  defendant. 

Citing  Prater  v.  State,  supra; 
Thomas  v.  State,  106  Ala.  19,  17  So. 


1700 


FORMS  OF  INSTRUCTIONS. 


[§2648. 


(b)  The  court  charges  the  juiy  that  a  doubt,  to  acquit  the  defend- 
ant, must  be  actual  and  substantial,  not  mere  possibility  or  specula- 
tion. It  is  not  a  mere  possibility  or  speculation.  It  is  not  a  mere 
possibility  or  possible  doubt  because  everything  relating  to  human 
affairs  and  depending  upon  moral  evidence  is  open  to  some  possible 
or  imaginary  doubt.**' 


460;  Rhea  v.  State,  100  Ala.  119,  14 
So.  853;  Heath  v.  State,  99  Ala.  179, 
13   So.  689. 

In  Jackson  v.  State,  136  Ala.  22, 
34  So.  188  (190),  the  instruction  as 
requested  was  given: 

I  charge  you,  gentlemen  of  the 
jury,  that  you  must  find  the  de- 
fendant not  guilty,  unless  the  evi- 
dence against  him  is  such  as  to  ex- 
clude to  a  moral  certainty  every 
reasonable  hypothesis  save  that  of 
Lis  guilt.  After  giving  this  charge, 
the  court  of  its  own  motion  in- 
structed the  jury  as  follows:  "Gen- 
tlemen, that  means  that  the  de- 
fendant should  not  be  convicted 
unless  you  are  convinced  of  de- 
fendant's guilt  beyond  a  reason- 
able doubt." 

Held,  "There  was  no  error  in  the 
court's  explaining  the  written 
charges  given  at  the  request  of 
the  defendant  as  to  the  meaning 
of  'reasonable  doubt.'  This  was 
not  a  violation  of  the  statute, 
which  requires  that  charges  moved 
for  in  writing  by  either  party  must 
be  given  or  refused  in  the  terms 
in  which  they  are  written.  Section 
3328,  Code  1896;  Williams  v.  State, 
98  Ala.  22,  12  So.  808;  Fuller  v. 
State,  117  Ala.  200,  23  So.  73;  Lowe 
V.  State,  88  Ala.  8,  7  So.  97;  and 
authorities  cited  in  note  to  above 
section  of  the  Code." 

In  Rogers  v.  Stnte,  117  Ala.  192, 
23  So.  82,  the  following  was  ap- 
proved: 

The  court  charges  the  jury,  if 
the  evidence  is  in  such  a  state  of 
confusion  and  uncertainty  as  that 
the  jury  are  not  convinced  of  de- 
fendant's guilt  beyond  all  rea- 
sonable doubt,  the  jury  must  ac- 
quit  the   defendant. 

In  Walker  v.  State,  117  Ala.  42, 
23  So.  149  (151),  held  error  to  re- 
fuse the  following: 

Before  the  jury  are  authorized 
to  convict  the  defendant  in  this 
case,  they  must  believe  from  the 
evidence  to  a  moral  certainty  that 
he  is  guilty  of  the  things  charged 
in  the  indictment,  and,  unless  the 
Jury  are   so  satisfied  from  the  evi- 


dence, they  should  acquit  the  de- 
fendant. 

40 — Jimmerson  v.  State,  133  Ala. 
18.    32    So.    141    (142). 

In  White  v.  State,  103  Ala.  72, 
16  So.  63  (65),  an  instruction  ap- 
proved was: 

The  court  charges  the  jury  that, 
if  you  are  reasonably  doubtful  as 
to  the  proof  in  this  case  of  any 
material  allegation  of  the  indict- 
ment you  must  acquit  the  defend- 
ant. 

In  Spraggins  v.  State,  139  Ala. 
93,  35  So.  1000  (1002),  homicide,  it 
was  held  error  not  to  give  the  fol- 
lowing: 

The  court  charges  the  jury  a 
probability  that  some  other  person 
may  have  done  the  shooting  is 
sufRcient  to  create  a  reasonable 
doubt  of  the  guilt  of  the  defend- 
ant and  therefore  for  his  acquittal. 

Orr  V.  State,  117  Ala.  69,  23  So. 
696  (697),  approved  the  following: 

If,  upon  the  whole  evidence,  the 
guilt  of  the  defendant  is  not  estab- 
lished beyond  a  reasonable  doubt, 
the  jury  must  acquit. 

Littleton  v.  State,  128  Ala.  31,  29 
So.  390  (391),  approves  the  follow- 
ing: 

The  state  is  not  required  to 
prove  defendant's  guilt  beyond  all 
doubt,  but  only  to  prove  guilt  be- 
yond a  reasonable  doubt. 

Turner  v.  State,  124  Ala.  59,  27 
So.  272  (275),  approves  the  follow- 
ing: 

If  there  is  generated  in  the  minds 
of  the  jury  by  the  evidence  in  this 
case,  or  any  part  of  the  same, 
after  a  consideration  of  the  whole 
of  such  evidence,  a  well-founrled 
doubt  of  the  defendant's  guilt,  then 
the  jury  must  acquit  him. 

Citing  Forney  v.  State,  98  Ala. 
19,  13  So.  540;  Hurd  v.  State,  94 
Ala.  100,  10  So.  528. 

In  Bohlman  v.  State,  135  Ala.  45, 
33  So.  44,  the  court  gave  this  in- 
struction: 

The  court  further  charges  the 
jury  that  in  whatever  form  the 
question  of  reasonable  doubt  may 
be    couched,    and    however   it   may 


§  2649.] 


CRIMINAL— PRESUMPTION. 


1701 


§  2649.  Reasonable  Doubt — Defined — Arkansas.  The  defendant  is 
entitled  to  the  benefit  of  every  reasonable  doubt,  and  by  a  "reason- 
able doubt"  is  meant  that  unless  you  have  a  firm  and  abiding  con- 
viction, to  a  moral  certainty,  of  the  truth  of  the  charge,  you  must 
acquit  the  defendant.  This  benefit  of  a  reasonable  doubt  is  a  sub- 
stantial right  of  the  defendant,  and  applies  to  the  whole  case.^'- 

§  2650.  Reasonable  Doubt — Defined — California.  But  by  a  rea- 
sonable doubt  is  not  meant  every  possible  or  fanciful  conjecture  that 
may  be  suggested.  Everything  relating  to  human  affairs,  and  de- 
pending upon  moral  evidence,  is  open  to  some  possible  doubt  or  fan- 
ciful conjecture.  By  reasonable  doubt  is  meant  that  state  of  the 
case  which,  after  an  entire  comparison  and  consideration  of  all  the 
evidence,  leaves  the  minds  of  the  jurors  in  that  condition  that  they 
cannot  say  they  feel  an  abiding  conviction  to  a  moral  certaintj-  of 
the  truth  of  the  charge.^^ 


be  twisted  by  words,  a  reasonable 
doubt  is  no  more  than  a  reason- 
able doubt,  and  that  in  consider- 
ing the  case  you  are  not  to  go  be- 
yond the  evidence  to  hunt  up 
doubts,  nor  must  you  entertain 
such  doubts  as  are  merely  imagin- 
ary or  conjectural.  A  doubt  to 
justify  an  acquittal  must  be  rea- 
sonable, and  it  must  arise  from  a 
candid  and  impartial  investigation 
of  all  the  evidence  in  the  case;  and 
if,  after  considering  all  the  evi- 
dence, you  can  say  that  you  have 
a  fixed  conviction  of  the  truth  of 
this  charge,  you  are  satisfied  be- 
yond a   reasonable   doubt. 

Willis  V.  State,  134  Ala.  429,  33 
So.  226  (235),  holds  that  the  trial 
court  erred  in  refusing  the  follow- 
ing where  the  charge  was  em- 
bezzlement: 

The  court  charges  the  jury  that 
if  the  evidence  is  not  so  convincing 
as  to  lead  the  minds  of  the  jury  to 
the  conclusion  that  he  is  guilty, 
thev  must  find  him  not  guilty. 

Citing  Walker  v.  State,  117  Ala. 
42,    23     So.   149    (151). 

41— Mitchell  v.  State,  73  Ark.  291, 
83  S.  W.  1050  (1051).  See  also 
Thomas  v.  State,  74  Ark.  431,  86  S. 
W.  404  (406),  homicide  charge. 

In  Tanks  v.  State,  41  Ark.  459, 
75  S.  W.  S51  (852),  the  court  said 
the  following  instruction  was 
proper,  and  should  have  been  given 
as  asked: 

You  are  instructed  that  the  bur- 
den is  on  the  state  to  prm-e  that 
the  defendant  is  guilty  as  charged 
in  the  indictment,  and,  if  the  evi- 
dence fails  to  satisfy  your  minds 
beyond  a  reasonable   doubt  of  the 


guilt  of  the  defendant,  then  it  is 
your  duty  to  give  him  the  benefit 
of  such  doubt  and  acquit.  If  any 
reasonable  view  of  the  evidence  is 
or  can  be  adopted  which  admits  of 
a  reasonable  doubt  of  the  guilt  of 
the  defendant,  then  it  is  your  duty 
to  adopt  such  view  and  acquit. 

42— People  v.  Davis,  135  Cal.  162. 
67    Pac.    59    (60). 

In  People  v.  Waysman,  1  Cal. 
App.  246,  81  Pac.  1087  (1088),  the  fol- 
lowing was  approved: 

If  you  entertain  a  reasonable 
doubt  upon  any  one  single  inaterial 
fact,  which  is  inconsistent  with 
the  defendant's  guilt  and  arises 
from  the  evidence  in  this  case,  it 
is  your  duty  to  give  the  benefit  of 
such  doubt  to  the  defendant  and 
acquit   him. 

The  court  said:  "The  criticism 
of  this  instruction  is  that  it  dealt 
only  with  fa.cts  which  are  incon- 
sistent with  guilt,  but  does  not  in- 
clude facts  which  are  consistent 
with  guilt,  and  is  therefore  er- 
roneous and  misleading.  As  the 
court  had  fully  instructed  the  jury 
elsewhere  it  is  quite  apparent  that 
the  jury  could  not  have  been  mis- 
led   by  the   above   instruction." 

In  People  v.  Olsen,  1  Cal.  App. 
17,  81  Pac.  676  (679),  the  following 
was  approved: 

The  jury  are  instructed  that 
each  and  every  fact  and  circum- 
stance relied  upon  by  the  prosecu- 
tion to  establish  the  guilt  of  the 
defendant,  must  be  proved  by  the 
evidence  beyond  a  reasonable 
doubt,  and  if  the  jury  are  not  en- 
tirely satisfied,  beyond  all  reason- 
able doubt,  that  such  fact  and  cir- 


1702  FORMS  OF  INSTRUCTIONS.  [§  2651. 

§2651.  Reasonable  Doubt — Defined — Delaware.  ''Proof  beyond 
a  reasonable  doubt"  does  not  mean  that  the  guilt  of  the  accused,  or 
any  other  fact,  shall  be  established  with  the  absolute  certainty  of  a 
mathematical  demonstration.  Matters  of  fact  ai'e  required  to  be 
proved  merely  to  a  moral  certainty.  To  require  more  in  dealing 
with  human  conduct  and  the  ordinary  affairs  of  life  would  be  im- 
practicable and  therefore  unreasonable.  It  is  sufficient  that  any 
disputed  fact  relating  to  these  shall  be  established  by  that  amount 
of  competent  or  appropriate  evidence  which  ordinarily  satisfies  an 
unprejudiced  mind  beyond  a  reasonable  doubt.  The  circumstances 
which  will  amount  to  this  degree  of  proof  can  never  be  previously 
defined.  The  only  legal  test  of  which  they  are  susceptible  is  their 
sufficiency  to  satisfy  the  mind  and  conscience  of  a  man  of  common 
sense  and  ordinary  discretion,  and  so  convince  him  that  he  would 
act  upon  that  conviction  in  matters  of  the  highest  concern  and  im- 
portance to  his  own  interest.  ''Reasonable  doubt,"  in  the  legal 
sense,  therefore,  does  not  mean  a  vague,  speculative,  or  whimsical 
doubt  or  uncertainty,  nor  a  merely  possible  doubt  of  the  truth  of  the 
fact  to  be  proved.*^ 

§  2652.  Reasonable  Doubt — Defined — Florida.  A  reasonable  doubt 
is  a  doubt  for  which  you  can  give  a  reason;  in  other  words,  if  the 
evidence  of  defendant's,  guilt  satisfies  you  to  such  an  extent  as  to 
leave  you  without  a  doubt  that  he  may  be  innocent,  for  which  you 
can  give  an  intelligent  reason,  then  it  would  be  your  duty  to  convict. 
Such  a  doubt  may  arise  either  from  affirmative  evidence  tending  to 
show  the  defendant's  innocence,  or  from  the  lack  of  evidence  suffi- 
cient to  establish  his  guilt.**  » 

cumstance    has   been  proven,    it   is  lamp     at     anybody,     your    verdict 

your  duty  to  find  a  verdict  of  not  should  be  not  g-uilty. 

guilty.  43— State  v.  Brinte,  —  Del.  — ,  5S 

People  v.   Fitzgerald,   138   Cal.   39,  Atl.   258  (264). 
70  Pac.  1014  (1017),  approves  this:  44 — Judgment    was   affirmed    in    a 

The  court  instructs  the  jury  that,  case  in  which  this  instraction  was 

under  the  law,  no  jury  should  con-  given  in  Wallace  v.   State,   41   Fla. 

vict  a  citizen  of  a  crime  upon  mere  547,  26  So.  713  (723).     The  court  said 

suspicion,       however      strong,      or  it   had   not   been   able   to  find   that 

simply  because  there  is  a  prepon-  "the  exact  language  here  used  has 

derance  of  all   the  evidence  in   the  ever  been   passed   upon   by  an   ap- 

case    against    him,    or    simply    be-  pellate  court.    An  instruction  to  the 

cause   there   is  a  strong   reason  to  effect  that  a   'reasonable   doubt'   is 

suspect   that   he   is   guilty;   but  be-  a     doubt     for     having     which     the 

fore  the  jury  can  lawfully  convict,  jury  can  give  a  reason  based  upon 

they  must  be  convinced  of  the  de-  the     testimony,     was     disapproved 

fendant's    guilt    beyond    a    reason-  in  Cowan  v.   State,   22  Neb.  519,   35 

able  doubt.  N.    W.    405,    and    Carr   v.    State,    23 

People   v.    Manning,   146  Cal.   100,  Neb.  749,  37  N.  W.  630.  because,  as 

79  Pac.   856   (857),   charge  homicide,  the   court   said,   it    failed   to   corre- 

approves  this:  spond  with  the  definition  given  by 

If    there    is    a    reasonable    doubt  Chief    Justice    Shnw    in     Com.     v. 

whether   the    defendant   threw    the  Webster,    5   Cush.    295.    though    the 

lamp,    in    this    case,    your    verdict  court    did    not    undertake    to    state 

should    be    not   guilty.     If   you    are  the    difference    in    the    substantial 

in    reasonable    doubt    whether    the  meaning-  of  the  two  definitions.     In 

defendant    intended    to    throw    the  Morgan  v.  State,  48  Ohio  St.  371,  27 


§  2653.] 


CRIMINAL— PRESUMPTION. 


1703 


§  2653.  Reasonable  Doubt — Defined — Georgia,  (a)  A  reasonable 
doubt  must  arise  from  a  candid  and  impartial  consideration  of  the 
evidence  in  the  case,  and  then  it  must  be  such  a  doubt  as  would  cause  a 
reasonably  prudent  and  considerate  man  to  hesitate  and  pause  before 


N.  E.  710,  an  instruction  that  by 
'reasonable  doubt  is  not  meant  a 
captious  or  whimsical  doubt,  but  a 
doubt  that  you,  as  a  juror,  can 
give  a  reason  for,'  was  held  to  be 
inaccurate.  The  court  asked: 
'What  kind  of  reason  is  meant? 
Would  a  poor  reason  answer,  or 
must  the  reason  be  a  strong-  one? 
Who  is  to  judge?  To  whom  is  the 
reason  to  be  given?  To  the  juror 
himself?  The  charge  does  not  say 
so,  and  jurors  are  not  required  to 
'assign  to  others  reasons  in  support 
of  their  verdict.'  Judge  Minshall, 
however,  dissented  from  these 
criticisms  upon  the  instruction  in- 
sisting that  it  was  free  from  error. 
In  Siberry  v.  State,  133  Ind.  677,  33 
N.  E.  681,  an  instruction  that  'a 
reasonable  doubt  is  such  a  doubt 
as  the  jury  are  able  to  give  a  rea- 
son for,'  was  condemned,  upon  the 
ground  that  it  puts  upon  a  defend- 
ant the  burden  of  furnishing  to 
every  juror  a  reason  why  he  is  not 
satisfied  of  his  guilt  with  the  cer- 
tainty which  the  law  requires  be- 
fore there  can  be  a  conviction,  and 
that  we  sometimes  have  doubts  in 
relation  to  things  for  which  we 
can  give  no  reason,  and  of  which 
we  have  imperfect  knowledge.  The 
accuracy  of  instructions  of  this 
nature  was  doubted  in  Stnte  v. 
Sauer,  38  Minn.  438,  38  N.  W.  355, 
and  People  v.  Stubenvoll,  62  Mich. 
329,  28  N.  W.  833.  See,  also,  3  Rice 
Ev.,  p.  437,  §270.  On  the  other 
hand,  instructions  to  the  effect 
that  a  reasonable  doubt  is  'a  doubt 
for  which  a  reason  could  be  given' 
or  one  'for  which  some  good  rea- 
son arising  from  the  evidence  may 
be  given,'  or  a  'serious  sensible 
doubt,  such  as  you  could  give  a 
good  reason  for,'  or  one  'for  which 
some  fair,  just  reason  can  be 
given,'  have  been  approved  in 
Hodge  V.  State,  97  Ala.  37,  12  So. 
164,  38  Am.  St.  Rep.  145;  Ellis  v. 
State,  120  Ala.  333,  25  So.  1;  People 
V.  Guidici,  100  N.  Y.  503,  3  N.  E. 
493;  State  v.  Jefferson,  43  La.  Ann. 
995,  10  So.  199;  U.  S.  v.  Johnson,  26 
Fed.  682;  Same  v.  Jones,  31  Fed. 
718;  State  v.  Rounds,  76  Me.  123. 
The  authorities  pro  and  con  are 
very  fully  considered  in  State  v. 
Morey,  25  Ore.  241,  35  Pac.  655  and 


36  Pac.  573,  and  the  court  declined 
to  reverse  a  conviction  because  the 
trial  judge  in  his  definition  of  'rea- 
sonable doubt,'  stated  that  'it  was 
such  a  doubt  as  a  juror  can  give 
a  reason  for.'  It  was  admitted 
that  this  language  was  subject  to 
the  criticism  that  it  did  not  de- 
fine, but  needed  defining,  but  the 
court  held  that,  in  connection  with 
other  instructions  given  upon  the 
same  subject  the  jury  were  not 
mislead;  and  that  case  is  approved 
in  State  v.  Serenson,  7  S.  D.  277,  64 
N.  W.  130;  2  Thomp.  Trials  §  2476. 
In  People  v.  Barker,  153  N.  Y.  Ill, 
47  N.  E.  31,  it  is  said  that  'a  rea- 
sonable doubt'  must  be  founded  in 
reason,  and  must  survive  the  test 
of  reasoning  or  the  mental  process 
of  a  reasonable  examination.  In 
this  state  we  have  held  that  the 
doubt  authorizing  an  acquittal  is 
a  reasonable,  sensible  one,  not  an 
unreasonable,  capricious,  whim- 
sical, speculative,  imaginary  or 
forced  one,  or  a  mere  possible  one, 
or  one  which  is  suggested  or  en- 
gendered by  something  outside  of 
the  evidence.  Lovett  v.  State,  30 
Fla.  142,  11  So.  550,  17  L.  R.  A.  705; 
Woodruff  v.  State,  31  Fla.  320,  12 
So.  653.  We  are  of  opinion  that 
the  instruction  complained  of  does 
no  more  than  to  state,  in  a  differ- 
ent form,  the  same  thing  as  that 
defined  in  other  language  in  the 
Lovett  and  Woodruff  cases.  It 
tells  the  jury  that  the  burden  is 
upon  the  state  to  establish  the  de- 
fendant's guilt  beyond  a  reason- 
able doubt, — that  is,  beyond  a 
doubt  for  which  they  can  give  an 
intelligent  reason;  that  this  doubt 
may  arise  either  from  affirmative 
evidence  tending  to  show  inno- 
cence, or  from  lack  of  evidence  suf- 
ficient to  establish  guilt;  but  that 
if  the  evidence  of  guilt  satisfies 
them  to  such  an  extent  as  to  leave 
them  without  a  doubt  that  de- 
fendant may  be  innocent  for  which 
they  can  give  an  intelligent  rea- 
son, they  should  convict.  This  in- 
struction puts  no  burden  upon  the 
defendant  to  furnish  the  jury  with 
a  reason,  but  it  requires  the  state 
to  satisfy  the  jury  of  defendant's 
guilt  to  such  an  extent  as  to  leave 
their   minds   without   a  doubt   that 


1704 


FORMS  OP  INSTRUCTIONS. 


[§2653. 


acting  in  the  graver  and  more  important  affairs  in  life.  After  a 
careful  and  impartial  consideration  of  the  entire  case,  if  you  can 
see  and  feel  that  you  have  an  abiding  conviction  of  the  guilt  of  the 
defendant,  and  are  fully  satisfied  of  the  truth  of  the  charge,  then 
you  are  satisfied  beyond  a  reasonable  doubt.*^ 


defendant  may  be  innocent,  for 
which  they  can  give  an  intelligent 
reason.  Of  course  the  jury  are  not 
required  to  state  reasons  for  their 
verdict,  but  they  are  nevertheless 
required  by  the  law  and  by  their 
duties  as  jurors,  to  act  in  the  jury 
box  as  reasonable  beings,  and  to 
exercise  their  reasoning  facilities 
in  passing  upon  the  life  and  liberty 
of  accused  persons.  If  they  enter- 
tain a  doubt,  they  must,  as  reason- 
able men,  know  upon  what  that 
doubt  is  based,  and  they  are  re- 
quired to  examine  into  the  nature 
and  origin  of  the  doubt  far  enough 
to  ascertain  that  it  is  a  reasonable 
one.  And  if  it  be  found  that  no 
intelligent  reason  can  be  given  for 
entertaining  a  doubt,  how  can  the 
conscience  of  the  jury  be  satisfied 
with  a  verdict  for  acquittal,  rest- 
ing as  it  does,  under  a  solemn 
duty  to  convict,  where  the  evi- 
dence convinces  them  of  guilt  to 
that  extent  as  to  leave  no  reason- 
able doubt  upon  their  minds?  To 
authorize  an  acquittal  because  of 
some  vague  undefined,  unintel- 
ligible, or  inexplicable  misgiving 
is  to  eliminate  the  word  'reason- 
able' from  the  definition." 

In  Bryant  v.  State,  34  Fla.  291, 
16  So.  177  (178),  one  appi-oved  in- 
struction was: 

Before  you  find  the  defendant 
guilty  you  (must)  believe  that  he 
is  guilty  beyond  a  reasonable 
doubt. 

See,  also,  Kirby  v.  State,  44  Fla. 
81,  32  So.  837,  homicide. 

In  Brown  v.  State,  46  Fla.  159, 
35  So.  82  (84),  homicide  case,  this 
charge   was  approved: 

The  defendant  is  presumed  to  be 
innocent  until  she  is  proved  to  be 
guilty  beyond  a  reasonable  doubt. 
She  is  entitled  to  every  reasonable 
doubt  arising  from  the  evidence, 
and  a  reasonable  doubt  is  one  con- 
formable to  reason — a  doubt  which 
a  reasonable  man  would  entertain. 
It  does  not  mean  a  mere  possible 
doubt,  because  everything  relating 
to  human  affairs  and  depending 
upon  moral  evidence  is  open  to 
some  possible  or  imaginary  doubt. 
It  is  that  state  of  the  case  which, 


after  the  entire  comparison  and 
consideration  of  all  the  evidence, 
leaves  the  mind  of  jurors  in  that 
condition  that  they  cannot  say 
they  feel  an  abiding  conviction  to 
a  moral  certainty  of  the  truths 
of  the  charge. 

The  court  further  instructs  you 
that  if,  after  a  consideration  of  all 
the  evidence  in  this  case,  you  can- 
not say  that  every  material  alle- 
gation of  the  indictment  has  been 
proved  beyond  a  reasonable  doubt, 
it  will  be  your  duty  to  acquit  the 
defendant. 

In  Adams  v.  State,  34  Fla.  185, 
15  So.  905  (909),  the  following  was 
approved: 

But  if,  after  a  careful  consider- 
ation of  all  the  evidence,  you  feel 
an  abiding  conviction  in  your 
minds  to  a  moral  certainty  that 
the  accused  is  guilty  as  charged, 
then,  in  law,  you  should  have  no 
reasonable  doubt,  and  you  should 
find    a   verdict   of  guilty. 

45— Hayne  v.  State,  99  Ga.  212,  25 
S.  E.  307  (309). 

Bone  v.  State,  102  Ga.  387,  30 
S.  E.  845  (846),  larceny  case,  ap- 
proved the  following: 

I  have  charged  you  that  what 
you  believe  in  this  case  against  the 
defendants  you  must  believe  be- 
yond a  reasonable  doubt.  That 
means  what  it  says.  It  must  be  a 
reasonable  doubt  as  opposed  to 
one  that  is  unreasonable.  It  is 
such  a  doubt  as  you  can  give  a 
reason  for  and  based  upon  reason. 
It  is  not  a  mere  guess  or  a  vague 
conjecture  that  possibly  the  de- 
fendants may  not  be  guilty,  but  it 
is  such  a  doubt  as  leaves  your 
mind  in  an  uncertain  condition 
where  you  are  unable  to  say  with 
reasonable  and  moral  certainty 
that  the  defendants  are  guilty.  If 
your  minds  should  be  in  that  con- 
dition,— wavering,  uncertain,  where 
you  are  not  satisfied  to  a  moral 
certainty  that  the  defendants  are 
guilty, — then  you  have  the  rea- 
sonable doubt  that  the  law  con- 
templates and  you  should  find 
them  not  guilty.  But  if,  on  the 
other  hand,  you  are  satisfied  of 
their    guilt    to    a    reasonable    and 


§  2654.]  CRIMINAL— PRESUMPTION.  1705 

(b)  A  reasonable  doubt  is  not  anj^  doubt  which  may  visit  the  mind 
of  a  juror  during  the  investigation  of  a  case,  and  in  making  up  his 
verdict.  A  mere  passing  hesitation  of  the  mind,  if  it  is  not  of  such 
gravity  as  to  amount  to  a  reasonable  doubt,  will  not  justify  a  juror 
in  finding  the  defendant  not  guilty.  If  the  testimony  satisfies  him  of 
the  gnilt  of  the  defendant  beyond  a  reasonable  doubt,  he  should  find 
the  defendant  guilty.  A  reasonable  doubt  is  one  that  is  based  upon 
some  ground  in  the  testimony  or  the  want  of  testimony  in  the  case. 
When  a  juror  has  that  sort  of  doubt,  he  ought  to  acquit.  But  if  he 
has  not  a  doubt  of  that  gravity,  he  ought  to  convict,  if  the  testimony 
satisfies  him  of  his  guilt  beyond  a  reasonable  doubt. *^ 

§  2654.  Reasonable  Doubt— Defined— Illinois.  The  court  instructs 
the  jury,  that  in  considering  this  case  you  should  not  go  beyond  the 
evidence  to  hunt  for  doubts,  nor  should  you  entertain  such  doubts 
as  are  merely  chimerical  or  based  upon  groundless  conjecture.  A 
doubt,  to  justify  an  acquittal,  must  be  reasonable,  and  arise  from 
a  candid  and  impartial  consideration  of  all  the  evidence  in  the  case; 
and  then  it  must  be  such  a  doubt  as  would  cause  a  reasonable,  pru- 
dent and  considerate  man  to  pause  before  acting  in  the  graver  and 
more  important  affairs  of  life.  If,  after  a  careful  and  impartial  con- 
sideration of  all  the  evidence  in  the  case,  you  can  say  and  feel  that 
you  have  an  abiding  conviction  of  the  guilt  of  the  defendant,  and 
are  fully  satisfied  of  the  truth  of  the  charge,  then  you  are  satisfied 
beyond   a  reasonable  doubt. ^^ 

moral    certainty   then    it   w'ould   be  In  May  v.  People,  60  111.  119,  the 

your  duty  to  find  them  guilty.  following    was    approved: 

Jackson   v.   State,    118   Ga.   780,   45  The     court     histructs     the     jury, 

S.  E.  604,  approved  the  following:  that    a     reasonable    doubt,     within 

The  state  is  not  required  to  dem-  the  meaning  of  the  law,  is  such  a 

onstrate    to    a    mathematical    cer-  doubt  as  would  cause  a  reasonable, 

tainty   his   guilt,    but   it   does   have  prudent    and    considerate    man,    in 

to  show  to  a  moral  and  reasonable  the  graver  and  more  important  af- 

certainty  his  guilt.    If  the  state  has  fairs  of  life,  to  pause  and  hesitate 

succeeded   in   doing   this,    then   this  before    acting    upon    the    truth    of 

presumption    in     his    favor    is    re-  the  matter  charged  or  alleged, 

moved,  and  it  is  your  duty  to  con-  In  Gorgo  v.   People,  100  111.   App. 

Vict.     If  the  state  hns  failed  to  do  130  (131),  assault,  the  following  was 

this  then  it  is  your  duty  to  acquit  approved: 

the  defendant.  A  reasonable  doubt  is  that  state 

The   court   said:     Cone   v.    State,  of   mind    which,    after    a    full    con- 

102  Ga.  387,  30  S.  E.  845,  that  there  sideration    and    comparison    of    all 

was    no    error    in    giving    such    a  the    evidence    both    for    the    state 

charge      after      having      correctly  and   the   defense,   leaves  the  minds 

charged     the     law     of     reasonable  of  the  jury  in  that  condition  that 

doubt.     See  also  Davis  v.  State,  114  they  cannot   say  that   they  feel  an 

Ga.  104,  39  S.   E.   906   (907).  abiding      faith      amounting      to      a 

46— O'Dell    V.    State,    120    Ga.    152,  moral  certainty  from  the  evidence 

47  S.   E.   577  (578).  in    the    case    that    the    defendant. 

47— Miller   v.    The    People.   39    111.     ,  is  guilty  of  the  charge  laid  in 

457;     People    v.     Finley,     38     Mich,  the   indictment.     If  you   have   such 

482;    Spies   v.    People,    122    111.   1,   12  a   doubt,   if  your  conviction  of  the 

N.   E.   865,   17   N.   E.   898,   3   Am.    St.  defend.Tnt's  guilt,  as  alleged  in  the 

Rep.    320  n,   5   Am.    Cr.    Rep.   637,   6  indictment,    does   not   amount    to  a 

Am.  Cr.   Rep.   570;   State  v.  Pierce,  moral  certainty  from   the  evidence 

65  la.  85,  21  N.  W.  195.  in    this    case,    then    the    court    in- 


1706 


FORMS  OF  INSTRUCTIONS. 


[§  2655. 


§  2655.  Reasonable  Doubt — Defined — Indiana.  The  defendant  in 
a  criminal  case  is  not  required  to  satisfy  the  jury  of  the  existence 
of  any  fact,  which,  if  true,  is  a  complete  defense.  It  is  sufficient  if 
he  creates  in  the  minds  of  the  jury  a  reasonable  doubt  of  the  ex- 
istence of  such  fact.** 

§  2656.  Reasonable  Doubt — Defined — Iowa.  A  reasonable  doubt 
is  such  a  doubt  as  fairly  and  naturally  arises  in  your  minds,  after 
fully  and  carefully  weighing  and  considering  all  the  evidence  intro- 
duced upon  the  trial  of  this  cause,  when  viewed  in  the  light  of  all 
the  facts  and  circumstances  surrounding  the  same.^^ 


structs  you  that  you  must  acquit 
the  defendant,  . 

Schiutz  V.  People,  178  111.  320 
(328),  52  N.  E.  903,  approves  the  fol- 
lowing-: 

The  jury  is  instructed  that  it  is 
incumbent  upon  the  prosecution  to 
prove  every  material  allegation  of 
the  indictment  as  therein  charged. 
Nothing  is  to  be  presumed  or 
taken  by  implication  against  the 
defendants.  The  law  presumes 
them  innocent  of  the  crime  with 
which  they  are  charged  until  they 
are  proven  guilty  by  competent 
evidence  beyond  a  reasonable 
doubt;  and  if  the  evidence  in  this 
case  leaves  upon  the  inind  of  the 
jury  any  reasonable  doubt  of  the 
defendants'  guilt,  the  law  makes 
it  your  duty  to  acquit   them. 

Painter  v.  People,  147  111.  444 
(469),  35  N.  E.  64,  homicide  case, 
approves   the  following: 

The  jury  are  instructed  that  if 
there  is  any  reasonable  doubt  as 
to  one  of  the  facts  essential  to  es- 
tablish guilt,  it  is  the  duty  of  the 
jury  to  acquit. 

Bressler  v.  The  People,  117  111. 
424,  8  N.  E.  62,  is  authority  for  the 
following: 

The  court  instructs  the  jury, 
that  before  a  conviction  can  be 
rightfully  claimed  by  the  people, 
in  this  case,  the  truth  of  every  ma- 
terial averment  contained  in  the 
indictment  must  be  proved  to  the 
satisfaction  of  the  jury,  beyond 
any  reasonable  doubt. 

48— Hinshaw  v.  State,  147  Ind. 
334,  47  N.  E.  157  (172),  the  court 
said: 

"The  Instruction  is  correct  as  an 
abstract  proposition  of  law.  It  is 
a  correct  statement  of  the  law  as 
applicable  to  an  affirmative  de- 
fense in  a  criminal  case,  and  not 
to  the  law  arising  upon  a  defense 
negative  in  its  character.  An  af- 
firmative defense  is  such  as  where 


the  defendant  attempts  to  estab- 
lish his  insanity,  when  he  did  the 
act  with  which  he  is  charged,  or 
that  he  was  acting  in  his  necessary 
self-defense  when  he  did  it,  and 
the  like.  In  such  cases  he  is  not 
required  to  satisfy  the  jury  of  the 
existence  of  either  of  those  facts, 
but  it  is  sufficient  if  the  evidence 
tending  to  prove  such  fact  create 
in  the  minds  of  the  jury  a  reason- 
able doubt  of  the  existence  of  any 
such  fact.  Thut  is,  if  the  defend- 
ant, in  seeking  to  prove  his  insan- 
ity as  a  defense  at  the  time  he  did 
the  act  charged,  fails  to  satisfy 
the  jury  of  the  existence  of  that 
fact,  yet,  if,  by  such  evidence,  he 
creates  a  reasonable  doubt  in  the 
mind  of  the  jury  of  his  sanity  at 
the  time  he  did  the  act,  it  is  suf- 
ficient to  make  out  his  defense. 
Trogdon  v.  State,  133  Ind.  1,  32 
N.   E.  725." 

In  Walker  v.  State,  136  Ind.  663, 
36  N.  E.  356  (358),  the  following  was 
given: 

To  entitle  the  state  to  a  convic- 
tion, it  must  prove  beyond  a  reas- 
onable doubt  the  material  allega- 
tions of  the  indictment.  If  the 
state  has  done  this,  you  should 
convict;   if  not,   you  should  acquit. 

Held  that  this  was  not  erron- 
eous in  taking  away  from  the  jury 
the  right  to  determine  the  suffi- 
ciency of  the  indictment.  Citing 
Anderson  v.  State,  104  Ind.  467, 
4  N.  E.  63,  5  N.  E.  711,  5  Am.  Cr. 
Rep.    601. 

49— State  v.  Case,  96  la.  264,  65 
N.    W.    149. 

In  State  v.  Van  Tassel.  103  la. 
6,  72  N.  W.  497  (501),  the  trial  judge 
charged: 

If,  after  a  careful  comparison  of 
the  evidence  and  a  full  considera- 
tion of  the  whole  case,  your  minds 
are  brought  to  an  abiding  convic- 
tion beyond  a  reasonable  doubt 
etc. 


§  2657.; 


CRIMINAL— PRESUMPTION. 


1707 


S  2657.  Reasonable  Doubt — Defined — Kansas.  A  reasonable  doubt 
is  such  a  doubt  as  the  jury  are  able  to  give  a  reason  for.  By  a  rea- 
sonable doubt  is  not  meant  a  mere  possible  or  imaginary  doubt  aris- 
ing from  caprice  or  groundless  conjectui-e;  it  is  that  state  of  the 
case  which,  after  a  comparison  and  consideration  of  all  the  evidence, 
leaves  the  minds  of  the  jurors  in  that  condition  that  they  cannot  say 
they  feel  an  abiding  conviction  to  a  moral  certainty  of  the  guilt  of 
the  defendant. ^'^ 

§  2658.  Reasonable  Doubt — Kentucky.  If,  from  all  the  evidence 
in  the  case,  the  juiy  have  a  reasonable  doubt  of  the  defendant  having 
been  proven  guilty,  they  ought  to  find  him  not  guilt3^5l 

§  2659.  Reasonable  Doubt — Defined— Louisiana.  This  doubt  must 
be  a  reasonable  one;  that  is,  one  founded  upon  a  real,  tangible,  sub- 
stantial basis,  and  not  upon  a  mere  caprice,  fancy  or  conjecture.  It 
must  be  such  a  doubt  as  would  induce  action  without  hesitation  in 
an  important  matter  by  reasonable  men  in  the  exercise  of  an  ordi- 


Held  that  a  criticism  "that  the 
instruction  is  faulty  because  it 
fails  to  use  the  words  'to  a  moral 
certainty'  is  captious.  When  the 
mind  is  brought  to  an  abiding-  con- 
viction beyond  a  reasonable  doubt 
that  a  thing  exists,  it  is  a  'moral 
certainty.'  Com.  v.  Costley,  118 
Mass.   23." 

State  V.  Judiesch,  96  la.  249.  65 
N.  W.  157,  seduction  case,  approves 
the  following: 

The  court  instructs  the  jury  that 
to  warrant  a  conviction,  the  de- 
fendant must  be  proved  to  be 
guilty  so  clearly  and  conclusively 
that  there  is  no  reasonable  theory 
on  which  he  can  be  innocent,  when 
all  the  evidence  in  the  case  is  con- 
sidered together. 

.50— State  v.  Patton,  66  Kan.  486, 
71    Pac.    840. 

"The  requirements  of  a  reason  for 
doubt  is  set  over  against  capricl- 
ousness,  conjecture,  the  indulgence 
of  speculation  upon  possibilities, 
and  the  invasion  of  the  realm  of 
Imagination.  Instructions  present- 
ing such  a  contrast  have  been  ap- 
proved in  the  following  cases: 
Hodge  v.  The  State,  97  Ala.  37, 
12  So.  164,  38  Am.  St.  Rep.  145; 
Vann  v.  State,  83  Ga.  44,  9  S.  E. 
945;  State  v.  Jefferson,  43  La.  Ann. 
995,  10  So.  199;  People  v.  Guidici, 
100  N.  T.  503,  3  N.  E.  493;  State 
v.  Harras.  25  Wash.  416,  65  Pac. 
774;  Wallace  v.  State.  41  Fla.  547, 
26  So.  713;  Butler  v.  State,  102  Wis. 
364.  78  N.  W.  590;  State  v.  Rounds, 
76  Me.  123;  State  v.  Serenson,  7  S. 
D.   277,   64  N.    W.   130.     And  judges 


of  the  federal  courts  have  fre- 
quently employed  equivalent 
phrases  in  charging  juries  in  crim- 
inal cases.  United  States  v.  But- 
ler, 1  Hughes  457,  Fed.  Gas.  No. 
14,  700;  United  States  v.  Johnson, 
—  C.  G.  — .  26  Fed.  682;  United 
States  V.  Jackson,  —  G.  G.  — ,  29 
Fed.  504;  United  States  v.  Jones,  — 
G.  G.  — ,  31  Fed.  718.  Similar  in- 
structions h:ive  been  criticised, 
however,  in  a  number  of  states. 
State  V.  Morey,  25  Ore.  241.  35  Pac. 
655,  36  Pac.  573;  State  v.  Sauer.  38 
Minn.  438,  38  N.  W.  355;  People  v. 
Stubenvoll,  62  Mich.  329,  28  N.  W. 
833;  Morgan  v.  State,  48  Ohio  St. 
371,  27  N.  E.  710;  Klyce  v.  State,  78 
Miss.  450,  28  So.  827.  And  like 
charges  have  been  declared  to  be 
erroneous  in  the  following  states: 
Silberry  v.  State,  133  Ind.  677,  33 
N.  E.  681;  Avery  v.  State,  124  Ala. 
20,  27  So.  505;  State  v.  Gohen,  108  la. 
208,  78  N.  W.  857,  75  Am.  St.  213; 
Carr  v.  State,  23  Neb.  749,  37  N.  W. 
630." 

51— Benge  v.  Com.,  24  Ky.  L. 
1466,    71    S.    W.    648    (650). 

Clark  V.  Com.,  23  Kv.  L.  1029, 
63  S.  W.  740  (747),  homicide  case, 
holds  that  it  was  error  to  refuse 
this: 

If,  upon  the  entire  case,  you 
have  a  reasonable  doubt  of  defend- 
ant's being  guilty,  or  as  to  any 
fact  necessary  to  establish  his 
guilt,  you  should  acquit  him;  or, 
if  you  have  such  doubt  as  to  the 
degree  of  the  offense,  you  will  find 
him   guilty    of   manslaughter   only. 


1708  FORMS  OP  INSTRUCTIONS.  [§  2660. 

nary,  yet  prudent  judgment.  It  must  be  such  a  doubt  as  would  make 
you  feel  you  had  not  an  abiding  conviction  as  to  the  prisoner's  guilt. 
If,  after  a  fair  and  imj^artial  consideration  to  all  the  facts  in  the 
case,  you  find  the  evidence  unsatisfactory  upon  any  point,  indispensa- 
bly necessary  to  constitute  the  prisoner's  guilt,  this  would  give  rise 
to  such  a  reasonable  doubt  as  would  justify  you  in  rendering  a  ver- 
dict of  not  guilty.  You  are  not  permitted  to  go  beyond  the  evidence 
to  seek  for  doubts,  but  must  confine  yourselves  strictly  to  a  dispas- 
sionate and  impartial  consideration  of  the  testimony  given  upon  the 
trial.  You  should  not  resort  to  extraneous  facts  or  circumstances  in 
reaching  your  verdict.^^ 

§  2660.  Reasonable  Doubt — Defined — Massachusetts.  Then  what 
is  a  reasonable  doubt?  It  is  a  term  often  used,  probably  pretty  well 
understood,  but  not  easily  defined.  It  is  not  mere  possible  doubt; 
because  everything  relating  to  human  affairs  and  depending  on  moral 
evidence  is  open  to  some  possible  or  imaginary  doubt.  It  is  that 
state  of  the  case  which,  after  the  entire  comparison  and  considera- 
tion of  all  the  evidence,  leaves  the  minds  of  jurors  in  that  condition 
that  they  cannot  say  they  feel  an  abiding  conviction  to  a  moral  cer- 
tainty of  the  truth  of  the  charge.  The  burden  of  the  proof  is  upon 
the  prosecutor.  All  the  presumptions  of  law,  independent  of  evidence, 
are  in  favor  of  innocence;  and  every  person  is  presumed  to  be  in- 
nocent until  he  is  proved  guilty.  If,  upon  such  proof,  there  is  rea- 
sonable doubt  remaining,  the  accused  is  entitled  to  the  benefit  of  it 
by  an  acquittal;  for  it  is  not  sufficient  to  establish  a  probability, 
though  a  strong  one,  arising  from  the  doctrine  of  chances,  that  the 
fact  charged  is  more  likely  to  be  true  than  the  contrary,  but  the 

52— State  v.   Nicholls,  50   La.   699,  In   State  v.   Martin,   47   La.   Ann. 

23     So.     980     (985),     homicide     case.  1540,  18  So.  508  (509),  a  charge  was 

The    court   said:  approved: 

"We  have  read  and  considered  That  tlie  jury  may  be  said  not 
the  objection  to  this  part  of  the  to  entertain  a  reasonable  doubt, 
charge.  The  expression  is  ques-  when,  after  the  entire  comparison 
tioned  in  the  argument,  that  it  and  consideration  of  all  the  evi- 
'must  be  such  a  doubt  as  would  dence,  they  can  say  that  they  feel 
induce  action  without  hesitation,  in  an  abiding  conviction,  to  a  moral 
an  important  matter,  by  reason-  certainty,  of  the  truth  of  the 
able  men,  in  the  exercise  of  or-  charge;  that  proof  beyond  reason- 
dinary  but  prudent  judgment.'  able  doubt  is  such  proof  as  pre- 
The  comment  is  that  the  reason-  eludes  every  reasonable  hypothesis 
able  doubt  is  not  that  which  in-  except  that  which  it  tends  to  sup- 
duces,  but  that  which  deters,  ac-  port;  it  is  proof  to  a  moral  cer- 
tion.  Between  the  doubt  that  de-  tainty,  as  distinguished  from  an 
ters  and  that  which  induces  action,  absolute  certainty;  that  the  two 
the  difference  is  metaphysical,  phrases  "proof  beyond  a  reason- 
Taking  this  whole  charge,  we  do  able  doubt"  and  "proof  to  a  moral 
not  think  it  could  have  been  mis-  certainty"  are  synonymous  and 
understood  by  the  jury.  "We  should  equivalent.  Kach  signifies  such 
find  it  extremely  difficult  on  this  proof  as  satisfies  the  judgment  and 
g-round  to  set  aside  this  verdict  conscience  of  the  jury  as  reason- 
and  the  difficulty  in  thus  setting  able  men,  and  applying  their 
it  aside  would  not  be  as  serious  reason  to  the  evidence  before  them, 
as  giving  a  satisfactory  reason  for  that  the  crime  charged  has  been 
It."  committed    by   the   defendant,    and 


§2661.]  CRIMINAL— PRESUMPTION.  1709 

evidence  must  establish  the  truth  of  the  fact  to  a  reasonable  and 
moral  certainty — a  certainty  that  convinces  and  directs  the  under- 
standing, and  satisfies  the  reason  and  judgment  of  those  who  are 
bound  to  act  conscientiously  upon  it.  This  we  take  to  be  proof  be- 
yond a  reasonable  doubt;  because,  if  the  law,  which  mostly  depends 
upon  consideration  of  a  moral  nature,  should  go  further  than  this,  and 
require  absolute  certainty,  it  would  exclude  circumstantial  evidence 
altogether.^2 

§  2661.  Reasonable  Doubt — Defined — Michigan.  Now  the  court 
will  define  to  you  what  is  meant  by  a  reasonable  doubt.  It  is  a  doubt 
that  grows  out  of  the  evidence  in  the  case,  if  it  exists  at  all.  It 
cannot  originate  anywhere  else.  It  is  not  an  imaginative  doubt,  not 
a  speculative  doubt,  not  a  doubt  based  upon  a  fancy.  It  is  a  doubt 
based  upon  reason ;  such  a  doubt  as  you  can  give  a  reason  for.  And 
as  you  investigate  this  case  along  the  lines  of  evidence  (and  nowhere 
else)  you  are  to  say  whether  you  find  that  kind  of  doubt  in  the  proof 
which  causes  you  to  hesitate  and  halt  in  your  deliberations.  The 
court  does  not  say  to  you  in  these  instructions  that  if  you  hesitate  in 
your  deliberations  until  by  discussion  you  harmonize  these  differences, 
that  each  i^laee  where  you  hesitate  is  a  reasonable  doubt ;  but  if 
you  reach  a  point  beyond  which  you  cannot  go  conscientiously,  and 
say  that  this  respondent  is  guilty,  then  your  deliberations  come  to  a 
halt.  It  is  such  an  obstruction  that  you  cannot,  as  conscientious 
men,  get  by.  The  train  of  facts  and  circumstances  in  the  ease  moves 
along,  and,  though  there  be  obstructions  here  and  there  on  the  track, 
if  they  can  be  removed  by  fair,  dispassionate  discussion,  and  you 
reach  the  end  of  the  journey,  and  then  become  satisfied  in  your 
minds  that  this  respondent  is  guilty,  then  3^ou  have  removed  these 
obstructions,  and  they  are  not  reasonable  doubts,  or  any  one  of  them. 
But  if,  as  I  say,  the  train  of  circumstances  stops,  and  you  are  una- 
ble, after  fair,  calm,  unprejudiced  discussion,  to  get  by  that  stopping 
place,  then  there  is  such  a  reasonable  doubt,  growing  out  of  the  evi- 
dence in  the  case,  that  you  cannot  get  over  or  get  by,  and  you  should 

so    satisfies    them    as    to    leave    no  gather."      It    is    claimed    that    this 

other  reasonable   conclusion   possi-  portion  of  the  instruction  is  arg-u- 

ble.  mentative,     and     for     that     reason 

53 — Shaw,  C.  J.,  in  Commonwealth  vicious.       It     is     somewliat     argu- 

V.  Webster,  5   Cush.   (59  Mass.)  295  mentative,  but  only  in  the  way  of 

(320),    52    Am.    Dec.    711,    in    which  giving  a  reason  for  a  rule  of  law. 

case  the  evidence  was  circumstan-  It   is   not   argumentative   upon   the 

tial.  evidence,    nor   was  it    at   all   preju- 

In  Carleton  v.  State,  43  Neb.  373,  dicial  to  the  rights  of  the  accused. 

61    N.    W.    699    (714),    the    Supreme  This  instruction  has  been  approved 

Court    of    Nebraska     said    of    this  in    the    following    Nebraska    cases: 

instruction,    that    the    only    reason-  Polin   v.    State,    14   Neb.    540,   16   N. 

able  ground  of  criticism  is  to  that  W.  89S;  Langford  v.  State,  32  Neb. 

portion  of  it  which  says  that  if  the  782,   49   N.   W.    766;   Willis  v.    State, 

law,    "which   mostly    depends   upon  43   Neb.   102,   61    N.   W.   254;    Cowan 

considerations    of    a    moral    nature,  v.    State,    22    Neb.    519,    35    N.    W. 

should    go    further    than    this,    and  405,    and    Carr    v.    State,    23    Neb. 

require  absolute  certainty,  it  would  749,  37  N.  W.  630.     See  §  2164. 
defeat    criminal   prosecutions   alto- 


1710 


FORMS  OF  INSTRUCTIONS. 


[§  2662. 


say  then  that  the  respondent  should  have  the  benefit  of  that  reason- 
able doubt,  and  be  acquitted  by  your  verdict.^* 

§  2662.  Reasonable  Doubt — Defined — Mississippi.  Where  there  is 
a  probability  of  the  innocence  of  the  defendant,  there  is  a  reasonable 
doubt  of  his  guilt,  and  you  should  then  find  him  not  guilty.^^ 

§  2663.  Reasonable  Doubt — Defined — Missouri.  If,  after  fully  and 
deliberately  "weighing  and  considering  all  the  evidence  before  them 
in  this  case,  the  jury  entertain  any  reasonable  doubt  of  the  defend- 
ant's guilt,  they  must  give  him  the  benefit  of  such  doubt,  and  acquit 
him.  A  juror  is  understood  to  entertain  a  reasonable  doubt  when  he 
has  an  abiding  conviction  of  mind,  founded  on  the  evidence,  to  a 
moral  certainty,  that  the  defendant  is  guilty  as  charged.^^ 


54— People  v.  Rich,  133  Mich.  14, 
94    N.    W.    375    (377). 

In  People  v.  Stewart,  75  Mich. 
21,  42  N.  W.  662  (665),  homicide,  it 
was  held  error  to  refuse  the  fol- 
lowing requests: 

A  reasonable  doubt  is  such  a 
doubt  arising-  out  of  the  evidence 
that  you  cannot  say  to  a  moral 
certainty  that  the  defendant  is 
guilty;  and,  if  there  is  any  other 
reasonable  explanation  of  the  death 
of  the  stranger  than  the  guilt  of 
the  defendant,  you  are  bound  to 
acquit.  The  prosecution  claim  that 
the  evidence  in  this  case  is  made 
up  of  a  chain  of  circumstances  of 
facts  or  links  so  connected  to- 
gether that  they  lead  up,  with  all 
reasonable  certainty,  to  the  defend- 
ant's guilt;  and,  gentlemen,  I 
charge  you  that,  in  order  to  con- 
vict the  defendant  upon  that  class 
of  evidence,  you  must  be  satis- 
fied, beyond  any  reasonable  doubt, 
that  each  material  fact  or  neces- 
sary link  in  the  chain  has  been 
proven,  and,  if  you  have  any  reas- 
onable doubt  about  any  one  of 
the  necessary  facts  or  links  con- 
stituting the  chain  of  circum- 
stances, then  you  should  acquit  the 
defendant.  To  illustrate:  The  first 
material  fact  or  link  is  the  death; 
the  second,  death  by  violence  at 
the  hand  of  some  person.  The  first 
fact,  the  death,  is  not  disputed; 
the  second  is  contested;  and,  if  you 
have  any  reasonable  doubt  as  to 
either  one  of  them,  then  you  must 
acquit. 

People  v.  Albers,  137  Mich. 
678.    100    N.    W.    908    (912). 

55— Strother  v.  State,  74  Miss. 
247,  21  So.  147  (148),  34  L.  R..  A. 
472. 

In  Hammond  v.  State,  74  Miss. 
214,  21  So.  150,  homicide,  the  charge 
was: 


The  court  instructs  the  jury  for 
the  state,  that  you  are  not  required 
to  know  that  defendant  inflicted 
wounds  on  the  child  by  violence, 
nor  is  it  necessary  for  you  to 
know  that  the  child  died  from  such 
wounds.  All  that  is  required  is 
for  you  to  take  into  consideration 
all  the  facts  and  circumstances  in 
evidence,  and  from  thein  to  con- 
scientiously believe  beyond  a  rea- 
sonable doubt,  that  he  made 
wounds  on  the  child  from  which 
he    died. 

The  court  said  "that  'conscien- 
tiously,' is  a  word  of  quality  and 
not  of  quantity,  and  ought  not  to 
be  used  in  charges  as  to  reason- 
able doubt.  But  in  the  charge 
here  it  was  mere  surplusage,  for 
the  jury  are  not  only  told  that 
they  must  'conscientiously'  believe, 
but  that  they  must  'conscientiously 
believe  beyond  a  reasonable 
doubt.'  " 

See  also  Wells  v.  State,  —  Miss. 
—     18    So.    117. 

56— State  v.  Privitt,  175  Mo.  207, 
75    S.    W.    457    (460),    homicide    case. 

In  State  v.  Pyscher,  179  Mo.  140, 
77  S.  W.  836  (842),  forgery,  the  fol- 
lowing  was   approved: 

The  court  instructs  the  jury  that 
the  law  clothes  the  defendant  with 
the  presumption  of  innocence, 
which  attends  and  protects  him 
until  it  is  overcome  by  evidence 
which  proves  his  guilt  beyond  a 
reasonable  doubt,  which  means 
that  the  evidence  of  his  guilt,  as 
charged,  must  be  clear,  positive 
and  abiding,  and  fully  satisfying 
the  minds  and  consciences  of  the 
jury.  It  is  not  sufficient  in  a  crim- 
inal case  to  justify  a  verdict  of 
guilty  that  there  may  be  strong 
suspicions  or  even  strong  proba- 
bilities of  guilt,  but  the  law  re- 
quires proof  by  legal  and   credible 


§  2664. 


CRIMINAL— PRESUMPTION. 


1711 


§  2664.  Reasonable  Doubt — Defined — Nebraska.  You  are  in- 
structed that  by  the  words  "reasonable  doubt/'  as  used  in  these  in- 
structions, is  meant  an  actual,  substantial  doubt  of  guilt  arising  from 
the  evidence,  or  want  of  evidence,  in  the  case.^'' 


evidence,  of  such  nature  that, 
when  it  is  all  considered,  it  pro- 
duces a  clear,  undoubting  and  en- 
tirely satisfactory  conviction  of  de- 
fendant's guilt;  and  the  burden  of 
establishing  the  guilt  of  the  de- 
fendant, as  above  referred,  is  upon 
the    prosecution. 

In  State  v.  Mitligan,  170  Mo.  215, 
70  S.  W.  473,  the  following  was  ap- 
proved: 

The  court  instructs  the  jury  that, 
if  they  have  a  reasonable  doubt  of 
the  defendant's  guilt,  they  must 
acquit  him;  but  such  a  doubt  of 
an  acquittal,  must  be  a  substantial 
doubt,  arising  from  a  full  and  fair 
consideration  of  all  the  facts  and 
circumstances  in  proof,  and  not  a 
mere  possibility  of  his  innocence. 

In  State  v.  Hendricks,  172  Mo. 
654,  73  S.  W.  194  (197),  homicide 
case,   the  following  was  approved: 

The  court  instructs  the  jury  that 
in  criminal  cases,  even  when  the 
evidence  is  so  strong  as  to  demon- 
strate the  probability  of  the  guilt 
of  the  party  accused,  still,  if  it 
fails  to  establish  beyond  a  reason- 
able doubt  the  guilt  of  the  defend- 
ant in  manner  and  form  as 
charged  in  the  indictment,  then  it 
is  the  duty  of  the  jury  to  acquit. 

State  V.  Nueslein,  25  Mo.  Ill,  and 
State  V.  Knock,  142  Mo.  524,  44  S. 
W.  235,  and  State  v.  Maupin,  196 
Mo.  164,  93  S.  W.  379  (383),  are 
authority  for  the  following: 

The  court  instructs  the  jury 
that,  before  you  can  convict  the 
defendant,  you  must  believe  him 
guilty  beyond  a  reasonable  doubt, 
but  a  doubt  to  authorize  an  ac- 
quittal must  be  a  substantial  doubt 
based  on  the  evidence,  and  not  a 
mere   possibility  of   innocence. 

In  State  v.  McCarver,  194  Mo. 
717,  92  S.  W.  684,  this  was  ap- 
proved: 

The  court  instructs  the  jury  that 
the  defendant  is  presumed  to  be 
innocent,  and  this  presumption  at- 
tends and  protects  him  at  every 
stage  of  the  case  until  it  is  over- 
come by  testimony  which  proves 
his  guilt  beyond  a  reasonable 
doviht;  and  it  is  not  enough  in  a 
criminal  case  to  justify  a  verdict 
of    guilty    that    there    may    be    a 


strong  suspicion  or  even  strong 
probabilities  of  the  guilt  of  the 
defendant,  but  the  law  requires 
proof  so  clear  and  satisfactory  as 
to  leave  no  reasonable  doubt  of 
defendant's  guilt. 

See,  also,  State  v.  Hottman,  196 
Mo.  110,  94  S.  W.  240;  State  v. 
Hendricks,  172  Mo.  654,  73  S.  W. 
194    (197). 

State  V.  Moore,  156  Mo.  204,  56 
S.  W.  883  (884),  homicide  case,  ap- 
proves   the   following: 

The  court  instructs  you  that  the 
burden  of  proving  the  defendant's 
guilt  beyond  a  reasonable  doubt 
rests  upon  the  state,  and  if,  upon 
the  evidence  considered  as  a  v/hole, 
the  jury  should  entertain  a  reason- 
able doubt  as  to  defendant's  guilt, 
you  should  give  him  the  benefit 
of  such  doubt  and  find  him  not 
guilty;  but  a  doubt,  to  authorize 
an  acquittal  on  that  ground  alone, 
should,  as  stated,  be  a  reasonable 
doubt,  and  one  fairly  arising  from 
the  evidence  as  a  whole,  and  the 
possibility  that  the  defendant  may 
be  innocent  will  not  warrant  you 
in  acquitting  him  on  the  ground 
of    reasonable    doubt. 

57— Ferguson  v.  State,  52  Neb. 
432,  72  N.  W.  590,  66  Am.  St.  Rep. 
512.  "The  objection  raised  by  coun- 
sel for  the  accused  to  this  in- 
struction is  that  'it  is  impossible 
to  tell  from  the  instruction  whether 
the  doubt  or  guilt  must  arise  from 
the  evidence  on  the  part  of  the 
state  or  want  of  evidence  on  the 
part  of  the  defendant.'  The  court's 
definition  of  a  reasonable  doubt 
will  not  bear  any  such  interpre- 
tation. The  idea  plainly  conveyed 
by  this  portion  of  the  charge  is 
that,  if  the  jury,  on  the  considera- 
tion of  the  evidence  introduced  by 
the  state  and  defense,  or  for  any 
lack  of  evidence  in  the  case,  en- 
tertain a  reasonable  doubt  of  the 
guilt  of  the  accused,  there  must 
be  an  acquittal.  The  court's  de- 
finition of  a  'reasonable  doubt'  was, 
in  form,  approved  by  this  court 
in  Langford  v.  State,  32  Neb.  782, 
49  N.  W.  766."  See,  also.  O'Brien 
v.  State,  69  Neb.  691,  96  N.  W. 
649    (650). 

In  Whitney  v.  State,  53  Neb.  287, 


1712 


FORMS  OF  INSTRUCTIONS. 


[§  2665. 


§  2665.  Reasonable  Doubt — Defined — New  York.  A  reasonable 
doubt,  gentlemen,  is  not  a  mere  whim,  or  surmise;  nor  is  it  a  mere 
subterfuge  to  which  resort  may  be  had  in  order  to  avoid  doing  a 
disagreeable  thing;  but  it  is  such  a  doubt  as  reasonable  men  may 
entertain,  after  a  careful  and  honest  review  and  consideration  of  the 
evidence  in  the  case.  It  is  a  doubt  founded  in  reason  and  coming 
from  reason,  or,  as  the  learned  counsel  for  the  defense  has  well  ex- 
pressed it,  a  doubt  coming  from  reason,  and  which  survives  reason.^^ 

§  2666.  Reasonable  Doubt — Defined — Oklahoma.  (a)  You  are 
further  instructed  that  if  you  entertain  a  reasonable  doubt  of  the 
guilt  of  the  defendant,  which  arises  from  the  incomplete  or  unsatis- 
factory character  of  the  evidence  offered  on  behalf  of  the  territory, 
or  from  the  evidence  offered  on  the  part  of  the  defendant,  or  if  you 
entertain  such  reasonable  doubt  from  a  consideration  of  all  the  evi- 
dence, and  facts  and  circumstances  in  evidence,  in  the  case,  then  it 
is  your  duty  as  jui'ors  to  give  the  defendant  the  benefit  of  such 
doubt,  and  acquit  him. 

(b)  If,  after  considering  all  the  evidence,  you  can  say  on  your 
oaths  as  jurors  and  your  conscience  as  men  that  you  have  an  abiding 


73  N.  W.  6S6  (699),  the  same  in- 
struction was  approved  with  the 
following    addition   thereto: 

That  by  reasonable  doubt  is  not 
meant  that  the  accused  may  pos- 
sibly be  innocent  of  the  crime 
charged  against  him,  but  it  means 
some  actual  doubt  having  some 
reason  for  its  basis.  A  reasonable 
doubt  that  entitled  to  an  acquittal 
is  a  doubt  reasonably  arising  froin 
all  the  evidence  or  want  of  evi- 
dence in  this  case.  The  proof  is 
deemed  to  be  beyond  a  reasonable 
doubt  when  the  evidence  is  suffi- 
cient to  impress  the  reason  and 
understanding  of  ordinarily  pru- 
dent men  with  a  conviction  on 
which  they  would  'act  in  the  most 
important  concerns  or  affairs  of 
life. 

The  court  said:  "The  foregoing 
states  the  law  correctly.  Instruc- 
tions either  in  the  identical  lan- 
guage or  in  substance  the  same 
have  been  approved  by  this  court 
in  the  following  cases:  Polin  v. 
State,  14  Neb.  540,  16  N.  W.  898; 
Langford  v.  State,  32  Neb.  782,  49 
N.  W.  766;  and  Lawhead  v.  State, 
46    Neh.    607,    65    N.    W.    770." 

In  Martin  v.  State,  67  Neb.  36, 
93  N.  W.  161  (162),  the  following 
was    approved: 

Unless  the  doubt  is  such  that, 
were  the  same  kind  of  doubt  inter- 
posed   in    the   graver    transactions 


of  life,  it  would  cause  a  reason- 
able and  prudent  man  to  hesitate 
and  pause,  it  is  insufficient  to  au- 
thorize a   verdict   of  not   guilty. 

In  numerous  Nebraska  cases  the 
charge  of  Chief  Justice  Shaw  in 
Commonwealth  v.  Webster,  5  Cush. 
(Mass.)  320,  52  Am.  Dec.  711, 
has  been  approved.  Carleton  v. 
State,  43  Neb.  373,  61  N.  W.  699 
(714);  Savarg  v.  State,  62  Neb.  166, 
87  N.  W.  34  (37);  Polin  v.  State, 
14  Neb.  540,  16  N.  W.  898;  Willis 
V.  State,  43  Neb.  102,  61  N.  W. 
254;  Maxfield  v.  State,  54  Neb.  44, 
74  N.  W.  401;  Morgan  v.  State,  51 
Neb.  672,  71  N.  W.  788  (795),  homi- 
cide; Lawhead  v.  State,  46  Neb. 
607,  65  N.  W.  779,  larceny.  See 
§  2660,    n.    53. 

58— People  v.  Barker,  153  N.  T. 
Ill,    47    N.    E.    31    (32). 

"It  must  be  admitted  that  this 
[the  last]  sentence  lacks  clearness 
of  expression,  but  it  is  quite  ob- 
vious that  the  idea  sought  to  be 
conveyed  is  that  a  reasonable 
doubt  must  be  found  in  reason,  and 
must  survive  the  test  of  reason- 
ing, or  the  mental  process  of  a 
reasonable  examination.  Taken  in 
connection  with  the  sentence  which 
preceded  it,  and  already  quoted, 
we  are  of  opinion  that  the  jury 
were  sufficiently  instructed  upon 
the  question  of  reasonable  doubt." 


§  2667.] 


CRIMINAL— PRESUMPTION. 


1713 


conviction  of  the  truth  of  the  charge,  amounting  to  a  moral  certainty, 
you  are  satisfied  beyond  a  reasonable  doubt.^^ 

§  2667.  Reasonable  Doubt — Defined — South  Carolina.  So,  gentle- 
men, in  all  cases  on  the  criminal  side  of  the  court,  the  law  is  still 
charitable  and  it  says  that,  if  you  have  a  reasonable  doubt  on  any 
material  fact  necessary  to  make  the  case  of  the  state,  you  will  solve 
that  doubt  in  favor  of  the  defendant;  that  is,  where  the  facts  are  so 
evenly  balanced,  or  where  your  reason  and  your  judgment  is  in  such 
doubt,  that  you  cannot  form  a  satisfactory  judgment  as  to  the  result, 
if  it  is  in  that  state,  the  law,  taking  a  charitable  view,  says  solve 
it  in  favor  of  the  defendant.*'*' 

§  2668.  Reasonable  Doubt— Defined— South  Dakota.  You  are  fur- 
ther instructed  that  the  reasonable  doubt  which  entitles  an  accused 
to  an  acquittal  is  a  doubt  of  guilt  reasonably  arising  from  all  the 
evidence  in  the  case.  The  proof  is  deemed  to  be  beyond  reasonable 
doubt  when  the  evidence  is  sufficient  to  impress  the  judgment  of  or- 
dinarily prudent  men  with  a  conviction  on  which  they  would  act  with- 
out hesitation  in  their  own  most  important  concerns  or  affairs  of 
life.  In  other  words,  in  a  legal  sense,  a  reasonable  doubt  is  a  doubt 
which  has  some  reason  for  its  basis.  It  does  not  mean  a  doubt  from 
mere  caprice  or  groundless  conjecture.  A  reasonable  doubt  is  such 
a  doubt  as  the  jury  are  able  to  give  a  reason  for.^^ 


59— Hodge  v.  Territory,  12  Okl. 
108,    69    Pac.    1077    (1080). 

60— State  v.  Hutto.  66  S.  C.  449, 
45    S.     E.    13     (15),     homicide    case. 

In  State  v.  Petsch,  43  S.  C.  132, 
20  S.  E.  993  (994),  the  court 
charged: 

Reasonable  doubt  is  that  state 
of  the  case  which,  after  the  entire 
comparison  and  consideration  of 
all  the  evidence,  leaves  the  minds 
of  jurors  in  such  a  condition  that 
they  are  unable  to  say  that  they 
feel  an  abiding  conviction,  to  a 
moral  certainty,  as  to  the  guilt  of 
the  accused.  Now,  Mr.  Foreman, 
the  law  says  that  this  doubt,  to 
which  every  prisoner  is  entitled 
when  charged  with  a  crime,  must 
be  a  reasonable  doubt.  It  must  be 
a  doubt  arising  from  the  consid- 
eration of  the  testimony  for  which 
the  juror  can  conscientiously  give 
himself  a  reason  why  he  cannot 
sign  the  verdict  of  guilty.  If, 
after  a  fair  and  impartial  consid- 
eration of  all  the  testimony  in  the 
case,  you  have  such  a  doubt,  then 
the  state  has  failed  to  establish 
the  guilt  of  the  party,  and  your 
verdict  should  be  not  guilty.  If 
must  be  a  substantial  doubt,  aris- 
ing from  the  consideration  of  the 
testimony,  as  distinguished  from  a 
108 


speculative  or  Imaginary  doubt; 
and  I  can  charge  you  safely  that  it 
must  not  be  a  doubt  influenced  by 
your  sympathy  for  the  accused,  or 
by  your  prejudice  against  him;  be- 
cause the  law  contemplates  that  in 
the  trial  of  this  cause  you,  so  far 
as  you  can,  will  divest  yourselves 
of  all  feeling  of  human  sympathy 
as  certainly  as  of  all  prejudice,  and 
that  you  will  be  guided  in  reach- 
ing your  verdict,  whatever  it  may 
be,  by  your  honest  conviction,  de- 
rived from  a  consideration  of  the 
testimony. 

61— State  v.  Serenson,  7  S.  D.  277, 
64   N.    W.   130   (132). 

It  seems  almost  unnecessary 
to  undertake  to  explain  and  eluci- 
date to  the  average  juror,  who  is 
presumed  to  possess  ordinary  in- 
telligence, the  meaning  of  the  ex- 
pression 'reasonable  doubt,'  which 
appears  to  have  been  chosen  by 
the  common-law  judges,  and 
adopted  by  text  writers,  on  ac- 
count of  the  simplicity  of  the 
phrase.  While  the  language  em- 
ployed by  the  courts  to  define  the 
expression,  and  assist  jurors  in  its 
application,  is  often  beyond  their 
comprehension,  if  not  misleading, 
we  see  nothing  in  the  foregoing 
instructions    that    could    result    in 


1714 


FORMS  OF  INSTRUCTIONS. 


[§  2669. 


§2669.  Reasonable  Doubt — Defined — Tennessee.  ''Reasonable 
doubt"  is  such  a  doubt  as  will  create  in  the  minds  a  feeling  of  un- 
rest or  misgiving  on  the  part  of  the  jury,  and  which  will  not  permit 
their  minds  to  rest  easy  upon  a  verdict  of  guilty.*^^ 

§  2670.  Reasonable  Doubt — Texas.  Defendant  is  presumed  to  be 
innocent  until  his  guilt  is  established  by  legal  evidence  beyond  a 
reasonable  doubt,  and,  if  you  have  a  reasonable  doubt  of  his  guilt, 
you  will  find  him  not  guilty.^^ 


any  prejudice  to  the  defendant,  and 
we  would  therefore  be  reluctant  to 
reverse  the  case  upon  the  assig-n- 
ment  of  error  relating  thereto.  In 
the  recent  case  of  State  v.  Morey, 
25  Ore.  241,  36  Pac.  573,  the  trial 
court  defines  a  reasonable  doubt 
as  'such  a  doubt  as  a  juror  can 
give  a  reason  for,'  and  in  the 
opinion,  sustaining  a  conviction, 
upon  rehearing,  the  court  said:  'If 
every  criminal  case  is  to  be  re- 
versed for  some  technical  inaccur- 
acy in  the  definition  of  a  reason- 
able doubt,  then,  indeed,  the  ad- 
ministration of  justice  becomes  im- 
practicable.' Mr.  Starkie,  in  the 
9th  .American  edition  of  liis  work 
on  Evidence,  at  page  865,  says:  'A 
juror  ought  not  to  condemn,  unless 
the  evidence  excludes  from  his 
mind  all  reasonable  doubt  as  to  the 
guilt  of  the  accused,  and  unless  he 
be  so  convinced  by  the  evidence 
that  he  would  venture  to  act  upon 
the  conviction  in  matters  of  the 
highest  concern  and  importance  as 
to  his  own  interest.'  The  able  law 
writer,  Austin  Abbott,  in  his  Brief 
for  Criminal  Cases,  at  page  487, 
discusses  'a  reasonable  doubt,'  and 
says:  'The  gist  of  the  rule  is  that 
the  law  contemplates  a  doubt  for 
which  a  good  reason,  arising  on 
the  evidence,  can  be  given,'  and 
cites  People  v.  Guidici,  100  N.  Y. 
503,  3  N.  E.  493.  Instructions  have 
been  frequently  sustained  on  ap- 
peal which  admonish  the  jury  that 
a_  'reasonable  doubt'  is  not  a  cap- 
tious doubt,  a  possible  doubt,  a 
conjectural  doubt,  an  imaginary 
doubt,  a  far-fetched  doubt,  be- 
cause everything  relating  to  hu- 
man affairs  and  depending  on 
moral  evidence  is  open  to  conjec- 
ture and  speculation,  and  because 
the  law  does  not  require  absolute 
certainty.  2  Thomp.  Trials,  p. 
1832,  and  numerous  cases  there 
cited." 

62— Wilson  v.  State,  109  Tenn. 
167,  70  S.   W.   57  (58). 

"While  we  think  that  no  defini- 


tion of  'reasonable  doubt'  is  so 
plain  and  unainbiguous  and  easily 
understood  as  the  mere  words 
themselves,  we  think  there  is  noth- 
ing in  the  definition  given  that 
would  constitute  error." 

63— Huggins  v.  State,  42  Tex. 
Crim.  App.  364,  60  S.  W.  52. 

"We  have  specifically  held  this 
charge  to  be  sufficient,  and  that 
it  is  not  necessary  to  give  the 
charge  requested  by  appellant. 
Day  v.  State,  21  Tex.  App.  213,  17 
S.  W.  262;  Lewis  v.  State,  42  Tex. 
Cr.  App.  278,  59  S.   W.  1116." 

In  McNamara  v.  State,  —  Tex. 
Cr.  App.  — ,  55  S.  W.  823  (824),  the 
following  was  approved: 

The  evidence  on  the  whole  must 
produce  in  your  minds  to  a  reason- 
able and  moral  certainty  that  the 
accused,  and  none  other,  commit- 
ted the  offense. 

The  court  said: 

"We  think  this  clause  of  the 
charge  clearly  covers  the  phrases 
of  law  insisted  upon  by  appellant." 

In  Head  v.  State,  40  Tex.  Cr.  App. 
265,  50  S.  W.  352  (353),  homicide 
case,   the   following   was   approved: 

If  you  do  not  believe  beyond  a 
reasonable  dpubt,  from  the  evi- 
dence, that  L.  is  dead;  that  the 
defendant  unlawfully  killed  him, — 
you  will  find  defendant  not  guilty. 

In  Williams  v.  State,  —  Tex.  Cr. 
App.  — ,  55  S.  W.  500  (501),  the 
charge  approved  ended  with  tho 
words: 

In  case  you  have  a  reasonable 
doubt  as  to  the  defendant's  guilt, 
you  will  acquit  him,  and  say  by 
your  verdict,   "Not  guilty." 

In  Giles  v.  State,  44  Tex.  Cr. 
App.  435,  71  S.  W.  961,  homicide, 
held  the  court  should  not  have  re- 
fused  the  following: 

If,  under  the  evidence,  you  have 
a  reasonable  doubt  as  to  whether 
the  witness  B.  killed  the  said  G., 
you  should  acquit  defendant. 

In  Boersh  v.  State,  —  Tex.  Crim. 
App.  —  62  S.  W.  1060,  the  court 
charged  the  jury  that  the  circum^ 


§  2671.]  CRIMINAL— PRESUMPTION.  1715 

§  2671.  Reasonable  Doubt — Virginia.  The  court  instructs  the 
jury  that,  to  warrant  the  conviction  of  the  prisoner,  every  fact  nec- 
essary to  establish  his  guilt  must  be  proved  beyond  a  reasonable 
doubt,  and  especially  so  where  the  evidence  is  wholly  circumstantial. 
The  accused  is  entitled  to  acquittal  unless  his  guilt  is  proved  to 
the  exclusion  of  every  reasonable  hj^pothesis  of  his  innocence.  And, 
although  the  jury  believe  that  the  evidence  is  sufficient  to  create  a 
strong  suspicion  of  guilt,  yet  this  is  insufficient  to  warrant  the  con- 
viction of  the  accused  of  any  offense.*'* 

§  2672.     Reasonable   Doubt — Defined — ^West   Virginia.     The    court 

instructs  the  jury  that,  after  they  shall  have  compared  and  con- 
sidered all  the  evidence  in  the  case,  if  they  have  a  reasonable  doubt 
as  to  the  guilt  of  the  prisoner,  V.  S.,  as  charged  in  the  indictment, 
they  cannot  convict;  that  by  reasonable  doubts  is  meant  such  doubts 
based  upon  the  evidence  as  they  may  honestly  and  reasonably  en- 
tertain as  to  any  material  fact  essential  to  prove  the  crime  charged. 
Il  must  not  be  an  arbitrary  doubt,  without  evidence  to  sustain  it, 
but  must  be  serious  and  substantial  in  its  nature,  in  order  to  war- 
rant an  acquittal,  and  one  which  men  may  honestly  and  conscien- 
tiouslj'  entertain.®^ 

§  2673.  Reasonable  Doubt — Defined — Wisconsin,  (a)  The  rea- 
sonable doubt  mentioned,  beyond  which  guilt  must  be  affirmatively 
proved,  in  order  to  justify  a  verdict  of  guilty,  means,  as  its  name 
implies,  a  doubt  resting  in  reason,  and  it  must  arise  from  the  whole 
evidence  fairly  and  rationally  considered. 

(b)     When  after  a  full  and  impartial  consideration  of  the  whole 

stances,    taken    together,    must    be  582,  39  S.  E.  676  (687),  the  following 

of  a  conclusive  nature,  leading,  on  was  approved: 

the    whole,    to    a    satisfactory    con-  The  court  instructs  the  jury  that 

elusion,    and   producing   in   effect   a  reasonable    doubt,    to    warrant    ac- 

reasonable     and     moral     certainty  quittal  in  criminal  cases,    is  not  a 

that     accused,     or     accused     acting  mere  possible  doubt,  but  is  such  a 

with  some  other  person,  committed  doubt  as,  after  mature  comparison 

the  offense  charged.  and    consideration    of    all    the    evi- 

Held:  "Considering  the  latter  por-  dence,     leaves     the    minds    of    the 

tion   of  the   charge,    it  is   a   correct  jurors    in    such    a    condition    that 

application  of  the  law  to  this  case;  they  cannot  say  they  feel  an  abid- 

it    being   shown    that    accused    and  ing  conviction  to  a  moral   certain- 

his    co-defendant    were    acting    to-  ty  of   the   truth   of   the   charge,   or 

gether.     Under   this    state   of   facts  for  which  reason  can  be  given, 

the   charge   above  copied,   as  given  In  State  v.  Dodds,  54  W.  Va.  289, 

by  the  court,  is  correct.    See  Moore  46    S.    E.    Rep.    228    (230),    homicide 

v.    State,    39    Tex.    Cr.   App.   266,   45  case,   the   following  was   approved: 

S.  W.  809."  The  court  instructs  the  jury  that 

64 — Longley  v.  Commonwealth,  99  a  reasonable  doubt,  such  as  is  con- 

Va.  807,  37  S.  E.  339  (341).  templated    in    law,    is    not    a    mere 

See     also     McCue     v.     Common-  fanciful  or  imaginary  doubt,  but  is 

wealth,    103    Va.    870,    49    S.    E.    623  a  fair  and  substantial  doubt,  based 

(629).  on  the  evidence  or  lack  of  evidence 

65 — State    v.    Staley,    45    W.    Va.  in   the   case,   and   one   for  which   a 

792,    32    S.    E.     198    (199),    homicide  man    who    entertains    such     doubt 

case.  should  be  able  to  give  a  good  and 

In  State  v.   Sheppard,  49  W.  Va.  substantial  reason  arising  from  the 


1716  FORMS  OF  INSTRUCTIONS.  [§  2674. 

evidence  the  judgment  of  the  jury  is  convinced  to  a  moral  certainty 
that  the  accused  are  guilty — that  there  is  no  reasonable  explanation 
of  the  facts  proved  except  upon  the  hypothesis  that  the  accused  com- 
mitted the  crime  charged,  then  every  reasonable  doubt  is  removed 
and  a  verdict  of  guilty  should  follow. 

(c)  A  mere  fanciful  or  speculative  doubt,  such  as  a  skeptical 
mind  may  suggest,  does  not  amount  to  a  reasonable  doubt  within 
the  meaning  of  the  law.  A  doubt  such  as  this,  one  that  ignores  a 
reasonable  construction  of  the  whole  evidence  and  proceeds  upon 
mere  speculation  or  suspicion,  is  unreasonable,  and  would  acquit  one 
proven  guilty  as  easily  as  one  not  so  proven  and  so  does  not  justify 
a  verdict  of  not  guilty. 

(d)  If,  after  a  careful  and  thoi'ough  view  of  the  evidence,  there 
arise  in  your  mind  a  doubt  for  which  a  good  reason  arising  from 
the  evidence  can  be  given,  it  is  your  duty  to  give  the  defendants 
the  fullest  and  amplest  benefit  of  this,  and  acquit  them.*^*^ 

§  2674.  Reasonable  Doubt— Defined— U,  S.  Courts.  I  will  not 
undertake  to  define  a  reasonable  doubt  further  than  to  say  that  a 
reasonable  doubt  is  not  an  unreasonable  doubt — that  is  to  say,  by 
a  reasonable  doubt  you  are  not  to  understand  that  all  doubt  is  to 
be  excluded;  it  is  impossible  in  the  determination  of  these  questions 
to  be  absolutely  certain.  You  are  required  to  decide  the  question 
submitted  to  you  upon  the  strong  probabilities  of  the  case,  and  the 
probabilities  must  be  so  strong  as,  not  to  exclude  all  doubt  or  possi- 
bility of  error,  but  as  to  exclude  reasonable  doubt. ^'^ 

§  2675.  Presumption  of  Innocence — Reasonable  Doubt — Suspicion 
or  Probability  of  Guilt  Not  Sufficient  to  Convict — Insanity  or  Irre- 
sponsibility Must  Be  Proven,  (a)  The  court  further  instructs  the 
jury  that  the  law  presumes  the  accused  to  be  innocent  until  he  is 
proved  guilty  beyond  a  reasonable  doubt,  and,  if  there  is  upon  the 
minds  of  the  jury  any  reasonable  doubt  of  the  guilt  of  the  accused, 
the  law  makes  it  their  duty  to  acquit  him;  and  that  mere  suspicion 
or  probability  of  his  guilt,  however  strong,  is  not  sufficient  to  con- 
evidence  or  a  lack  of  evidence  in  Defendant  is  entitled  to  the  ben- 
the  case.  efit  of -any  reasonable  doubt  exist- 

66 — Emery  v.  State,  101  "Wis.  627,  ing-  in  the  evidence  in  this  case.  If, 
78  N.   W.  145  (152).  after    a    full    consideration    of    the 

"It  is  not  necessary  to  say  testimony,  you  shall  have  any  rea- 
whether  the  explanation  of  the  sonable  doubt,  you  will  give  him 
rule  of  reasonable  doubt  given  by  the  benefit  of  that  doubt  by  an  ac- 
the  learned  judge  who  presided  at     quittal. 

the  tri;il  is  the  best  that  can  be  Cupps  v.  State,  120  "Wis.  504,  97 
made.  It  is  sufficient  to  say  that  N.  "W.  210  (218),  102  Am.  St.  996, 
it  is  free  from  error,  and  we  may  approves  the  following: 
properly  ndd,  it  is  a  clearer  expla-  If  there  then  remains  in  your 
nation  than  many  that  may  be  mind  no  reasonable  doubt  of  the 
found  referred  to  in  reported  cases  defendant's  guilt  you  should  con- 
ns mrtdels."  vict  him;  otherwise  you  should  ac- 

Murphv  v.  Stnte,  108  "Wis.  Ill,  83     quit  him. 
N.  W.  1112  (1114),  approves  the  fol-        67— Dunbar  v.  U.  S.,  156  U.  S.  185 
lowing:  (199),  15  S.  Ct.  325. 


§2676.]  CRIMINAI^PRBSUMPTION.  1717 

viet,  nor  is  it  sufficient  if  the  greater  weight  or  preponderance  of 
evidence  supports  the  charge  in  the  indictment.  But,  to  warrant  his 
conviction,  his  guilt  must  be  proved  so  clearly,  and  the  evidence 
thereof  must  be  so  strong,  as  to  exclude  every  reasonable  hypothesis 
of  his  innocence.  But  in  this  connection  the  court  further  tells  the 
jury  that  in  cases  like  this,  where  the  prisoner  sets  up  the  defense 
of  insanity  or  irresponsibility  produced  by  voluntary  intoxication, 
he  cannot  rely  simply  on  having  raised  a  rational  doubt  in  the 
minds  of  the  jury  as  to  whether  he  was  so  drunk  at  the  time  he 
committed  the  crime  as  not  to  be  responsible  therefor,  but  the  bur- 
den is  upon  him  to  prove  this  fact  to  the  satisfaction  of  the  jury,  as 
fairly  results  from  all  evidence. "^^ 

(b)  The  court  instructed  the  jury  that  the  law  presumes  the 
defendants  in  this  ease  to  be  innocent  of  murder  in  the  first  degree, 
and  clothes  him  or  them  with  such  presumption  of  innocence  through- 
out the  trial ;  and  you  should  act  on  such  presumption,  and  acquit 
the  defendant  unless  the  state,  by  evidence,  satisfies  you  of  his  or 
their  guilt  beyond  a  reasonable  doubt. ""'^ 

§  2676.  Reasonable  Doubt — Presumption  of  Innocence — Circum- 
stantial Evidence — Links  in  the  Chain  of  Circumstances,  (a)  The 
law  requires  the  jury  to  be  satisfied  of  the  defendant's  guilt  beyond 
a  reasonable  doubt  in  order  to  warrant  a  conviction,  but  does  not 
require  that  you  should  be  satisfied  beyond  a  reasonable  doubt  of 
each  link  in  the  chain  of  circumstances  relied  upon  to  establish  the 
defendant's  guilt.  It  is  sufficient  if,  taking  the  testimony  all  to- 
gether, you  are  satisfied  beyond  a  reasonable  doubt  that  the  defend- 
ant is  guilty  as  charged  in  the  indictment. 

(b)  You  are  further  instructed  that  the  law  raises  no  presumption 
whatever  against  the  defendant,  but  that  every  presumption  of  law  is 
in  favor  of  his  innocence  until  he  is  proven  guilty  beyond  all  reason- 
able doubt,  and,  in  order  to  convict  him  of  the  alleged  crime,  eveiy 
material  fact  necessary  to  constitute  such  crime  must  be  proven 
beyond  a  reasonable  doubt;  and  if  the  jury  entertain  any  reasonable 
doubt  upon  any  single  essential  element  necessary  to  constitute  the 
crime,  it  is  your  duty  to  give  the  defendant  the  benefit  of  such 
doubt,  and  acquit  him. 

(e)  Where  the  prosecution  lies  wholly  or  in  part  upon  circum- 
stantial evidence  for  a  conviction,  each  fact  necessary  to  the  con- 
clusion sought  to  be  established  must  be  proven  by  competent  evi- 
dence beyond  a  reasonable  doubt.  All  the  facts — that  is,  the  neces- 
sary facts  to  the  conclusion — must  be  consistent  with  each  other 
and  with  the  main  fact  sought  to  be  proved,  and  the  circumstances, 
taken  together,  must  be  of  conclusive  nature,  leading,  on  the  whole, 
to  a  satisfactory  conclusion,  and  producing,  in  effect,  a  reasonable 

68 — Longley  v.  Commonwealth,  98  S.  W.  2;  Connor  v.  Common- 
99  Va.  807.  37  S.  E.  339  (341).  wealth.    26    Ky.    Law    Rep.    398,    81 

69— State  v.   Vaughan,  200  Mo.  1,     S.  W.  259  (260),  homicide. 


1718 


FORMS  OF  INSTRUCTIONS. 


2677. 


and  moral  certainty  that  the  accused  committed  the  offense  in  tlie 
manner  charged  in  the  indietmentJ*' 

8  2677.  Reasonable  Doubt — Rule  Where  Evidence  Is  Circumstan- 
tial, (a)  The  jury  are  instructed  as  a  matter  of  law  that  when  a 
conviction  for  a  criminal  offense  is  sought  upon  circumstantial  evi- 
dence alone,  the  prosecution  must  not  only  show,  by  a  preponderance 
of  the  evidence,  that  the  alleged  facts  and  circumstances  are  true, 
but  they  must  show  by  such  facts  and  circumstances  as  are  abso- 
lutely incompatible,  upon  any  reasonable  hypothesis,  with  the  inno- 
cence of  the  defendant,  and  incapable  of  explanation,  upon  any  rea- 
sonable hypothesis,  other  than  that  of  the  guilt  of  the  defendant.'^^ 

(b)  The  court  charges  the  jury  that  a  person  charged  with  a 
felony  should  not  be  convicted,  unless  the  evidence  excludes  to  a 
moral  certainty  every  reasonable  hypothesis  but  that  of  her  guilt; 
no  matter  how  strong  the  circumstances  are,  they  do  not  come  Up 
to  the  full  measure  of  proof,  which  the  law  requires,  if  they  can 
be  reasonably  reconciled  with  the  theory,  that  the  defendant  is 
innocent.''^ 

(c)  You  are  instructed  that,  in  order  to  warrant  a  conviction  on 


70— Hodge  v.  Territory,  12  Okla. 
108,    69    Pac.    1077    (1079). 

"Case  of  State  v.  Furney,  41  Kan. 
115,  21  Pac.  213,  13  Am.  St.  Rep. 
262.  In  this  case  the  Supreme  Court 
of  Kansas  reversed  the  cause  upon 
two  instructions  identical  to  this 
instruction.  The  court  in  the  sylla- 
bus, which  is  the  law  of  the  case, 
says:  'Where  circumstantial  evi- 
dence constituting-  a  single  chain 
is  relied  upon  by  the  state  for  a 
conviction,  each  essential  fact  in 
the  chain  of  circumstances  must 
be  found  to  be  true  by  the  jury  be- 
yond a  reasonable  doubt  to  war- 
rant a  conviction.'  In  State  v. 
Hayden,  45  Iowa  12,  the  court,  in 
its  syllabus,  uses  the  following  lan- 
guage: 'Where  the  evidence  is  cir- 
cumstantial, the  jury  need  not  be 
satisfied  beyond  a  reasonable 
doubt  of  every  link  in  the  chain  of 
circumstances  necessary  to  estab- 
lish the  defendant's  guilt;  it  is  a 
reasonable  doubt  of  guilt,  arising 
from  a  consideration  of  all  the  evi- 
dence in  the  case,  which  entitled 
the  defendant  to  an  acquittal.'  In 
Bressler  v.  People,  117  111.  422,  8 
N.  E.  67,  the  supreme  court  of  Illi- 
nois had  this  identical  question  be- 
fore it  for  consideration.  The  in- 
struction of  the  court  given  in  that 
ca.se  was  as  follows:  'The  jury  are 
instructed  that  the  rule  requiring 
the  jury  to  be  satisfied  of  a  de- 
ff-ndnnt's  guilt  beyond  a  reason- 
able doubt  of  each  link  in  the  chain 


of  circumstances  relied  upon  to  es- 
tablish the  defendant's  guilt;  it  is 
sufficient  if,  taking  the  testimony 
all  together,  the  jury  are  satisfied 
beyond  a  reasonable  doubt  that  the 
defendant  is  guilty.'  It  is  insisted 
that  this  is  erroneous,  because  it  is 
essential  that  the  circumstances 
be  proved  beyond  a  reasonable 
doubt,  and  it  is  just  as  essential 
that  the  connecting  facts  be  estab- 
lished beyond  a  reasonable  doubt. 
It  has  often  been  said  by  this  court 
(and  its  correctness  is  obvious,  al- 
though it  might  never  have  been 
said)  that  whether,  in  a  given  case, 
there  should  be  reversal  for  error 
in  giving  an  instruction,  depends 
quite  as  much  upon  the  evidence 
before  the  jury  to  which  the  in- 
struction might  be  applied  as  upon 
the  abstract  accuracy  of  the  lan- 
guage of  the  instruction;  and  so, 
if  it  is  apparent  that  the  language 
of  the  instruction,  though  inaccu- 
rate, yet  when  applied  to  the  evi- 
dence before  the  jury,  it  could  not 
have  misled  the  jury  to  believe 
that  their  duty  was  different  from 
what  it  actually  was,  the  inaccur- 
acy can  afford  no  reason  for  rever- 
sal." 

71— Benton  v.  State,  78  Ark.  284, 
94  S.  W.  693,  charge  of  homicide. 

72— Bryant  v.  State,  116  Ala.  445, 
23  So.  40  (41),  cit'ng  Prater  v.  State, 
107  Ala.  27,  18  So.  238;  Howard  v. 
State,  108  Ala.  572,  577,  18  So.  813; 
3  Greenl.  Ev.  par.  29. 


§  2677.]  CRIMINAI^PRESUMPTION.  1719 

circumstantial  evidence,  each  fact  necessary  for  the  conclusion 
sought  to  be  established  must  be  proved  by  competent  evidence  be- 
yond a  reasonable  doubt.  All  the  facts,  that  is,  the  necessary  facts 
to  the  conclusion,  must  be  consistent  with  each  other  and  with  the 
main  fact  sought  to  be  proved,  and  the  circumstances  taken  together 
must  be  of  a  conclusive  nature,  leading  on  the  whole  to  a  satisfactory 
conclusion  and  producing  in  effect  a  reasonable  and  moral  certainty 
that  the  accused  and  no  other  person  committed  the  offense  charged.''^ 
(d)  You  are  further  instructed  as  a  matter  of  law,  where  a  con- 
viction for  a  criminal  offense  is  sought  upon  the  circumstantial  evi- 
dence alone,  the  state  must  not  only  show  by  a  preponderance  of 
the  evidence  that  the  alleged  facts  and  circumstances  are  true,  but 
they  must  be  such  facts  and  circumstances  as  are  absolutely  incom- 
patible upon  any  reasonable  hypotheses  with  the  innocence  of  the 
accused,  and  incapable  of  explanation  upon  any  reasonable  hy- 
potheses, other  than  that  of  the  guilt  of  the  accused.  And  in  this 
class  of  cases  the  jury  must  be  satisfied,  beyond  a  reasonable  doubt, 
that  the  crime  has  been  committed  by  some  one  in  manner  and  form 
as  charged  in  the  indictment,  and  then  you  must  not  only  be  sat- 
fied  that  all  the  circumstances  proved  are  consistent  with  the  de- 
fendant having  committed  the  act,  but  you  must  also  be  satisfied 
that  the  facts  are  such  as  to  be  inconsistent  with  any  other  rational 
conclusion  than  that  the  defendant  is  the  guilty  person.  It  is  your 
first  duty  to  determine  from  the  evidence  what  facts  and  circum- 
stances are  thereby  established,  and  then  to  draw  from  such  facts 
and  circumstances,  after  carefully  examining  and  weighing  them, 
your  conclusion  as  to  the  guilt  or  innocence  of  the  defendant.  It 
is  your  duty  to  exercise  great  care  and  caution  in  drawing  conclu- 
sions from  proved  facts.  They  should  be  fair  and  natural,  and  not 
forced  or  artificial,  conclusions,  and  all  the  facts  and  circumstances 
taken  together  should  be  of  a  conclusive  nature  and  tendency,  lead- 
ing on  the  whole  to  a  satisfactory  conclusion,  and  producing,  in 
effect,  a  reasonable  and  moral  certainty  that  the  accused,  and  no 
one  else,  committed  the  offense  charged.  It  is  not  sufficient  that 
they  create  a  probability,  though  a  strong  one,  and  if,  therefore, 
assuming  all  the  facts  to  be  true  which  the  evidence  tends  to  es- 
tablish, they  may  j^et  be  accounted  for  upon  any  hypothesis  which 
does  not  include  the  guilt  of  the  accused,  the  proof  fails.  It  is  es- 
sential therefore  that  the  circumstances,  taken  as  a  whole,  and  giv- 
ing them  their  reasonable  and  just  weight,  and  no  more,  should  to 
a  moral  certainty  exclude  every  other  hypothesis.  If  then  all  the 
facts  and  circumstances  established  by  the  evidence  beyond  a  rea- 

73 — Henderson   v.    State,   —   Tex.  stantial  evidence.    This  was  omitted 

Cr.  App.  — ,  96  S.  W.  37  (38).  from    the    charge.      However,     we 

"It  is  urged  that  this  charge  on  talce  it  that,  the  jury  having   been 

circumstantial  evidence  is  defective  charged   on  circumstantial  evidence, 

in  that  the  jury  were  not  informed  they    understood    it    was    such    a 

that  the  case  was  one  of  circum-  case." 


1720  FORMS  OF  INSTRUCTIONS.  [§  2678. 

sonable  doubt  cannot  be  reconciled  with  any  reasonable  hypothesis 
of  the  defendant's  innocence,  but  do  concur  in  showing  the  de- 
fendant's guilt,  and,  when  taken  together,  are  sufficient  to  prove 
beyond  a  reasonable  doubt  the  guilt  of  the  crime  charged  in  the  in- 
dictment, or  any  other  crime  included  therein,  then  you  are  in- 
structed that  it  is  your  duty  to  convict  the  defendant  of  the  crime 
so  established.'^* 

§  2678.  Every  Material  Fact,  or  Link,  in  the  Chain  of  Circum- 
stances Must  Be  Proved  Beyond  a  Reasonable  Doubt.  The  prosecu- 
tion claim  that  the  evidence  in  this  case  is  made  up  of  a  chain  of 
circumstances  and  facts,  or  links,  so  connected  together  that  they  lead 
up  with  all  reasonable  certainty  to  the  defendant's  guilt.  Gentle- 
men, I  charge  you  that,  in  order  to  convict  the  defendant  upon  this 
class  of  evidence,  you  must  be  satisfied  beyond  a  reasonable  doubt 
that  each  material  fact,  or  necessary  link,  in  the  chain  has  been 
proven,  and  if  you  have  any  reasonable  doubt  about  any  one  of 
the  material  facts,  or  links,  constituting  the  chain  of  circumstances, 
then  you  should  acquit  the  defendant.  To  illustrate  the  first  ma- 
terial fact  or  link  is  death.  That  is  not  disputed.  Second,  death  by 
violence  at  the  hands  of  some  person.  That  is  disputed.  Third,  death 
by  violence  at  the  hand  of  the  defendant.  That  is  denied  by  the 
defendant.  If  you  have  any  doubt  of  whether  or  not  the  defendant 
inflicted  any  blow  on  the  deceased,  then  it  is  your  duty  to  acquit 
him.  If  you  have  any  doubt  that  th^  blow  claimed  to  have  been 
inflicted  by  the  defendant  was  the  sole  cause  of  the  death  of  the 
deceased,  it  is  still  your  duty  to  acquit  him.''^ 

74— State  v.  Novak,  109  Iowa  717,  v.  Felter,  32  Iowa  53.    The  proposi- 

79  N.  W.  465  (473).  tion  has  wide,  if  not  general,   sup- 

The  court  said:  port  on  authority.    Clare  v.  People, 

"The  criticism   upon   the  instruc-  9  Colo.  122,  10  Pac.   799;   Mullins  v. 

tion  arises  largely  from  the  use  of  People,  110  111.  42;  Leigh  v.  People, 

the    words    'preponderance    of    evi-  113   111.   372;    Bradshaw  v.   State,   17 

dence'   in   the   first   part   of  it,    be-  Neb.  147,  22  N.  W.  361.    Looking  to 

cause  of  which  the  instructions  on  the  language  of  the  instruction  un- 

the    weight    of    evidence    necessary  der    consideration    it    will    be    seen 

to  convict   are   said   to  be   conflict-  that    the    purpose    of    that    part   of 

ing  to  such  an  extent  as  to  be  pre-  the  instruction  was  rather  to  guard 

judicial.     Not  read  with  a  view  to  against  the  effect  of  facts  found  by 

criticism,    there    is    little    difficulty  a  preponderance  of  evidence,   than 

in  harmonizing  all  parts  of  the  in-  to   permit  a  conviction   upon   facts 

structions    on     this    subject.      The  so    found,    unless    the    facts,    when 

clearly    manifest     purpose    of    the  found,  are  absolutely  incompatible, 

court    throughout    its    instructions  upon    any    reasonable    hypothesis, 

to   preserve   the   rights   of   the   dc-  with  the  innocence  of  the  accused." 

fendant  against  prejudice  by  a  con-  75 — People  v.  McArron,  121  Mich, 

viction  on  an  undue  weight  of  evi-  1,  79  N.  W.  944-. 

dence  is  so  plain  as   to  be  beyond  Compare  the  above  with  the  next 

peradventure.    In  State  v.  Hayden,  two  instructions  stating  that  every 

45  Iowa  11,  we  held  that:    'It  is  not  link  need   not  be  proved   beyond   a 

a    reasonable    doubt    of    any    one  reasonable   doubt.     However,   from 

proposition  of  fact  in  a  case  which  the  comment   of  the  courts,  it  ap- 

ontitled    to    an    acquittal.      It    is    a  pears  that  the  word  "links"  in  these 

reasonable    doubt    of    guilt    arising  instructions     were     held     to     mean 

from  a  consideration  of  all  the  evi-  "facts,"   and  therefore  distinguish- 

dence  in  the  case.'    See,  also.  State  able  from  the  text  instruction. 


§2679.] 


CRIMINAL— PRESUMPTION. 


1721 


§  2679.  Reasonable  Doubt — Evidence  Required  to  Convict.  Evi- 
dence, in  order  to  warrant  a  conviction,  must  be  clear,  satisfactoi-y 
and  abiding,  fully  satisfying  the  mind  and  conscience  of  each  and 
every  juror.    It  is  not  sufficient  in  a  criminal  case,  to  justify  a  ver- 


In  People  v.  Rich,  133  Mich.  14, 
94  N.  W.  375  (377),  the  court  in- 
structed as   follows: 

And  when  I  say  that  the  case 
must  be  proven  as  laid  beyond  a 
reasonable  doubt  before  you  could 
convict,  I  do  not  mean  that  every 
fact  and  every  circumstance  and 
every  link  in  the  chain  must  be 
proven  beyond  a  reasonable  doubt; 
I  don't  mean  that;  that  would  be 
unreasonable.  I  mean  that  the  en- 
tire evidence  in  the  case,  when 
connected  together  as  a  whole,  con- 
vinces you  that  it  is  a  safe  basis 
upon  which  to  rest  a  verdict  of 
guilty,  and  that  you  are  satisfied 
beyond  a  reasonable  doubt,  acting 
upon  all  the  evidence  in  the  case, 
that  this  respondent  is  guilty  of 
one  or  another  of  the  offenses 
which  the  court  has  defined. 

The   supreme  court  said: 

"Respondent's  counsel  contend 
that  the  instruction  first  above 
quoted  is  in  conflict  with  the  hold- 
ing of  this  court  in  People  v.  Aikin, 
66  Mich.  481,  33  N.  W.  821,  11  Am. 
St.  Rep.  512.  It  is  true  that  in  that 
case  an  instruction  that  the  jury 
need  not  be  satisfied  beyond  a  rea- 
sonable doubt  of  each  link  in  the 
chain  of  circumstances  relied  upon 
to  establish  the  respondent's  guilt 
was  held  erroneous.  That  was  a 
case,  however,  depending  upon  cir- 
cumstantial evidence,  and  very 
clearly  the  rule  as  given  by  the 
circuit  court  in  that  case  was  er- 
ror. But  in  the  same  case,  the  case 
of  Marion  v.  State,  16  Neb.  359,  29 
N.  W.  294,  was  cited,  in  which  the 
following  inquiry  and  reasoning  ap- 
pears, which  is  very  pertinent  to 
the  present  case:  'What  is  meant 
by  the  word  "link,"  as  used  there- 
in? If  the  jury  were  given  to  un- 
derstand that  it  referred  only  to 
evidentiary  facts  which  might  add 
force  or  weight  to  other  facts  froin 
which  the  inference  of  guilt  could 
be  drawn,  then  the  instruction 
might  be  said  to  be  correct.'  We 
'h'nk  this  is  precisely  what  the 
iv-v  would  have  understood  from 
•he  charge  in  this  case." 

In  Morgan  v.  Stnte,  51  Neb.  672, 
71  N.  W.  788  (795),  the  following 
like  instruction  was  held  not  to 
necessitate  a  reversal: 


The  law  requiring  the  jury  to  be 
satisfied  of  the  defendant's  guilt 
beyond  a  reasonable  doubt,  in  or- 
der to  warrant  a  conviction,  does 
not  require  that  you  should  be  sat- 
isfied beyond  a  reasonable  doubt 
of  each  link  in  the  chain  of  circum- 
stances relied  upon  to  establish 
guilt.  It  is  sufficient  if,  taking  the 
testimony  altogether,  you  are  satis- 
fied beyond  a  reasonable  doubt  that 
the  defendant  is  guilty  of  the 
crime  charged  in  the  second  count 
of  the  information.  But  if  you 
have  a  reasonable  doubt  of  the  de- 
fendant's guilt,  because  of  the 
weakness  of  one  link  of  the  chain 
of  circumstances  relied  upon  by 
the  state  to  establish  the  defend- 
ant's guilt,  when  taken  and  weighed 
by  you  with  all  the  evidence  in 
the  case,  it  may  fairly  be  said  that 
a  reasonable  doubt  exists  in  your 
minds,  and  you  should  acquit  the 
defendant  of  the  criine  charged  in 
the  second  count  of  the  informa- 
tion.    The  court  said: 

"This  instruction  is  vigorously 
assailed  upon  the  ground  that  it 
authorizes  a  conviction,  although 
the  proof  may  be  insufficient  to 
establish  beyond  a  reasonable 
doubt  one  or  more  of  the  facts  es- 
sential in  order  to  warrant  the  con- 
clusion of  guilt, — a  criticism  we 
think  wholly  unmerited.  The  meta- 
phor of  the  chain  is,  it  must  be 
confessed,  inaccurate  and  mislead- 
ing, inasmuch  as  the  circum- 
stances which  the  evidence  tended 
to  prove  are  not  interdependent, 
i.  e.,  each  depending  for  its  sup- 
port upon  the  others.  But  the  fatal 
weakness  of  the  argument  ad- 
vanced in  this  connection  is  that  it 
ignores  the  distinction  between 
facts  relied  upon  to  sustain  the 
particular  charge,  and  those  facts 
which  are  necessary  to  the  con- 
clusion sought  to  be  established. 
It  is  permissible  for  the  state  to 
introduce  evidence  of  any  number 
of  facts  and  circumstances  tending 
to  connect  the  defendant  on  trial 
with  the  offense  charged.  In  so 
doing  it  may  be  said  to  rely  upon 
each  and  all  of  the  facts  thus 
sought  to  be  established,  and,  if 
those  actually  proved  beyond  a  rea- 
sonable doubt  are  sufficient  to  ex- 


1722  FORMS  OF  INSTRUCTIONS.  [§  2680. 

diet  of  guilty,  that  there  may  be  strong  suspicion,  or  even  strong 
probability',  of  guilt;  but  the  law  requires  proof  by  legal  and  credible 
evidence  of  such  nature  that,  when  it  is  all  considered,  it  produces  a 
clear,  undoubting  and  entirely  satisfactory  conviction  of  the  defend- 
ant's guilt.  The  burden  of  proof  is  upon  the  state  to  make  out  and 
establish  by  the  evidence,  beyond  a  reasonable  doubt,  and  to  the 
satisfaction  of  the  jury,  every  fact  and  circumstance  necessary  to 
prove  his  guilt ;  and,  unless  his  guilt  is  so  established,  the  jury  must 
find  him  not  guilty.'^^ 

§  2680.  Absolute  Certainty  Not  Required  to  Convict,  (a)  Abso- 
lute certainty  is  not  required,  and  it  is  rarely,  if  ever,  possible  in  any 
case;  but,  to  justify  a  conviction,  the  evidence  when  taken  as  a  whole 
and  fairly  considered,  must  so  satisfy  your  judgments  and  consciences 
as  to  exclude  every  other  reasonable  conelusion.'^^ 

(b)  To  prove  beyond  a  reasonable  doubt  does  not  mean  that  the 
state  must  make  the  proof  by  an  eye  witness,  or  to  a  positive,  abso- 
lute, mathematical  certainty.  This  latter  measure  of  proof  is  not 
required  in  any  case.  If  from  all  the  evidence  the  jury  believe  it  is 
possible,  or  that  it  may  be,  or  perhaps,  the  defendant  is  not  guilty, 
this  degree  of  uncertainty  does  not  amount  to  a  reasonable  doubt, 
and  does  not  entitle  the  defendant  to  an  acquittal.  All  that  is  re- 
quired is  that  the  jury  should  from  all  the  evidence,  believe  beyond 
a  reasonable  doubt  that  the  defendant  is  guilty;  and  if  you  so  be- 
lieve, and  you  further  believe,  beyond  all  reasonable  doubt,  from 
the  evidence  that  the  killing  occurred  in  this  county  and  before  the 
finding  of  this  indictment,  you  must  find  the  defendant  guilty,  al- 
though you  may  also  believe  from  the  evidence  that  it  may  be  that 
he  is  not  guilty,  or  that  it  is  possible  that  he  is  not  guilty.''^ 

§  2681.  Reasonable  Doubt — Not  One  Produced  by  Undue  Sensi- 
bility or  Trivial  and  Fanciful  Suppositions.  The  court  further  in- 
structs the  jury,  as  a  matter  of  law,  that  the  doubt  which  the  juror 
is  allowed  to  retain  on  his  own  mind,  and  under  which  he  should 
frame  his  verdict  of  not  guilty,  must  always  be  a  reasonable  one. 
A  doubt  produced  by  undue  sensibility  in  the  mind  of  any  juror 
in  view  of  the  consequences  of  his  verdict  is  not  a  reasonable  doubt, 
and  a  juror  is  not  allowed  to  create  sources  or  materials  of  doubt 

elude   to   a   moral   certainty   every  89    N.    W.    1077;    Vaughn    v.    State, 

reasonable  hypothesis  save  that  of  130  Ala.  18,  30  So.  669  (671). 

the  defendant's  guilt,  he  is  not  en-  76— State  v.   Privitt,  175   Mo.   207, 

titled  to  an  acquittal  because  of  a  75   S.   W.   457. 

failure    of    proof    with    respect    to  77 — State    v.    Marshall,    105    Iowa 

one  or  more  of  the  facts  thus  re-  38,  74  N.  W.  763  (766). 

lied  upon."  "This   is   a   correct   statement    of 

See  also  Houser  v.  State,  58  Ga.  the  law.     Certainty  is  seldom  pos- 

78;    Jarrell    v.    State,    58    Ind.    293;  sible,  and  never  required.     But  the 

State  v,  Hayden,  45  la.  11;  Bressler  conclusion    must   be    so   certain    as 

V.   People,  117   111.   422,   8   N.   E.   62;  to    exclude    any    other    reasonable 

State  v.  Lucas,  122  la.  141,  97  N.  W.  hypothesis." 

1003   n007);    State  v.    Cohen,   108   la.  78— Rnulden   v.   State,  102  Ala.  78, 

208,  78  N.  W.   857,  75  Am.   St.   Rep.  15  So.  341  (344). 
213;   State  v.   Hossock,  116   la.  194, 


§2682.]  CRIMINAL— PRESUMPTION.  1723 

by  resorting  to  trivial,  or  fanciful  suppositions  and  remote  conjec- 
tures as  to  possible  states  of  facts  differing  from  those  established  by 
the  evidence.  You  are  not  at  liberty  to  disbelieve  as  jurors,  if,  from 
the  evidence,  you  believe  as  men;  your  oath  imposes  on  you  no  obli- 
gation to  doubt  where  no  doubt  would  exist  if  no  oath  had  been  ad- 
ministered. The  juiy  are  instructed  that  if,  after  a  careful  and  im- 
partial consideration  of  all  the  evidence  in  the  case,  you  can  say 
you  feel  an  abiding  conviction  of  the  guilt  of  the  defendant,  and 
are  fully  satisfied  to  a  moral  certainty  of  the  truth  of  the  charge 
made  against  him,  then  the  jury  are  satisfied  beyond  a  reasonable 
doubt." 

§  2682.  Reasonable  Doubt,  Abiding  Conviction  to  a  Moral  Cer- 
tainty, (a)  As  jurors  charged  with  the  solemn  duty  in  hand,  you 
must  carefully,  impartially  and  conscientiously  consider,  compare 
and  weigh  all  the  testimony;  and  if,  after  doing  this,  you  find  that 
your  understanding,  judgment  and  reason  are  satisfied  and  convinced 
by  it  to  the  extent  of  having  a  full,  firm  and  abiding  conviction  to 
a  moral  certainty  that  the  charge  is  true,  then  you  should  find  the 
defendants  guilty.  If,  however,  after  carefully  considering,  compar- 
ing and  weighing  all  the  testimony,  both  for  the  state  and  the  de- 
fense, there  is  not  an  abiding  conviction  to  a  reasonable  and  moral 
certainty  as  to  the  truth  of  the  charge,  or  if,  after  having  a  convic- 
tion, it  is  yet  one  which  is  not  abiding  or  stable,  but  wavers  and 
vacillates  or  is  one  of  which  there  is  not  a  moral  certainty,  then  the 
truth  of  the  charge  is  not  made  out  beyond  a  reasonable  doubt,  and 
you  should  find  a  verdict  of  not  guilty.^" 

(b)  Defendants  are  presumed  to  be  innocent  until  they  are 
proved  to  be  guilty  beyond  a  reasonable  doubt.     They  are  entitled 

79— "Willis   v.    State,   43   Neb.    102,  sonable  one.     Jurors  may  not  law- 

61  N.  W.  254  (256).  fully   disbelieve    as  jurors   if,   from 

The  court  said:  "In  Dunn  v.  the  evidence,  they  would  believe 
People,  109  111.  635,  an  instruction  as  men;  the  oath  taken  by  a  juror 
much  like  the  one  under  consider-  does  not  impose  on  him  an  obliga- 
ation  was  held  by  that  court  to  be  tion  to  doubt  where  no  doubt 
more  like  an  argument  than  a  would  exist  if  no  oath  had  been 
proposition  of  law,  and  declared  to  administered;  and  if,  from  all  the 
be  erroneous.  There  is,  however,  evidence  in  the  case,  the  jury  have 
a  difference  between  the  instruc-  an  abiding'  conviction  of  the  guilt 
tion  in  the  Illinois  case  and  the  of  the  defendant,  and  are  satisfied 
one  under  consideration.  For  our  to  a  moral  certainty  of  the  guilt  of 
part,  we  entirely  approve  of  this  the  defendant,  and  are  satisfied  to 
instruction  given  by  the  trial  court,  a  moral  certainty  that  he  is  guilty 
The  doubt  on  which  a  juror  prcdi-  of  the  charge  made  against  him, 
cates  his  verdict  of  guilty  must  al-  then  the  jury  is  satisfied  beyond  a 
ways  be  a  reasonable  one;  and  a  reasonable  doubt.  These  are  the 
doubt  produced  by  undue  sensibil-  propositions  enunciated  by  the  in- 
ity  in  the  mind  of  a  juror,  in  view  struction,  and  they  are  not  argu- 
of  the  consequences  of  his  verdict,  ments,  they  are  propositions  of 
is  not  a  reasonable  doubt.  Nor  law,  as  sound  as  they  are  sen- 
can  a  juror  lawfully  conjecture  the  sible." 

existence  of  a  fact   not  warranted         80 — Bassett  et  al.  v.  State,  44  Fla. 

by    the    evidence,    and    say    that    a  2,  33  So.  262. 
doubt  predicated  thereon  is  a  rea- 


1724  FORMS  OF  INSTRUCTIONS.  [§  2683. 

to  every  reasonable  doubt  arising  from  the  evidence.  A  reasonable 
doubt  is  one  conformable  to  reason — one  which  a  reasonable  man 
would  entertain.  It  is  that  state  of  the  ease  which  after  the  entire 
comparison  and  consideration  of  all  the  evidence  leaves  the  minds 
of  the  jurors  in  that  condition  that  they  cannot  say  they  feel  an 
abiding  conviction  to  a  moral  certainty  of  the  truth  of  the  charge. ^^ 

(c)  The  jury  are  further  instructed  that  in  order  to  be  con- 
vinced beyond  a  reasonable  doubt,  you  must  find,  after  consideration 
of  all  the  evidence,  that  you  have  an  abiding  conviction  to  a  moral 
certainty  of  the  guilt  of  the  defendant,  and  unless  you  are  so  con- 
vinced beyond  a  reasonable  doubt  you  will  acquit  him,^^ 

(d)  Before  a  defendant  can  be  convicted  of  any  criminal  of- 
fense, each  juror  must  be  convinced  of  the  guilt  of  the  defendant 
beyond  a  reasonable  doubt  and  the  burden  of  proof  is  always  upon 
the  state  to  so  satisfy  you  of  his  guilt  before  you  can  convict.  You 
must  also  be  convinced  to  a  moral  certainty  of  the  guilt  of  the  ac- 
cused before  you  can  convict,  and  each  juror  must  be  so  convinced. 
But  this  doubt  which  the  law  requires  to  be  removed,  or  says  should 
not  exist,  to  support  a  conviction,  is  a  reasonable  doubt,  and  it  is 
a  doubt  which  arises  out  of  the  evidence  or  the  lack  of  evidence. 
It  is  not  any  doubt  that  may  be  imagined  or  conjured  up,  but  it  is 
a  reasonable  doubt.  While  the  guilt  of  the  accused  must  be  proven 
to  a  moral  certainty — which  means  the  same  as  beyond  a  reasonable 
doubt — it  does  not  mean  it  must  be  proven  to  a  mathematical  cer- 
tainty.    Everything  human  is  subject  to  some  kind  of  doubt. ^^ 

§  2683.  Must  Be  an  Actual,  Substantial,  Fixed  and  Reasonable 
Doubt,  Not  Imaginary,  Conjectural,  Vague  or  Whimsical,  (a)  I 
charge  you,  gentlemen  of  the  jury,  as  a  matter  of  law,  that  in  con- 
sidering this  case,  you  are  not  to  go  beyond  the  evidence  to  hunt 
up  doubts,  nor  must  you  entertain  such  doubts  as  are  merely  im- 
aginary or  conjectural.  A  doubt,  to  justify  an  acquittal,  must  be 
reasonable,  and  it  must  arise  from  a  candid  and  impartial  investi- 
gation of  all  the  evidence  in  the  case;  and  unless  it  is  such  that, 
were  the  same  kind  of  doubts  interposed  in  the  graver  transactions 
of  life,  it  "would  cause  a  reasonable  and  prudent  man  to  hesitate 
and  pause,  it  is  insufficient  to  authorize  a  verdict  of  not  guilty.  If, 
after  considering  all  the  evidence,  you  can  say  that  you  have  a  fixed 
conviction  of  the  truth  of  the  charge,  you  are  satisfied  beyond  a 
reasonable  doubt. 

(b)  I  charge  you,  gentlemen  of  the  jury,  if  you  believe  from  all 
the  evidence  beyond  a  reasonable  doubt  that  the  defendant  is  guilty, 
though  you  also  believe  it  possible  that  he  is  not  guilty,  you  must 
convict  him. 

(c)  I  charge  you,  gentlemen  of  the  jury,  that  the  doubt  must  be 

81_Myers  et  al.  v.  State,  43  Fla.         83— Winter   v.    State,    123    Ala.    1, 

500.  31    So.  275  (281).  26   So.   949   (950). 

82— Horn  v.  State,  12  Wyo.  80,  73 
Pac.   705   (725). 


§  2684.]  CRIMINAL— PRESUMPTION.  1725 

actual  and  substantial,  not  mere  possible,  doubt,  because  everything 
relating  to  human  affairs  and  depending  on  moral  evidence  is  open 
to  some  possible  or  imaginary  doubt. ^* 

(d)  Every  accused  person  is  presumed  to  be  innocent  until  he 
is  proven  to  be  guilty  beyond  a  reasonable  doubt.  Such  reasonable 
doubt,  within  the  meaning  of  the  law,  is  not  a  vague,  fanciful,  whim- 
sical doubt,  but  a  doubt  naturally  arising  out  of  all  the  evidence  in 
the  case;  and  such  a  doubt  as  intelligent,  impartial,  fair-minded 
jurors  may  reasonably  entertain  after  a  careful  consideration  of  all 
relevant  evidence   before   them.*^ 

§  2684.  Reasonable  Doubt — Must  Not  Be  Mere  Speculation,  (a) 
A  doubt  to  acquit  defendants,  or  either  of  them,  must  be  a  reason- 
able doubt — not  mere  speculation  or.  possibility.  The  state  is  not 
required  to  prove  defendant's  guilt  beyond  all  doubt,  but  beyond  all 
reasonable   doubt.^^ 

(b)  It  is  not  a  mere  doubt  that  authorizes  an  acquittal.  The 
doubt  which  authorizes  an  acquittal  must  be  a  reasonable  doubt.^'^ 

§  2685.  Reasonable  Doubt  Should  Be  a  Substantial  Doubt  Arising 
from  the  Evidence,  (a)  You  are  instructed  that  the  law  presumes 
the  innocence,  and  not  the  guilt,  of  the  defendants;  and  this  pre- 
sumption attends  them  throughout  the  trial,  and  at  the  end  entitles 
them  to  an  acquittal  unless  the  evidence  in  the  case,  when  taken  as  a 
whole,  satisfies  you  of  their  guilt  beyond  a  reasonable  doubt.  You 
are,  however,  instructed  that  a  reasonable  doubt  of  the  guilt  of  the 
defendants  which  would  warrant  you  in  acquitting  them  on  the 
ground  of  your  having  such  reasonable  doubt  of  their  guilt  should  be 
a  substantial  doubt  of  their  guilt  upon  a  full  and  fair  consideration 
by  you  of  all  the  evidence,  facts,  and  circumstances  in  the  ease,  and 
not  a  mere  possibility  that  they  may  be  innocent.^* 

84— Prater   v.    State,    107   Ala.    26,  The  court  instructs  the  jury  that 

18   So.   238   (239);   Boulden   v.   State,  the  defendants  are  presumed  to  be 

102  Ala.  78,  15  So.  341  (344).  innocent,  and  it  devolves  upon  the 

85— State  v.  Davis,   3  Del.   220,   50  state  to  prove  their  guilt  beyond  a 

Atl.  99.  reasonable    doubt,    and,    unless    the 

86 — Thompson  et  al.  v.  State,  106  state    has    established    the   guilt   of 

Ala.    67,    17    So.    512    (513),    42    Am.  the   defendants,   as   charged   in   the 

Rep.   101.  indictment,  to  your  satisfaction  and 

87 — Dodge   v.    State,    122  Ala.   107,  beyond    a    reasonable    doubt,     you 

26  So.  200,  82  Am.  St.  23.  should  give  the  defendants  the  ben- 

88— State  v.   Spaugh,  200  Mo.   571,  efit    of    such    doubt    and    return    a 

98  S.  W.  55  (63).  verdict    of    not    guilty.      But    such 

"The  cases  of  State  v.  Clark,  147  doubt,    to    authorize    an    acquittal 

Mo.   22,  47  S.   W.   886,   and   State   v.  on   that  ground  alone,  should  be  a 

Fannon,    158    Mo.    149,    59    S.    W.    75,  substantial    doubt    of    guilt    arising 

do  not  in  the  least  sustain  defend-  from  the  evidence  in  the  case,  and 

ant's    criticism    of    the    instruction  not    a    mere    possibility    of    inno- 

on   reasonable    doubt   in   this   case,  cence. 

It  has  often  been  approved  by  this  And  in  Watkins  v.  Common- 
court,   and  is  entirely  sufficient."  wealth,  29   Ky.   Law  1273,  97  S.  W. 

In   State   v.   Vaughan,  200   Mo.   1,  740,  the  following  was  approved: 

98   S.   W.   2,   the   following   instrue-  The   jury   are    further    instructed 

tion  on  the   same  subject  was  ap-  that  the  defendant  is  presumed  to 

proved:  be  innocent,   and   this  presumption 


1726  FORMS  OP  INSTRUCTIONS.  [§2686. 

(b)  The  defendant  is  presumed  to  be  innocent.  Before  you  can 
convict  him,  the  state  must  overcome  that  presumption  by  proving 
him  gruilty  beyond  a  reasonable  doubt.  If  you  have  a  reasonable 
doubt  as  to  his  guilt,  you  should  acquit  him.  But  a  doubt,  to  au- 
thorize an  acquittal,  should  be  a  substantial  doubt,  founded  on  the 
evidence,  and  not  a  mere  possibility  of  innocence.^^ 

(c)  The  law  presumes  the  defendant  innocent  of  the  crime 
charged  against  him  in  this  information,  and  the  burden  of  proving 
him  guilty  thereof  beyond  a  reasonable  doubt  rests  upon  the  state. 
Now  if,  after  a  full  and  fair  review  of  all  the  evidence  in  the  cause,- 
you  entertain  a  reasonable  doubt  of  the  defendant's  guilt,  you 
should  give  him  the  benefit  of  such  doubt,  and  acquit  him;  but  such 
doubt,  to  authorize  you  to  acquit  him  on  that  ground  alone,  should 
be  a  substantial  doubt  touching  his  guilt,  and  not  a  mere  possibility 
of  his  innocence.^** 

(d)  The  court  instructs  the  jury  that  the  defendant  is  presumed 
to  be  innocent  of  the  offense  charged.  Before  you  can  convict  him, 
the  state  must  overcome  that  presumption  by  proving  him  guilty  be- 
3'ond  a  reasonable  doubt.  If  you  have  reasonable  doubt  of  defend- 
ant's guilt,  you  must  acquit  him.  But  a  doubt  to  authorize  an  acquit- 
tal must  be  substantial  doubt,  founded  on  the  evidence,  and  not  a  mere 
possibility   of   innocenee.^^ 

§  2686.  Reasonable  DoUbt  Defined,  Compared  to  Conduct  in  Im- 
portant Affairs  in  Life,  (a)  In  criminal  cases  the  defendant  enters 
upon  his  trial  with  the  presumption  of  innocence  in  his  favor,  and 
the  burden  of  proof  is  upon  the  state  to  establish  his  guilt,  and  the 
evidence  must  be  sufficient  to  establish  in  your  judgment  his  guilt 
beyond  all  reasonable  doubt.  As  long  as  you  have  a  reasonable 
doubt  of  the  defendant's  guilt,  it  is  your  duty  to  acquit  him.  A  rea- 
sonable doubt  which  entitles  an  accused  person  to  an  acquittal  is  a 
doubt  of  guilt  reasonably  arising  from  all  the  evidence  in  the  case. 
Proof  is  said  to  be  deemed  to  be  beyond  all  reasonable  doubt  when 
the  evidence  is  sufficient  to  impress  the  judgment  of  ordinarily  pru- 
dent men  with  a  conviction  on  which  they  would  act  without  hesi- 
tation in  their  own  most  important  concerns  and  affairs  of  life.  And 
if  you  have  any  such  reasonable  doubt,  you  must  give  him  the  benefit 
thereof,  and  acquit  bim.^^ 

of  his  innocence  entitles  him  to  an  65  S.  W.  270;  State  v.  May,  172  Mo. 

acquittal  at  their  hands,  unless  his  630,  72  S.  W.  918  (920). 

guilt    has    been    proved    from    the         92 — Frank    v.    State,    94   Wis.    211, 

evidence      beyond       a      reasonable  68  N.  W.  657  (660). 

doubt.  "These    instructions    are    clearly 

89— State  v.  Todd,  194  Mo.  377,  92  distinguishable    from    the    instruc- 

S.  W.  674.  tion  criticised  by  Mr.  Justice  Wins- 

90— State    v.    Gatlin,    170    Mo.    354  low  in  Emery  v.  State,  92  Wis.  152, 

(365),    70    S.    W.    885    (888),    homicide  65  N.  W.  850.  relied  upon  by  coun- 

case.  sel.     We  do  not  think  the  instruc- 

91 — State   V.    Smith,    164   Mo.    567,  tions   here  given   are  obnoxious  to 

the  criticisms  here  made." 


§  2687.]  CRIMINAL— PRESUMPTION.  1727 

(b)  The  court  further  charges  you  that  a  reasonable  doubt  is  a 
doubt  based  on  reason,  and  which  is  reasonable  in  view  of  all  the 
evidence.  And  if,  after  an  impartial  comparison  and  consideration 
of  all  the  evidence,  you  can  candidly  say  that  you  are  not  satisfied 
of  the  defendant's  g'uilt,  you  have  a  reasonable  doubt;  but  if,  after 
such  impartial  comparison  and  consideration  of  all  the  evidence, 
you  can  truthfully  say  that  you  have  an  abiding  conviction  of  the 
defendant's  guilt,  such  as  you  would  be  willing  to  act  upon  in  the 
more  weighty  and  important  matters  relating  to  your  own  affairs,  you 
have  no  reasonable  doubt.^^ 

§  2687.  Reasonable  Doubt — Conscientious  Belief.  The  court 
charges  the  jury  for  the  state  that  you  are  not  to  convict  the  de- 
fendant unless  they  believe  from  the  evidence  beyond  a  reasonable 
doubt  that  he  is  guilty.  Still  that  does  not  mean  that  they  must 
know  that  he  is  guilty,  but  if,  after  considering,  comparing  and 
weighing  all  the  evidence,  you  conscientiously  believe  from  all  the 
evidence  beyond  a  reasonable  doubt  that  he  is  guilty,  that  is  suffi- 
cient, and  you  should  convict.^* 

§  2688.  Caution  Against  Conviction  from  Prejudice.  I  further 
instruct  you,  gentlemen  of  the  jury,  and  caution  you  against  convic- 
tion from  prejudice  of  insufficient  evidence.  Unless  you  are  satis- 
fied from  the  evidence  beyond  a  reasonable  doubt  of  the  giiilt  of 
the  accused,  you  should  render  a  verdict  of  not  guilty,  however  strong 
may  be  your  prejudice,  if  any  you  have.^^ 

93— Hopt  v.  Utah,  120  U.  S.  430,  7  you    feel    morally    certain    of    the 

S.  Ct.  714;  Williams  v.  U.  S.,  4  Ind.  guilt  of   the   defendant  as  charged 

Ter.  269,  69  S.  W.  871,  approves  the  in  the  indictment,  you  are  satisfied 

following  instruction:  beyond     a    reasonable    doubt,    and 

Not     every     doubt     which     may  should  find  the  defendant  guilty  of 

arise  in  your  minds  is  of  necessity  murder    or    manslaughter,    accord- 

a   reasonable   doubt,    but,    in    order  ing  to  the  law  and  evidence. 

to   be   a  reasonable  doubt,   it  must  94 — Moore   v.    State,   86   Miss.   160, 

amount  to  a  real  doubt  of  the  guilt  38  So.  504. 

of  the  defendant.  It  must  be  such  "The  use  of  the  word  'conscien- 
a  doubt  as,  if  arising  in  the  solu-  tiously'  in  this  instruction  is  ob- 
tion  of  one  of  the  graver  affairs  of  jected  to  as  erroneously  qualifying 
life,  would  cause  a  reasonable  and  the  reasonable  doubt  which  should 
prudent  man  to  hesitate  and  say,  acquit.  There  is  no  merit  in  this 
"I  am  not  satisfied."  In  order  to  objection.  In  this  instruction  the 
be  a  reasonable  doubt  as  applied  word  is  mere  surplusage.  If 
in  this  case,  it  must  be  a  substan-  omitted  altogether,  the  instruction 
tial  doubt  of  the  defendant's  guilt,  is  correct.  Surely  the  defendant 
growing  out  of  the  contradictory  was  not  injured  by  an  instruction 
or  unsatisfactory  nature  of  the  tes-  to  the  jury  informing  them  that, 
timony,  or  a  lack  of  testimony,  in  order  to  a  conviction,  they  must 
which,  after  considering  all  the  conscientiously  believe  from  all 
facts  and  circumstances  in  proof  the  evidence,  beyond  a  reasonable 
before  you,  causes  you  to  hesitate  doubt,  that  defendant  is  guilty, 
and  say,  "I  am  not  satisfied  of  the  The  instruction  given  does  not  sub- 
f'nilt  of  the  defendant."  If  you  stitute  conscientious  belief  for  be- 
have on  your  mind  such  a  reason-  lief  beyond  a  reasonable  doubt,  but 
rhi^  doubt  of  the  defendant's  guilt,  warrants  a  conviction  only  upon  a 
then  you  should  resolve  that  doubt  conscientious  belief  of  guilt  beyond 
in  favor  of  the  defendant  and  ac-  a  reasonable  doubt." 
quit  him;  but  if,  after  considering  95 — Myers  et  al.  v.  State,  43  Fla. 
all  the  facts  and  circumstances  in  500,  31  So.  275  (282),  homicide  case, 
proof  before  you,  you  can  say  that 


1728 


FORMS  OF  INSTRUCTIONS. 


[§  2689. 


§  2689.  Appealing  to  Individual  Jurors,  (a)  If  any  individual 
juror  is  not  convinced  of  defendant's  guilt  beyond  all  reasonable 
doubt,  and  to  a  moral  certainty,  the  jury  cannot  convict.^^ 

(b)  The  court  charges  the  jury  that  before  they  can  convict  the 
defendant  the  evidence  must  be  so  strong  as  to  convince  each  juror 
of  his  guilt  beyond  reasonable  doubt;  and  if,  after  considering 
all  the  evidence,  a  single  juror  h.is  a  reasonable  doubt  of  the  de- 
fendant's guilt,  ai-ising  out  of  any  part  of  the  evidence,  then  they 
cannot  convict  him.*^^ 

(c)  Unless  each  of  you  is  convinced  beyond  a  reasonable  doubt 
of  the  guilt  of  the  defendants,  from  the  evidence  in  the  case,  then 
you  should  not  convict  them. 

(d)  Before  you  can  convict  the  defendants  you  should  each  be  con- 
vinced beyond  a  reasonable  doubt  of  their  guilt  from  the  evidence 
and   the   evidence   alone.^^ 

§  2690.  Reasonable  Doubt  by  One  Juryman  Will  Prevent  Convic- 
tion, (a)  In  this  case,  if  the  jury  entertain  any  reasonable  doubt 
of  defendant's  guilt,  they  should  acquit  him;  or,  if  they  entertain 


96— In  Hale  v.  State,  122  Ala.  85, 
26  So.  236  (237),  it  was  held  error 
to  refuse  this  instruction.  The  court 
said  that  many  similar  charges 
had  recently  been  brought  under 
review  before  it.  "Some  of  them 
have  been  held  bad,  and  others 
good;  depending  upon  whether  the 
particular  charge  under  consider- 
ation asserted  simply  and  only  that 
the  defendant  should  not  be  con- 
victed so  long  as  any  one  of  the 
jurors  had  a  reasonable  doubt  of 
his  guilt.  If  it  was  clear  to  this 
intent,  and  did  not  tend  to  mislead 
the  jury  to  an  acquittal  upon  a 
reasonable  doubt  of  one  or  any 
number  of  the  jurors,  less  than  the 
whole  number,  nor  to  inculcate  the 
idea  that  the  conclusion  of  each 
juror  should  be  reached  and  ad- 
hered to  'without  the  aid  of  that 
consideration  and  deliberation  with 
his  fellows  which  the  law  intends 
shall  take  place  in  the  jury  room,' 
nor  to  render  each  juror  the  keeper 
of  the  consciences  of  his  fellows, 
nor  involve  other  misleading  ten- 
dencies, the  charge  has  been  held 
to  be  good;  and  if  it  went  beyond 
this  it  has  been  disapproved.  Car- 
ter v.  State,  103  Ala.  93,  15  So.  893; 
Goldsmith  v.  State,  105  Ala.  8.  16 
So.  933;  Pickens  v.  State,  115  Ala. 
42,  22  So.  551;  Cunningham  v.  State, 
117  Ala.  59,  66,  23  So.  693;  Lewis  v. 
State,  121  Ala.  1,  25  So.  1017." 

97— In  Mitchell  v.  State,  129  Ala. 
23,  30  So.  348  (354),  homicide,  judg- 
ment   of    conviction    was    reversed 


solely  because  the  trial  judge  re- 
fused to  give  the  above  instruction. 

The  court  said: 

"That  charge  combines  two 
principles,  each  of  which,  as  stated 
in  separate  charges,  has  been 
sanctioned  by  decisions  of  this 
court:  Fii'st.  To  warrant  a  con- 
viction the  evidence  must  be  such 
as  to  convince  each  juror  of  guilt 
beyond  a  reasonable  doubt.  See 
Carter  v.  State,  103  Ala.  93,  15  So. 
893;  Grimes  v.  State,  105  Ala.  86, 
17  So.  184;  Hale  v.  State,  122  Ala. 
85.  26  So.  236.  Second.  Such  a 
doubt  arising  from  any  part  of  the 
evidence,  upon  consideration  of  the 
whole,  precludes  a  rightful  convic- 
tion. McLeroy  v.  State,  120  Ala. 
274,  25  So.  247;  Turner  v.  State,  124 
Ala.  60,  27  So.  272.  Charges  some- 
what like  but  different  from  those 
considered  in  the  cases  cited  in 
support  of  the  first  proposition 
were  condemned  in  Cunningham  v. 
State,  117  Ala.  59,  23  So.  693,  and 
Lewis  v.  State,  121  Ala.  1,  25  So. 
1017;  but  respecting  that  feature  the 
charge  now  in  question  cannot  be 
distinguished  from  those  pnssed  on 
in  the  cases  of  Carter,  Grimes  and 
Hale,  supra.  It  must  be  held  that 
the  refusal  of  charge  2  (b)  requires 
a  reversal  of  the  judgment." 

The  same  request  was  held  prop- 
erly refused  in  Conk  v.  State,  46 
Fla.  20,  35  So.  665  (669),  also  a  homi- 
cide case. 

98— Carter  et  al.  v.  State,  103  Ala, 
93,  15  So.  893. 


§  2691.]  CRIMINAL— PRESUMPTION.  1729 

any  reasonable  doubt  as  to  whether  he  was  excusable  and  justified 
in  the  acts  complained  of,  they  should  acquit  him;  or  if  one  of  the 
jury,  after  having  considered  all  the  evidence  and  having  consulted 
with  his  fellow  jurymen,  should  entertain  such  a  reasonable  doubt, 
the  jury  cannot  in  such  ease  find  the  defendant  guilty.^" 

(b)  Now,  gentlemen,  I  have  said  'to  you  that  this  man  is  pre- 
sumed to  be  innocent  until  he  is  proven  guilty.  There  is  about  him 
that  presumption,  and  it  attaches  to  the  entire  case.  The  burden 
is  upon  the  people  to  prove  his  guilt  beyond  a  reasonable  doubt.  He 
is  presumed  to  be  innocent  until  proven  guilty,  and  all  of  the  jury 
must  be  satisfied  beyond  a  reasonable  doubt  in  order  to  convict.^"" 

(c)  It  is  incumbent  upon  the  state  to  establish  the  guilt  of  the 
defendant  of  some  offense  embraced  Avithin  the  indictment,  to  the 
exclusion  of  every  reasonable  doubt  in  the  mind  of  each  of  you  before 
you  can  return  a  verdict  of  guilty.  The  minds  of  each  and  all  of 
you  must  concur  in  your  vei'diet,  and  if  any  one  of  you  has  a  rea- 
sonable doubt  of  the  defendant's  guilt,  or  a  reasonable  doubt  as  to 
whether  he  was  justifiable  or  excusable  in  what  he  did,  you  cannot 
convict.^ 

§  2691,  Reasonable  Doubt — Doctrine  Does  Not  Apply  to  Mere 
Subsidiary  Evidence,  (a)  By  reasonable  doubt  is  not  meant  a  whim, 
or  captious  or  speculative  doubt.  It  is  properly  termed  a  reasonable 
doubt,  as  distinguished  from  an  unreasonable  or  speculative  doubt; 
and  it  must  arise  from  all  the  evidence  relating  to  some  material 
fact  or  facts  charged  in  the  indictment,  and  not  spring  from  mere 
subsidiary  evidence.  Such  uoubt  may  also  arise  from  the  absence 
of  evidence  as  to  material  matters. 

(b)  But  the  doctrine  of  reasonable  doubt,  as  a  rule,  has  no  proper 
application  to  mere  matters  of  subsidiary  evidence,  taken  item  by 
item,  but  is  applicable  always  to  the  constituent  elements  of  the 
crime  charged,  and  to  any  fact  or  group  of  facts  which  may  consti- 
tute the  entire  proof  concerning  any  of  the  constituent  or  elemen- 
tary facts  necessary  to  constitute  guilt.  If  from  the  whole  evidence, 
or  the  want  of  evidence,  any  material  fact  essential  to  a  conviction 
has  not  been  established  to  your  satisfaction,  beyond  a  reasonable 
doubt,  as  explained  in  these  instructions,  the  defendant  should  be 
aequitted.2 

99 — State  v.   Moore,  156  Mo.    204,  yet,  in  a  broader  sense,  it  must,  in 

56  S.  W.  883  (884).  order    to    convict,    rely    upon    and 

100 — People    v.    Curtis,    96    Mich,  establish  beyond  a  reasonpble  doubt 

489,  56  N.  W.  925.  all   the   material   facts    which    con- 

"The    instruction    given    was    all  stitute   the    accused    guilty    of    the 

that  the  law  requires."  crime  charged.     It  is  to  such  facts, 

1 — Harris    v.    State,    155    Ind.    265,  and  not  to  the  mere  items  of  sub- 

58  N.   E.  75  (76).  sidiary  evidence,  which  may  aid  in 

2— Hauk  v.   State,  148  Ind.  238,  46  proving    the    essential    facts,    that 

N.  E.  127  (132),  47  N.  E.  465.  the    rule    of    reasonable    doubt    ap- 

"While    the    state,    in    a    criminal  plies." 

prosecution,    may    rely    upon    mere  The   court   cited.    Wade   v.    State, 

subsidiary     or     subservieut     facts,  71  Ind.  535.    As  to  the  words  "want 
109 


1730  FORMS  OP  INSTRUCTIONS.  [§  2692. 

§  2692.  ReasonalDle  Doubt— Arising  from  Part  of  the  Evidence 
After  Consideration  of  the  Whole,  (a)  If  the  evidence  or  any  part 
thereof,  after  a  consideration  of  the  whole  of  such  evidence,  gener- 
ates a  Avell-founded  doubt  of  defendant's  guilt,  the  jury  must  acquit 
him.^ 

(b)  If  the  jury,  upon  considering  all  the  evidence,  have  a  reason- 
able doubt  about  defendant's  guilt,  arising  out  of  any  part  of  the 
evidence,  they  must  find  him  not  guilty."* 

(c)  In  weighing  the  evidence,  each  piece  and  all  the  evidence 
should  be  weighed  with  all  the  other  evidence,  and  you  should  make 
up  your  verdict  from  due  consideration  of  the  whole  of  the  evidence. 
If  the  jury,  after  considering  all  of  the  evidence,  have  a  reasonable 
doubt  of  defendant's  guilt,  arising  out  of  any  part  of  the  evidence; 
they  should  find  him  not  guilty.  But  this  does  not  mean  that  you 
have  got  to  find  every  single  item  of  testimony  to  be  true  before 
you  can  convict.  If,  after  weighing  all  the  evidence,  you  have  a 
reasonable  doubt  as  to  any  of  the  elements  which  constitute  any 
offense  charged  in  this  indictment,  then  you  are  bound  to  acquit.  It 
does  not  mean  that  you  have  got  to  believe  every  word  of  the  tes- 
timony in  order  to  convict.^ 

§  2693.  Reasonable  Doubt  Should  Arise  from  the  Evidence  as  a 
Whole — Possibility  of  the  Defendant's  Innocence  Will  Not  Warrant 
an  Acquittal,  (a)  The  court  instructs  you  that  the  burden  of  prov- 
ing the  defendant  guilty  beyond  a  reasonable  doubt  rests  upon  the 
state,  and  if  upon  the  evidence,  considered  as  a  whole,  the  jury  en- 
tertain a  reasonable  doubt  as  to  defendant's  guilt,  you  should  give 
him  the  benefit  of  such  doubt,  and  find  him  not  guilty;  but  a  doubt, 

of  evidence,"   see  Harris  v.    State,  of,   and,   when  considered  together 

155  Ind.  265,  58  N.  E.  75  (76).  and   as  a   whole,   tend   to   prove  or 

Hinshaw    v.    State,    147    Ind.    334,  disprove    the    existence    of    one    or 

47    N.    E.    157    (171),    homicide,    ap-  more    of  the   primary   facts   neces- 

proves  the  following:  sary  to  make  out  the  defense.    Sub- 

The  doctrine  of  reasonable  doubt,  sidiary  and   evidentiary   facts  may 

as  a  general  rule,  has  no  applica-  be  considered  by  you  in  determin- 

tion   to    subsidiary   evidence    taken  ing    the    necessary    and    essential 

item   by   item.     It   is   applicable   to  facts,    when    established    by    clear 

the     constituent    elements     of    the  and  satisfactory  proof, 

crime  charged,  and  to  any  fact  or  The    court    said:      "The    law    as 

facts    which    constitute    the    entire  laid  down  in  Wade  v.  State,  71  Ind. 

proof  of  one  or  more  of  the  constit-  535,  fully  justifies  the  court  in  giv- 

uent       elements      of      the      crime  ing   the  above  instruction." 

charged.       That     is     to     say,      all  3— Held  that  this   request  by  de- 

the  facts  which  must  have  existed  fendant  "asserts  a  correct  proposi- 

in   order  to  make  out  the  guilt  of  tion  and  should  have  been  given." 

the    accused    must    be    established  Hunt    v.    State,    135   Ala.    1,    33    So. 

beyond   a   reasonable  doubt   before  329    (331).      Citing   Turner  v.    State, 

you   can   convict.     But   the   rule   of  124  Ala.  59  (63),  27  So.  272.     See  also 

reasonable  doubt  does  not  apply  to  Mitchell  v.  State,  129  Ala.  23,  30  So. 

subsidiary    and    evidentiary    facts;  348;  McLeroy  v.  State,  120  Ala.  274, 

that   is   to   say,   to   such  facts  and  25   So.   247. 

circumstances  in  evidence,  if  there  4— Hunt    v.    State,   135   Ala.    1,    33 

be   any   such,    as   are   not  essential  So.   329  (330),  homicide  case, 

elements  of  the  crime  charged,  and  5— Bnndurant    v.    State,    125    Ala. 

not  necessary  to  the  proof  where-  31,  27  So.  775  (776),  homicide  case. 


§  2694.]  CRIMINAL— PRESUMPTION.  1731 

to  authorize  an  acquittal  on  tliat  ground  alone,  should,  as  stated, 
be  a  reasonable  doubt,  and  one  fairly  arising  from  the  evidence  as 
a  whole.  The  mere  possibility  that  the  defendant  may  be  innocent 
"will  not  warrant  you  in  acquitting  him  on  the  ground  of  reasonable 
doubt.^ 

(b)  The  court  instructs  the  jury  that  the  burden  of  proof  to 
establish  the  guilt  of  the  defendant  rests  upon  the  state,  and  the 
defendant  is  presumed  to  be  innocent  of  the  charge  against  him, 
and  this  presumption  of  innocence  attends  and  protects  him  through- 
out the  trial  until  overcome  by  evidence  which  shows  the  guilt 
of  the  defendant  beyond  a  reasonable  doubt.  If  the  jury  have  a 
reasonable  doubt  of  the  defendant's  guilt,  you  should  give  him  the 
benefit  of  such  doubt  and  acquit  him.  By  ''reasonable  doubt"  is 
meant  a  doubt  which  has  reason  for  its  basis,  and  arising  from  a  con- 
sideration of  all  the  evidence  in  the  case,  and  not  a  mei'e  possibility 
of  his   innocence.'^  * 

§  2694.  Reasonable  Doubt  as  to  Any  Material  Fact,  (a)  The 
court  instructs  the  jury  that  if,  from  the  evidence,  you  hav-e  a  rea- 
sonable doubt  as  to  whether  any  material  fact  given  in  evidence 
in  the  case  is  true  or  untrue,  it  is  the  duty  of  the  jury  to  give  the 
defendant  the  benefit  of  such  doubt,  and  if,  from  all  the  evidence 
in  the  case,  the  jury  have  a  reasonable  doubt  of  the  defendant's 
guilt,  you  should  acquit  him.^ 

(b)  The  law  presumes  the  defendant  to  be  innocent;  and,  in 
order  to  convict  him  of  either  of  the  crimes  I  have  mentioned  [mur- 
der in  the  first  degree,  etc.],  every  fact  necessary  to  constitute  such 
crime  must  be  pi'oved  beyond  a  reasonable  doubt,  and,  if  the  jury 
entertains  any  reasonable  doubt  on  any  single  fact  or  element  nec- 
essaiy  to  constitute  the  crime,  it  is  your  duty  to  give  the  defendant 
the  benefit  of  such  doubt  and  acquit  him.^ 

6 — State  v.    Harper,   149   Mo.   514,  they    shall    believe    from    all    the 

51  S.  W.  89.  facts    and    circumstances    in    evi- 

7— State    v.    Kinder,    184    Mo.    276  dence,    beyond    a    reasonable   doubt 

(290),  83  S.  W.  964  (966).  arising-  out  of  such  facts   and  cir- 

It  has  been  held  error  in  a  crim-  cumstances,  that  the  accused  is 
inal  prosecution  to  refuse  to  give  guilty  of  killing  H.,  they  shall  ac- 
an  Instruction  to  the  jury  "that  if  quit  the  accused, 
there  is  a  probability  of  defend-  The  court  instructs  the  jui^  that 
ant's  innocence,  they  will  find  for  the  defendant  is  presumed  to  be 
defendant,"  since  such  probability  innocent  until  his  guilt  has  been 
is  equivalent  to  a  reasonable  doubt,  shown  by  the  evidence  in  the  case 
Shaw  V.  State,  125  Ala.  80,  28  So.  beyond  a  reasonable  doubt,  and  if, 
390.  See  also  Alabama  cases  cited  from  all  the  evidence,  the  jury- 
in  "Whitaker  v.  State,  106  Ala.  30,  have  a  reasonable  doubt  of  the  de- 
17  So.  456  (457).  fendant's    guilt,    they    shall    acquit 

8 — Alderson  v.  Commonwealth,  25  him. 

Ky.  Law  32.  74  S.  W.  679  (681),  ap-  Toler  v.    State,   41  Tex.   Cr.   App. 

proving  also  the  following  instruc-  659,   56   S.  W.   917,   approves  an  in- 

tions:  struction   similar   to   the   preceding 

The  court  instructs  the  jury  that,  one. 

in    arriving    at    their   verdict,    they  9 — State    v.    Lindgrind,    33    Wash. 

shall  consider  all  the  facts  and  cir-  440,  74  pac.  565  (566). 
cumstances  in  evidence,  and  unless 


1732  FORMS  OF  INSTRUCTIONS.  [§  2695. 

(c)  The  presumption  of  innocence  is  in  favor  of  the  defendant 
as  to  each  and  every  element  of  the  offense  charged,  and  yon  must 
acquit  unless  the  state  has  established  by  the  evidence  the  existence 
of  each  and  every  element  of  the  particular  offense,  and  the  defend- 
ant's  guilt   thereof  beyond  all  reasonable  doubt. ^'^ 

§  2695.     Reasonable  Doubt — May  Arise  from  Want  of  Evidence. 

(a)  The  reasonaWo  doubt  may  arise  from  the  evidence  already 
given  in  the  case,  or  for  want  of  evidence.  In  this  case  the  de- 
fendant has  introduced  evidence  before  you  that  b3  was  with  a 
young  lady  that  he  was  waiting  on,  by  the  name  of  X,  from  about 
half-past  nine  on  the  night  of  the  transaction  until  twenty  minutes 
of  one  the  next  morning.  If  this  evidence  raises  a  reasonable  doubt 
in  your  minds  as  to  whether  the  defendant  was  the  person  that 
committed  the  alleged  transaction  in  the  manner  and  form  alleged, 
then,  and  in  that  event,  you  cannot  convict  the  defendant.^^ 

(b)  The  court  instructs  you  that  the  defendant,  in  law,  is  pre- 
sumed to  be  innocent,  and  that  it  devolves  upon  the  state  to  prove, 
by  evidence,  to  the  satisfaction  of  the  jury,  beyond  a  reasonable 
doubt,  that  the  defendant  committed  the  crime  as  charged  in  the 
indictment  and  explained  in  these  instructions ;  and  if,  upon  a  view 
of  the  whole  case,  you  have  a  reasonable  doubt  of  defendant's  guilt, 
you  will  give  him  the  benefit  thereof,  and  acquit  him.  But  a  rea- 
sonable doubt  to  authorize  an  acquittal  on  that  ground,  must  be  a 
substantial  doubt  of  defendant's  guilt,  formed  on  the  careful  con- 
sideration of  all  the  facts  and  circumstances  proven  in  the  case, 
and  not  a  mere  possibility  of  the  defendant's   innocence. ^^ 

10 — Ryan   v.    State,   115   Wis.   488,  cumstances   as   are    lacking-   to   es- 

92  N.  W.  271  (274),  charge  of  homi-  tablish  and  make  complete  the  full 

cide.  measure  of  defendant's  guilt.    These 

11 — Fleming  v.  State,  136  Ind.  149,  two  considerations  of  the  evidence 

36  N.  E.   154   (155).  and  the  lack  of  evidence  are  bound 

The  court  said:     "We  have  read  together  in  an  indissoluble  connec- 

carefully  all  of  the  charges  given,  tion  as  surely  as  the  premises  of  a 

and   feel    constrained    to   hold    that  syllogism  involve  its  conclusion.    It 

they   do  not    cover  fully   the  prop-  is    logically    impossible    for    a   jury 

ositions  of  the  instructions  refused,  to   consider  the   sufficiency   of   evi- 

The  jury  wei-e  nowhere  told  that  a  dence  without  at  the  same  moment 

reasonable  doubt  might  arise  upon  considering,    and    with    the    same 

the  evidence  given,   as  well  as  for  thought,  its  insufficiency.    A  differ- 

the    lack    of    evidence.      While    the  ent   mental   operation   would   be  as 

instruction    refused    is    not    clearly  much  dehors  the  powers  of  the  hu- 

stated,   it  was  intended  to,  and  we  man  mind  as  would  be  the  remem- 

think  did,  present  the  further  ques-  brance    and    the   forgetting    of   the 

tion  that  a  reasonable  doubt  could  same    thing    at    the    same    instant, 

properly  arise  from  a  consideration  In    State    v.    Sacre,    141    Mo.    64,    41 

of    the    alibi    evidence    referred    to,  S.    W.    905,    an    instruction    similar 

and    that,    if    it    did    so    arise,    the  to  the  one  under  review  was  ruled 

jury  could  not  convict."  to  be  unobjectionable.     In  State  v. 

12— State    V.     Holloway,    156    Mo.  Blunt,    91    Mo.    503,    4    S.    W.    394,    a 

222,  56  S.  W.  734  (736).  like    ruling    was    made    where    the 

"A  reasonable   doubt  'formed  on  instruction     complained     of     read: 

the     careful     consideration     of     all  'To   authorize   an   ncquittnl    on    the 

the  facts  and  circumstances  in  the  ground   of  reasonable   doubt  alone, 

case,'    necessarily    involves    a    con-  such    a    doubt    should    be    a    real, 

sideration    of    such    facts    and    cir-  substantial,      well-founded      doubt. 


§  2696.]  CRIMINAL— PRESUMPTION.  1733 

§2696.  Reasonable  Doubt— "Doubt"  Must  be  Within  the  Evi- 
dence. By  "reasonable  doubt"  I  mean  a  doubt  of  the  guilt  for 
which  a  reason  can  be  given,  ai'ising  out  of  the  evidence.  You  are 
not  to  go  outside  of  the  evidence  to  hunt  up  doubts,  nor  should  you 
entertain  a  doubt  that  is  merely  fanciful,  sjieeulative,  or  chimerical, 
or  which  is  based  only  upon  unreasonable  or  groundless  conjecture. 
A  doubt  which  ignores  a  reasonable  construction  of  the  whole  evi- 
dence is  not  a  reasonable  doubt.  Guilt  is  proven  beyond  a  reason- 
able doubt  when  all  the  evidence  in  the  ease,  clearly,  impartially,  and 
rationally  considered,  is  sufficient  to  impress  the  judgment  of  ordi- 
nary, reasonable  and  prudent  men  with  a  conviction  upon  which  they 
Would  act  without  hesitation  in  their  own  gravest  and  most  impor- 
tant affairs  of  life.^^ 

§  2697.  Reasonable  Doubt — Probability  of  Innocence,  (a)  Unless 
you  are  satisfied  from  the  evidence,  beyond  all  reasonable  doubt, 
of  the  defendant's  guilt,  you  should  not  convict  him.  I  do  not  mean 
that  you  must  be  satisfied  beyond  all  possible  doubt,  but  beyond 
all  reasonable  doubt.  The  law  does  not  require  the  defendant's  guilt 
proved  to  a  mathematical  certainty,  but  the  law  does  require  his 
guilt  proved  to  a  moral  certainty  before  he  can  be  convicted.  It  is 
not  necessary  that  you  should  be  so  convinced  of  his  g-uilt  by  the 
evidence  that  there  can  be  no  jDossibility  of  his  innocence,  but  it  is 
necessary  that  before  you  can  convict  the  defendant  j^ou  must  be 
convinced  of  his  guilt  by  the  evidence  that  there  can  be  no  proba- 
bility of  his  innocence,  and  no  reasonable  doubt  of  his  guilt.  If  there 
is  probability  of  his  innocence,  this  is  just  ground  for  reasonable 
doubt   and  requires  acquittal.^* 

(b)  The  court  charges  the  juiy  that  if  there  is  from  the  evidence 
a  reasonable  probability  of  defendant's  innocence,  then  this  is  a  just 
foundation  for  a  reasonable  doubt,  and  would  authorize  an  ac- 
quittal.^^ 

arising-  out  of  the  evidence   in  the  St.    23,   27   So.   438    (440),    holds   that 

cause,    and    not    a    mere    possibility  such  probability  must  arise  from  a 

that    defendant    is    innocent.'      The  consideration  of  the  entire  evidence 

objection,    therefore,    taken    to   the  and  not  of  a  part  merely, 

instruction,    must    be    held    unten-  15— Mims  v.  State,  141  Ala.  93,  37 

able.     But  it  is  difficult  to  refrain  So.   354. 

from  asking  why  it  is  that  circuit  "The  above  charge  refused  to 
Judges  do  not  copy  the  instruction  the  defendant  would  unquestion- 
on  reasonable  doubt  which  passed  ably  have  been  proper  if  the  word 
muster  in  Nueslein's  Case,  25  Mo.  'reasonable'  had  not  been  em- 
Ill,  and  in  every  other  case  since  ployed  before  the  w^ord  'probabil- 
where  it  has  been  copied.  No  other  ity.'  Does  the  use  of  this  word 
reason  suggests  itself,  except  that  render  it  objectionable?  We  think 
the  opinions  of  this  court  are  never  not.  'Pi-obability  is  defined  to  be 
read,  or,  if  read,  are  never  heeded,  the  state  of  being  probable.'  pain 
ty  the  trial  judges."  v.   State,   74  Ala.    39. 

13— Secor   v.    State,   118   Wis.   621,  "To  say  that  a  state  of  facts  have 

95  N.  W.  942  (947).  a  probable  existence  ex  vi  termini 

14 — Karr   v.    State,   106   Ala.  1,   17  implies    that    there    is    reason    for 

So.   328   (329),   homicide  case.  the  belief  that  they  exist.     If  there 

Liner  v.  State,  124  Ala.  1,  82  Am.  is   no  reason  for  such  belief,   there 


1734 


FORMS  OF  INSTRUCTIONS. 


[§2698. 


(e)  The  jury  are  instructed  that  if,  from  the  evidence,  there 
is  a  probability  of  the  innocence  of  defendants,  you  should  acquit 
them.i*^ 

§  2698.  Reasonable  Doubt — May  Arise  from  Evidence  of  Previous 
Good  Character.  The  court  charges  the  jury  that  good  character 
itself  may,  in  connection  Avith  all  the  evidence,  generate  a  reasonable 
doubt  and  entitle  the  defendant  to  an  acquittal,  even  though  without 
such  proof  of  good  character  you  would  convict.^'' 

§  2699.  Reasonable  Doubt — ^Independent  Circumstances  Identify- 
ing Defendant.  You  are  instructed  that,  when  independent  facts 
and  circumstances  are  relied  upon  to  identify  the  accused  as  the 
person  who  committed  the  crime  charged,  each  material,  independ- 
ent fact  or  circumstance  necessary  to  complete  such  chain  or  series 
of  independent  facts  tending  to  establish  his  guilt  should  be  estab- 
lished to  the  same  degree  of  certainty  as  to  the  main  fact  which 
these  independent  circumstances,  taken  together,  tend  to  establish. 
That  is  to  say,  each  essential,  independent  fact  in  the  chain  or 
series  of  facts  relied  upon  to  establish  the  main  fact  must  be  estab- 


is  probability  of  their  existence.  In 
order  to  find  that  there  is  a  prob- 
ability of  the  existence  of  a  fact,  a 
reason  for  believing  in  the  exist- 
ence of  such  fact  must  be  enter- 
tained. The  employment  of  the 
word  'reasonable'  does  not  and  can 
not  affect  the  correctness  of  the 
charge.  It  is  but  a  statement  of 
what  would  have  been  implied 
from  the  word  'probability'  had  it 
been  used  alone.  The  charge 
should  have  been  given." 

16— Bardin  v.  State,  143  Ala.  74, 
38  So.  833. 

Bones  v.  State,  117  Ala.  138,  23 
So.  138  (139),  holds  that  there  was 
error  in  refusing   the  following: 

If  there  is  a  probability  of  the 
defendant's  innocence  the  jury 
must   acquit. 

If  the  evidence  in  the  case  con- 
vinces the  jury  that  there  is  a 
probability  of  the  innocence  of  the 
defendant,  then  your  verdict  should 
he  "Not  guilty." 

The  court  said  that  they  "each 
assert  the  same  correct  principle, 
that  if  there  was  a  probability  of 
defendant's  innocence,  the  defend- 
ant should  be  found  not  guilty.  A 
probability  of  defendant's  inno- 
cence is  the  equivalent  of  a  rea- 
sonable doubt,  of  guilt,  which  re- 
quires his  acquittal.  Bain  v.  State, 
74  Ala.  38;  Croft  v.  State,  95  Ala. 
3.  10  So.  .517;  Whitaker  v.  State,  106 
Ala.   30,   17   So.   456." 

But    compare    Stewart    v.    State, 


133  Ala.  105,  31  So.  944  (945),  where 
the  court  said  that  the  following 
was  a  correct  statement  of  the  law 
and  should  have  been  given: 

The  court  charges  the  jury  that 
a  reasonable  doubt  of  defendant's 
guilt  is  not  the  same  as  a  probabil- 
ity of  his  innocence.  A  reasonable 
doubt  of  defendant's  guilt  may  ex- 
ist when  the  evidence  fails  to  con- 
vince the  jury  that  there  is  a  prob- 
ability  of  defendant's   innocence. 

The  court  cited  in  support  of  the 
instruction.  Croft  v.  State,  95  Ala. 
3,  10  So.  517. 

See  also  Davis  v.  State,  131  Ala. 
10,  31  So.  569  (571),  citing  Carroll  v. 
State,  130  Ala.  99,  30  So.  394,  where 
it  was  held  error  to  refuse  this 
charge: 

A  reasonable  doubt  may  exist, 
though  there  is  no  probability  of 
defendant's  innocence  '  from  the 
testimony,  and  if  the  jury  have  not 
abiding  conviction  to  a  inoral  cer- 
tainty of  his  guilt  then  they  should 
find  him  not  guilty. 

17— Bryant  v.  State,  116  Ala. 
445,  23  So.  40  (41),  approving  this, 
says  that  "it  is  a  copy  of  a  charge 
approved  in  Newson  v.  State,  107 
Ala.  133,  138,  18  So.  206.  See  also 
Goldsmith's  Case,  105  Ala.  9,  16 
So.  933. 

See  also  to  same  effect,  Watkins 
v.  State,  133  Ala.  88,  32  So.  627  (628); 
People  V.  Elliott,  163  N.  Y.  11,  5? 
N.  E.  103  (104). 


§  2700.]  CRIMINAL— PRESUMPTION.  1735 

lished  to  a  moral  certainty,  beyond  a  reasonable  doubt,  and  to  your 
entire  satisfaction,  or  you  must  acquit  the  defendant. ^^ 

§  2700.  Reasonable  Doubt — Where  Testimony  Is  Limited  by  Elec- 
tion. The  state  has  elected  to  ask  for  a  conviction  of  the  defendant 
on  the  testimony  of  certain  witnesses,  and  if  the  defendant  is  con- 
victed by  the  jury  it  must  be  upon  the  testimony  of  those  wit- 
nesses, and  on  the  particular  count  which  the  jury  believes,  beyond 
a  reasonable  -doubt,  that  the  evidence  of  such  witnesses  sustain.^^ 

§  2701.  Reasonable  Doubt,  to  Acquit,  Must  Relate  to  Precise 
Crime  Charged.  The  jury  are  further  instructed,  that  if  the  evi- 
dence leaves  a  reasonable  doult  in  the  mind  of  the  jury  whether 
the  defendant  is  guilty  of  the  precise  crime  with  which  he  is  charged 
in  the  indictment,  then  the  jury  should  find  the  defendant  not 
guilty;  although  the  evidence  may  show  conduct  of  no  less  turpitude 
than  the  crime  charged,  that  is  not  enough  to  authorize  a  conviction 
in  this  trial.-'* 

§  2702.  Reasonable  Doubt — Guilty  Only  as  to  Count  Proven. 
You  are  instructed  that  the  burden  rests  upon  the  state  to  prove 
every  material  allegation  in  each  count  in  the  information  beyond 
a  reasonable  doubt,  and,  unless  the  allegations  are  so  proven,  you 
cannot  find  the  defendant  guilty  upon  such  count  as  is  not  so 
proven;  but  if  you  should  find  that  it  was  not  so  proven  upon  the 
first  count,  but  was  so  proven  upon  the  second  count,  in  that  case 
your  verdict  would  be  ''Guilty  upon  the  second  count  of  the  in- 
formation."-^ 

§  2703.  Only  Allegations  of  Indictment  Need  Be  Proven  beyond 
Reasonable  Doubt.  It  is  not  neeessaiy  that  the  jury  should  believe 
that  every  material  fact  or  circumstance  in  evidence  before  them 
has  been  proved  beyond  a  reasonable  doubt,  but  that  it  is  sufficient 
for  the  jui-y  to  believe  from  the  evidence  in  the  case  that  every  ma- 
terial allegation  in  the  indictment  or  either  count  thereof  in  manner 
and  form  as  therein  stated  and  charged  has  been  proven  beyond  a 
reasonable  doubt.-- 

§  2704.  Reasonable  Doubt  as  to  Which  of  Several  Killed  De- 
ceased.    If  you  find  from  the  testimony,  beyond  a  reasonable  doubt, 

18— People  v.   Olsen,   1   Cal.   App.  terial     allegations     of    the     indict- 

17,  81  Pac.  676  (679),  homicide  case,  ment,    but    has    no    application    to 

19 — State  v.  Green,  69  Kan.  865,  77  these  mere  evidentiary  facts  which 

Pac.   95.  the     testimony     of     the     witnesses 

20 — Stuart  v.  People,  73  111.  20.  may  tend  to  establish.    In  all  cases 

2i_Dunn  v.  State,  58  Neb.  807,  79  where  the  evidence  is   circumstan- 

N.  W.  719  (720),  assault  with  intent  tial,    its    primary    tendency    is    to 

to  rape.  prove  certain  acts  which  are  mere- 

22 — J.imison  v.  People,  145  111.  357  ly   evidentiary    in    their   character, 

(380),  34  N.  E.  486.  and  from  which  the  ultimate  facts 

"We  are  able  to  perceive  no  sub-  to    be    proved    fall    as    conclusion 

stantial    objection    to   this   instruc-  either  in  fact  or  at  law.    It  is  only 

tion.     It  merely  holds  that  the  rule  the    latter   which    must   be    proved 

requiring    proof   beyond    a   reason-  beyond  a  reasonable  doubt." 
able  doubt  applies  only  to  the  ma- 


1736  FORMS  OF  INSTRUCTIONS.  [§  2705. 

that  W.  has  been  killed,  and  also  find  that  he  was  killed  by  some 
one  or  more  of  several  persons,  but  there  is  a  reasonable  doubt  as 
to  which  person  committed  the  offense,  that  reasonable  doubt  must 
prevail  and  result  in  the  acquittal  of  the  defendant,  unless  you  find 
that  the  defendant  was  present  aiding,  abetting  or  assisting  in  the 
commission  of  the  offense.^^ 

§  2705.  Doubting  as  a  Juror  What  One  Believes  as  a  Man.  (a) 
A  doubt,  to  justify  an  acquittal,  must  be  reasonable,  and  it  must 
arise  from  a  candid  and  impartial  investigation  of  all  of  the  evi- 
dence in  the  case.  A  doubt  produced  by  an  undue  sensibility  in  the 
mind  of  any  juror,  in  view  of  the  consequences  of  his  verdict,  is  not 
a  reasonable  doubt.  And  the  juror  is  not  allowed  to  create  sources 
or  materials  of  doubt  by  resorting  to  trivial  or  fanciful  suppositions 
and  remote  conjectures  as  to  possible  states  of  facts  differing  from 
those  established  by  the  evidence.  Your  oath  imposes  upon  you  no 
obligation  to  doubt  where  no  doubt  would  exist  if  no  oath  had  been 
administered.  If,  after  a  careful  and  impartial  examination  and 
consideration  of  all  of  the  evidence  in  the  case,  you  can  say  that 
you  feel  an  abiding  conviction  of  the  guilt  of  the  defendant,  and 
:  are  fully  satisfied  to  a  moral  certainty  of  the  truth  of  the  charges 
made  against  him,  then  the  jury  are  satisfied  beyond  a  reasonable 
doubt.2* 

(b)  You  are  not  at  liberty  to  disbelieve  as  jurors,  if  from  all 
the  evidence  you  believe  as  men.  Your  oath  imposes  on  you  no  ob- 
ligation to  doubt,  where  no  doubt  would  exist  if  no  oath  had  been 
administered.^^ 

23— Benton  v.   State,  78  Ark.   284,  of    not    guilty,    say   that    they    be- 

94  S.   W.   693.  lieved    the    man    w^as    guilty,    but 

24 — In    Barney   v.    State,   49   Neb.  that    the    commonwealth    had    not 

515,    68   N.    W.    636   (639),    the   above  proved    it.      This   is    a   great   error, 

was   approved:  for    if    you    believe    a    man    guilty, 

The  court  said:  "The  instruc-  solely  from  the  evidence,  the  com- 
tion  complained  of  was,  in  sub-  monwealth  has  proved  it.'  This  is 
stance,  that  given  in  the  so-called  as  good  law  as  it  is  good  sense, 
'Anarchist  Cases'  (Spies  v.  People,  and  there  was  no  error  in  direct- 
122  111.  1,  12  N.  E.  865,  and  17  N.  E.  ing  the  jury  that  in  w^eighing  the 
898,  3  Am.  St.  320,  5  Am.  Cr.  Rep.  evidence  they  should  not  under- 
637,  6  Am.  Cr.  Rep.  570,  and  ap-  take,  by  virtue  of  their  oaths,  to 
proved  by  the  supreme  court  of  pursue  a  course  of  reasoning  dif- 
Illinois.  The  portion  complained  fering  from  that  which  their  expe- 
of  was  merely  a  paraphrase  of  the  rience  as  men  had  taught  them,  to 
common  expression  that  a  jury  be  safe  and  trustworthy." 
cannot  doubt  as  jurymen  while  they  25 — Bartley  v.  State,  53  Neb.  30, 
believe  as  men.  With  regard  to  73  N.  W.  744  (759),  the  supreme 
this  expression,  the  supreme  court  court  said:  "An  expression  almost 
of  Pennsylvania  has  said  that  'it  in  the  foregoing  language  was  ap- 
is the  familiar  language  found  in  proved  in  the  celebrated  case  of 
the  text-books  and  decisions  which  Spies  v.  People,  122  III.  1,  12  N.  E. 
treat  of  the  subject.'  Nevling  v.  865,  and  17  N.  E.  898,  3  Am.  St.  320. 
Com.,  98  Pa.  St.  332.  As  said  by  5  Am.  Cr.  Rep.  637,  6  Am.  Cr.  Rep. 
the  trial  judge  in  the  case  last  570,  and  Nevling  v.  Com.  98  Pa.  St. 
cited:  'I  have  heard  men  who  have  322,  and  by  this  court  in  at  least 
.sat  on  juries  in  criminal  cases,  two  cases,  Willis  v.  State.  43  Neb. 
after  they   had    rriirlorcd   a   verdict  102,    61    N.    W.    254;    and    Davis    v. 


§  2706.]  CRIMINAI^PRESUMPTION.  1737 

§2706.  If  Reasonable  Doubt  of  Degree  of  Offense,  Verdict 
Should  Be  Guilty  of  the  Less  Offense,  (a)  If  the  jury  believe  from 
the  evidence  beyond  a  reasonable  doubt  that  the  defendant  is  guilty, 
but  have  a  reasonable  doubt  as  to  the  degree  of  his  offense,  then 
they  should  find  him  guilty  of  that  offense  highest  in  degree  of 
which  they  may  have  no  reasonable  doubt.^® 

(b)  The  court  further  instructs  the  juiy  that  if  they  believe 
from  the  evidence,  to  the  exclusion  of  a  reasonable  doubt,  that  the 
defendant  is  proven  guilty,  but  entertain  a  reasonable  doubt  as  to 
whether  he  is  proven  guilty  as  to  the  offense  defined  in  the  first 
instruction,  or  the  one  in  the  second  instruction,  they  should  find 
him  guilty  of  the  less  offense,  and  should  fix  his  punishment  for 
the  less  offense.-^ 

§  2707.  If  Reasonable  Doubt  Whether  Murder  or  Manslaughter, 
Verdict  Should  Be  Manslaughter — First  or  Second  Degree,  (a) 
The  court  instructs  the  jury  that,  if  they  have  a  reasonable  doubt 
as  to  whether  the  defendant  has  been  proven  guilty  of  manslaughter 
or  murder,  they  shall  give  him  the  benefit  of  that  doubt,  and  find 
him  guilty  of  manslaughter.-^ 

(b)  Even  if  you  should  find  the  malicious  purpose,  and  absence 
of  excuse,  cause  or  provocation  necessary  to  constitute  murder  in 
the  first  degree,  but  should  entertain  a  reasonable  doubt  as  to 
whether  there  was  any  premeditated  design  to  kill,  then  you  should 
find  the  defendant  guilty  of  murder  in  the  second  degree.-^ 

(c)  If  the  juiy  have  a  reasonable  doubt  as  to  whether  the  kill- 
ing was  done  deliberately,  or  as  to  whether  it  was  done  premedi- 
tatedly,  then  you  cannot  find  the  defendant  guilty  of  muixler  in  the 
first  degree;  and,  if  they  have  a  reasonable  doubt  as  to  whether  the 
killing  was  done  in  malice,  then  you  cannot  find  the  defendant 
guilty  of  murder  in  either  degree,  but  only  of  manslaughter  at  the 
most;  and  if,  after  considering  all  the  evidence,  the  jury  have  a 
reasonable  doubt  as  to  the  defendant's  guilt  of  manslaughter,  aris- 
ing out  of  any  part  of  the  evidence,  then  you  should  find  the  de- 
fendant not  guilty  of  any  offense.^" 

(d)  If  the  jury  have  a  reasonable  doubt,  as  to  whether  the 
killing  was  done  deliberately,  or  as  to  whether  it  was  done  premed- 
itatedly,   then   jou  cannot   find   the   defendant   guilty   of   murder  in 

State,    51    Neb.    301,    70   N.    W.    984.  Rj^an  v.    State,  115  Wis.   4S8,  92  N. 

With    those   decisions   we    are   con-  W.   271   (274). 

tent.     A    discussion    of   the    subject  27 — Connor      v.       Commonwealth, 

anew  would  be  profitless."  supra. 

Compare     Siberrv     v.     State,     133  28 — Hibler    v.    Commonwealth,    25 

Ind.   677,  33  N.   E.  681  (683),  holding  Ky.  Law  277,  74  S.  W.  1079,  13  Am. 

that    such   an    instruction   in   effect  Cr.  Rep.  416. 

relieves   the  jury  from   the  oblig-a-  29— State  v.  Vance,  29  Wash.  435, 

tion  of  their  oaths.  70   Pac.   34   (45). 

26— Conner  v.    Commonwealth,   26  30— Stonekine:    v.    State,    118    Ala. 

Ky.  398.  81  S.  W.  259  (260).     For  an  68,  24  So.  47  (48). 
Instruction   to  the   same  effect   see 


1738  FORMS  OF  INSTRUCTIONS.  [§  2708. 

either  degree,  but  only  of  manslaughter  at  most;  and  if,  after  con- 
sidering all  the  evidence,  the  jury  have  a  reasonable  doubt  as  to 
defendant's  guilt  of  manslaughter,  arising  out  of  all  the  evidence, 
then  you  should  find  the  defendant  not  guilty  of  any  offense.^^i 

(e)  If  the  jury  have  a  reasonable  doubt  of  defendant  being 
guilty  of  murder  in  the  first  degree,  you  should  acquit  him  of  that 
oifense,  and  next  proceed  to  inquire  whether  he  is  guilty  of  murder 
in  the  second  degree.^^ 

(f)  If  you  have  a  reasonable  doubt  of  the  defendant  having 
been  proven  guilty,  you  will  find  him  not  guilty.  Or  if  you  shall 
believe  from  the  evidence,  beyond  a  reasonable  doubt,  that  the  de- 
fendant has  been  proven  guilty,  but  have  a  reasonable  doubt  whether 
his  crime  be  willful  murder  or  voluntary  manslaughter,  you  should 
find  him  guilty  of  voluntaiy  manslaughter.^^ 

§  2708.  Reasonable  Doubt — Every  Reasonable  Hypothesis  of  In- 
nocence Excluded,  (a)  The  court  charges  the  jury,  if  the  jury  are 
not  satisfied  beyond  all  reasonable  doubt,  to  a  moral  certainty,  and 
to  the  exclusion  of  every  other  reasonable  hypothesis  but  that  of 
defendant's  guilt,  you  should  find  him  not  guilty,  and  it  is  not 
necessaiy  to  raise  a  reasonable  doubt,  that  the  jury  should  find 
from  all  the  evidence  a  probability  of  defendant's  innocence  in  the 
testimony,  but  such  a  doubt  may  arise  even  when  there  is  no  prob- 
ability of  his  innocence  in  the  testimony;  and  if  the  jury  have  not 
an  abiding  conviction  to  a  moral  certainty  of  his  guilt,  it  is  the 
duty  of  the  jury  to  find  the  defendant  not  guilty.^* 

(b)  The  court  charged  the  jury  that  before  the  jury  can  convict 
the  defendant  they  must  be  satisfied  to  a  moral  certainty  not  only 
that  the  proof  is  consistent  with  the  defendant's  guilt,  but  that  it 

31— Adams  v.   State,  133  Ala.  166,  33— Wilson  v.    Commonwealth,   24 

31  So.  851   (854).  Ky.  185,  68  S.  W.  121  (122). 

"This    charge    was   held    g-ood   in  34— Rogers  v.   State,  117  Ala.  192, 

Compton    v.    State,    110    Ala.    34,    20  23   So.  82;  Fuller  v.   State,  117   Ala. 

So.  119,  and  in  Stoneking  v.   State,  200,  23   So.   73  (74),   where  this  was 

118  Ala.  70,  24  So.  47;  the  only  dif-  approved: 

ference  between  the  charge  here  Before  the  jury  can  convict  the 
and  the  charge  in  those  cases  being  defendant,  they  must  be  satisfied 
that  in  the  latter  the  language  used  to  a  moral  certainty,  not  only  that 
is:  'If  the  jury  has  a  reasonable  the  proof  is  consistent  with  the  de- 
doubt  of  defendant's  guilt  of  man-  fendant's  guilt,  but  that  it  is 
slaughter  arising  out  of  any  part  wholly  inconsistent  with  every 
of  the  evidence,'  while  the  Ian-  other  rational  conclusion;  and,  un- 
guage  used  in  the  present  charge  less  the  jury  are  so  convinced  by 
is  'arising  out  of  all  the  evidence.'  the  evidence  of  defendant's  guilt 
The  change,  instead  of  detracting  that  the  jury  would  each  venture 
from  the  charge  tended  to  make  it  to  act  upon  that  decision  in  mat- 
a  more  perfect  one  and  the  court  ters  of  the  highest  concern  and 
erred   in  its  refusal."  importance    to     his     own    interest, 

For   an    instruction   to   the    same  then  they  must  find   the  defendant 

effect    see    Commonwealth    v.    Mc-  not  guilty. 

Gowan,  189  Pa.   St.  641,  42  Atl,  365,  Compare  Collins  v.  State,  138  Ala. 

69  Am.   St.   836.  57,  34  So.  993  (994);  Thayer  v.  State, 

32— Smith    v.    State,    —    Tex.    Or.  138   Ala.    39,   35    So.   406   (408);    Bohl- 

App.  — ,  78  S.  W.  694  (695).  man  v.  State,  135  Ala.  45,  33  So.  44. 


2709.]  CRIMINAL— PRESUMPTION.  1739 


is  wholly  inconsistent  with  every  other  rational  conclusion  and  unless 
the  jury  are  so  convinced  by  the  evidence  of  defendant's  guilt  that 
they  would  venture  fo  act  upon  that  decision  in  matters  of  the 
highest  concern  and  importance  to  his  own  interest,  then  they  must 
find  the  defendant  not  guilty.^^ 

(c)  The  court  instructs  the  jury  that  circumstantial  evidence 
to  wai-rant  a  conviction  must  exclude  eveiy  reasonable  hypothesis 
except  the  imjilying  defendant's  guilt,  and  that  incriminating  cir- 
cumstances not  proven  beyond  a  reasonable  doubt  were  not  entitled 
to  any  weight  or  influence. ^"^ 

(d)  The  law  presumes  the  accused  to  be  innocent  until  he  is 
proved  guilty  beyond  a  reasonable  doubt,  and  if  there  is  upon  the 
minds  of  the  juiy  any  reasonable  doubt  of  the  guilt  of  the  accused, 
the  law  makes  it  their  duty  to  acquit  him.  Mere  suspicion  or  prob- 
ability of  his  guilt  however  strong,  is  not  sufficient  to  convict,  nor 
is  it  sufficient  if  the  greater  weight  or  preponderance  of  evidence 
supports  the  charge  in  the  indictment.  But  to  warrant  his  convic- 
tion his  guilt  must  be  proved  so  clearly,  and  the  evidence  thereof 
must  be  so  strong,  as  to  exclude  every  reasonable  hypothesis  of  his 
innocence.^'^ 

§  2709.  Duty  of  Jury  to  Adopt  Hypothesis  of  Defendant's  Inno- 
cence. In  considering  the  evidence  if  you  can  reasonably  account 
for  any  fact  in  this  ease  upon  a  theory  or  hypothesis  which  will 
admit  of  the  defendant's  innocence,  it  is  your  duty  under  the  law 
to  do  so  and  if  j'ou  have  a  reasonable  doubt  of  his  guilt  you  should 
acquit  him.^® 

35— Brown    v.    State,    108    Ala.    18,  Sherrill    v.    State,    138    Ala.    3,    35 

18   So.   811   (813).  So.   129   (130),    approves   the   follow- 

"This     instruction     requested    by  lug: 

the   defendant  was  extracted   liter-  Gentlemen  of  the  jury,  you  should 

ally  from  an  instruction  which  was  acquit    the     defendant     unless,    the 

declared  at  the  last  term  to  assert  evidence  excludes  every  reasonable 

a  correct  legal  proposition.    Burton  supposition  but  that  of  his  guilt. 

v.    State,    107    Ala.    108,    18    So.    284.  The  court  said:  "This  has  hereto- 

When     analyzed     and     Interpreted,  fore    been    approved    as    a    correct 

the  instruction  means  no  more  than  instruction  which  should  be  given, 

that  the  guilt  of  the  accused  must  Bones  v.   State,  117  Ala.  138,   23  So. 

be    fully    proved, — as    it    is    usually  138.     In  Baldwin  v.    State,  111  Ala. 

expressed,  proved  beyond  a  reason-  15,  20  So.  528,  and  in  Horn  v.  State, 

able    doubt,— and    that    this    degree  102    Ala.    145,    15    So.    278,    charges 

of   proof  is   not   reached   unless  all  otherwise   similar  w-ere  condemned 

reasonable      supposition      of     inno-  solely    on    the   ground    that    in    the 

cence    is    excluded.      When,    in    its  charges,   the  word   'reasonable'   be- 

present   form,   the   instruction   may  fore    the    word     'supposition'     was 

be  given,  the  court,  ex  mere  motu,  omitted.      Yarbrough    v.    State,    103 

if  apprehensive  that  it  may  unduly  Ala.  45,  56,  16  So.  758,  761." 

influence   the  jury,   or  that  it  may  Bones    v.    State,    117    Ala.    138,    23 

mislead  them,   has   the  power,   and  So.  138  (139),   holds  it  was  error  to 

it   may  become  a  duty,   to  explain  refuse  the  following: 

its    true   interpretation    and    mean-  I  charge  you  to  acquit  unless  the 

ing.     McKleroy  v.  State,  77  Ala.  95."  evidence     excludes     every     reason- 

36— O'Brien  v.    State,  69  Neb.  691,  able    supposition    but    that    of    de- 

96  N.  W.  649  (651).  fendant's   guilt. 

37— Lronglev  v.  Commonwealth,  99  38— People  v.   Clark,   145   Cal.   727, 

Va.  807,  37  S.  E.  339  (340).  79  Pac.  434. 


1740  FORMS  OF  INSTRUCTIONS.  [§  2710. 

§  2710.  Proof  Must  Be  Inconsistent  with  Any  Reasonable  Hy- 
pothesis of  Defendant's  Innocence,  (a)  To  warrant  a  conviction, 
the  state  is  required  to  prove  beyond  a  reasonable  doubt  that  the 

defendant  feloniously  killed  his  wife,  ,  at  the  time  and  place, 

and  in  the  manner  and  form  as  alleged  in  the  indictment.    It  is  not 

sufficient  if  the  state  had  enveloped  the  death  of  in  mystery 

that  is  incapable  of  exj^lanation  without  inferring  the  defendant's 
guilt.  To  convict,  the  state  is  required  to  exi:)lain  all  mystery,  suf- 
ficiently to  remove  all  reasonable  doubt,  and  establish  facts  that 
are  susceptible  of  explanation  upon  no  reasonable  hypothesis  con- 
sistent with  the  defendant's  innocence,  and  that  point  to  his  guilt 
beyond  any  other  reasonable  solution  and  beyond  all  reasonable 
doubt.^^ 

(b)  The  court  instructs  the  jury  that  the  guilt  of  the  accused 
is  not  to  be  inferred  because  the  facts  proven  are  consistent  with 
his  guilt,  but  they  must  be  inconsistent  with  his  innocence.*'' 

(c)  The  court  instructs  the  jury  that,  to  justify  a  conviction,  no 
mere  weight  of  evidence  is  sufficient,  unless  it  excludes  all  reason- 
able doubt  (not  unreasonable)  as  to  the  guilt  of  any  of  the  defend- 
ants. The  proof  of  guilt  must  be  inconsistent  with  any  other  ra- 
tional supposition. *i 

§  2711.  Jury  Must  Acquit  if  Evidence  Consistent  with  Defend- 
ant's Innocence,  (a)  The  jury  must  find  the  defendant  not  guilty, 
if  the  evidence,  upon  a  reasonable  hypothesis,  is  consistent  with  his 
innocence. 

(b)  Before  the  jury  can  convict  the  defendant,  every  member  of 
the  jury  must  be  satisfied  beyond  a  reasonable  doubt  of  the  guilt 
of  the  defendant. 

(c)  The  burden  is  upon  the  state,  and  it  is  the  duty  of  the  state, 
to  show,  beyond  all  reasonable  doubt,  and  to  the  exclusion  of  every 
other  hypothesis,  every  circumstance  necessary  to  show  that  the 
defendant  is  guilty;  and  unless  the  state  has  done  that  in  this 
ease,  it  is  your  duty,  gentlemen  of  the  jury,  to  render  a  verdict 
of  not  guilty. 

(d)  The  only  foundation  of  guilty  in  this  case  is  that  the  entire 
jury  shall  believe  from  the  evidence,  beyond  a  reasonable  doubt, 
and  to  a  moral  certainty,  that  the  defendant  is  guilty  as  charged 
in  the  indictment,  to  the  exclusion  of  every  probability  of  his  inno- 
cence, and  every  reasonable  doubt  of  his  guilt;  and  if  the  prosecution 
has  failed  to  furnish  such  measure  of  proof,  and  to  so  impress  the 
minds  of  the  jury  of  his  guilt,  they  should  find  him  not  guilty. 

(e)  Before   the  jury   can   convict    the   defendant,   they   must   be 

39— Hinshaw    v.     State,    147    Ind.  Va.  807,  37  S.  E.  339  (341),  homicide 

334,  47  N.   E.  157  (173),  citing  Tro.s?-  case. 

don  V.   State,   133   Ind.  1,   32  N.   E.  41— Mnrrhv  v.   State,  86  Wis.  626, 

725.  57  N.  W.  361  (363). 

40 — Long-ley  v.  Commonwealth,  99 


§  2712.]  CRIMINAL— PRESUMPTION.  1741 

satisfied,  to  a  moral  certainty,  not  only  that  the  proof  is  consistent 
with  the  guilt  of  the  defendant,  but  that  it  is  wholly  inconsistent 
with  every  other  rational  conclusion;  and,  unless  the  jury  are  so 
convinced  by  the  evidence  of  the  defendant's  guilt  that  they  would 
each  venture  to  act  upon  that  decision  in  matters  of  highest  con- 
cern and  importance  to  his  own  interest,  they  must  find  the  defend- 
ant not  guilty.-*^ 

§  2712.  Proof  of  Every  Fact  Necessary  to  Establish  Guilt  Beyond 
Reasonable  Doubt,  and  Inconsistent  with  Every  Other  Reasonable 
Hypothesis,  The  court  further  instructs  the  jury  that  to  wairant 
the  conviction  of  the  defendant,  each  fact  necessary  to  establish  his 
guilt,  must  be  proven  by  competent  evidence,  beyond  a  reasonable 
doubt,  and  all  the  facts  and  circumstances  proven  should  not  only 
be  consistent  with  the  guilt  of  the  defendant,  but  inconsistent  with 
every  other  reasonable  hypothesis  or  conclusion  than  that  of  guilt, 
to  produce  in  your  minds  a  reasonable  and  moral  certainty  that  the 
defendant   committed   the   offense   as  charged  in   the   indictment.*-^ 

§2713.  Reasonable  Doubt — Defense  of  Alibi  Established  By.  (a) 
One  defense  in  this  case  is  what  is  known  in  law  as  an  ''alibi"; 
that  is,  that  the  defendants  were  not  present  at  the  time  and  place 
of  the  commission  of  the  offense  charged  in  the  indictment,  if  any 
such  offense  has  been  committed,  but  that  they  were  at  that  time 
at  another  and  different  place.  As  to  this  defense,  you  are  instructed 
that  it  is  not  necessaiy  for  defendants  to  prove  an  alibi  to  your 
satisfaction,  beyond  a  reasonable  doubt,  nor  by  a  preponderance  of 
the  testimony,  but  if,  after  a  fair  and  full  consideration  of  all  the 
facts  and  circumstances  in  evidence,  you  entertain  a  reasonable 
doubt  as  to  whether  or  not  the  defendants  were  present  at  the  time 
and  place  of  the  commission  of  the  offense  charged  in  the  indict- 
ment, if  such  offense  has  been  committed  by  any  one,  it  will  be  your 
duty  to  give  the  defendants  the  benefit  of  such  doubt  and  acquit 
them.** 

(b)  The  jury  are  instructed  that  if  you  should  entertain  a  rea- 
sonable doubt  of  the  defendant's  guilt,  he  should  be  acquitted,  al- 
though the  jury  may  not  be  able  to  find  that  the  alibi  is  fully 
proven.*^ 

§  2714.  Reasonable  Doubt  as  to  Sanity  Acquits,  (a)  Was  the 
defendant  H,  at  the  time  he  committed  the  homicide  charged  labor- 
ing under  an  insane  delusion  produced  by  an  impaired  brain,  and  did 
it  go  to  the  extent  for  the  time  being  of  controlling  his  will  power, 

42— "Abstractly     considered,     the  43— Parsons  v.  People,  218  Til.  386 

above  charges  were  sound  exposi-  (396,  397,  398),  75  N.  E.  993. 

tion  of  law.     Thev  were  .applicable  44— State  v.   Hale  et  al.,  156  Mo. 

to    the    case    as    prescribed    by    the  102,  56  S.  W.  881   (882). 

evidence.     They   should   have   been  45— Territory  v.  Garcia,  12  N.  M. 

given."     Brown   v.    State,    118   Ala.  87,  75  Pac.   34   (35). 
Ill,  23  So.  81   (82). 


1742  FORMS  OF  INSTRUCTIONS.  [§  2715. 

reflection,  reason  and  judgment,  and  was  the  homicide  committed 
by  I'eason  of  such  insane  delusion  ?  If  the  proof  has  shown  beyond 
a  reasonable  doubt  that  such  was  not  the  case,  you  will  convict  the 
defendant,  but  if  there  is  a  reasonable  doubt  as  to  such  mental  con- 
dition, you  will  resolve  such  doubt  in  favor  of  the  defendant  and 
acquit  him. 

(b)  Did  H.  commit  the  homicide  not  laboring  under  an  insane 
delusion,  but  believing  that  by  teachings  of  the  Bible  he  had  right 
to  kill  the  party  he  did  kill  because  he  thought  she  was  a  witch, 
and  at  the  time  of  such  killing  he  performed  the  same  solely  upon 
such  belief,  and  was  not  laboring  under  an  insane  delusion?  If 
you  believe  this  state  of  case  existed,  and  so  believe  it  beyond  a 
reasonable  doubt,  you  will  find  the  defendant  guilty  as  charged  in 
this  indictment,  but  if  you  have  a  reasonable  doubt  in  regard  there- 
to, you  will  acquit  the  defendant.*^ 

(c)  The  jury  are  instructed  that  to  warrant  a  conviction  in  this 
case,  it  is  incumbent  upon  the  people  to  establish  by  evidence  to 
the  satisfaction  of  the  jury,  beyond  a  reasonable  doubt,  the  exist- 
ence of  every  element  necessaiy  to  constitute  the  crime  charged ; 
and  if,  after  a  careful  and  impartial  examination  of  the  evidence 
in  the  case  bearing  upon  the  question  of  sanity  or  insanity,  the  jury 
entertain  any  reasonable  doubt  of  the  guilt  of  the  defendant  at  the 
time  of  the  alleged  offense,  they  should  give  the  defendant  the  bene- 
fit of  that  doubt  and  acquit  him.*'' 

§  2715,  Reasonable  Doubt  that  Charge  Was  Caused  "by  Hallu- 
cinations. The  court  instructs  the  jury  that  if  the  evidence  in  this 
ease  raises  a  reasonable  doubt  in  their  minds  that  the  charge  made 
by  Miss  J.  was  superinduced  by  chloroform  and  ether  taken  by  her, 
or  by  hysteria  and  nervousness,  or  by  all  or  lany  of  these,  then  the 
jury  should  acquit  the   defendant.*^ 

§  2716.  Reasonable  Doubt  as  to  Malice.  The  court  charges  the 
jury   that   if   from    all    the    evidence   you   have    a   reasonable    doubt 

46— Hotema  v.  U.  S.,  186  U.  S.  413  ticular  fact  in  the  case.'     See  also 

(419),  22  S.  Ct.  895.  Crews    v.    People,    120    111.    317,    11 

47— Horiiish  v.   People,   142   111.  620  N.  E.   404;   Leigh  v.   People,   113   111. 

(924),  32  N.  E.  677.  372,    and    Davis    v.    People,    114    111. 

The    court    said:      "This    is    quite  86,  29  N.   E.   192." 

in     harmony     with     the    rule    laid  48 — State  v.  Perry,  41  W.  Va.  641, 

down  in   repeated  decisions  of  this  24  S.  E.  634  (637).     The  charge  was 

court.     Thus  in  Mullins  v.   People,  rape. 

110   111.    42,    where    a    defendant    on  "This  is,   in  effect,   equivalent  to 

trial     for     robbery     attempted     to  saying:    'If   the   jury   believe    from 

prove  an  alibi,  we  said:     'Nor  is  it  the    evidence   that   it   was   possible 

proper   for   the   court   to   designate  that  the  charge   made   by   Miss   J. 

any  particular  branch  of  the  case,  against    the    prisoner    was    caused 

and  tell   the  jury  that  unless  it  is  by     hallucination     resulting     from 

proved  beyond  a  reasonable  doubt,  the   use    of   chloroform    and    ether, 

they  should  acquit.    The  reasonable  and   such    possibility   raised   in    the 

doubt  the  jury  is  permitted  to  en-  minds   of  the  jury   only   a   reason- 

tertain  must  be  as  to  the  whole  of  able   doubt   as   to   the  guilt  of  the 

the  evidence,  and  not  as  to  a  par-  prisoner,  they  should  acquit  him.'  " 


§2717.] 


CRIMINAL— PRESUMPTION. 


1743 


as  to  whether  or  not  defendant  fired  the  fatal  shot  of  malice  or 
only  in  the  heat  of  passion,  suddenly  aroused,  under  sufficient 
provocation,  then  the  jury  cannot  convict  the  defendant  of  murder 
in  the  second  degree.'*^ 

§  2717.  Reasonaljle  Doubt — Self -Defense — Instruction  May  As- 
sume Admitted  Facts,  (a)  You  are  instructed  that,  if  you  are  not 
satisfied  bj'  the  evidence  beyond  a  reasonable  doubt  that  the  de- 
fendant was  not  acting  in  self-defense  when  he  killed  P.,  you  should 
acquit  him.^° 

(b)  Of  course,  if  what  he  (the  defendant)  did  there,  was  justi- 
fiable, by  way  of  self-defense,  under  the  rule  of  law  as  I  have 
given  it  to  you,  then  your  verdict  should  be  a  verdict  of  not  guilty; 
and  if  you  have  a  reasonable  doubt  upon  that  subject,  you  should 
give  it  to  the  defendant — and  that  applies  not  only  to  that  partic- 
ular feature  of  the  case,  but  to  every  other  feature  of  the  case, 
as  well  as  to  the  question  of  the  degree  of  crime,  if  one  has  been 
committed. ^^ 

(c)  The  jury  are  instructed,  that  if  you  believe,  from  the  evi- 
dence in  the  case,  that  there  is  a  reasonable  doubt  as  to  whether 
the  prisoner,  at  the  time  of  the  shooting,  was  under  reasonable  ap- 
I^rehension  that  the  prosecuting  witness  intended  to  inflict  upon  him 
great  bodily  harm,  and  that  he  fired  the  shot  in  self-defense,  then 
the  jury  must  acquit.^- 


49— Naugher  v.  State,  116  Ala. 
463,  23  So.   26  (27). 

50— State  v.  Mitchell,  130  la.  697, 
107   N.   W.   804   (806). 

"The  criticism  is  that  the  court 
assumed  it  to  be  an  established 
fact  that  the  defendant  killed  P. 
It  was  an  established  fact,  estab- 
lished by  the  defendant's  own 
word,  and  hence  it  was  not  error 
so  to  treat  it.  State  v.  Bone,  114 
Iowa  537,  87  N.  W.  507,  55  L.  R.  A. 
378. 

51— People  V.  Bog^iano,  179  N.  Y. 
267,  72  N.  E.  102,  homicide  case. 

52— Lawlor  v.  People,  74  111.  230. 

In  Carleton  v.  State,  43  Neb.  373, 
61  N.  W.  699  (710),  the  following  in- 
struction on  self-defense,  omitting 
to  state  that  the  state  must  prove 
the  case  beyond  a  reasonable 
doubt,  was  held  cured  by  the  fre- 
quent reference  to  it  in  other  in- 
structions: 

The  jury  are  instructed  that  the 
law  of  self-defense  does  not  imply 
the  right  of  attack,  nor  will  it  per- 
mit of  acts  done  in  retaliation  or 
for  revenge.  Therefore,  if  the  jury 
believe,  from  the  evidence,  that 
the  defendant  sought,  brought  on 
or   voluntarily   entered   into   a   dif- 


ficulty with  the  deceased,  A.  B., 
for  the  purpose  of  wreaking  ven- 
geance upon  him,  or  to  accomplish 
some  unlawful  purpose,  or  if  the 
jury  shall  find  and  believe  from 
the  evidence  that  he  killed  the  de- 
ceased at  a  time  when  he  had,  be- 
cause of  the  acts  of  the  deceased, 
no  reasonable  apprehension  of  im- 
mediate and  impending  injury  to 
himself,  and  did  so  to  accomplish 
some  unlawful  purpose,  or  did  it 
from  a  spirit  of  retaliation  and  re- 
venge, for  the  purpose  of  punish- 
ing the  deceased  for  past-threat- 
ened injuries  done  to  him,  the  de- 
fendant, then  the  defendant  cannot 
avail  himself  of  the  law  of  self- 
defense.  Before  a  person  can 
justify  taking  the  life  of  a  human 
being  on  the  ground  of  self-de- 
fense, he  must,  when  attacked,  em- 
ploy all  reasonable  means  within 
his  power,  consistent  with  his  own 
safety,  to  avoid  the  danger,  and 
avert  the  necessity  for  the  kill- 
ing. 

The  supreme  court  said: 

"In  this  case  the  jury  was  over 
and  over  again  impressed  with  the 
necessity  of  being  satisfied  beyond 
a  reasonable  doubt  of  the  defend- 


1744  FORMS  OF  INSTRUCTIONS.  [§  2718. 

§  2718.  Self-Defense — Defendant  Need  Only  Create  Reasonable 
Doubt,  (a)  If,  therefore,  you  believe  from  the  evidence  that  the 
said  T.  intentionally  shot  and  killed  the  said  B.,  but  further  believe 
that  at  the  time  of  so  doing  the  deceased  was  in  the  act  of  making 
or  about  to  make  an  attack  upon  him,  which  from  the  manner  and 
character  of  it,  together  with  the  weapon  used  or  attempted  to  be 
used,  if  any,  caused  the  defendant  to  have  a  reasonable  expectation 
or  fear  of  death  or  serious  bodily  injury  at  the  hands  of  deceased, 
and  acting  under  such  reasonable  expectation  or  fear  of  death  or 
serious  bodily  injury  he  intentionally  shot  and  killed  the  said  B., 
then  you  will  acquit  him,  or,  if  there  is  in  your  minds  a  reasonable 
doubt  thereof,  you  will  acquit  him,   and  so  say  by  your  verdict.'^^ 

(b)  When  the  taking  of  life  is  sought  to  be  justified  on  the  ground 
of  self-defense,  it  is  not  incumbent  uj^on  the  accused  to  satisfy  the 
jury  that  the  killing  was  justifiable,  but,  if  the  evidence  on  that 
question  is  sufficient  to  raise  a  reasonable  doubt  in  the  minds  of 
the  jury  as  to  whether  the  defendant  was  justifiable,  then  the  de- 
fendant is  entitled  to  an  acquittal.^* 

(c)  If  you,  or  either  of  you,  have  a  reasonable  doubt  as  to 
whether  the  defendant  acted  in  self-defense  when  he  fired  the  shots, 
he  should  not  be  convicted. ^^ 

§  2719,  Reasonable  Doubt — Conspiracy.  You  are  instructed  that 
if  the  evidence  in  this  case  does  not  satisfy  your  minds  beyond  all 
reasonable  doubt  that  the  defendant,  M.,  was  a  party  to  a  con- 
spiracy to  murder  the  deceased,  R.,  your  verdict  must  be  that  the 
defendant  is  not  guilty.  And  you  are  further  instructed  that  if 
the  defendant  was  merely  present  to  witness  the  murder,  if  any,  or 
to  witness  a  beating  or  a  fight,  and  did  nothing  to  aid  and  abet  the 
person  or  persons  committing  the  act,  then  your  verdict  must  be 
that  the  defendant  is  not  guilty.  But  it  is  exclusively  for  the  jury 
to  determine  whether  the  defendant  was  present,  and,  if  so,  for  what 
purpose,  if  any,  and  to  what  extent,  if  any,  he  was  connected  with 

ant's    guilt,    and    in    at    least    five  trict   v.   Foster,   31   Neb.   501,   48  N. 

places   they   were   expressly   or   by  W.   267.     But   these  were  all   cases 

plain     implication     told     that     the  where    the    instruction    complained 

state  must  make  out  every  essen-  of  misstated  the  law.    On  the  other 

tial    feature    beyond    a    reasonable  hand,      where     an     instruction      is 

doubt.    We  do  not  think  that,  after  simply   incomplete,    so   that,    taken 

having-    once    impressed    this    fact  by  itself,   it  might  operate  to  mis- 

upon  the  jury,  it  was  necessary  in  lead,    another    instruction,    comple- 

every  instruction  to  repeat  it.    As  mentary    thereto,    and    stating    the 

opposed  to  this  view,  counsel  cites  proper   limitations    and    conditions, 

us  to  certain  cases  holding  that,  if  cures  the  error  which  might  other- 

the  court  misstates  the  law  in  one  wise  exist  in  the  first  instruction." 

instruction,   the   error   is  not  cured  53 — Teel  v.  State,  —  Tex.  Cr.  App. 

by  a  correct  statement  in  another.  — ,  73  S.  W.  11  (12). 

Among  such   cases   are   Wasson   v.  54 — Harris  v.   State,   155   Ind.   265, 

Palmer,  13  Neb.   376,  14  N.   W.  171;  58  N.  E.  75  (76). 

Ballard  v.  State,  19  Neb.  609,  28  N.  55— Whitney  v.   State,  154  Ind.  573, 

W.     271;    Fitzgerald    v.     Meyer,    25  57  N.  E.  398   (400). 
Neb.  77,  41  N.   W.  123;  School  Dis- 


§  2720.]  CRIMINAI^PRESUMPTION.  1745 

the  person  or  persons,  if  any,  committing  the  act,  if  any  was  com- 
mitted/'** 

§  2720.  Reasonable  Doubt — Homicide,  (a)  If  you  have  any  rea- 
sonable doubts  upon  any  facts  which  are  necessary  to  convict  the 
defendant,  he  is  entitled  to  the  benefit  of  that  doubt.  If  you  have 
any  reasonable  doubt  of  his  guilt,  he  is  entitled  to  be  acquitted.  If 
you  have  any  reasonable  doubt  of  his  guilt  of  murder  in  the  first  de- 
gree, you  cannot  convict  him  on  that  count.  If  you  have  any  reasonable 
doubt  of  his  guilt  of  murder  in  the  second  degree,  you  cannot  con- 
vict him  on  that  count;  or  if  you  have  any  reasonable  doubt  as  to 
manslaughter  in  either  degree,  you  cannot  convict  him  of  that,  and 
he  must  be  acquitted.  You  must  understand  what  a  reasonable 
doubt  is.  It  is  not  a  mere  guess  or  surmise  that  the  man  may  not 
be  guilty.  It  is  such  a  doubt  as  a  reasonable  man  might  entertain 
after  a  fair  review  and  consideration  of  the  evidence, — a  doubt  for 
which  some  good  reason  arising  from  the  evidence  can  be  given. 
When  you  find  such  a  doubt  as  that  in  a  case,  it  is  your  duty  to  give 
the  prisoner  the  fullest  and  amplest  benefit  of  it.^'^ 

(b)  You  are  instructed  that,  if  X.  shot  and  killed  deceased,  and 
if  you  further  find  that  defendant,  Y.,  though  present  at  the  time 
and  place  of  such  killing,  did  not  participate  or  aid  in  such  killing, 
or  if  you  have  a  reasonable  doubt  as  to  whether  or  not  defend- 
ant, X.,  participated  or  aided  in  such  killing,  then  and  in  that  event 
you  will  acquit  defendant;  and  this  even  though  you  may  further 
find  from  the  evidence  that  such  killing  upon  the  part  of  said  X. 
was  done  in  such  manner  and  under  such  circumstances  as  to  render 
the  said  X.  guilty  of  either  murder  or  manslaughter.^^ 

(c)  If  the  jury  have  a  reasonable  doubt  growing  out  of  the  evi- 
dence as  to  whether  the  killing  was  done  deliberately,  or  as  to 
whether  it  w^as  done  premeditatedly,  then  they  cannot  find  the  de- 
fendant guilty  of  murder  in  the  first  degree;  and  if  they  have  reason- 
able doubt  growing  out  of  the  evidence  as  to  whether  the  killing 
was  done  out  of  malice,  then  they  cannot  find  the  defend- 
ant guilty  of  murder  in  either  degree,  but  only  of  manslaughter  at 
the  most;  and  if,  after  considering  all  the  evidence  the  jury  have 
a  reasonable  doubt  as  to  the  defendant's  guilt  of  manslaughter 
arising  out  of  any  part  of  the  evidence,  then  they  should  find  the 
defendant  not  guilty.^^ 

56 — People  v.   Moran,  144  Cal.   48,  wise,    the    attention    of    the    court 

77  Pac.  777  (781).  should  have  been  directed  to  it." 

57— People   v.    Guidici,   100    N.    T.  58— Monroe  v.   State    —  Tex.   Cr. 

503.  3  N.   E.  493   (495).  App.  — ,  81  S.  W.  726  (727). 

The  exception  to  this  charge  was  59 — Hunt  v.   State,  135   Ala.   1,   33 

general;    no   error   was   specifically  So.  329  (331). 

pointed    out.  Of  this,  the  court  said:     "Chnrge 

The  court  said:     "We  find  in  the  (2)   refused   to   defendant   is  copied 

language   of  the  judge   nothing   to  from  Compton  v.  State,  110  Ala.  24, 

mislead   or  perplex  a   juror;  but  if  20  So.  119,  where  it  was  held  to  be 

counsel  at  the  trial  thought  other-  a   correct   charge;   and    this   ruling 

110 


1746 


FORMS  OF  INSTRUCTIONS. 


[§  2721. 


§  2721.     Reasonable   Doubt — Larceny — Husband   and   "Wife.     The 

government  is  bound  to  prove  beyond  any  reasonable  doubt  all  the 
elements  that  are  necessary  to  be  proved  in  order  to  make  out  the 
guilt  of  the  defendant  upon  each  of  these  counts.  The  larceny  of 
the  property  and  the  liability  of  the  defendant  if  she  is  a  married 
woman,  and  if  with  her  husband  at  the  time  of  the  larceny,  if  there 
was  any,  under  the  first  count — the  government  has  to  prove  that 
beyond  a  reasonable  doubt.  It  is  for  you  to  say  whether  the  evidence 
satisfies  you  beyond  a  reasonable  doubt  of  the  guilt  of  the  defendant 
under  the  rules  of  law  as  I  have  stated  them  to  you.*^" 

§  2722.  Reasonable  Doubt — Slander.  The  court  instructs  the  jury 
that  if  they  believe  from  the  evidence  that  the  statements  made  by 
defendant  concerning  X.,  if  any  were  made,  were  true,  or  if  they 
have  a  reasonable  doubt  as  to  whether  or  not  statements  were  true, 
they  should  acquit.^^  \ 


has  been  reaffirmed  in  Stoneking  v. 
State,  118  Ala.  70,  24  So.  47;  and 
Adams  v.  State,  133  Ala.  166,  31  So. 
851." 

In  State  v.  Elsham,  70  Iowa  531, 
31  N.  W.  66  (68),  and  in  State  v. 
Pierce,  65  Iowa  75,  21  N.  W.  195, 
the  following  was  held  unobjec- 
tionable though  parts  of  it  stand- 
ing alone  might   be  criticised: 

If  there  is  a  reasonable  doubt  of 
the  defendant  being  proven  guilty, 
he  must  be  acquitted.  In  criminal 
cases  full  and  satisfactory  proof  of 
guilt  is  required.  No  mere  weight 
of  evidence  will  warrant  a  convic- 
tion, unless  it  be  so  strong  and 
satisfactory  as  to  remove  from 
your  minds  all  doubt  of  the  guilt 
of  the  accused.  In  considering  this 
case,  you  are  not  to  go  beyond  the 
evidence  to  hunt  for  doubts.  Nor 
should  you  entertain  such  doubts 
as  are  merely  chimerical,  or  are 
based  upon  groundless  conjecture. 
A  doubt,  to  justify  an  acquittal, 
must  be  reasonable,  and  arise  from 
a  candid  and  impartial  consider- 
ation of  all  the  evidence  in  the 
case,  and  then  it  must  be  such  a 
doubt  as  would  cause  a  reasonable, 
prudent  and  considerate  man  to 
hesitate  and  pause  before  acting 
in  the  grave  and  more  important 
affairs  of  life.  If,  after  a  careful 
and  impartial  consideration  of  all 
the  evidence  in  the"  case,  you  can 
sny  and  feel  that  you  have  a  firm 
and  abiding  conviction  of  the  guilt 
of    the    defendant,    and    are    fully 


satisfied  of  fhe  truth  of  the  charge 
to  a  moral  certainty,  then  you  are 
satisfied      beyond      a      reasonable' 
doubt. 

Substantially  the  same  thing 
passed  muster  in  the  homicide  case 
of  Painter  v.  People,  147  111.  444 
(467),  35  N.  E.  64. 

For  other  instructions,  in  homi- 
cide cases,  as  to  reasonable  doubt, 
see  Morgan  v.  State,  51  Neb.  672, 
71  N.  W.  788  (794);  Stout  v.  Com- 
monwealth, 29  Ky.  Law  627,  94  S. 
W.  15;  Hibler  v.  Commonwealth,  25 
Ky.  Law  277,  74  S.  W.  1079;  Ireland 
v.  Commonwealth,  22  Ky.  Law  478, 
57  S.  W.  616  (617);  People  v.  Curtis, 
97  Mich.  489,  56  N.  W.  925,  37  Am. 
St.  360;  People  v.  Moran,  144  Cal. 
48,  77  Pac.  777  (781);  People  v. 
Manning,  146  Cal.  100,  79  Pac.  856 
(857);  People  v.  Olsen,  1  Cal.  App. 
17,  81  Pac.  676  (678);  Hammond  v. 
State,  74  Miss.  214,  21  So.  150;  State 
V.  Moore,  156  Mo.  204,  56  S.  W.  883 
(884);  Clark  v.  Commonwealth,  '23 
Ky.  Law  1029,  63  S.  W.  740  (747); 
State  V.  Clark,  134  Nor.  Car.  698,  47 
S.  E.  36  (38);  Karr  v.  State,  106 
Ala.  1,  17  So.  328  (329). 

60 — Commonwealth  v.  Adams,  186 
Mass.  101,  71  N.  E.  78  (80). 

"And  the  fact  that  the  govern- 
ment had  to  prove  its  case  and  the 
whole  of  it  beyond  a  reasonable 
doubt  was  repeated  several  times. 
This  was  correct." 

61— West  v.  State,  44  Tex.  Cr. 
App.  417,  71  S.   W.  967  (968). 


CHAPTER  XCI, 

CRIMINAL— PRINCIPALS  AND  ACCESSORIES- 
MISCELLANEOUS. 

See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2723.  Who    are    principals.  §  2744. 

§  2724.  What    the    true    criterion    is 

in     determining     who     are     §  2745. 
principals. 

§  2725.  All  persons  concerned  in  the 
commission  of  a  felony  are 
principals— What  to  be  al-     §  2746. 
leg-ed    in    indictment. 

§  2726.  Accessory    defined. 

§  2727.  Distinction     between     princi- 
pal    and     accessory     abro- 
gated— Proof     required    for     §  2747. 
conviction. 

§  2728.  Accomplice  guilty   as  princi-     §  2748. 
pal. 

§  2729.  Principal      and      accessory — 

Jointly    indicted.  §  2749. 

§  2730.  Co  -  defendant         chargeable 
with    wrong    done    by    the 
other — Participation    there-     §  2750. 
in    required. 

§  2731.  Accessory — Presence,      actual 

or    constructive.  §  2751. 

§  2732.  Actual   or  constructive  pres 

ence     will     render     one     a     §  2752. 
principal     —     Illustrations 
given. 

§  2733.  Principal      and      accessory —    §  2753. 
Aiding,     abetting,     or    con- 
senting. 

§  2734.  Aiding        or        encouraging — 
Reasonable    doubt — Alibi. 

§  2735.  Aiding,    advising,    etc.,    may 
be    by   words    or   acts. 

§  2736.  Aiding      and       abetting       as     §  2754. 
principal  in  the  second  de- 
gree. 

§  2737.  Common    purpose   or   design.     §  275e 

§  2738.  Concert    of    action    need    not 
be    by    express    agreement. 

§  2739.  Mere   presence   not    sufficient     . 

— Must    have    been    aiding,     s  _/ob. 
counseling,       abetting,       or 
encouraging. 

§  2740.  Advising     and     encouraging, 

not   being   present.  §  2757. 

§  2741.  Present,    but    not    aiding    or 
assisting. 

§  2742.  Without    knowledge,    conniv-     §  2758. 
ance,   or   assent  of  defend- 
ant. §  2759. 

§  2743.  Encouraging  another  to  kill. 

1747 


Watching  while  another 
killed. 

Homicide  committed  while 
escaping  from  prison — All 
who  aid  and  abet  are  prin- 
cipals. 

Accomplice  in  robbery  guil- 
ty of  murder  if  murder  is 
committed,  although  op- 
posed to  the  murder  being 
committed. 

Accessory — Assault  with  in- 
tent   to   kill — Intent. 

Testimony  of  an  accomplice 
must  be  corroborated  in 
order    to    convict. 

Testimony  of  accomplice — 
What  corroboration  suffi- 
cient. • 

Testimony  of  accomplice 
corroborated  by  confes- 
sion. 

Testimony  of  accomplice — 
Need    not   be   corroborated. 

Testimony  of  accomplice 
should  be  received  with 
caution. 

An  accomplice  cannot  cor- 
roborate herself — Corrob- 
oration must  be  by  evi- 
dence outside  and  beyond 
her  statements,  acts  and 
declarations — Seduction. 

MISCELLANEOUS. 

Statements  of  prosecuting 
attorney  not  based  on  evi- 
dence. 

Opinion  of  prosecuting  at- 
torney as  to  guilt  of  de- 
fendant is  not  to  be  con- 
sidered by  the  jury. 

Instruction  correcting  state- 
ment of  attorney  in  argu- 
ment— Reference  to  Bibli- 
cal  laws. 

Arguments  of  counsel — Lay- 
ing foundation  for  civil 
suit. 

Consideration  due  to  argu- 
ment  of   counsel. 

Comment  on  evidence  by 
court  to  be  disregarded. 


1748 


FORMS  OF  INSTRUCTIONS. 


[§  2723. 


§  2760.  Duty      to      convict— Expres-     §  2770. 
sion   of  opinion. 

§  2761.  Defendant    may     rely    upon 

any     theory     or     claim     he     §  2771, 
may    see    fit — Trumped    up 
charge   or  conspiracy   as   a     §  2772. 
defense. 

§  2762.  Tried  by  evidence  only— Not     §  2773. 
on   suspicion — Evidence   ex- 
cluded   or    stricken    out.  §  2774. 

§  2763.  Must  first  determine  guilt 
before    fixing     punishment. 

§  2764.  Witness     excused     from    an-     §  2775. 
swering    when    the    answer 
might    incriminate. 

§  2765.  Contradictory    and   inconsist-     §  2776, 
ent    statements.  §  2777. 

§  2766.  Impeaching  witnesses  by 
contradictory    statements. 

§  2767.  Credibility  —  Rejecting      evi-     §  2778. 
dence   of   perjured    witness. 

§  2768.  Testimony    of    police    officers     §  2779. 
and     detectives   —   Greater 
care   in   weighing.  §  27S0. 

§  2769.  Police  officers'  testimony  not 
to  be  discarded  or  sus- 
picion  cast   on   it.  I  §  2781. 


Witness  who  testified  in 
commitment  court  .dead — 
What    evidence   considered. 

Credibility — Testimony  stip- 
ulated   into    the    case. 

Irreconcilable  conflict  in  evi- 
dence. 

Duty  to  consider  all  the  evi- 
dence. 

Two  counts  in  indictment — 
Duty  to  consider  all  evi- 
dence under  each  count. 

Attendance  of  witnesses — 
Limit  of  process — Taking 
testimony    by   commission. 

Plea    of    not   guilty. 

Joint  trial — Jury  may  find 
one  or  more  guilty — Others 
not    guilty. 

Former  acquittal  as  a  de- 
fense. 

Former  conviction  of  de- 
fendant. 

Detection  of  crime — Means 
must  not  amount  to  in- 
ducement or  solicitation. 

Date    of    crime. 


Note. — At  common  law,  persons  participating'  in  a  crime  are  either 
principals  or  accessories.  If  the  crime  is  felony,  they  are  alike  felons. 
Principals, are  such  either  in  the  first  or  second  degree.  Principals  in 
the  first  degree  are  those  who  are  the  immediate  perpetrators  of  the 
act.  Principals  in  the  second  degree  are  those  who  did  not  with  their 
own  hands  commit  the  act,  but  who  were  present,  aiding  and  abetting 
it. 

An  accessory  before  the  fact  is  he  who,  being  absent  at  the  time 
the  felony  is  committed,  does  yet  procure,  counsel  or  command  an- 
other to  commit  a  felony.  In  many,  if  no't  most,  of  the  states,  an  ac- 
cessory before  the  fact  is  by  statute  declared  to  be  in  law,  as  he  is  in 
rea.son,  either  actually  or  substantially  a  principal. 

§  2723.  Who  are  Principals,  (a)  All  persons  are  principals  who 
are  guilty  of  acting  together  in  the  commission  of  an  offense.^ 

(b)  Any  participation  in  a  general  felonious  plan,  provided  such 
participation  be  concocted,  and  there  be  actual  or  constructive  pres- 
ence, is  enough  to  make  a  man  a  principal  as  to  any  crime  committed 
in  the  execution  of  such  concocted  plan. 

(c)  Previous  consent  to  or  procurement  of  the  caption  and  as- 
portation will  not  make  one  a  principal,  nor  will  subsequent  reception 
of  the  thing  stolen,  or  the  aiding  and  concealing  or  disposing  of  it, 
have  that  effect. ^ 

(d)  The  court  instructs  the  jury  that  any  person  who  advises  or 
agrees  to  the  commission  of  an  offense,  and  who  is  present  when  the 
same  is  committed,  is  a  principal  thereto  whether  he  aids  or  not  in 


1— Thornton  v.   State,  —  Tex.  Cr.        2— Baldwin  et  al  v.  State,  46  Fla. 
App.  — ,   65  S.  W.  11C5  (1107).  115,    35    So.    220    (222). 


§  2724.]  PRINCIPALS   AND   ACCESSORIES.  1749 

the  illegal  act,  and  any  person  who  is  a  principal,  under  the  rules 
hereinabove  g-iven  you,  may  be  prosecuted,  and  if  found  guilty,  may 
be  convicted  and  punished  as  such.^ 

(e)  Any  person  who  advises  or  agrees  to  the  commission  of  an  of- 
fense, and  who  is  present  when  the  same  is  committed,  is  a  principal, 
whether  he  aids  in  the  illegal  act  or  not.* 

§  2724.  What  the  True  Criterion  is  in  Determining  Who  are  Prin- 
cipals. All  i^ersons  are  principals  who  are  guilty  of  acting  together 
in  the  commission  of  an  offense.  When  an  offense  has  been  actually 
committed  by  one  or  more  persons,  the  true  criterion  for  determining 
wdio  are  principals  is,  did  the  parties  act  together  in  the  commission 
of  the  offense  1  Was  the  act  done  in  pursuance  of  a  common  intent, 
and  in  pursuance  of  a  previously  formed  design,  in  which  the  minds  of 
all  united  and  eoncuiTed?  If  so,  then  the  law  is  that  all  are  alike 
guilty,  provided  the  offense  was  actually  committed  during  the  ex- 
istence and  in  the  execution  of  the  common  design  and  intent  of  all, 
whether  in  point  of  fact,  all  were  actually  bodily  present  on  the 
ground  when  the  offense  was  actually  committed  or  not.  So,  in  this 
case,  if  you  find  that  F.  C.  was  guilty  of  assault  with  intent  to  kill 
upon  T.  J.  K.  at  the  time  and  place  charged,  beyond  a  reasonable 
doubt;  and  you  further  find  beyond  a  reasonable  doubt  that  defend- 
ant J.  H.  was  then  and  there  present  with  said  C.  and  that  he,  J.  H., 
then  and  there  well  knowing  the  intent  and  purpose  of  said  F.  C.  in 
making  such  assault,  if  any,  he,  the  said  J.  H.,  did  then  and  there  aid 
by  acts  or  encourage  by  words  said  C.  in  the  commission  of  said  as- 
sault, if  any — then  if  you  find  beyond  a  reasonable  doubt,  defendant 
J.  H.  would  be  guilty  as  principal,  the  same  as  F.  C.^ 

§  2725.  All  Persons  Concerned  in  the  Commission  of  a  Felony  Are 
Principals — What  to  be  Alleged  in  Indictment.  You  are  further  in- 
structed that  the  distinction  between  an  accessory  before  the  fact  and 
a  principal,  and  between  principals  in  the  first  and  second  degree,  in 
cases  of  felony  is  abrogated;  and  all  persons  concerned  in  the  com- 
mission of  felony,  whether  they  directly  commit  the  act  constituting 
the  offense  or  aid  and  abet  in  its  commission,  though  not  present, 
shall  be  prosecuted,  tried  and  punished  as  principals;  and  no  other 

3— Grimsinger    v.    State,    44    Tex.  We  think  the  charge  is   applicable 

1,    69    S.    W.    583    (587).  to    the   facts.      At .  the    time    of    the 

"This     charge     is     a     substantial  burglary    appellant's    co-defendant 

copy     of     article     78,     Pen.     Code,  was    in    the    house,    and    appellant 

which  reads:   'Any  person  who  ad-  standing    on    the    outside.      He    ran 

vises   or  agrees  to   the  commission  away    from    said    building    as    the 

of  an    offense,   and   who  is    present  officers     approached.       This     testi- 

when   the  same  is   committed,   is  a  mony    would    present    the    issue    of 

principal   thereto,    whether  he  aids  principals.      It    is   true   that    appel- 

or  not   in   the   illegal  act.'  "  lant    insists    his    presence    was    an 

4 Tally    v.     St  ite,    —    Tex.     Or.  innocent   one;     but    this   issue   was 

App.    — ,    90    S.    W.    1113    (1114).  properly  presented  to  the  jury,  and 

"The   objection   urged   to   this   in-  they   found   against  appellant." 
struction    is    that    there    is    no    evi-         5— Henry    v.    Slate.    —    Tex.    Or. 

dence    authorizing    such    a    charge.  App.   — ,    54    S.    W.    592    (593). 


1750  FORMS  OF  INSTRUCTIONS.  [§  2726. 

facts  need  be  alleged  in  any  indictment  against  such  an  accessory 
than  are  required  in  an  indictment  against  a  principal.^ 

§  2726.  Accessory  Defined,  (a)  The  mere  presence  of  the  de- 
fendant at  the  time  and  during  the  act  of  killing  would  not,  of  itself, 
be  sufficient  to  constitute  him  an  aider  and  abettor  in  the  commission 
of  the  act;  but  it  is  not  essential,  in  order  to  constitute  him  such, 
that  he  should  himself  have  fired  the  fatal  shot.  It  is  sufficient  if  at 
the  time  of  the  killing  he  was  there  present,  consenting  to  and  en- 
couraging the  act,  and  ready,  if  needed,  to  give  assistance  to  him  who 
did  the  act.''' 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  an  ac- 
cessory is  he  who  stands  by,  and  aids,  abets  or  assists,  or  who,  not 
being  present  aiding,  abetting  or  assisting,  hath  advised,  encouraged, 
aided  or  abetted  the  perpetration  of  the  crime.  He  who  thus  aids, 
abets,  assists,  advises,  or  encourages,  shall  be  considered  as  principal 
and  punished  accordingly.  Every  such  accessory,  when  a  crime  is 
committed  within  or  without  this  state,  by  his  aid  or  procurement  in 
this  state,  may  be  indicted  and  convicted  at  the  same  time  as  the 
principal,  or  before  or  after  his  conviction,  and  whether  the  principal 
is  convicted  or  amenable  to  justice  or  not,  and  punished  as  principal.^ 

(e)  The  court  instructs  the  jury,  that  an  accessory  is  one  who 
stands  by  and  aids,  abets  or  assists,  or  who,  not  being  present  aiding, 
abetting  or  assisting,  hath  advised,  encouraged,  aided  or  abetted  the 
perpetration  of  the  crime  charged.  He  who  thus  aids,  abets,  assists, 
advises  or  encourages,  is  considered  a  principal  and  punished  accord- 
ingly.^ 

§  2727.  Distinction  Between  Principal  and  Accessory  Abrogated — 
Proof  Required  for  Conviction.  The  jury  are  instructed  that  in  this 
state  the  distinction  between  accessory  before  the  fact  and  the  prin- 
cipal, and  between  principals  in  the  first  and  second  degree,  in  cases 
of  felony,  is  abrogated;  and  all  persons  concerned  in  the  commission 
of  a  felony,  whether  they  directly  commit  the  act  constituting  the 
offense,  or  aid  and  abet  in  its  commission,  though  not  present,  must  be 
prosecuted,  tried  and  punished  as  principals,  and  no  other  facts  need 
be  alleged  or  proved  under  an  information  against  such  accessory 
than  are  required  under  an  information  against  his  principal.^" 

6— Statp    V.    ■Rlfind,    9    Idaho    796,         8— Coates   v.    People.   72   111.   303. 
76   Pac.   780  (783).  9— Iowa     Code,     §4314;      State     v. 

"This  instruction  is  in  the  identi-  Hessian,    58    la.    68,    12    N.    W.    77. 
cal   language  of  section  7697  of  the        10— State   v.    De   Wolfe,   29   Mont. 

Revised    Statutes    of   1887    and    cer-  415,    74    Pac.    1084    (1087). 
tainly    could    in    no    wise    injure   or         "The     above     instruction,"      said 

projiulire    the    defendant."  the    court,     "is    practically    in    the 

7— Kelly  v.    State,    44   Fla.   441,   33  language     of     section     1852     of    the 

So.    235    (237).  Penal    Code.      The    words    'such    an 

"We    discover    no    error    in    this  accessory,'  as  used  in  that  section, 

charge.     It  does  nothing  more  than  clearly   refer   to    the   words   'an   ac- 

'defme  an   aider  and   abettor  in  the  cessory    before     the    fact'    used    In 

commission    of   a   crime,    and    does  the   opening  sentence   thereof." 
so,    as   we  think,   correctly." 


§  2728.]  PRINCIPALS  AND   ACCESSORIES,  1751 

§  2728.  Accomplice  Guilty  as  Principal,  (a)  The  court  instructs 
the  jury  that  if  you  find  from  the  evidence  beyond  a  reasonable  doubt 
that  the  defendant  J.  was  at  the  time  of  the  killing,  present,  aiding, 
abetting,  i3roeuring,  and  assisting  O.  in  the  commission  of  the  crime, 
and  that  the  killing  was  done  with  felonious  intent,  and  with  delib- 
erate and  premeditated  malice,  then  the  defendant  J,  would  be  guilty 
as  a  principal  in  the  transaction.^^ 

(b)  The  court  further  instructs  the  jury  that  if  you  find  and  be- 
lieve from  the  evidence  in  this  cause,  beyond  a  reasonable  doubt,  that 
one  H.  v.,  in  the  county  of  C,  Mo.,  on  the  24th  day  of  Nov.,  1905, 
feloniously,  willfully,  deliberately,  premeditatedly,  and  of  his  malice 
aforethought,  shot  with  a  pistol,  and  by  such  shooting  killed  J.,  and 
that  the  defendants  G.  R.,  C.  S.,  and  E.  R.  were  then  and  there  pres- 
ent, feloniously,  willfully,  deliberately,  premeditatedly,  and  of  their 
malice  aforethought,  aiding  and  abetting,  advising,  counseling,  assist- 
ing, or  procuring  the  said  H.  V.,  in  such  shooting  and  killing,  then  de- 
fendants G.  R.  and  E.  R.  were  within  the  meaning  of  the  law,  each  as 
guilty  as  if  he  had  fired  the  fatal  shot  himself.^- 

(c)  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  beyond  a  reasonable  doubt  that  the  defendant  V.,  in  connec- 
tion with  T.  W.,  and  A.  killed  J.,  and  that  the  defendant  participated, 
aiding  or  assisting,  in  the  killing  of  J.,  it  will  not  "be  necessary,  in 
order  to  convict  the  defendant,  for  the  state  to  prove  that  he  fired  any 
shot  or  shots  that  resulted  in  the  death  of  the  deceased;  and  if  you 
believe  from  the  evidence  beyond  a  reasonable  doubt  that  he  was  pres- 
ent, aiding,  abetting,  and  assisting,  he  would  be  as  guilty  as  though 
he  had  fired  the  fatal  shot,^^ 

(d)  The  court  instructs  the  jury  that  if  they  believe  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  D.  was  present  at  the  time  of 
the  killing  of  H.,  with  intent  to  aid  and  abet  in  the  murder  of  H., 
if  his  assistance  became  necessary,  and  that  H.  was  murdered  as 
charged  in  the  indictment,  then  D.  is  as  guilty  as  the  one  who  did  the 
killing,  though  he  may  not  have  actually  taken  any  other  part  in  such 
homicide.^* 

(e)  If  you  believe  and  find  from  the  evidence  in  this  cause  that 
one  C,  in  the  county  of  Butler  and  state  of  Missouri,  at  any  time 
prior  to  the  14th  day  of  September,  1901,  willfully,  deliberately,  pre- 
meditatedly and  of  his  malice  aforethought  shot  with  a  pistol,  and  by 
shooting  killed,  E.  G.,  and  that  the  defendant,  W.  G.,  was  then  and 
there  present,  willfully,  deliberately,  premeditatedly  and  of  his  malice 
aforethought  aiding,  helping,  abetting,  assisting,  comforting,  main- 
taining, moving  or  inciting  the  said  C.  in  so  shooting  and  killing 
said  E.  G.,  then  defendant,  W.  G.,  willfully,  deliberately,  premedi- 
tatedly and  of  his  malice  aforethought  shot  and  killed  E.  G.,  within 

11— Jahnke  v.   State,   68  Neb.   154,  13— Vasser  v.   State,   75   Ark.   373, 

94  N.   W.   158,   104   N.   W.   154.  87    S.    W.    635    (636). 

12— State   V.   Vaughan,   200  Mo.   1,  14— Dean    v.    State,    85    Miss.    40, 

98   S.   W.    2.  37    So.    501. 


1752  FORMS  OF  INSTRUCTIONS.  [§  2729. 

the  meaning  of  this  instruction,  and  is  as  guilty,  under  this  informa- 
tion, as  if  he  had  fired  the  pistol  himself;  and  if  you  find  the  above 
facts  you  will  find  the  defendant  guilty  of  murder  in  the  first  de- 
gree.^^ 

§  2729.  Principal  and  Accessory — Jointly  Indicted.  If  the  jury 
believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the  de- 
fendant deliberately  and  intentionally  shot  with  a  loaded  revolver,  as 
charged  in  the  indictment,  and  that  the  defendant  A.  B.  in  any  way 
or  manner  aided,  advised  or  encouraged  such  shooting,  then  the  jury 
'should  find  the  defendants  both  guilty;  provided,  the  jury  further 
find,  from  the  evidence,  beyond  a  reasonable  doubt,  that  such  shoot- 
ing was  not  necessary,  and  did  not  reasonably  appear  to  be  necessary 
to  save  their  own  lives,  or  to  prevent  them,  or  either  of  them,  receiv- 
ing great  bodily  harm.^^ 

§  2730.  Co-defendant  Chargeable  with  Wrong  Done  by  the  Other — 
Participation  Therein  Required,  (a)  The  court-  charges  the  jury 
that,  although  the  defendant  stands  indicted  with  others,  he  is  not 
chargeable  with  anything  which  any  other  one  named  in  the  indict- 
ment may  have  done,  unless  he  advised,  aided,  or  abetted  others  in  the 
commission  of  the  offense,  intending  at  the  time,  by  his  word  or  act, 
to  aid  or  encourage  the  commission  of  the  offense. 

(b)  Even  though  the  jury  should  believe  that  H.  threw  the  hog  in 
the  controversy  over  the  fence  some  time  between  10  and  12  o  'clock  of 
the  day  on  which  the  hog  was  found  dead,  and  the  hog  was  dead  at 
the  time  it  was  thrown  over  the  fence,  the  defendant's  participation 
in  the  act  of  throwing  the  hog  over  the  fence  would  not  constitute 
him  guilty  of  the  offense  charged  in  this  case,  unless  the  jury  be- 
lieve beyond  a  reasonable  doubt  that  he  had  before  that  time  killed 
the  hog,  or  assisted  in  killing  it,  or  aided  or  abetted,  counseled  or  en- 
couraged, some  one  or  more  in  killing  the  hog.^''' 

§  2731.  Accessory — Presence,  Actual  or  Constructive.  When  an 
offense  is  actually  committed  by  one  person,  but  another  is  present, 
and,  knowing  the  unlawful  intent,  aids  by  acts  or  encourages  by 
words  or  gestures  the  person  actually  engaged  in  the  commission  of 
the  unlawful  act,  or  who,  not  being  actually  present,  keeps  watch 
so  as  to  prevent  the  interruption  of  the  person  engaged  in  the  com- 
mission of  the  offense,  such  person  so  aiding,  encouraging,  or  keeiDing 
watch  is  a  principal  offender.^** 

15— State    V.    Gntlin,    170   Mo.   354,  and    abetting-,    at    the    fact,    or    be 

70   S.    W.    885    (888,    890).  ready   to   afford   assistance   if   nec- 

16 — Smith  v.   People,  74  111.  144.  essary;    but  the  presence  need  not 

17 — Howser  v.  State,  117  Ala.  176,  be   strict,   actual,    immediate    pres- 

23  So.    680  (681).  ence, — such    a    presence    as    would 

18 — Grimsinser   v.    State,   44   Tex.  make    him    an    eye   or    ear  witness 

Cr.   A  pp.   1,   69   S.  W.   583  (585).  of  whnt  pa.sses,— but  may  be  a  con- 

The     court     said:      "In     order    to  structive  presence.  1   Russ.  Crimes, 

rendf-r  a  person  a  principal   in  the  §  49.      The     Am.     &    Eng-.    Enc.     of 

second  deg-ree,  or  an  aider  or  abet-  Law    defines    'present'    as    follows: 

tor,    he    must    be    present,    aiding  'Being:  in  view  or   immediately  at 


§2732.]  PRINCIPALS  AND   ACCESSORIES.  1753 

§  2732.  Actual  or  Constructive  Presence  Will  Render  One  a  Prin- 
cipal— Illustration  Given,  (a)  The  court  instructs  you  that  if  de- 
fendant is  jDresent  actually  or  constructively  at  the  time  of  the  com- 
mission of  the  crime,  and  is  so  situated  with  reference  to  it,  and 
while  so  situated  willfully  and  intentionally  knowing  the  purpose  of 
the  man  who  strikes  the  deadly  blow  or  fires  the  fatal  ball,  and  while 
so  situated  the  defendant  then  willfully  and  intentionally  aids  either 
by  doing  some  physical  act  or  by  being  present  at  the  place  by  reason 
of  a  previous  agreement,  and  the  very  fact  of  that  presence  exerts 
an  influence  ui3on  the  mind  of  the  party  who  fires  the  fatal  shot, 
showing  that  he  more  readily  or  quickly  does  the  act,  then  the  de- 
fendant is  present  at  the  place  and  is  actually  an  aider  and  abettor 
and  is  a  principal  in  the  crime. 

(b)  Now  a  word  further  as  to  what  is  meant  by  this  idea  of  con- 
structive presence.  I  have  already  told  you  that  the  test  is  if  a  man 
is  so  near  to  the  place,  no  matter  how  far  in  feet  or  yards  he  may 
be  awaj',  if  from  the  circumstances  and  from  the  character  of  the 
act  done  and  the  way  it  is  done  he  is  so  near  to  where  it  is  actually 
done  as  to  be  able  to  render  assistance  or  to  contribute  to  the  produc- 
tion of  that  act,  and  he  is  there  actually  to  do  so,  or  is  there  ready  to 
do  so  willfully,  and  intentionally  present  in  pursuance  of  a  previous 
agreement,  and  he  confederated  to  render  aid  and  assistance,  he  is 
then  present  in  the  law.  As  an  illustration  take  the  case  decided  in 
Nevada,  where  the  man  was  30  odd  miles  away  from  the  place  where 
a  stage  was  robbed ;  he  built  a  fire  on  the  top  of  a  mountain  to  signal 
to  his  confederates  the  approach  of  the  stage,  they  being  down  in  the 
valley  waiting  to  rob  it.  He  was  arrested  as  a  principal  in  that  crime, 
although  as  a  matter  of  fact  at  the  time  of  the  robbery  he  was  32 
miles  away,  or  30  odd  miles  away,  but  the  law  said  he  was  present, 
because  the  test  of  the  law  as  to  what  is  meant  by  presence  is  fully 
satisfied,  because  the  proof  showed  that  he  was  able  to  render  assist- 
ance that  looked  toward  the  eomi:)letion  of  it — towards  the  execution 
of  it.  Another  case:  If  a  man  goes  to  a  store  kept  in  the  country 
and  decoys  away  the  clerk  who  slept  in  the  store,  decoys  him  to  go 

hand.'  In  the  case  of  Pryor  v.  in  the  house,  a  few  feet  away, — 
State,  40  Tex.  Cr.  643,  51  S.  W.  375,  having  agreed  with  R.  that  he 
we  had  under  consideration  a  sim-  should  go  and  kill  her  husband; 
ilar  question  to  the  one  now  at  is-  and  she  was  standing  on  the  out- 
sue.  In  that  case,  by  an  inspec-  side,  watching.  Whether  or  not 
tion  of  the  original  papei's,  we  find  this  last  statement  be  true,  her 
that  appellant  was  in  the  shed  juxtaposition  is  such  as  clearly 
room  when  the  killing  occurred  brings  her,  in  legal  contemplation, 
in  the  front  room  of  the  residence,  present  at  the  homicide.  It  fol- 
Appellant  earnestly  insisted  under  lows,  therefore,  that  the  court  did 
this  state  of  facts,  that  the  court  not  err  in  giving  said  charge.  For 
erred  in  not  charging  on  the  law  a  discussion  of  the  law  of  princi- 
of  accomplices.  We  held  that,  un-  p-rls,  see  McClain,  Cr.  Law,  §§199, 
der  the  facts,  appellant  was  clear-  204;  State  v.  Arden,  1  Bay.  487; 
ly  a  principal.  In  this  cnse,  de-  1  Am.  &  Eng.  Enc.  Law  (2d  Ed.), 
fendant,  under  the  most  fnvorable  p.  258.  Furthermore,  we  think  the 
aspects,  was  at  the  woodshed  at  charge  is  a  correct  statutory  defl- 
the    time   her   husband    was   killed  nition  of  'principals.'  " 


1754  FORMS  OF  INSTRUCTIONS.  [§  2733. 

to  a  dance  some  miles  distant  from  the  store,  and  detained  him  at  the 
dance  while  his  confederate  robbed  the  store. ^^ 

§  2733.  Principal  and  Accessory — Aiding,  Aljetting  or  Consenting, 
(a)  The  court  instructs  the  jury  that,  if  they  believe  from  the  evi- 
dence in  this  cause  beyond  a  reasonable  doubt,  that  at  the  county  of 
H.,  and  state  of  Missouri,  the  defendant,  M.,  alone,  or  that  the  de- 
fendant, M.,  and  one  F.,  or  either  of  them,  and  the  other  present,  aid- 
ing, abetting  or  consenting  thereto  did  on  or  about  the  26th  day  of 
March,  1899,  feloniously,  willfully,  deliberately,  premeditately,  and  of 
his  (the  defendant's)  malice  aforethought,  kill  and  murder  G.  in  the 
manner  and  former  charged  in  the  indictment,  you  should  find  the 
defendant  guilty  of  murder  in  the  first  degree,  and  so  state  your 
verdict.-" 

(b)  You  are  instructed  that,  if  you  believe  beyond  a  reasonable 
doubt  that  defendant,  with  express  malice  aforethought,  advised  the 
said  R.  to  commit  said  offense,  or  agreed  with  him  that  it  should  be 
so  committed,  and  that  she  was,  with  express  malice  aforethought, 
present  at  the  time  of  the  killing,  knowing  the  unlawful  intent  of  the 
said  R.,  and  that  such  killing  was  in  pursuance  of  such  advice  or 
agreement,  whether  she  aided  or  not  in  the  illegal  act.^^ 

(c)  If  you  find  from  the  evidence  beyond  a  reasonable  doubt  that 
B.  killed  A.  while  he  (B.)  was  in  the  commission  of  an  unlawful  act, 
without  malice  and  without  the  means  calculated  to  produce  death,  or 
if  you  find,  beyond  a  reasonable  doubt,  that  B.  was  in  the  prosecution 
of  a  lawful  act  done  without  due.  caution  and  circumspection,  and  you 
further  find,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  E.  stood  by,  aided,  abetted,  or  assisted  B.  in  taking  the 
life  of  A.,  as  defined  in  this  instruction,  then  you  should  convict  the 
defendant  of  involuntary  manslaughter. 

(d)  If  you  find  fi'om  the  evidence  beyond  a  reasonable  dov:bt  that 
E.  stood  by,  aided,  abetted,  or  assisted  B.  in  unlawfully  taking  the 
life  of  A.,  then  he  would  be  guilty  of  some  degi^ee  of  felonious  homi- 
cide as  defined  in  these  instructions,  whether  there  was  or  was  not  a 
combination  between  the  defendant  and  his  brother,  B.,  to  do  an  un- 
lawful act. 

(e)  If  you  find  that  there  was  no  agreement  or  combination,  as 
defined  in  these  instructions,  between  E.  and  B.  to  do  an  unlawful  act, 
and  you  further  find  that  E.  did  not  stand  by,  aid,  abet,  or  assist  B. 
in  unlawfully  taking  the  life  of  A.,  then  E.  would  not  be  responsible 
for  the  killing  of  A.^^ 

(f)  If  the  evidence  convinces  you  beyond  a  reasonable  doubt  that 
the  defendant  unlawfully  killed  H.  by  shooting  him,  as  charged,  or 
that  he  was  present  at  the  time  aiding  and  abetting  another,  who 

19 — Johnson      alias      Overton      v.        21 — Grimsinper  v.    State,    44   Tex. 

United  States,  157  U.  S.  320  (321),  15  Cr.    Avv.    1.    69    S.    W.    5S3    (587). 
S.   Ct.   614.  22— Burnett   v.   State,  80  Ark.  225, 

20— Stfite   V.    Miller,   15   Mo.  76,   56  96   S.    W.    1007. 
S.   W.   907   (910). 


§2734.]  PRINCIPALS  AND   ACCESSORIES.  1755 

unlawfully,  and  from  a  premeditated  design  to  effect  H. 's  death,  did 
kill  him  by  shooting  him  as  charged,  and  that  in  doing  so  the  defend- 
ant acted  from  such  premeditated  design  to  effect  H. 's  death,  as 
already  defined  to  you,  you  will  find  him  guilty  of  murder  in  the  first 
degree.-" 

§  2734.  Aiding  or  Encouraging — Reasonable  Doubt — Alibi.  (a) 
Unless  tha  evidence  pi'oves  beyond  a  reasonable  doubt  that  the  de- 
fendant w^as  not  onlj'  present  at  the  killing,  but  that  he  had  knowl- 
edge of  the  unlawful  intent  of  R.  and  F.,  if  that  has  been  shown,  and 
that  he  aided  or  encouraged  them  in  the  killing,  then  you  should 
acquit  him.  If  the  evidence  raises  in  your  minds  a  reasonable  doubt 
as  to  the  presence  of  the  defendant  at  the  time  and  place  of  the 
killing,  then  you  should  acquit  him.-* 

(b)  If  3^ou  should  believe,  from  the  evidence,  that  W. 's  house  was 
burglarized  at  the  time  and  place,  and  in  the  manner  alleged  in  the 
indictment,  and  if  you  should  further  believe  that  C.  acted  as  a  prin- 
cipal in  committing  such  burglary,  if  any  was  committed,  then  I  in- 
struct you  that  you  cannot  convict  defendant,  unless  you  further 
believe,  beyond  a  reasonable  doubt,  that  defendant  Avas  present  and 
knew  the  unlawful  intent  of  C,  and  aided,  encoui'aged  and  advised 
him  or  agreed  vfith.  him  to  commit  such  burglary.-^ 

§  2735.    Aiding,  Advising,  etc.,  may  be  by  Words  or  Acts,    (a)    The 

court  instructs  the  jury,  that  the  advising  or  encourag-ing  that  may 
make  one  an  accessory  to  crime  need  not  be  by  words.  It  may  be  by 
words  or  acts,  signs  or  motions,  done  or  made  for  the  purpose  of  en- 
couraging the  commission  of  the  crime.-*' 

(b)  The  court  instracts  the  jury  that  all  persons  are  equally  guilty 
who  act  together  with  a  common  intent  in  the  commission  of  a  crime, 
and  a  crime  so  committed  by  two  or  more  jjersons  jointly  is  the  act 
of  all  and  of  each  one  so  acting.-''^ 

23 — "We  discover  no  error  in  this  27— State  v.  Valle,  164  Mo.  539,  65 

charge."      Kelly    v.    State,    44    Fla.  S.    W.    232    (235). 

441,    33    So.    235    (237),   citing-    McCoy  The    court    said,    in    commenting, 

V.    State,  40  Fla.  494,  24   So.   485.  that     "while    the    authorities    hold 

24 — Gutirrez  v.  State,  —  Tex.  Cr.  that  the  mere  presence  of  a  person 

App.   — ,   59   S.   W.   274.  while   a    felonious   assault   is   being 

"A    similar    charge    to    this    was  committed      by     another     upon     a 

discussed  in  Gallagher  v.   State,  28  third  person,  or  a  mental  approval 

Tex.    App.    247,    12    S.   W.   1087,    and  of    what    is    being    done,    will    not, 

approved   by   this   court.     The   sub-  in    the    absence    of    some    word    or 

stance  of  this  charge  is  to  the  ef-  act  of  approval   or  encouragement, 

feet    that,    if    the   jury    entertain    a  make  such  party  guilty  of  a  felo- 

reasonable    doubt    as    to   the    pres-  nious  assault,  yet  if  he  be  present, 

ence   of  the  defendant  at   the  time  and  by  words  or  actions  aid  or  ad- 

and     place     of     the     killing,     they  vise  or  encourage  another  to  com- 

should   give   defendant    the   benefit  mit   a   felonious    assault,    with    the 

of  such  reasonable  doubt,  and  ac-  intent    that    the   words    or   acts   of 

quit    him.      In    this    there   was    no  encouragement     should     encourage 

error."  and   abet   the   crime  committed,   he 

25_Glenn    v.    State,    —   Tex.    Cr.  will  be  equally  guilty  with  the  per- 

App.    — ,    76   S.    W.    757    (758).  son     who     actually     commits     the 

26-^Br'ennan  v.  People,  15  111.  511.  physical  act;  'and  a  party  may  be 


1756  FORMS  OF  INSTRUCTIONS.  [§  2736. 

(c)  If  from  the  conduct  of  the  parties  here  charged  with  murder, 
as  shown  in  the  testimony,  and  from  the  other  testimony  in  the  case, 
the  jury  are  satisfied  beyond  a  reasonable  doubt  that  the  defendant 
entertained  the  intent,  or  knew  that  the  one  who  fired  the  pistol 
entertained  the  intent,  thereby  to  kill  and  murder  A.,  when  C.  fired 
the  pistol,  if  he  did  fire  it,  and  with  such  intent  or  knowledge,  said 
defendant  B.  was  present  encouraging,  aiding  or  abetting  C,  or  ready 
to  do  so,  then  said  B.  was  an  accomplice  and  would  be  alike  guilty 
with  him  who  fired  the  shot.-® 

§  2736.  Aiding  and  Abetting  as  Principal  in  the  Second  Degree. 
The  defendant  M.  is  charged  by  the  indictment  in  this  case  as  prin- 
cipal in  the  first  degree  in  the  killing  of  one  L.,  and  that  the  defend- 
ant W.,  being  present  when  his  co-defendant  killed  the  said  L.,  know- 
ing the  unlawful  and  premeditated  design  of  the  said  M.  in  the  killing 
of  the  said  L.,  did  aid  and  abet  him  in  the  murder  of  the  said  L.,  as 
principal  in  the  second  degree.  Said  indictment  having  been  read  to 
the  said  defendants,  and  being  required  to  plead  thereto,  each  of  said 
defendants  said  that  he  was  not  guilty  as  charged  in  said  indictment. 
Whether  the  defendants,  or  either  of  them,  are  guilty  as  charged  in 
the  indictment,  is  the  issue  you  are  to  try.-^ 

§  2737.  Common  Purpose  or  Design,  (a)  If,  however,  defendant 
and  such  other  person  or  persons  were  not  acting  together  with  a 
common  purpose  to  take  the  life  of  B.,  or  do  him  some  great  bodily 
hann,  and  with  the  intent  to  assist  each  other  in  accomplishing  such 
pui"pose,  then  defendant  would  not  be  responsible  for  the  acts  of  such 
other  person  or  persons,  even  though  they  may  have  also  cut  and 
stabbed  B.  at  the  same  time  that  defendant  did  so.^'' 

(b)  You  are  instructed  that  if  you  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  M.  K.  and  S.  H.  were  jointly  engaged 
in  pursuance  of  a  common  design  in  firing  their  pistols  in  the  crowd 
assembled  at  the  i^ienic  at  the  time  W.  G.  was  killed,  with  the  felon- 
ious intent  to  kill  the  said  W.  G.,  and  the  said  W.  G.  was  killed  by  a 
pistol  shot  fired  by  either  of  them,  and  they  at  the  time  did  not  act 
in  necessary  self-defense,  then  it  is  immaterial  which  of  said  defend- 
ants fired  the  shot  that  caused  the  death  of  the  deceased,  but,  if  both 

charg-ed  with  doing  an  act  himself  evidence   that  a  person  advised  an 

and    be    held    liable    under    such    a  act,  or  aided  by  an  overt  net  in  its 

charge    for    being    present,    aiding  commission,  but  siich   fact  may  be 

nnd    assisting   another   in   doing  it.'  shown  by  facts  and  circumstances. 

Will    V.    Lucas,    110    Mo.    219,    19    S.  State   v.    Gooch,    105    Mo.   392,   16   S. 

\V.  726.   .S3  Am.    St.   Rep.  436;   Cani-  W.    892. 

fax   v.   Chapman,   7   Mo.   17.5;   Page  28— Singleton    v.    State,    106    Ala. 

v.    Freemnn,   19   Mo.    421;   Alfred   v.  49,  17  So.   327.     And  see  Grimsinger 

Bray,   41   Mo.   484,   97  Am.  Dec.   283;  v.    State.    44  Tex.   Cr.   App.   1,   69  S. 

Murphy  v.   Wilson,   44   Mo.   313,  100  W.    583   (587),    for   an   instruction   to 

Am.    Dec.   290;    Cooper  v.   Johnson,  the  same  effect. 

81  Mo.  483;  State  v.  Orrick,  106  Mo.  29— Mercer  et  al.  v.  State,  41  Fla. 

Ill,    17  S.  W.   176,   329.  279.    26    So.    317    (318). 

And  it  is  not  necessary  to  a  con-  30 — State    v.     Thornhill,    177    Mo. 

victiou  that  it  be  proven  by  direct  691,  76  S.  W.  948  (949). 


§2738.]  PRINCIPALS  AND   ACCESSORIES.  1757 

of  them  were  present,  aiding  and  abetting  each  other,  then  the  law 
imputes  the  injury  caused  by  one  to  the  other.^^ 

(c)  The  court  instructs  you,  gentlemen  of  the  jury,  that  before 
you  convict  the  defendant  in  this  case  you  must  find  and  believe  from 
the  evidence  and  beyond  a  reasosable  doubt  either  that  prior  to  the 
shooting  of  G.  by  C.  there  was  a  common  pui-pose  or  agreement  be- 
tween this  defendant  and  the  said  C.  that  the  life  of  X.  was  to  be 
taken,  and  that  deceased  was  shot  and  killed  in  furtherance  of  such 
fixed  design,  intent  or  common  purpose  in  the  minds  of  C.  and  this 
defendant,  or  that  prior  to  the  shooting  there  existed  in  the  mind  of 
C.  a  fixed  pui-pose  to  take  the  life  of  G.,  of  which  this  defendant  had 
knowledge ;  and  that  this  defendant  did  some  act  in  f urthei-ance  of 
the  accomplishment  of  such  fixed  design  or  intention. "^ 

§  2738.  Concert  of  Action  Need  not  be  by  Express  Agreement. 
The  juiy  are  instructed,  that  while  the  law  requires,  in  order  to  find 
all  the  defendants  guilty,  that  the  evidence  should  prove,  beyond  a 
reasonable  doubt,  that  they  all  acted  in  concert  in  the  commission  of 
the  crime  charged,  still  it  is  not  necessaiy  that  it  should  be  positively 
proven  that  they  all  met  together  and  agreed  to  commit  the  crime; 
such  concert  may  be  proved  by  circumstances;  and  if,  from  all  the 
evidence,  the  jury  are  satisfied,  beyond  a  reasonable  doubt,  that  the 
crime  was  committed  by  the  defendant,  and  that  they  all  acted  to- 
gether in  the  commission  of  the  crime,  each  aiding  in  his  own  way, 
this  is  all  the  law  requires  to  make  them  all  equally  guilty.^^ 

§  2739.  Mere  Presence  not  Sufficient — Must  Have  Been  Aiding, 
Counseling,  Abetting  or  Encouraging,  (a)  The  bare  fact  that  T.  was 
present  at  the  time  the  alleged  killing  of  the  deceased  took  place 
would  not  be  sufficient  evidence  to  vrarrant  his  conviction,  or  to  justify 
you  in  finding  him  guilty.  You  must  be  satisfied,  bej'ond  a  reasonable 
doubt,  that  he  was  present  when  the  fatal  shot  was  fired,  and  then 
and  there  aiding,  counseling,  abetting,  or  encouraging  MeC.  to  kill  the 
deceased ;  and  if,  from  the  evidence,  you  are  not  thus  satisfied,  under 
these  instructions,  then  you  should  acquit  the  defendant  T.,  although 
you  are  satisfied,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
McC.  is  guilty  of  murder  in  the  first,  second  or  third  degi-ee,  or  of 
manslaughter.^* 

(b)  The  court  charges  the  jury  that  if  they  believe,  from  the  evi- 
dence, that  B.,  C.  and  E.  went  to  the  house  of  A.  P.  on  the  night  the 
killing  is  said  to  have  been  done,  and  an  olfense   was  committed  by 

31 — Humphrey   v.    State,    74   Ark.  and    H.    was    in    furtherance    and 

554.  86  S.   W.   431  (432).  prosecution    of    a    common    design 

The  court   said   in   comment  that  or  plan  previously  entered  into  by 

"the    objection    urged    against    the  them.     Green  v.   State,  51  Ark.  189, 

foregoing  instruction   is   that   there  10  S.   W.   266." 

was    no    evidence    upon    which    to         32— State    v.    Gatlin,    170    Mo.    354, 

base    it.      As    to    it,    it    is    sufficient  70  S.   W.    8S5. 

to  say  that  it  should  not  have  been         3.3— Miller  v.   People.   39  111.  457. 
given    unless    there    was     evidence         34— McCoy    v.    State,    40    Fla.    494, 

showing   that   the    shooting   by   K.  24  So.  485  (487). 


1758  FORMS  OF  INSTRUCTIONS.  [§  2740. 

one  of  them  from  causes  having  no  connection  with  the  common  object 
for  which  they  went  there,  the  responsibility  for  such  offense  rests 
solely  on  the  actual  perpetrator  of  the  crime,  and  the  jury  cannot 
find  the  defendant  guilty  simply  because  he  happened  to  be  present  at 
the  time  the  offense  was  committed.^^ 

(c)  You  cannot  convict  defendant  unless  you  further  believe, 
beyond  a  reasonable  doubt,  that  defendant  was  present  at  the  time 
and  place  such  offense  was  committed,  and  that  he  knew  of  said  un- 
lawful intent  of  W.  H.,  and  aided  and  encouraged  and  advised  him  or 
agreed  with  him  to  commit  such  offense.^*' 

(d)  The  court  instructs  the  jury  that  the  mere  presence  of  a  per- 
son at  the  scene  of  a  homicide,  does  not  make  him  a  guilty  participator 
in  said  homicide.  To  make  him  a  guilty  participator  he  must  have 
aided,  assisted,  instigated,  abetted  or  advised  said  killing  as  explained 
in  other  instructions  given  by  the  court  in  this  case.^^ 

(e)  The  court  instructs  the  jury  that  the  mere  fact  of  one  person 
being  present  at  the  time  the  shooting  occurred,  and  the  further  fact 
that  he  follows  along  after  the  party  doing  the  shooting,  are  not  of 
themselves  sufficient  to  convict  the  party  following  or  aiding  and 
abetting  in  the  shooting;  but  before  you  can  find  that  the  defendant 
was  aiding  and  abetting  in  the  shooting,  you  must  find  that  he  was 
acting  in  concert  with  those  committing  the  crime,  and  actually  par- 
ticipating in  some  manner  in  the  shooting. 

(f )  Even  if  the  jury  should  find,  from  the  evidence,  beyond  a  rea- 
sonable doubt,  that  the  deceased,  F.,  was  killed  at  the  time  and  place 
in  question,  and  that  the  said  defendant,  V.,  was  present  at  the  time 
of  such  killing,  and  that  such  killing  was  murder,  still  if  you  are  not 
satisfied  from  the  evidence  beyond  a  reasonable  doubt  that  the  said 
V.  was  previously  aware  of  the  purpose  to  commit  such  murder,  or 
that  he  in  some  way  aided,  abetted,  or  assisted  in  the  killing,  or  ad- 
vised or  encouraged  it,  then  you  should  find  V.  not  guilty.^® 

§  2740.  Advising  and  Encouraging,  not  Being  Present.  The  court 
instructs  the  jury,  that  if  they  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  any  one  or  more  of  the  defendants  is  guilty  of 
the  offense  charged  in  the  indictment,  and  that  any  other  of  the  de- 
fendants stood  by  at  the  time  and  aided,  abetted  or  assisted  in  the 
commission  of  the  crime,  or  who,  not  being  present,  had  advised  or  en- 
couraged .the  commission  of  the  same,  then  such  other  person,  so  aid- 
ing, abetting,  advising  or  encouraging,  are,  in  law,  guilty  as  prin- 
cipals, and  the  jury  should  so  find  by  their  voi-dict."" 

§  2741.  Present,  but  not  Aiding  or  Assisting.  Though  the  jury 
may  believe,  from  the  evidence,  that  the  said  A.  B,  was  murdered  at 

35— Evans    v.    State,    109    Ala.    11,  37— State  v.   Vaughan,  200  Mo.   1, 

19    So.    535    (536).  98   S.    W.    2. 

36— Tally     v.    State,    —    Tex.     Cr.  38— Vasser    v.    State.    75   Ark.    373, 

A  pp.  — ,   90   S.   W.   1113   (1114),    bur-  87  S.  W.  635. 

glary.  39— Sharp   v.    State,    6   Tex.   App, 


§2742.]  PRINCIPALS  AND  ACCESSORIES.  1759 

the  time  and  place  in  question,  and  that  the  defendant  C.  D.  was  pres- 
ent at  the  time  of  such  murder,  still,  if  the  jury  are  not  satisfied,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  said  C.  D.  was 
previously  aware  of  the  pui-pose  to  commit  such  murder,  or  that  he, 
in  some  way,  aided,  abetted  or  assisted  in  the  killing,  or  advised  or 
encouraged  it,  then  they  should  find  the  said  C.  D.  not  guilty,  though 
they  further  believe,  from  the  evidence,  that  he  subsequently  failed 
to  disclose  the  killing,  or  even  concealed  the  same.*** 

§  2742.  Without  Knowledge,  Connivance  or  Assent  of  Defendant. 
The  court  charges  the  jury  that,  if  they  believe,  from  the  evidence, 
that  the  fatal  shot  which  took  the  life  of  W.  A.  was  fired  by  J.  F., 
and  without  the  knowledge,  connivance  or  assent  of  this  defendant, 
then  the  juiy  mut:t  find  this  defendant  not  guilty.*^ 

§  2743.  Encouraging  Another  to  Kill,  (a)  If  the  presence  of  the 
defendant  in  this  Case  at  the  place  where  the  proof  shows  he  was, 
was  by  previous  agreement  or  concert,  with  W.,  and  it  was  the  pur- 
pose on  his  part  to  assist,  aid,  or  abet  the  killing  of  R.,  and  he  was 
there  willfully  or  knowingly  for  the  purjwse,  if  it  should  be  necessary, 
of  assisting  W.  in  killing  R.,  and  the  knowledge  on  the  part  of  W.  of 
the  presence  of  the  defendant,  at  the  place  where  he  was  for  the  pur- 
pose of  assisting  him  in  the  killing  of  R.  emboldened  his  purpose  and 
encouraged  his  heart,  or  afforded  him  hope  or  confidence  in  his  enter- 
prise, or  spurred  on  his  mind  to  do  the  act,  or  nerved  or  strengthened 
his  arm  to  fire  the  pistol  shot,  then  the  defendant  would  be  present 
aiding  and  abetting  the  killing.  He  may  not  have  done  any  actual 
physical  act,  but  if  his  relation  to  the  act  was  of  the  character  that  I 
have  just  named,  the  relation  was  a  criminal  relation  on  his  part;  it 
was  a  relation  that  sprung  out  of  a  preconceived  design  between  W. 
and  defendant  to  take  the  life  of  R.,  and  if  such  a  presence  for  the 
purpose  of  aiding  or  assisting  or  abetting,  should  it  become  necessary, 
exerted  a  mental  influence  upon  AV.,  so  that  he  the  more  readily  or 
quickly  executed  the  act,  the  defendant  Avould  then  be  present  at  the 
crime  whether  he  was  really  and  actually  at  the  place  or  whether  he 
was  so  near  to  the  place,  as  by  the  means  I  have  described  to  exert  an 
influence  of  that  character  upon  the  mind  of  W.,  he  would  then  be 
present  at  the  crime  and  he  would  be  an  actual  participant  in  it.  If 
at  the  time  W.  shot  and  killed  R.  the  defendant  was  constructively 
present  at  the  place  of  the  killing,  and  he  was  at  such  place  with  the 
intent  to  knowingly  and  Avillfully  assist  W.  in  killing  R.,  should  it 
become  necessary  to  consummate  the  deadly  purpose,  but  that  such 
aid  was  not  necessary,  as  W.  did  the  killing  without  such  help,  then 
such  constructive  presence  with  such  purpose  would  be  a  legal  pres- 
ence and  would  make  the  defendant  a  participant  in  the  killing.*^ 

(b)     The  court  instructs  the  jury  that  if  they  believe,  from  the 

650:  State  v.  Hamilton,  13  Nev.  41— Ferguson  v.  State.  141  Ala. 
386:  State  v.  Maloy,  44  la.  104.  20,   37  So.   448  (449). 

40— State  v.   Maloy,  44  la.  104.  42— Johnson      alias       Overton    v. 


1760  FORMS  OF  INSTRUCTIONS.  [§  2744. 

whole  evidence,  beyond  a  reasonable  doubt,  that  H.  was  murdered, 
and  that  D,  aided,  assisted  and  encouraged  C.  or  any  other  person  in 
murdering  H.,  then  he  is  as  guilty  as  such  other  person,  and  the  jury 
should  return  a  verdict  of  guilty.*^ 

§  2744.  Watching  While  Another  Killed.  If  you  further  believe, 
beyond  a  reasonable  doubt,  that  defendant,  with  express  malice  afore- 
thought, knowing  the  unlawful  intent  of  said  R.  to  kill  and  murder 
upon  his  express  malice  aforethought,  did  keep  watch  so  as  to  prevent 
the  interruption  of  the  said  R.  in  the  committing  of  said  offense, 
though  not  actually  present,  then  you  will  find  the  defendant  guilty  of 
murder  in  the  first  degree. ^^ 

§  2745.  Homicide  Committed  While  Escaping  from  Prison — All 
Who  Aid  and  Abet  Are  Principals.  The  court  instructs  you  that  if 
several  persons  confined  in  the  state 's  prison  conspire  to  escape  there- 
from, 'and  if  necessary  to  kill  any  person  who  shall  lawfully  attempt 
to  arrest  or  recapture  them,  and  the  death  of  a  person  so  engaged  in 
the  attempt  to  lawfully  arrest  and  recapture  them  ensue  in  the  prose- 
cution of  said  common  design,  it  is  murder  in  all  who  are  present 
aiding  and  abetting  in  the  common  design.  The  law  m'akes  no  distinc- 
tion or  difference  between  any  of  the  parties  so  engaged.'*^ 

§  2746.  Accomplice  in  Robbery  Guilty  of  Murder  if  Murder  is  Com- 
mitted, Although  Opposed  to  the  Murder  Being  Committed.  Testi- 
mony has  been  adduced  before  you  tending  to  show  that  the  defend- 
ant L.  and  others  were  engaged  in  a  robbery  of  one  M.  and  the  deceased 
McC.  at  the  M.  ranch  in  S.  county,  that  while  so  engaged  and  in  fur- 
therance of  the  common  purpose  of  L.  and  his  associates  to  accomplish 
this  robbery,  the  deceased  McC.  was  slain  by  the  defendant,  or  by 
some  of  the  parties  with  whom  he  was  then  engaged  in  the  alleged 
robbery.  I  charge  you  that  it  is  no  defense  to  a  party  associated  with 
others  in  and  engaged  in  a  robbery  that  he  did  not  propose  or  intend 
to  take  life  in  its  perpetration,  or  that  he  forbade  his  associates  to 
kill,  or  that  he  disapproved  or  regretted  that  any  person  was  thus 
slain  by  his  associates.  If  the  homicide  in  question  was  committed 
by  one  of  his  associates  engaged  in  the  robbery,  in  furtherance  of 
their  common  purpose  to  rob,  he  is  as  accountable  as  though  his  own 
hand  had  intentionally  and  actually  given  the  fatal  blow,  and  is 
guilty  of  murder  in  the  first  degree.*** 

United   States,   157   U.    S.   320   (322),  structions    given    in    the    Vasquez 

15  S.   Ct.  614.  Case  and  appearing-  in  the  opinion 

43— Dean    v.    State,    85    Miss.    40,  in    that    case    People    v.    Vasquez, 

37  So.  501  (502).  49  Cal.  562.     The  appellant  does  not 

44 — Grimsinger   v.    State,    44    Tex.  question     the     correctness     of     the 

Cr.    App.    1,    69    S.    W.    5S3    (587).  general   principle   of   law   contained 

45 — People  v.  Wood,  145  Cal.   659,  in  the  instruction,  but  claims  that 

79   Pac.   367    (369).  the    use    of   certain    language    in    it 

46 — People   v.    Lawrence,   143    Cal.  constituted    prejudicial    error.      His 

148,  76  Pac.  893  (897).  complaint     is    of    the     use     of     the 

"This    instruction    is    a   verbatim  words    in   the   instruction:    'that  he 

copy,    with    the    exception    of    the  did   not   propose  or  intend   to  take 

names  of  the  parties,  from  the  in-  life    in    its    perpetration'    and    the 


§2747.]  PRINCIPALS  AND   ACCESSORIES.  1761 

§  2747.  Accessory — Assault  with  Intent  to  Kill — Intent.  Whether 
H.  fired,  into  the  house  or  not,  if  you  believe,  beyond  a  reasonable 
doubt,  from  the  evidence,  that  he  was  one  of  the  party,  some  of  whom 
did  fire  into  'the  house  of  J.  J.  with  the  intent  to  murder  him,  and 
that  was  his  purpose  in  going  there,  then  you  are  authorized  to  find 
H.  guilty,  whether  he  fired  one  of  the  shots  or  not.''^ 

§  2748.  Testimony  of  an  Accomplice  Must  be  Corroborated  in  Order 
to  Convict,  (a)  Under  the  law  of  this  state  a  conviction  cannot  be 
had  on  the  testimony  of  an  accomplice  unless  he  is  corroborated  by 
other  evidence  which,  in  itself  and  without  the  aid  of  the  testimony 
of  the  accomplice,  tends  to  connect  the  defendant  with  the  commission 
of  the.  offense.  And  the  corroboration  is  not  sufficient  if  it  merely 
shows  the  commission  or  the  circumstances  thereof. 

(b)  Under  the  provisions  of  the  statute  of  this  state  the  corrobo- 
rating evidence  must,  in  itself,  without  the  aid  of  the  testimony  of  the 
accomplice,  tend  in  some  degree  to  connect  the  defendant  with  the 
commission  of  the  offense.  This  corroborating  evidence  need  not  be 
sufficient  of  itself  to  establish  the  guilt  of  the  defendant,  but  it  must 
tend  in  some  degree  to  implicate  and  connect  the  defendant  with  the 
commission  of  the  offense  charged.  The  requirements  of  the  statute 
are  fulfilled  if  there  be  any  corroborating  evidence  which,  of  itself, 
tends  to  connect  the  defendant  with  the  commission  of  the  offense. 
The  statute  does  not  require  that  such  witness  should  be  corroborated 
in  respect  to  every  material  fact,  but  only  in  respect  to  such  of  the 
material  facts  as  constitute  the  necessary  elements  in  the  crime 
charged.** 

(c)  If  you  are  satisfied,  from  the  evidence,  that  the  witnesses,  V. 
J.,  E.  S.,  J.  B.,  and  J.  R.,  or  either  of  them,  were  "accomplices,"  or 
if  you  have  a  reasonable  doubt  as  to  whether  they,  or  either  of  them, 
were  not,  as  that  tenn  is  defined  in  the  foregoing  instructions,  then 

additional  use  of  the  word  'regret-  and  it  is  no  defense  that  the  party- 
ted.'  We  do  not  think  the  use  of  did  not  intend  that  life  should  be 
this  lang-uag-e  in  the  instruction,  taken  in  the  perpetration  of  the 
particularly  when  the  whole  in-  robbery,  or  forbade  his  associates 
struction  is  considered,  at  all  war-  to  kill,  or  regretted  that  it  had 
rants  the  criticism  directed  been  done.  This  was  but  the  dec- 
against  it  by  counsel  that  thereby  laration  of  the  rule  of  absolute  re- 
the  court  assumed  the  existence  of  sponsibility  of  a  party  for  a  homi- 
a  state  of  facts  of  which  there  was  cide  committed  by  his  associates 
no  evidence.  We  do  not  perceive  in  furtherance  of  their  common 
that  the  court  made  any  such  as-  purpose  to  rob,  emphasized  by  a 
sumption.  In  that  portion  of  the  reference  to  possible  defenses 
instruction  challenged  by  counsel,  which  might  in  such  a  case  be 
the  court  was  not  referring  to  urged,  but  unavailingly,  against 
what  the  evidence  tended  to  show,  that  responsibility,  and  we  cannot 
It  was  declaring  an  abstract  prin-  perceive  that  the  appellant  has 
ciple  of  law  to  its  fullest  extent—  any  reasonable  ground  to  corn- 
that  a  party  associated  with  others  plain  of  it." 

for    the    purpose    of   engaging   in    a  47— Hicks    v.    State,    123    Ala.    15, 

robberv,    in    which    a    homicide    is  26  So.  337  (338). 

committed  by  one  of  his  associates,  48— State    v.    Bond,    12    Idaho   424, 

is  as  guilty  of  murder  as  if  he  had  86  Pac.  43  (48). 
actually    done    the    killing   himself; 

111 


1762  FORMS  OP  INSTRUCTIONS.  [§  2748. 

you  are  further  instructed  that  you  cannot  find  the  defendant  guilty 
upon  their  testimony,  unless  you  are  satisfied  that  the  same  had  been 
corroborated  by  other  evidence  tending  to  establish  that  the  defend- 
ant did  in  fact  commit  the  offense.*'* 

(d)  You  are  instructed  that,  under  the  law  of  this  state,  a  person 
charged  with  a  crime  cannot  be  convicted  upon  the  evidence  of  an  ac- 
complice, unless  the  testimony  of  such  accomplice  is  coiToborated  by 
other  e\ddence  tending  to  connect  the  defendant  with  the  commission 
of  the  offense  charged;  and  the  corroboration  is  not  sufficient  if  it 
merely  shows  the  commission  of  the  crime.  An  '' accomplice,"  as  the 
word  is  here  used,  means  any  one  connected  with  the  crime  committed, 
either  as  principal,  an  accomplice,  an  accessory  or  otherwise.  It 
means  a  person  who  is  connected  with  the  crime  by  unlawful  act  or 
omission  on  his  part,  transpiring  either  before,  at  the  time  of,  or 
after  the  commission  of  the  crime,  and  whether  or  not  he  was  present 
and  participated  in  the  commission  of  the  crime.  The  corroborative 
evidence  must  be  such  as  of  itself,  and  without  the  aid  of  the  testi- 
mony of  the  accomplice,  tends  in  some  degree  to  show  that  the  defend- 
ant was  engaged  in  the'  commission  of  the  crime.  And  where  circum- 
stances are  relied  upon  as  corroboration,  these  circumstances  must  be 
criminative;  that  is,  these  circumstances,  if  the  accomplice  had  not 
testified  at  all,  must  to  some  extent  be  consistent  with  the  innocence 
of  defendant  of  the  crime  charged.  So,  if  you  believe,  from  the  evi- 
dence, that  the  witness  M.  R.,  who  has  testified  before  you,  is  an  ''ac- 
complice" within  the  meaning  of  that  word  as  used  in  this  charge, 
then  you  cannot  convict  the  defendant  on  his  testimony,  even  though 
you  should  believe  his  testimony  has  been  corroborated  by  other  evi- 
dence in  the  case,  outside  of  his  testimony,  and  outside  of  any  evidence 
that  may  merely  show  the  commission  of  the  crime,  that  tends  in  some 
degree  to  connect  defendant  with  the  commission  of  the  offense 
charged;  and  you  must  further  believe,  from  the  evidence,  that  the 
facts  and  circumstances  relied  upon  by  the  state  as  corroboration  are 
criminative — that  is,  inconsistent  to  some  extent  with  the  innocence 
of  defendant  of  such  unlawful  killing.^" 

(e)  Under  the  laws  of  this  state,  a  person  cannot  be  convicted 
upon  the  testimony   of  an  accomplice  unless  he  be  corroborated  by 

49— Stevens  v.   State,  —  Tex.   Cr.  in^-  to  connect   defendant  with  the 

App.  — ,  58  S.  W.  96.  offense  committed."     For  decisions 

50— McKinnev    v.    State,    —    Tex.  on   tliis   question,     see     section    997, 

Cr.   App.  — ,   88   S.   W.   1012   (1013).  White's    Ann.    Code    Cr.    Proc.      In 

Appellant  criticises  this  charge,  Jones  v.  State.  3  Tex.  App.  575,  a 
as  we  understand,  because  the  charg'e  containing  the  lansuap:e 
court  says  the  evidence  must  tend  here  criticised  on  the  question  of 
in  some  decree  to  connect  defend-  corroboration  was  approved.  How- 
ant  with  the  commission  of  the  ever,  we  believe  that  it  is  better 
offense,  and  that  by  the  use  of  the  practice  to  follow  the  statute.  This 
words  "some  deproe"  the  court  re-  is  not  a  case  of  circumstantial  evi- 
quired  less  corroboration  than  the  dence.  Appellant's  confession 
statute  Article  781,  White's  Ann.  takes  it  out  of  the  rule;  and,  be- 
Code  Cr.  Proc.  reads,  "Unless  cor-  sides,  the  testimony  of  M.  R.  clear- 
roborated   by  other  evidence   tend-  ly  does  so. 


§2749.]  PRINCIPALS  AND   ACCESSORIES.  1763 

such  other  evidence  in  the  case  as  shall  tend  to  connect  the  defendant 
with  the  commission  of  the  offense,  and  the  corroboration  is  not  suf- 
ficient if  it  merely  shows  the  commission  of  the  offense,  or  the  cir- 
eimistanees  thereof.^^ 

(f )  You  are  charged  that  the  witness,  J.  S.,  is  an  accomplice  and 
you  cannot  convict  defendant  on  his  testimony,  unless  corroborated 
by  other  evidence  tending  to  connect  defendant  with  the  offense  com- 
mitted, and  the  corroboration  is  not  sufficient  if  it  merely  shows  the 
commission  of  the  offense. ""^ 

§  2749.  Testimony  of  Accomplice — What  Corroboration  Sufl&cient. 
(a)  The  slightest  corroboration  of  the  testimony  of  an  accomplice  is 
sufficient  if  it  tends  to  connect  the  defendant  with  the  commission  of 
the  offense. °^ 

(b)  It  is  not  necessarj'  that  the  testimony  of  the  accomplice  be 
corroborated  circumstantially  and  in  detail,  but  the  corroboration  is 
sufficien>t  if  the  coiToborative  evidence  of  itself,  and  without  the  aid 
of  the  accomplice  testimony,  in  any  material  matter  tends  to  connect 
defendant  with  the  commission  of  the  offense  for  which  he  is  charged ; 
but  it  need  not  be  sufficient  of  itself  to  establish  defendant's  guilt. ^^ 

(c)  The  corroboration  is  not  sufficient  if  it  merely  shows  the  com- 
mission of  the  offense  or  the  circumstances  thereof.  And  in  this  case 
you  are  instructed  that  mere  proof  of  the  death  of  the  deceased,  M.  S., 
from  poison,  is  not  such  corroboration  as  would  justify  a  conviction 
upon  the  testimony  of  the  said  E.  S.  alone,  if  you  find  she  was  an  ac- 
complice in  causing  the  death  of  said  M.  S.  But  if  you  fail  to  find 
that  E.  S.  was  an  accomplice  as  heretofore  defined,  then  if  you  believe 
her  testimony  to  be  true,  and  you  find  it  connects  the  defendant  with 
the  commission  of  the  crime,  then  it  would  be  sufficient  to  connect  the 
defendant  with  the  commission  of  the   crime  without  further  testi- 

51_This   charg-e  in   the   words   of  convict    said    defendant    upon    the 

the  code  approved  in  State  v.  Rus-  evidence  of  said  E.   S.   so  corrobo- 

sell,   90   Iowa   493,   58  N.   W.   890,    28  rated  alone,  if  you  believe  the  said 

Li.  R.  a.  195.  witness,    and    if    you     further     find 

In    State   v.    Smith,    106   Iowa  701,  that    her    evidence    warrants     such 

77    N.    W.    499    (500),    homicide,    the  conviction, 

following  was  approved:  52— Winfield  v.   State,  44  Tex.  Or. 

But,    upon    this    question    of    cor-  App.   475,  72  S.  W.  182. 

roboration    of    an    accomplice,    you  The  court  said: 

are     further    instructed     that     you  "If   the    testimony    raises   the    is- 

have  a  right  to  consider  the  death  sue   merely   of   an   accomplice   then 

of  the  deceased,   the   cause  of  said  it  is  proper  for  the  court  to  submit 

death,    in    connection    with    all    the  this    to    the    jury    by    charge;    but 

facts    and    circumstances,    if    any,  where    the    evidence    is    undisputed 

shown    or    disclosed     by     the     evi-  going   to    show   that   witness    is   an 

dence,    which    tend    to    connect    the  accomplice,  it  is  not  on  the  weight 

defendant  with   causing  said  death  of  the  evidence,  nor  erroneous,  for 

of   deceased;    and    if   you   find    that  the   court    to   so   instruct    the  jury, 

the     facts     and     circumstances,     if  Hatcher    v.    State,    65    S.    W.    97,    3 

any.    shown    or     disclosed     by     the  Tex.   Ct.  Rep.  234." 

evidence,     corroborate      the     testi-  53— Crittenden    v.    State,    134    Ala. 

mony  of  the  witness  tend-  145,   32   So.   273  (275). 

ing   to  connect  the  defendant  with  54— Wilkerson    v.    State.    —    Tex. 

the      commission      of      the      crime  Cr.  App.  — ,  57  S.  W.  956  (962). 
charged,   then    you  are   entitled   to 


1764  FORMS  OF  INSTRUCTIONS.  [§  2750. 

moiiy.  But,  upon  this  question  of  corroboration  of  an  accomplice,  you 
are  further  instructed  that  you  have  a  right  to  consider  the  death  of 
the  deceased,  the  cause  of  said  death,  in  connection  with  all  the  facts 
and  circumstances,  if  any,  shown  or  disclosed  by  the  evidence,  which 
tend  to  connect  the  defendant  with  causing  said  death  of  deceased; 
and  if  you  find  that  the  facts  and  circumstances,  if  any,  shown  or  dis- 
closed by  the  evidence,  corroborate  the  testimony  of  the  witness  E.  S. 
tending  to  connect  the  defendant  with  the  commission  of  the  crime 
charged,  'then  you  are  entitled  to  convict  said  defendant  upon  the  evi- 
dence of  said  E.  S.  so  coiToborated  alone,  if  you  believe  the  said 
witness,  and  if  you  further  find  that  her  evidence  warrants  such  con- 
viction.^^ 

S  2750.  Testimony  of  Accomplice — Corroborated  by  Confession. 
(a)  A  confession  by  the  defendant,  if  one  was  made,  is  admissible  as 
corroborating  evidence  of  that  of  an  accomplice,  and  may  be  taken 
by  the  jury  as  a  sufficient  corroboration  to  authorize  a  conviction.^*' 

§  2751.  Testimony  of  Accomplice — Need  Not  Be  Corroborated,  (a) 
It  is  not  the  rule  of  law,  but  it  is  rather  the  result  of  our  experience 
in  dealing  with  that  class  of  testimony,  that,  while  you  may  convict 
upon  the  uncorroborated  testimony  of  an  accomplice,  still  you  should 
act  upon  his  testimony  with  great  caution,  subject  it  to  a  careful 
examination  in  the  light  of  the  other  evidence  in  the  case,  and  you  are 
not  to  convict  upon  such  testimony  alone,  unless  satisfied,  after  a 
careful  examination,  of  its  truth,  and  also  that  you  can  safely  rely  on 
it.  If  that  testimony  is  corroborated,  and  it  satisfies  you  beyond  a 
reasonable  doubt  of  defendant's  guilt,  it  is  your  duty  to  convict.  If 
you  find,  from  all  the  other  evidence,  that  the  charge  brought  by 
the  state  is  made  out,  it  is  your  duty  to  say  so  by  a  verdict  of  guilty. 
It  is  your  duty  to  bring  in  a  verdict  of  guilty,  if  you  feel  that  you  can 
rely  upon  the  testimony  of  that  witness,  even  if  not  corroborated,  if 
you  are  satisfied  beyond  a  reasonable  doubt  of  the  truth  of  the 
charge.^''^ 

(b)  The  evidence  of  an  accomplice  should  be  received  by  the  jury 
with  great  caution,  but  if  the  testimony  carries  conviction,  and  the 
jury,   after  careful   consideration  of  all  the  evidence,  are   convinced 

55— State  v.    Smith,   106   Iowa  701,  The     court     said     "There     is     no 

77  N.  W.  499  (500).  doubt    that     an     accomplice     is    a 

56 — Crittenden    v.    State,   134   Ala.  competent   witness,   provided   he   is 

145,   32  So.   273  (275).  not    being-    tried    at   the    same    time 

57 — State  v.   Hauser,  112  La.   313,  with    the    accused    for    or    against 

36   So.   396  (402).  whom    he    is    called    on    to    testify; 

In  State  v.  Vicknair,   52  La.  Ann.  the    fact    of    his    being-    an    accom- 

1921,    28   So.   273   (276),   the  following  plice  affecting-   his  credibility   only, 

charge  was  approved:  of  which   the    jury  are   the   judges. 

The   fact   that   a  witness  was  an  State   v.   Prudhomme,   25   La.   Ann. 

accomplice    may    affect    his    credi-  522;    State  v.  Bayonne,  23  La.   Ann. 

bllity,     but     not     his     competency;  78;  State  v.  Mason,  38  La.  Ann.  476. 

thnt  he  is  a  legal  witness,  and  you  The    objection    that    the    testimony 

must    determine    what    credit    you  of     an     accomplice     could     not     be 

think   his    testimony  is  entitled   to,  taken      unless      corroborated     was 

whether     corroborated     or     uncor-  therefore   not  well   made,   and    was 

roborated.  properly  overruled." 


§2752.]  PRINCIPALS  AND   ACCESSORIES.  1765 

of  its  truth,  they  should  give  to  it  the  same  effect  as  would  be  allowed 
to  that  of  a  witness  who  is  in  no  resj^eet  implicated  in  the  offense.^® 

(c)  The  testimony  of  an  accomplice  is  competent  evidence,  and 
the  credibility  of  such  an  accomplice  is  for  the  jury  to  pass  upon  as 
they  do  upon  any  other  witness;  and,  while  the  testimony  of  an  ac- 
complice will  sustain  a  verdict  when  uncorroborated,  yet  the  testimony 
of  an  accomplice  must  be  received  with  great  caution;  but  if  the 
testimony  cari-ies  conviction,  and  the  juiy  are  convinced  of  its  truth, 
they  should  give  to  it  the  same  effect  as  would  be  allowed  to  a  witness 
who  is  in  no  respect  implicated  in  the  offense. ""^ 

§  2752.  Testimony  of  Accomplice — Should  be  Received  with  Cau- 
tion, (a)  You  are  instructed  that  the  testimony  of  an  accomjDlice 
in  a  crime — that  is,  a  person  who  actually  commits  or  assists  or  par- 
ticipates in  the  crime — is  admissible  in  evidence.  Yet  the  evidence 
of  an  accomplice  in  a  crime,  when  not  corroborated  by  some  person 
or  persons  not  implicated  in  the  crime  as  to  matters  material  to  the 
issues — that  is,  matters  connecting  the  defendant  with  the  commission 
of  the  crime  charged  against  him — ought  to  be  received  with  great 
caution  by  you  before  you  convict  the  defendant  on  such  testimony.^" 

(b)  The  testimony  of  an  accomplice  should  be  weighed  with  great 
caution,  and  the  jury  may  disbelieve  such  testimony  altogether,  if  they 
believe  it  untrue,  the  juiy  being  the  sole  judge  of  the  credibility  of 
the  witness.  The  jury  is  not  bound  to  accept  W. 's  evidence  as  true, 
or  any  part  of  it,  if  they  believe  it  untrue,  and  the  jury  should  weigh 
the  testimony  of  an  accomplice  with  great  care  and  caution.^^ 

(c)  The  information  in  this  case  jointly  charges  the  witness,  D.  B., 
and  defendant  with  the  killing  of  S.  J.  The  testimony  of  an  accom- 
plice in  crime — that  is,  a  person  who  actually  commits,  or  participates 
in  the  crime — is  admissible.  Yet  the  evidence  of  an  accomplice  in 
crime,  when  not  corroborated  by  some  person  or  persons  not  im- 
plicated in  the  crime,  as  to  mattei-s  connecting  the  defendant  with 
the  commission  of  the  crime,  as  charged  against  him,  and  identifying 
him  as  the  pei-petrator  thereof — ought  to  be  received  with  great  cau- 
tion by  the  juiy,  and  the  jury  ought  to  be  satisfied  of  its  truth  befoi-e 
they  should  convict  the  defendant  on  such  testimony.  The  jury  may 
convict  the  defendant  on  the  uncoiToborated  testimony  of  an  accom- 
plice alone,  if  you  believe  the  statements  given  by  such  accomplice  in 
his  testimony  to  be  true,  if  you  fui'ther  believe  that  the  state  of  facts 
testified  to  by  such  witness,  if  any,  is  sufficient  to  establish  the  guilt 
of  the  defendant. ^2 

58— Myers  et   al.  v.  State,  43  Fla.  60— State    v.    MUler,    190    Mo.    449. 

500,  31  So.  275  (279).  89  S.  W.  377:  State  v.   Spra.^ue,  14S 

This  languag-e  has  been  approved  Mo.  409.   50  S.  'W.   901   (905). 

in    Bacon  v.   Stiite,   22   Fla.    51,   and  61— Wilson   v.   State.   71    Miss.    880 

Shiver  v.   State,   41   Fla.   630,   27  So.  16  Sn.  304:  Brown  v.  State,  72  Miss 

36.  990.  18  So.  431   (432). 

59— Shiver   v.    State,    41    Fla.    630,  62— State  v.   Darling,  199   Mo.  168, 

27     So.     36     (39).     citing    Bacon     v.  97  S.   "W.   592. 
State,  22  Fla.  51. 


1766  FORMS  OF  INSTRUCTIONS.  [§  2753. 

§  2753.  An  Accomplice  Cannot  Corroborate  Herself — Corroboration 
Must  be  by  Evidence  Outside  and  Beyond  Her  Statements,  Acts  and 
Declarations — Seduction.  The  court  instructs  that  you  cannot  con- 
vict defendant  upon  the  uncorroborated  testimony  of  B.  R.  Before 
you  would  be  authorized  to  convict  upon  her  testimony,  it  is  necessary 
for  her  to  be  corroborated  upon  both  the  alleged  promise  of  marriage, 
and  also  upon  the  alleged  act  of  sexual  intercourse ;  and  in  this  connec- 
tion the  court  further  instructs  you  that  no  act,  statement  or  declara- 
tion made  by  said  B.  R.  subsequent  to  the  alleged  seduction  can  be 
considered  by  you  as  corroborating  her  testimony.  The  court  in- 
structs you  that  said  corroboration  is  absolutely  essential  to  a  legal 
conviction;  that  although  the  jury  might  believe  the  testimony  of  B. 
R.  to  be  true,  still  they  cannot  convict  unless  they  further  believe  that 
thera  is  other  testimony  outside  of  her  testimony  tending  to  connect 
defendant  with  the  commission  of  the  offense  charged.''^ 


MISCELLANEOUS. 

§  2754.     Statements  of  Prosecuting  Attorney  not  Based  on  Evidence. 

The  jury  are  instructed,  that  it  would  be  highly  improper  and  wrong 
for  them  to  regard  the  statements  of  the  prosecuting  attorney  that, 
etc.,  as  entitled  to  any  weight  whatever  in  this  ease.  And  this  is  true 
of  any  and  all  other  statements  of  his  that  are  not  based  on  the  evi- 
dence in  the  case,  if  any  such  have  been  made.*^* 

§  2755.  Opinion  of  Prosecuting  Attorney  as  to  Guilt  of  Defendant 
is  not  to  be  Considered  by  the  Jury.  You  are  instructed  that  the 
opinion  of  the  prosecuting  attorney  that  the  defendant  is  guilty 
should  not  be  considered  by  you.  It  does  not  matter  what  his  opinions 
may  be.  Before  you  can  find  the  defendant  guilty,  you  must  believe 
he  is  guilty,  beyond  a  reasonable  doubt,  from  the  evidence  as  testified 
by  the  witnesses  in  the  case.*'^ 

§  2756.  Instruction  Correcting  Statement  of  Attorney  in  Argument 
—Reference  to  Biblical  Laws.  Under  the  Mosaic  dispensation  I  be- 
lieve it  is  true,  as  my  Brother  Davis  informed  the  jury,  that  it  re- 
quired more  tlran  one  witness  to  establish  the  guilt  of  a  person.  Moses 
was  a  great  lawgiver,  and  no  one  respects  that  lawgiver  more  than 
your  humble  servant.  He  codified  the  laws.  He  enacted  as  laws  for 
the  government  of  Israel  under  the  peculiar  conditions  in  which  they 
■were  placed  in  that  day.    But  it  is  not  the  law  of  Georgia.    Our  law- 

63 — Barnard  v.   State,  —  Tex.   Cr.  ments  made  before  the  jury  by  the 

App.  — ,  76  S.  W.  475  (476).  prosecuting-  offlecr.     The   confessed 

64— Kennedy    v.     The    People,    40  purpose  of  the  charge  being-  to  re- 

111.  488.  fute  some'  remarks  of  the  solicitor 

In  White  v.  State,  133  Ala.  122,  32  in     his     closing     argument;     citinff 

So.    139,    the    court    held    that    it    is  Mitchell    v.    State,    129    Ala.    23,    30 

not  error  in   the  court   to   refuse   a  So.  349. 

charge     having     no    other    purpose         65— Cox   v.    State,   72  Ark.    544,   81 

than  to  respond   to  or  offset  argu-  S.  W.  1056  (1057). 


§  2757.] 


CRIMINAL— MISCELLANEOUS. 


1767 


makers  have  believed,  for  reasons  satisfactory^  to  themselves,  that 
such  laws  are  not  applicable  nor  suitable  to  our  day  and  time,  and 
therefore  the  laws  of  Georgia  are  laid  down  in  our  Code  as  follows: 
'  *  The  testimony  of  a  single  witness  is  generally  sufficient  to  establish 
a  fact. ' '  Exceptions  to  this  rule  are  made  in  specified  cases,  such  as 
to  convict  of  treason  or  perjury  (this  is  not  treason  or  perjury)  and 
in  any  case  of  felony  where  the  only  witness  is  an  accomplice  (this  is 
not  a  felony,  nor  is  it  contended  that  any  witness  is  an  accomplice). 
Even  in  these  cases  (except  in  treason)  coii'oborating  circumstances 
may  dispense  with  another  witness.  Now,  gentlemen,  that  is  the  law 
of  Georgia.  That  is  the  law  you  are  sworn  to  try  criminal  cases  by 
under  the  jurisprudence  of  Georgia.^^ 

§  2757.  Arguments  of  Counsel — Laying  Foundation  for  Civil  Suit. 
There  has  been  some  suggestion  by  counsel  for  the  defendant  that  this 
prosecution  is  laying  the  foundation  for  a  civil  suit.  That  is  a  matter 
jx)u  have  nothing  to  do  with.  It  has  no  place  in  this  case  at  all.  Your 
simple  duty  is  to  determine  whether  upon  the  testimony  produced 
before  you  in  this  hearing  this  defendant  is  guilty  as  charged,  and, 
if  you  are  satisfied  from  such  testimony  that  he  is  guilty,  then  it  is 
your  duty  so  to  say;  othei-wise  you  should  acquit  him.^'' 

§  2758.  Consideration  Due  to  Argument  of  Counsel.  You  will  now, 
gentlemen  of  the  jury,  listen  to  the  arguments  of  counsel,  who  will 


66— Cole  V.  State,  120  Ga.  485,  48 
S.  E.  156. 

"From  the  assignment  of  error 
on  this  charge  it  appears  that  in 
his  argument  to  the  jury  the  so- 
licitor made  reference  to  'the  bib- 
lical injunction  not  to  put  the  bot- 
tle to  thy  neighbor's  lips';  that 
counsel  for  the  accused  in  his  re- 
ply argued  'that,  if  the  Bible  was 
the  rule  we  were  trying  this  case 
on,  then  the  state  would  wholly 
fail,  because  the  great  lawgiver 
had  said  that  in  the  mouth  of  two 
witnesses  shall  a  fact  be  estab- 
lished.' It  is  urged  that  the  court 
in  the  charge  quoted,  singled  out 
the  argument  of  counsel  for  the 
accused,  and  in  effect  answered  it 
and  discredited  it  to  the  detriment 
of  the  accused.  It  is  also  contend- 
ed that  the  charge  practically  in- 
structed the  jury  that,  if  one  wit- 
ness had  testified  against  the  ac- 
cused, he  should  be  convicted,  and 
that  the  reference  to  corroborat- 
ing circumstances  was  erroneous, 
because,  as  contended  in  this  case 
there  were  no  corroborating  cir- 
cumstances. Whatever  may  be 
said  of  the  charge  under  consider- 
ation, it  cannot  be  denied  that  it 
states  a  proposition  of  law  emi- 
"neutly   sound    in    the   abstract.     It 


will  be  noted  that  it  is  not  object- 
ed that  the  charge  was  argumenta- 
tive, but  merely  that  it  singled  out 
a  portion  of  the  argument  of  coun- 
sel for  the  accused  and  answered 
it.  Under  the  circumstances  we 
think  this  was  permissible.  Counsel 
on  both  sides  of  the  case  seem  to 
have  abandoned  the  law  and  re- 
lied on  the  prophets;  and  it  was 
clearly  the  right  of  the  court  to 
remind  the  jury  that  the  issue  of 
the  case  was  to  be  determined 
under  the  laws  enacted  by  the 
Georgia  Legislature,  and  not  by 
those  handed  down  from  Sinai.  In 
the  early  case  of  Matthews  v. 
Poythress,  4  Ga.  294,  Nisbet  J.,  de- 
livering the  opinion,  said:  'If,  in 
the  argument,  legal  positions  are 
taken  by  counsel,  which  in  the 
judgment  of  the  court  are  wrong, 
I  see  no  sort  of  objection  to  the 
court  instructing  the  jury  ac- 
cording to  its  judgment  of  those 
positions.'  The  rather  argumenta- 
tive tone  of  the  charge  excepted  to 
in  the  present  case  is  to  be  dep- 
recated, but,  as  no  objection  was 
made  to  it  on  this  ground,  it  will 
not  work  the  grant  of  a  new 
trial." 

67— State  V.  Clark,  —  N.  J.  — ,  64 
Atl.    984. 


1768  FORMS  OF  INSTRUCTIONS.  [§  2759. 

endeavor  to  aid  you  to  reach  a  proper  verdict  in  this  cause  by  refresh- 
ing in  your  minds  the  evidence  which  has  been  given  to  you  in  this 
cause,  and  by  showing  the  application  thereof  to  the  law;  but,  what- 
ever counsel  may  say,  you  will  bear  in  mind  that  it  is  your  duty  to  be 
governed  in  your  deliberations  by  the  evidence  as  you  understand  it 
and  remember  it  to  be,  and  by  the  law  as  given  in  these  instructions, 
and  render  such  verdict  as  to  your  consciences  and  reason  and  candid 
judgment  seems  to  be  just  and  proper.^^ 

§  2759.  Comment  on  Evidence  by  Court  to  be  Disregarded.  Under 
the  constitutions  and  laws  of  this  state,  the  jury  are  the  sole  judges 
of  the  facts,  and  the  judge  is  prohibited  from  commenting  upon  the 
facts.  Therefore,  if  in  ruling  upon  objections  or  in  answering  ques- 
tions asked  by  counsel  for  either  the  state  or  defendant,  or  in  any 
other  way,  or  under  any  other  circumstances  the  court  has  commented 
upon  the  testimony  in  this  case,  the  court  instructs  you  that  you  are 
to  disregard  entirely  any  and  all  such  comment  by  the  court,  if  any 
has  been  made.^'' 

§  2760.  Duty  to  Convict — Expression  of  Opinion.  You  take  this 
case,  gentlemen  of  the  jury,  and  determine  what  the  truth  is.  If  the 
defendant  is  guilty,  and  you  are  satisfied  of  it  to  the  extent  I  have 
charged  you,  it  would  be  your  duty  to  convict  him.  If  so,  just  say, 
*'We,  the  jury,  find  the  defendant  guilty."^** 

§  2761.  Defendant  May  Rely  Upon  Any  Theory  or  Claim  He  May 
See  Fit —  Trumped-up  Charge  or  Conspiracy  as  a  Defense.  The  court 
instructs  you  that  it  is  claimed  by  the  defense  that  this  whole  matter 
concerning  the  charge  against  this  respondent  is  a  conspiracy  or  the 
outgrowth  of  a  conspiracy;  that  it  is  a  trumped-up  charge — in  other 
words,  made  out  of  whole  cloth,  as  we  say  in  common  parlance — and 
that  there  is  no  truth  in  it  whatever.  Now,  that  evidence  goes  into 
this  case  to  be  considered  with  the  other  evidence  in  the  ease,  not 
necessarily  as  affirmative  proof,  because,  as  I  said,  when  all  the  evi- 
dence in  the  case  is  before  the  juiy,  the  burden  of  proof  remains 
where  it  is  started,  with  the  prosecution.  But  this  is  the  respondent 's 
claim.  You  can  measure  it,  you  can  weigh  it,  you  can  sift  it,  and  see 
what  there  is  to  it;  that  is  what  you  may  do.  The  defense  does  not 
have  to  have  a  theory,  except  as  they  see  fit  to  adopt  a  theory.     The 

68— State   v.    Gatlin,   170    Mo.    354,  satisfied  to  the  extent  that  he  had 

70  S.  W.  885  (888).  charged    them— that    is,    beyond    a 

69 — State      v.       Manderville,       37  reasonable  doubt — that  the  accused 

Wash.   365,   79  Pac.   977   (978).  was  guilty,    it   was   their   duty   un- 

70— Addis  v.  State,  120  Ga.  180,  47  der    the    law   to    convict    him,    and 

S.   E.    505.  there   was   no   error  in    instructing 

"We  do  not  think  the  charge  them  to  this  effect.  Properly  con- 
subject  to  the  criticism  made  up-  strued,  there  was  nothing  in  the 
on  it.  The  judge  had  fully  charged  charge  complained  of  which  con- 
the  jury  as  to  the  law  of  reason-  tained  an  expression  of  opinion,  or 
able  doubt,  and  also  the  rules  to  be  which  constrained  the  jury  to  find 
foilowod  in  detormiiiiiig  cases  of  any  other  way  than  according  to 
circumstantial  evidence;  and  if  the  the  evidence  as  it  appeared  to 
.1ury,     from     the     evidence,     were  them." 


§  2762.]  CRIMINAI^-MISCELLANEOUS.     '  1769 

defense  is  ''not  guilty;"  that  is  the  plea;  and,  as  I  told  you,  they  rest 
upon  that  plea  until  the  prosecution  shall  convince  the  jury  of  the 
guilt  of  the  respondent.  They  may  meet  that  proof  in  whatever  way 
they  see  fit.  That  is  what  I  mean  by  saying  that  the  defense  rely  upon 
a  conspiracy.  They  may  meet  it  by  such  claim  as  they  see  fit  to  put 
forth  in  the  case.'^^ 

§  2762.  Tried  by  Evidence  Only — Not  on  Suspicion — Evidence  Ex- 
cluded or  Stricken  Out.  (a)  The  defendant  is  to  be  tried  only  on  the 
evidence  which  is  before  the  jury,  and  not  on  suspicions  that  may 
have  been  excited  by  questions  of  counsel,  answers  to  which  were  not 
pennitted. 

(b)  The  court  deems  it  proper  to  admonish  you  that  you  are  not 
to  consider  evidence  which  has  been  excluded  by  the  court  in  deter- 
mining any  fact  in  the  case.'^- 

§  2763.  Must  First  Determine  Guilt  Before  Fixing  Punishment.  I 
have  no  right  to  instruct  .you  as  to  what  the  sentence  might  be  in  case 
the  defendant  is  found  guilty  on  either  of  the  three  counts  in  the  in- 
dictment. That  is  a  question  which  you  have  nothing  in  the  woi'ld 
to  do  with.  The  question  that  you  have  to  determine  is  simply  a  ques- 
tion of  fact.  It  is  entirely  out  of  place  for  you  to  consider  what  pun- 
ishment might  be  inflicted  upon  the  defendant  in  case  he  is  found 
guilty  of  any  offense;  that  is  a  question  that  comes  later  in  the  case. 
You  are  to  consider  the  evidence  adduced  in  this  case,  and  then  deter- 
mine as  to  the  defendant's  guilt  or  innocence,  and  nothing  else.  The 
law  prohibits  this  court  from  giving  you  any  instructions,  or  making 
any  remarks  to  you  whatever,  as  to  what  punishment  the  defendant 
might  receive  in  case  he  is  found  guiltj'.'^^ 

§  2764.  Witness  Excused  from  Answering,  When  the  Answer  Might 
Incriminate.  In  this  case  the  witness  A.  B.  was  asked  whether,  etc., 
and  declining  to  answer  the  question  on  the  ground  that  the  answer 
might  criminate  himself,  he  was  excused  from  answering.  From  this 
failure  to  answer,  the  jury  must  not  infer  that,  etc., — the  jury  are  not 
at  liberty  to  suppose,  infer  or  imagine  what  would  have  been  his 
answer,  if  one  had  been  given.  The  case,  so  far  as  that  question  to 
that  witness  is  concerned,  stands  as  if  the  question  had  not  been  put. 
The  jury  must  act  upon  the  evidence  in  the  case  and  not  upon  what 
they  may  imagine  the  evidence  might  have  been.'^* 

71_People   V.    Rich,  133    Mich.  14,  73— Clarey   v.    State,    61    Neb.    688, 

94  N.   W.   375   (377).  85   N.    W.    897. 

72 — People  v.  Roberts,  1  Cal.  App.  The   court    said    "this   instruction 

447,   82  Pac.    625.  assumes  nothing,  and   very  proper- 

The    court    said    that    "when    the  ly    told    the    jury    it    was    none    of 

jury   were  told   that  the  defendant  their    business    as    to    the    punish- 

is  to  be  tried  only  on  the  evidence  ment.  That  question,  in  a  case  like 

which   is   before   the   jury,    they   as  this,    is    for   the    court,    and    arises 

sensible     men     must     have     under-  after  verdict  of  guilty,  and  not  h«^- 

stood    that    evidence    stricken    out  fore." 

was   not  before  the  jury,   and  evi-  74 — People    v.    Brewer,    27    Mich, 

dence  excluded    may  fairly  be  said  134. 
to   include   evidence   stricken   out." 


1770  FORMS  OF  INSTRUCTIONS.  [§  2765. 

§  2765.  Contradictory  and  Inconsistent  Statements.  The  court 
further  instructs  the  jury,  that  the  fact  that  witnesses  disagree  in 
minor  points  in  their  recollection  and  recital  of  transactions  does  not 
necessarily  militate  against  the  candor  of  any  of  them.  It  may  only 
indicate  a  failure  of  observation  or  recollection.  Jurors  have  not  the 
right  to  captiously  or  unreasonably  disregard  the  testimony  of  wit- 
nesses, but,  unless  there  appears  something  which  indicates  a  lack  of 
candor  or  untruthfulness  on  the  part  of  the  witness,  the  testimony  of 
all  the  witnesses  should  receive  proper  and  candid  consideration  by 
the  jury,  in  an  honest  discharge  of  their  sworn  duties.'^^ 

§  2766.  Impeaching  Witnesses  by  Contradictory  Statements.  Evi- 
dence has  been  offered  as  to  the  whereabouts  of  other  persons  who  are 
jointly  indicted  with  this  defendant,  at  the  time  when  this  offense  was 
alleged  to  have  been  committed.  This  evidence  has  been  offered  but 
for  one  purpose,  namely,  for  the  purpose  of  throwing  light  upon  the 
credibility  of  witnesses  in  this  case.  To  make  this  plain  to  you,  cer- 
tain witnesses  have  been  offered  as  to  certain  parties  other  than  the 
defendant  being-  present  at  the  scene  of  the  killing.  Witnesses  have 
been  offered  to  prove  that  these  parties  were  not  present.  This  last 
evidence  is  only  relevant  for  the  purpose  of  contradicting  or  impeach- 
ing such  witnesses.  You  are  not  to  pass  upon  the  guilt  or  innocence 
of  these  parties.  In  considering  this  evidence,  you  only  consider  it  in 
determining  the  credit  to  be  given  to  the  testimony  of  such  witnesses, 
because  a  witness  may  be  impeached  by  proof  of  contradictory  state- 
ments, and  also  by  disproving  the  facts  testified  to  by  him.'^" 

§  2767.  Credibility— Rejecting  Evidence  of  Perjured  Witness,  (a) 
The  jury  are  the  sole  judges  of  the  credibility  of  the  witnesses,  and 
of  the  weight  and  value  to  be  given  to  their  testimony.  In  determin- 
ing as  to  the  credit  you  will  give  a  witness,  and  the  weight  and  value 
you  will  attach  to  a  witness'  testimony,  you  should  take  into  con- 
sideration the  conduct  and  appearance  of  the  witness  upon  the  stand, 
the  interest  of  the  witness,  if  any,  in  the  result  of  the  trial,  motives 
actuating  the  witness  in  testifying,  the  witness '  relation  to  or  feeling 
for  or  against  the  defendant  or  the  alleged  injured  party,  the  prob- 
ability or  improbability  of  the  witness'  statements,  the  opportunity 
the  witness  had  to  observe  and  to  be  informed  as  to  matters  respecting 
which  such  witness  gives  testimony,  and  the  inclination  of  the  wit- 
ness to  speak  truthfully  or  otherwise  as  to  matters  within  the  knowl- 
edge of  such  witness.  All  those  matters  being  taken  into  account  with 
all  other  facts  and  circumstances  given  in  evidence,  it  is  your  province 

75— State  v.   McDivitt,   69  la.  549,  the    court    had    not    been   called    to 

29  N.  W.  459.  pass    on    its    admissibility    for    any 

76— Cochran  v.  State,  113  Ga.  736,  other  purpose.  That  being  the  case, 

39  R.   E.   337  (339).  it  was  not  error  to  restrict  its  con- 

"We  see  no  error  in  this  charge,  sideration   by  the  jury  to  the  pur- 

The   evidence   in   question    was   of-  pose    for    which    it    was    admitted, 

fcred    for    the    distinct    purpose    of  even  if  it  were  admissible  for  other 

impeaching   certain   witnesses,    and  purposes." 


§  2768.]  CRIMINAL— MISCELLANEOUS.  1771 

to  give  each  witness  such  value  and  weight  as  you  deem  proper.  If, 
upon  a  consideration  of  all  the  evidence,  you  conclude  that  any  wit- 
ness has  sworn  willfully  falsely  as  to  any  material  matter  involved 
in  the  trial,  you  may  reject  or  treat  as  untrue  the  whole  or  any  part 
of  such  witness'  testimony.'^^ 

(b)  The  jury  are  the  sole  judges  of  the  credibility  of  the  witnesses, 
and  of  the  weight  and  value  of  their  testimony.  In  determining  such 
credit,  weight,  and  value,  you  may  take  into  consideration  the  char- 
acter of  the  witness;  his  or  hep- manner  on  the  stand  and  of  testifying; 
his  or  her  interest,  if  any,  in  the  result  of  the  case ;  his  or  her  relation 
to  or  feeling  for  the  defendant  or  the  deceased ;  the  probability  of  his 
or  her  statement,  as  well  as  all  other  facts  and  circumstances  detailed 
in  evidence ;  and  in  this  connection  you  are  further  instructed  that,  if 
you  believe  any  witness  has  willfully  sworn  falsely  to  any  material 
fact  in  the  ease,  you  are  at  liberty  to  disregard  or  treat  as  untrue  the 
■whole  or  any  part  of  such  witness '  testimony,  except  in  so  far  as  the 
same  may  be  corroborated  by  other  credible  evidence  or  by  facts  and 
circumstances  in  evidence  in  the  case."^^ 

§  2768.  Testimony  of  Police  Officers  and  Detectives — Greater  Care 
in  Weighing.  The  court  instructs  the  jury  that  certain  police  officers 
and  detectives  have  testified  in  this  case  on  behalf  of  the  state,  and 
that,  under  the  law  of  this  state,  in  weighing  their  testimony  greater 
care  should  be  used,  because  of  the  natural  and  unavoidable  tendency 
of  such  persons  in  procuring  and  stating  evidence  against  the  ac- 
cused.'^^ 

§  2769.  Police  Officers'  Testimony  not  to  be  Discarded  or  Suspicion 
Cast  on  it.  The  police  department  is  an  impoi'tant  part  of  the  ma- 
chiner}-  of  our  government,  and  it  is  well  enough  to  bear  in  mind  that 
your  homes,  your  lives  and  your  property  would  not  be  safe  but  for 
the  police  department  and  officers.  It  does  not  follow  that  because 
an  officer  testifies  in  the  court  room  that  his  testimony  is  to  be  dis- 

77 — State  v.  Gatlin,  170  Mo.  354,  70  ability  of  the  witness'   statements, 

S.   W.   885   (888);   homicide.  the    opportunity    that    the    witness 

78— State    v.    Kinder,    184    Mo.   276  had    for    ascertaining-    the    facts    to 

83   S.    W.   964   (966);   murder.  which    he   or  she   has    testified,   to- 

A  nearly  identical  instruction  Is  gether  with  all  the  other  facts  and 
approved  in  State  v.  May,  172  Mo.  circumstances  detailed  in  evidence; 
630,  72  S.  W.  918  (920).  It  is  as  fol-  and  if  you  believe  that  any  wit- 
lows:  ness  has  willfully  sworn  falsely   to 

The  jury  are  instructed  that  they  any  material  fact  in  the  case,  you 

are   the    sole   judges   of   the   credi-  are  at  liberty  to  reject  any  poi-tion 

bility   of  the  witnesses  and    of   the  or   all   of   such    witness'    testimony, 

weight   to   be   given   to    their  testi-  79 — Kastner  v.  State,  58  Neb.  767, 

mony,    and     in     determining     such  79  N.   Vv^.  713  (716). 

credibility     and    weight     you     will  The   court    held    "this   instruction 

take  into  con.sideration  the  charac-  to  be  in  harmony  with  the  rule  an- 

ter  of  the  witness,  his  or  her  man-  nounced  in  Preuit  v.  People,  5  Neb. 

ner    on    the    witness    stand,    his    or  378;    and    Heldt    v.    State,    20    Neb. 

her    relation    to    or    feeling    toward  492,  30  N.  W.  626,  57  Am  Rep.  835." 

the    defendant    or    the    prosecuting  But    see    Frudie    v.    State,    66    Neb. 

witness,  the  probability  or  improb-  244,  92  N.  W.  320. 


1772  FORMS  OF  INSTRUCTIONS.  [§  2770. 

carded,  or  any  suspicion  cast  upon  it,  unless  there  is  something  about 
it  which  calls  your  attention  to  it.^** 

§  2770.  Witness  Who  Testified  in  Commitment  Court  Dead— What 
Evidence  Considered.  But  in  this  case  what  was  testified  to  as  to 
what  the  dead  boy  (claimed  to  have  been  a  witness  in  the  justice's 
court  trial),  said  is  not  to  be  considered  by  you  as  evidence,  unless 
you  believe  the  boy  was  sworn  and  testified  to  it  in  the  commitment 
court.  What  has  been  testified  to,  here,  as  to  what  he  did  say,  if  he 
was  not  sworn,  you  discard  entirely.^^ 

§  2771.  Credibility — Testimony  Stipulated  Into  the  Case.  In  con- 
sidering the  written  testimony  of  G.  W.,  admitted  in  this  trial,  by  the 
state,  as  facts  wliich  G.  W.  would  testify  to  if  present,  the  jury  must 
give  the  same  weight  to  such  testimony  as  they  would  give  to  it  had 
W.  been  before  them  on  the  stand,  testifying  under  oath ;  and  if,  from 
all  the  testimony  in  the  case, — the  testimony  of  W.  inclusive, — there  is 
a  reasonable  doubt  of  the  guilt  of  the  accused  as  charged  in  the  in- 
dictment, the  jury  must  aequit.^^ 

§  2772.  Irreconcilable  Conflict  in  Evidence.  If  the  evidence  is  in-e- 
concilable,  you  must  consider  that  evidence  which  you  deem  worthy 
of  credit,  and  discard  that  which  you  do  not  deem  worthy  of  credit. 
You  must  give  the  evidence  just  such  weight  as  you  think  it  deserves. 
The  jury  should  weigh  all  the  evidence  and  reconcile  it,  if  possible; 
but,  if  there  be  irreconcilable  conflict  in  the  evidence — they  ought  to 
take  that  evidence  which  they  think  worthy  of  credit,  and  give  it  just 
such  weight  as  they  think  it  entitled  to.^^ 

§  2773.  Duty  to  Consider  all  the  Evidence.  You  must  consider  all 
the  evidence  in  connection  with  the  law  as  given  you,  and  therefrom 
reach  a  decision.  In  doing  so  you  must  consider  without  fear,  favor 
or  affection,  bias  or  prejudice,  or  sympathy,  compare  weig'ht  and  con- 
sider all  the  facts  and  circumstances  shown  by  the  evidence,  with  the 
sole,  fixed  and  steadfast  purpose  of  doing  equal  and  exact  justice  be- 
tween the  state  and  the  defendant.'''^ 

§  2774.  Two  Counts  in  Indictment — Duty  to  Consider  all  Evidence 
Under  Each  Count.  For  the  pui-pose  of  determining  the  guilt  or  in- 
nocence of  the  defendant  ui^on  the  two  coitnts  in  the  complaint  upon 
which  he  is  being  tried,  you  should  consider  upon  each  count  the  testi- 
mony of  all  the  witnesses  that  have  appeared  before  you.^'^ 

§  2775.  Attendance  of  Witnesses — ^Limit  of  Process — Taking  Testi- 
mony by  Commission,  (a)  The  court  instructs  the  jury  that  the 
process  of  the  state  of  Florida  to  compel  the  attendance  of  witnesses 
does  not  run  beyond  the  limits  of  the  state,  and  the  attendance  of 
witnesses  beyond  the  limits  of  the  state  cannot  be  compelled. 

80— People      v.      Shoemaker,     131  83— Bondurant    v.    Stfite,   125   Ala. 

Mich.   107,  90  N.   W.   1035    (1036).  31.  27  Po.  775  (776);  homicide. 

81— Ford    V.    State,   97   Ga.    365,    23  S4— State    v.    Ruralli,    27    Nev.    -^l, 

S.    K.    996    (997).  71   Pac.   532   (535);   homicide. 

82— Lee  v.    State,   75   Miss.   625,  23  85— Lincoln    Center   v.    Bailey,    64 

So.  628.  Kan.  885,  67  Pac.   455. 


§2776.] 


CRIMINAL— MISCELLANEOUS. 


1773 


(b)  T'he  constitution  of  the  state  requires  the  prosecution  to  pro- 
duce the  witnesses  against  the  defendant  face  to  face  with  him.  Under 
the  laws  of  this  state  a  defendant  in  a  criminal  ease  can  have  a  com- 
mission issued,  and  the  testimony  of  an.  absent  witness  taken  on 
deposition.    The  state  cannot  do  this.*^ 

§  2776.  Plea  of  Not  Guilty.  When  the  defendant  interposed  his 
plea  of  not  guilty,  he  thereby  put  in  issue  eveiy  fact  necessary  to 
establish  guilt. '^^ 

§  2777.  Joint  Trial— Jury  May  Find  One  or  More  Gruilty,  Others 
Not  Guilty,  (a)  The  court  instructs  the  jury  that  they  are  at  liberty 
to  find  one  or  more  of  the  defendants  guilty  and  others  not  guilty,  as 
they  may  deem  right  and  proper  under  the  instructions  of  the  court 
and  the  evidence  in  the  case.^^ 

(b)     The  court  charges  the  jury  that  E.  is  not  on  trial  in  this  case. 


86— Leslie  v.  State,  35  Fla.  171, 
17  So.  555  (558). 

87— People  v.  Manning,  146  Cal. 
100,    79    Pac.    856    (858). 

88— State  v.  Vaughan,  200  Mo.  1, 
98  S.   W.  2. 

"It  is  insisted  that  this  instruc- 
tion should  have  been  given,  and 
a  separate  finding  or  verdict  as  to 
each  one,  because  each  of  them 
had  the  right  to  have  his  case 
passed  upon  by  the  jury,  as  if  he 
alone  were  upon  trial.  As  the 
case  went  to  the  jury,  this  phase 
of  it  was  not  submitted  to  them, 
in  the  absence  of  which  the  jury 
may  have  believed  that  it  was 
their  duty  under  the  evidence  and 
instructions  to  find  the  defendants 
all  guilty  or  to  acquit  them  all. 
While  it  may  be  true  that  they 
were  all  alike  guilty,  were  they  not 
entitled  to  have  the  jury  instruct- 
ed that  they  were  at  liberty  to 
find  one  or  more  of  them  guilty  and 
others  not  guilty  as  they  might 
believe  from  the  evidence?  We 
think  they  were.  It  is  no  aaswer 
to  this  suggestion  to  say  that  un- 
der the  evidence  they  were  all 
alike  guilty,  for  that  question  was 
for  the  consideration  of  the  jury, 
and  it  was  their  province,  if  so 
inclined,  to  have  acquitted  either 
one  or  all  of  them,  or  to  have 
acquitted  some  of  them  and  found 
the  others  guilty,  or  guilty  of  a 
less  degree  of  crime  than  that 
charged,  notwithstanding  the  evi- 
dence to  the  contrary.  State  v. 
Orstrander.  30  Mo.  13,  was  a  prose- 
cution under  an  indictment  charg- 
ing murder  in  the  first  degree,  and 
although  no  instructions  were 
given  bearing  upon  murder  in  the 
second  degree,  and  the  evidence 
clearly      showed      the      defendant 


guilty  of  murder  in  the  first  de- 
gree, a  verdict  returned  by  the 
jury  finding  the  defendant  guilty 
of  murder  in  the  second  degree  was 
held  to  be  responsive  to  the  in- 
dictment, and  that  the  trial  court 
was  bound  to  receive  it.  Each  one 
had  the  right  to  have  the  jury 
pass  upon  his  guilt  or  innocence, 
and  the  evidence  considered  by  the 
jury  in  regard  to  his  particular 
case,  unbiased  or  uninfluenced  by 
the  evidence  in  respect  to  the  guilt 
of  his  codefendants.  In  the  case 
at  bar  the  jury  might  have  con- 
victed a  part  of  the  defendants, 
and  disagreed  as  to  the  others,  or 
have  acquitted  a  part  of  them 
and  convicted  or  failed  to  agree  as 
to  the  others,  had  they  been  so  in- 
structed. 1  Bishop's  New  Crimi- 
nal Prac.  par.  1036;  State  v.  Kaiser, 
124  Mo.  651,  28  S.  W.  182.  In 
Abrams  v.  State,  121  Ga.  170,  48 
S.  E.  965,  Abrams  and  One  Os- 
burn  were  jointly  indicted  for 
grand  larceny.  They  were  tried 
together,  and  both  were  convicted. 
The  point  was  made  in  a  motion 
for  a  new  trial  that  the  court  failed 
to  instruct  the  jury  distinctly  that 
they  might  acquit  one  of  the  ac- 
cused even  though  the  other  was 
convicted.  The  Supreme  Court  held 
that  it  was  erroneous  under  the 
peculiar  facts  of  the  case  to  fail 
to  instruct  the  jury  distinctly, 
though  one  of  the  accused  was 
found  guilty,  the  other  might 
nevertheless  be  acquitted.  In 
State  v.  Daniels,  115  La.  59,  38  So. 
894,  it  is  held  that,  where  three 
persons  are  being  prosecuted  at 
the  same  time  and  under  the  same 
indictment,  the  jury  ought  to  be 
instructed  that  one  or  two  may  be 
convicted  or  acquitted  without  the 


1774  FORMS  OF  INSTRUCTIONS.  [§  2778. 

and  that,  if  the  jury  believe  that  the  defendants  are  guilty,  they  can 
find  them  gaiilty  whether  the  jury  believes  that  E.  had  anything  to  do 
with  the  burning  of  the  house  or  not. 

(c)  The  juiy  may  convict  one  or  more  of  the  defendants  as  the 
evidence  may  justify,  and  this  jury  has  nothing  to  do  with  the  influ- 
ence that  a  verdict  of  guilty  in  this  case  may  have  in  another  case 
against  E.  for  the  same  otfense ;  they  must  try  this  ease  on  its  own 
merits.*^ 

§  2778.  Former  Acquittal  as  a  Defense.  You  are  instructed  that, 
if  you  believe,  from  the  evidence,  that  the  defendant's  plea  of  former 
acquittal  is  true,  you  need  not  look  further  into  the  case,  but  return 
a  verdict  as  follows:  ''We,  the  jury,  find  that  the  defendant's  plea 
of  former  acquittal  is  true,  and  find  the  defendant  not  guilty. ' '  But 
if  you  should  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant 's  plea  of  former  acquittal  is  not  true,  then  you  will 
determine  whether  or  not  the  defendant  is  guilty  as  charged;  and,  if 
you  find  the  defendant  guilty,  beyond  a  reasonable  doubt,  the  form  of 
your  verdict  will  be  as  follows.^" 

§  2779.  Former  Conviction  of  Defendant.  The  defendant  had  a 
right  to  be  sworn  and  testify  in  his  own  behalf,  but  that  in  weighing 
his  testimony,  and  in  determining  the  weight  which  should  be  given 
thereto,  the  jury  may  take  into  consideration  his  interest  in  the  result 
of  the  trial,  and  his  action  and  demeanor  while  on  the  witness  stand, 
and  the  further  fact,  if  the  same  was  proven,  which  was  admitted  by 
the  defendant,  that  he  had  been  convicted  of  a  felony  and  confined  in 
the  penitentiary  of  another  state,  as  affecting  his  credibility  as  a  wit- 
ness.°^ 

§  2780.  Detection  of  Crime — ^Means  Must  Not  Amount  to  Induce- 
ment or  Solicitation.  The  court  instructs  the  jury  that  it  is  legitimate 
to  adopt  such  measures  as  may  be  deemed  necessary  to  detect  crime, 
provided  the  means  used  do  not  amount  to  a  practical  inducement  or 
solicitation  to  commit  it.^^ 

§  2781.  Date  of  Crime.  It  is  not  necessary,  in  order  to  establish 
the  offense  charged,  that  the  state  should  prove  the  charge  or  crime  to 
have  been  committed  on  the  exact  day  alleged  in  the  information.  It 
would  be  sufficient  to  show  that  the  crime  was  committed  at  any  time 

within  two  years  prior  to  the  day  of ,  which  was  the  day 

this  prosecution  was  begun.^^ 

conviction,    or     acquittal      of     the  92— -State    v.    Dudoussat,    47    La. 

otlier  or  others.     Our  conclusion  is  977.   17  So.   685  (687). 

that  this  instruction  or  one  of  sim-  9;^ — State    v.    Lackey,    72   Kan.   95, 

iUir  import  should  have  been  priven  82  Pac.  527. 

in    view    of    the     first     instruction  "This    is    the    usunl    and    correct 

given  on  the  part  of  the  state."  instruction    g-iven    relating    to    the 

89— James    v.    State,    104    Ala.    20,  certainty    of    date   and    the    limita- 

16  So.  94  (96).  tion    of    the    action,     where,     as     is 

90— Stone    v.    Stat'^.    —    Tex.    Cr.  usual,    only    one    crime    is   charged 

At>t>.  — ,   85  S.   W.    808.  in     the    information,    but    was    er- 

91— Keating  v.  State,  67  Neb.  560,  ronoous  and  misleading  in  the  case 

93  N.  W.  980  (981).  at    bar." 


CHAPTER  XCII. 

CRIMINAL  — ABDUCTION  —  ABORTION  —  ADULTERY  —  BAS- 
T^iRDY— BIGAMY— DISORDERLY  HOUSE- 
INCEST— RAPE— SEDUCTION. 

See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


ABDUCTION. 
§  2782.  Abduction— Proof   of. 
§  2783.  Abduction — Previous      chaste 
character  presumed. 

ABORTION. 

§  2784.  Abortion — Result  of  natural 
causes. 

§  2785.  Abortion,  resulting  in  in- 
juries causing  death,  mur- 
der or  manslaughter,  ac- 
cording to  intent. 

§  2786.  Abortion  —  Definition  of  — 
Present,  aiding  and  abet- 
ting, may  be  murder  in  the 
first    degree. 

ADULTERY — CRIiONAL. 

§  2787.  Criminal  prosecution  for 
adultery  —  Adulterous  dis- 
position or  inclination. 

§  2788.  Adultery  may  be  presumed 
from  the  conduct  and  situ- 
ation of  the  parties — Night- 
time defined. 

§  2789.  Living  in  state  of  adultery 
not  proved  by  occasional 
illicit   acts. 

§  2790.  Prosecution  must  be  at  the 
instance  of  either  husband 
or  wife. 

BASTARDY. 

§  2791.  Question  of  paternity  ma- 
terial, not  the  character 
of  complainant. 

§  2792.  Previous  birth  of  another 
bastard  not  to  be  consid- 
ered— Prior  chastity  not 
material. 

5  2793.  Sexual  intercourse  with 
other  men  about  the  time 
the  child  was  begotten. 

§  2794.  Credibility  of  complaining 
witness  in  bastardy  pro- 
ceedings. 

\  2795.  Only  evidence  that  of  the 
prosecutrix — Jury  at  lib- 
erty to  disregard  it  if  they 
believe  it  to  be  untrue. 


§  2796. 
§  2797. 
§  2798. 

§  2799. 
§  2800. 
§  2801. 

§  2802. 

§  2803. 
§  2804. 


§  2805. 
§  2806. 

§  2807. 

§  2808. 
§  2809. 
§  2810. 
§  2811. 
§  2812. 
§  2813. 


BIGAMY. 

Acts  and  conduct  which 
would  tend  to  prove  mar- 
riage. 

Persons  exempt  from  charge 
of  bigamy  on  account  of 
prior  marriage. 

Criminal  intent  presumed 
from  the  doing  of  the  pro- 
hibited  act. 

DISORDERLY   HOUSE. 

Disorderly  house  and  lewd- 
ness defined. 

Keeping  disorderly  house- 
Other  offenses  not  in  issue.' 

Extorting  money  under 
threats  of  criminal  prose- 
cution for  keeping  bawdy 
house. 

Accessory  —  House  of  ill 
fame. 

INCEST. 

Definition  of  —  Consent  of 
both  parties  not  essential 
to    the   crime   of   incest. 

Question  of  relationship — 
Admission  of  competent 
evidence. 

RAPE. 

Rape  defined. 

Proof  of  intercourse  alone 
not  sufficient   to  convict. 

Moral  character  of  prosecu- 
trix—Reputation  for  chas- 
tity. 

Defense  of  consent  by  pros- 
ecutrix. 

Involuntary  consent  induced 
by  fear. 

Rape — Prompt  complaint  by 
prosecutrix. 

Failure  of  prosecutrix  to 
complain. 

Failure  of  prosecutrix  to 
make  outcry. 

Outcry  by  prosecutrix  pre- 
vented by  fear. 


1775 


1776 


FORMS  OF  INSTRUCTIONS. 


[§  2782. 


§  2S14.  Adulterous  disposition  of 
defendjant  and  prosecutrix 
— How  material. 

§  2815.  Rape— Circumstances  sum- 
med  up   by   the  court. 

§  2816.  Prosecutrix  under  age  of 
consent. 

§  2817.  Age  of  prosecutrix,  how 
proven. 

§  2818.  Reasonable  doubt  as  to  age 
of   girl. 

§  2819.  Testimony  of  the  prosecu- 
trix. 

§  2820.  Whether  prosecutrix  need  to 
be   corroborated. 

§  2821.  Attempted  rape— Definiiion 
of. 

§  2822.  Assault  with  intent  to  com- 
mit rape — Essential  ele- 
ments. 

§  2823.  Assault  with  intent  to  com- 
mit rape — Abandonment  of 
purpose. 

§  2824.  Intent  to  overcome  prosecu- 
trix  with    force    essential. 

§  2825.  Reasonable  doubt  as  to  de- 
fendant's intent  to  over- 
come all  resistance  with 
force. 

§  2826.  Not  necessary  that  every 
instruction  should  show 
the  prosecutrix  not  to  be 
the   wife  of  the  defendant. 

§  2827.  Definition   of   carnal   abuse. 


§  2828.  Rape— Assault  with  intent 
to    commit    rape — Series. 

SEDUCTION. 

§  2829.  Illicit  intercourse  alone  is 
not  seduction — What  con- 
stitutes   the    offense. 

§  2830.  Not  seduction  when  by  force 
and   against   her   will. 

§  2831.  Seduction  under  promise  of 
marriage — Refusal  of  pros- 
ecutrix to  marry  defend- 
ant— Proof   required. 

§  2832.  Promise  of  marriage — Fe- 
male thought  to  be  of 
previous  chaste  character 
— Unchaste  at  time  of  se- 
duction. 

§  2833.  Previous  chaste  character — 
Promise  to  marry — Rea- 
sonable doubt. 

§  2834.  Voluntary  consent  as  a  de- 
fense. 

§  2835.  Circumstantial  evidence  suf- 
ficient to  corroborate — 
Proof  of  acquaintance  and 
opportunity    not    sufficient. 

§  2836.  Complainant's  contradictory 
evidence  —  Reasonable 
doubt. 

§  2837.  Presumption  of  innocence — 
Jury  must  reconcile  evi- 
dence and  indictment — 
Compromise  cannot  bar 
prosecution. 


ABDUCTION. 

§  2782.  Abduction — Proof  of.  You  are  instructed  that  before 
you  should  convict  the  defendant  in  this  ease  you  must  believe 
from  the  evidence  beyond  all  reasonable  doubt  that  defendant  ma- 
liciously, willfully  or  fraudulently  did  lead,  take,  carry  away,  decoy, 
or  entice  away  F.  H.,  without  the  consent  of  her  mother,  etc.^ 

§  2783.  Abduction— Previous  Chaste  Character  Presumed.  The 
jury  are  instructed  that  the  presumption  of  the  law  is  that  the  life 
and  previous  character  of  the  prosecuting  witness,  A.  S.,  were  chaste, 
and  the  onus  is  upon  the  defendant  to  produce  sufficient  evidence  to 
overcome  such  presumption. ^ 


1— Riley  v.  State,  —  Miss.  — ,  18 
So.  117. 

2— Pradshaw  v.  People,  153  111. 
156  (l.'')9).  38  N.  F.  652,  9  Am.  Crim. 
Rep.  23. 

The  court  said:  "If  the  words 
'previous  character,'  as  used  in  the 
Instruction,  do  not  mean  substan- 
tially the  same  as  'conversation' 
as  used  in  the  statute  in  the  phrase 
'a  chaste  life  and  conversation,' 
they  arc  to  our  minds  meaning- 
less.     They    might    properly    have 


been  omitted  from  the  instruction, 
but  we  are  unable  to  discover  in 
what  manner  the  use  of  them 
placed  any  greater  burden  upon 
the  defendant  than  would  have 
been  done  by  the  instruction  with- 
out them.  .  .  The  general  rule  in 
such  cases  is  that  "chaste  charac' 
ter  will  be  presumed,  and  the  bur- 
den is  on  the  defendant  to  impeach 
it,  notwithstanding  the  presump- 
tion of  innocence  in  his  favor.' 
(See  cases  cited  in  Vol.   87  Ameri- 


§2784.]  CHIMIN  AI^ABORTION.  1777 


ABORTION. 

§  2784.  Abortion — Result  of  Natural  Causes.  If  the  jury  believes 
that  A.  aborted  from  natural  causes,  or  from  any  one  of  the  several 
causes  testified  to  by  the  medical  witnesses  in  the  case,  then  you 
should  find  the  respondent  not  guilty.  If  the  jury  believes  that  A. 
aborted  by  reason  of  the  ordinary  sickness  and  vomiting,  augmented 
by  the  nervous,  mental  excitement,  fatigue,  lack  of  nourishment,  and 
the  change  of  climate,  then  you  should  find  the  respondent  not  guilty.^ 

§  2785.  Abortion  Resulting  in  Injuries  Causing  Death,  Murder  or 
Manslaughter,  According  to  Intent,  (a)  If  you  believe  from  the 
evidence,  beyond  a  reasonable  doubt,  that  prior  to  the  finding  of  the 
indictment  herein,  in  the  county  of  U.,  state  of  Kentucky,  the  de- 
fendant, C,  did  willfully,  feloniously  and  with  malice  aforethought 
kill  and  murder  W.  by  thnisting  into  her  body  an  instrument,  which 
by  said  use  was  ordinarily  dangerous  to  her  life,  with  the  intent  to 
procure  an  abortion  upon  her,  you  shall  find  him  guilty  as  charged  in 
the  indictment,  and  in  your  discretion  fix  his  punishment  at  death,  or 
confinement  in  the  penitentiary  of  the  state  during  his  natural  life, 

(b)  If,  however,  the  instrument,  as  used  by  defendant,  if  he  used 
any  instrument  on  her,  was  not  necessarily  dangerous  to  life,  yet  if 
you  believe  fi'om  the  evidence,  beyond  a  reasonable  doubt,  that  it  was, 
by  the  defendant,  thrust  into  the  body  of  W.  with  the  intent  to  pro- 
cure an  abortion,  and  she  was  thereby  killed,  contrai-y  to  the  wish 
and  expectation  of  defendant,  he  should  be  acquitted  of  murder,  but 
you  should  find  him  guilty  of  voluntary  manslaughter,  and  fix  his 
punishment  at  confinement  in  the  penitentiary  from  two  to  twenty- 
one  years,  in  your  discretion. 

(c)  Though  the  wound  inflicted  on  W.  by  the  defendant,  if  he 
inflicted  any,  may  not  have  been  sufficient  of  itself  to  produce  death, 
yet  if  you  believe,  beyond  a  reasonable  doubt,  from  the  evidence,  that 
such  wound,  owing  to  her  condition,  produced  her  death,  when,  but 
for  the  w^ound,  she  would  not  then  have  died,  the  wound  is,  in  law, 
the  cause  of  her  death,  and  you  should  so  find.'* 

§  2786.  Abortion — Definition  of — Present,  Aiding  and  Abetting, 
May  Be  Murder  in  First  Degree.  Where  two  persons  agree  to  commit 
a  felony,  each  is  responsible  for  the  act  of  the  other,  provided  it  be 
done  in  pursuance  of  the  original  understanding  or  in  furtherance 

can  decisions,   note  on   p.   406,  also  fense     was     that      death     resulted 

Slocum    V.    People,    90    111.    274."  from  natural   causes.     That  theory 

3 — People    V.    Seaman,    107    Mich,  should  have  been  submitted  to  the 

348.   65   N.   W.   203   (208),   61   Am.   St.  jury,"    citing    People    v.    Cummins. 

326.  47    Mich.    334,    11    N.    W.    184,    186. 

The    court   said    above    requested  4 — Clark    v.    Commonwealth,    111 

instruction       should       have       been  Ky.  443,  63  S.  W.  740  (746). 

given.  "The    above    instructions,    in    our 

"The  testimony  tending  to  prove  opinion,"  said  the  court,  "are  with- 

the  body  of  the  crime  was  circum-  out  just  criticism." 
stantial.     The   theory    of   the    de- 
112 


1778  FORMS  OF  INSTRUCTIONS.  [§  2787. 

of  the  common  purpose.     Hence  if  you  find  that  the  defendant  agreed 
together  with  A.   and  B.   and   others   to   take  W.   to   the   V.   house 
for    B.    to    produce    an    abortion    on    her,    producing    an    abortion 
being   a  felony,   and   an   abortion   being   as   follows:     '* Every   per- 
son who  shall   administer  to   any  woman  either  pregnant  or  quick 
with  child,  or  prescribe  for  any  such  woman,  or  advise  or  procure  any 
such  woman  to  take  any  medicine,  drug,  or  substance  whatever,  or 
shall  use  or  employ  any  instrument  or  other  means  with  intent  thereby 
to  destroy  said  child,  unless  the  same  shall  have  been  necessary  to 
preserve  the  life  of  such  mother,  and  every  person  who  shall  admin- 
ister to  any  pregnant  woman,  or  prescribe  for  any  such  woman,  or 
advise  and  procure  such  woman  to  take  any  medicine,  drug  or  any- 
thing whatsoever  with  intent  thereby  to  procure  the  miscarriage  of 
any  such  woman,  or  to  injure  or  destroy  such  woman,  or  shall  use 
any  instrument  or  application  for  an^  of  the  above  pui-poses, " — and/ 
the  defendant  in  pursuance  of  that  agreement,  carries  her  to  the  V.  \ 
house  to  effect  that  purpose,  and  B.  killed  her  in  the  attempt  to  pro-  (■ 
duce  the  abortion,  the  defendant  being  present,  aiding  and  abetting,  f 
it  would  be  murder  in  the  first  degree,  if  he  knew  the  nature  of  the ' 
act  he  was  doing  and  that  the  act  was  wrong.^ 

ADULTERY. 

§  2787.  Criminal  Prosecution  for  Adultery — Adulterous  Disposition 
or  Inclination,  (a)  You  may  also  take  into  consideration  any  evi- 
dence tending  to  show  an  opportunity  upon  the  part  of  these  parties 
to  commit  this  crime.  Evidence  of  an  adulterous  disposition  or  in- 
clination, together  with  evidence  of  an  opportunity  to  commit  the 
crime,  would  be  sufficient  to  justify  you  in  bringing  in  a  verdict  of 
guilty  against  this  defendant,  if  this  evidence  satisfies  you  beyond 
a  reasonable  doubt  that  the  crime  was  committed.^ 

(b)  You  can  take  into  consideration  evidence  tending  to  show  an 
adulterous  or  amorous  disposition  on  the  part  of  the  accused,  and 
also  on  the  part  of  the  person  with  whom  it  is  alleged  that  he  com- 
mitted this  crime — any  adulterous  or  amorous  disposition,  or  evidence 
tending  to  show  an  inclination  on  the  part  of  these  parties  to  commit 

5— State  v.  Mills.  116  N.  C.  992,  21  Freeman,  31  Wis.   235.     If  adultery 

S.    E.    106    (107).  could   be   inferred   from   the   exist- 

6 — State  v.  Eggleston,  45  Ore.  346,  cnce  of  an  opportunity  to  commit 

77   Pac.   738    (742).  the    act,    it    would    be    unsafe    for 

"In  State  v.  Scott,  28  Ore.  331,  42  persons  of  opposite  sex  to  meet, 
Pac.  1,  it  is  said:  'Mere  proof  of  except  in  the  presence  of  others, 
an  opportunity  to  commit  adultery  When,  however,  proof  of  an  adult- 
is  insufficient  to  convict  a  person  erous  disposition  on  the  part  of 
of  that  crime,  unless  there  be  each  party  has  been  produced,  evi- 
proof  also  of  an  adulterous  mind  dence  of  an  opportunity  to  commit 
on  the  part  of  both  parties;  and  to  the  act  is  admissible,  and  from 
prove  this  state  of  mind  circum-  these  combined  factors  the  com- 
stantial  evidence  is  admissible  to  mission  of  the  crime  may  be  rea- 
Ehow  a  purpose  or  inclination  to  sonably  inferred.  No  error  was 
commit  the  act."  To  the  same  ef-  committed  in  giving  such  jnstruc- 
fect,  see  Hcrberger  v.  Herberger,  tion." 
16  Ore.  327,  14  Pac.  70;  Freeman  v. 


§  2788.] 


CRIMINAL— ADULTERY. 


1779 


adulteiy.  You  can  take  into  consideration  any  evidence  tending  to 
show  such  a  disposition,  either  before  or  after  the  time  when  this 
crime  is  alleged  to  have  been  committed;  and  you  may  take  into  con- 
sideration any  evidence  tending  to  show  that  this  act  was  committed 
at  other  times  and  places,  although  it  may  show  distinct  and  separate 
crimes,  because  such  evidence  would  tend  to  show  an  adulterous  dis- 
position or  inclination  on  the  part  of  the  parties. ''^ 

§  2788.  Adultery  May  Be  Presumed  from  the  Conduct  and  Situa- 
tion of  the  Parties — Nighttime  Defined,  (a)  If  you  find  from  the 
evidence,  and  beyond  reasonable  doubt,  that  the  defendant  went  to 
the  dwelling  house  of  D.  secretly  and  in  the  nighttime,  and  there 
secretly  entered  the  dwelling  house,  and  was  shortly  thereafter  found 
undressed  and  in  bed  with  Mrs.  B.,  who  was  then  also  undressed, 
then  a  strong  presumption  would  arise  that  he  did  so  enter  for  the 
purpose  of  committing  adultery;  and  such  presumption  would  con- 
tinue until  rebutted  by  the  evidence,  and,  if  not  so  rebutted,  would 
justify  you  in  finding  such  intent  to  have  existed  at  the  time  of  the 
entry.  ** Nighttime"  means  the  time  between  darkness  after  sun- 
down and  dawn  of  daylight  in  the  morning.^ 

(b)  The  court  instructs  the  jury  that  if  a  married  man  is  found 
with  a  woman  not  his  wife,  in  a  room  with  a  bed  in  it,  and  stays 

of  their  functions.'  It  is  argued 
that,  if  all  that  is  enumerated  in 
the  instruction  was  proven,  yet,  in 
view  of  the  defendant's  evidence, 
it  was  a  question  of  fact  for  the 
jury  whether  an  intent  to  commit 
adultery  should  be  presumed  there- 
from. Counsel  for  appellee  quote 
the  part  of  said  section  preceding 
that  quoted  by  appellant,  as  fol- 
lows: 'A  presumption  of  law  is  a 
conclusive  or  Indisputable  infer- 
ence which  the  law,  by  a  settled 
rule,  draws  from  a  given  fact. 
Such  an  inference  is  therefore 
made  by  the  judge,  and  not  by  the 
jury.'  In  State  v.  Fox,  80  Iowa  312, 
45  N.  W.  874,  20  Am.  St.  425,  the 
court  instructed  as  follows:  'If 
you  find  that,  in  the  nighttime, 
the  defendant  broke  and  entered 
the  dwelling  house  described  in 
the  indictment,  this  fact  would  be 
strong  presumptive  evidence  that 
the  defendant  did  such  breaking 
and  made  such  entry  with  the  in- 
tent to  commit  a  public  offense. 
But  such  presumption  may  be 
overcome  by  evidence.'  That  in- 
struction was  approved,  the  court 
holding  that  the  facts  'raise  a  pre- 
sumption of  an  intent  to  commit  ? 
public  offense.'  This  instruction, 
like  that,  does  not  declare  the  pre- 
sumption 'conclusive  or  indisput- 
able,' hut  only  a  strong  presump- 
tion, that  should  continue  until  ra« 


7 — State  V.   Eggleston,   supra, 

"This  instruction,"  said  the 
court,  "was  evidently  founded  on 
the  rule  announced  in  State  v. 
Bridgman,  24  Am.  Rep.  124,  where 
it  was  held  on  the  trial  of  an  in- 
dictment for  adultery  that  evi- 
dence was  admissible  of  improper 
familiarity  and  adultery  both  be- 
fore and  after  the  commission  of 
the  offense  charged,  although  it 
proved  other  and  different  of- 
fenses." 

8 — State  v.  Mecum,  95  Iowa 
433,    64    N.    W.    286    (287). 

"The  contention  is  that  the  court 
presumes  the  intent  charged,  not- 
withstanding there  was  evidence 
tending  to  show  that  defendant 
did  not  have  that  intention  'when 
he  went  to  the  house  and  window.' 
Appellant  quotes  from  section  2290, 
2  "Thomp.  Trials,  as  follows:  'A 
presumption  of  fact  is  simply  an 
inference  or  conclusion  of  the  ex- 
istence of  a  fact  from  some  other 
fact.  It  is  always  drawn  by  the 
jury,  who  are  the  triors  of  ques- 
tions of  fact.  It  is  therefore  mere- 
ly a  repetition  of  what  has  already 
been  said  to  say  that  it  is  for  the 
jury  and  not  for  the  judge  to 
draw  presumptions  of  fact,  and 
that  for  the  judge  to  tell  the  jury 
what  presumptions  of  fact  they 
ought  to  draw  from  a  given  fact 
or   series   of  facts  is  a   usurpation 


1780  FORMS  OF  INSTRUCTIONS.  [§  2789. 

through  the  night  with  her  there,  that  is  sufficient  to  warrant  a  finding 
of  adultery  against  him.^ 

§  2789.  Living  in  State  of  Adultery  Not  Proved  by  Occasional 
Illicit  Acts,  (a)  The  court  charges  the  jury  that  if  you  believe  from 
the  evidence  that  W.  lived  with  his  mother,  near  the  college,  and  that 
L.  lived  with  her  mother,  in  Needmore,  and  that  they  did  not  live 
together  in  adultery  or  fornication,  you  should  acquit  the  defendant ; 
and  before  defendants,  or  either  of  them,  can  be  convicted,  the  evi- 
dence must  satisfy  your  minds  beyond  a  reasonable  doubt,  that  the 
defendants  did  more  than  occasional  acts  of  illicit  or  criminal  in- 
timacy.^" 

(b)  The  court  instructs  the  juiy  that  you  are  to  determine  from 
all  the  circumstances  as  brought  out  by  the  evidence  whether  or  not 
the  defendants  lived  together  in  a  state  of  adultery,  and  in  order  to 
find  the  defendants  guilty,  you  must  find,  from  the  evidence,  that  the 
defendants  were  living  together  in  an  open  and  notorious  state  of 
adulteiy,  and  that  they  were  cohabiting  together;  and  if  the  evidence 
does  not  establish  the  living  together  and  cohabiting  together  of  the 
defendants  in  the  minds  of  the  jurors  beyond  a  reasonable  doubt, 
then  you  must  find  the  defendants  not  guilty.^^ 

§  2790.  Prosecution  Must  Be  at  the  Instance  of  Either  Husband 
or  Wife.  You  are  instructed  that  you  should  be  satisfied  that  this 
prosecution  was  brought  at  the  instance  of  the  wife  before  you  can 
convict.^^ 

BASTARDY. 

§  2791.  Question  of  Paternity  Material,  Not  the  Character  of  Com- 
plainant. The  material  question  to  be  detennined  by  this  action  is  not 
what  is  the  character  of  the  complaining  witness,  but  the  question  for 
you  to  determine  from  the  evidence  under  the  instructions  of  the 
court  is,  is  the  defendant  the  father  of  her  bastard  child  as  charged  ? 
If  you  shall  find  from  the  evidence  in  the  case,  under  the  instructions 
given  you,  that  the  defendant  is  the  father  of  her  bastard  child,  it  is 
immaterial  on  that  question  what  the  character  of  the  complaining 
witness,  J.  K.,  was  or  is.^^ 

butted.     See  also  State  v.  Maxwell,  10— McAlpine    v.    State,    117    Ala. 

42    Iowa   208,    and    State    v.    Teeter,  93,   23   So.   130. 

69   Iowa   717.   27   N.   W.   485."  11— Tomlinson    v.    People,    102    111. 

9— Commonwealth  v.   Clifford,  145  App.    542   (543). 

Mass.    97.    13    N.    E.    345    (346).  In  this  case  said  the  court,   "the 

"The   form    of    expression    miglit  defendants    were    indicted    not    for 

be  used  in  such  a  way  as  to  preju-  adultery  but  for  living-  in  an  open 

dice    the   jury,    but   on   its   face   it  state  of  adultery;  itwas  therefore 

only  means   that  there  is  evidence  necessary  to  a  conviction   that  the 

to  be  considered   by  the  jury,  and  evidence    should    show     beyond     a 

that    they    have    a    right    to    infer  reasonable  doubt  that  they  had  so 

guilt    if   that   inference   appears   to  lived,"   citing  Searles  v.   People.  13 

them   the  true  one.     Such  a  ruling  111.   565;  Miner  v.   People,   58  111.  59. 

is  unexceptionable,  and  the  correc-  12 — State  v.  Eggleston.  45  Ore.  346, 

tion     left     the     defendant     without  77  Pac.  738  (743). 

ground    of   complaint.     Eldridge   v.  13 — Suckow     v.     State,     122     Wis. 

Hawley.  115  Mass.  410;  Goodnow  v.  156,  99  N.  W.  440  (441). 
Hill,   125  Mass.   587." 


§  2792.]  CRIMINAL— BASTARDY.  1781 

§  2792.  Previous  Birth  of  Another  Bastard  Not  to  Be  Considered — 
Prior  Chastity  Not  Material.  You  are  instructed  that  in  determining 
whether  or  not  the  defendant  is  the  father  of  said  bastard  child,  it 
is  entirely  immaterial  as  to  the  plaintiff's  chastity  prior  to  the  time 
that  the  child  in  question  was  begotten;  and  it  is  improper  for  you 
to  consider  in  passing  upon  this  point,  or  take  into  consideration,  the 
fact  that  the  plaintiff  was  the  mother  of  another  bastard  child  several 
years  previous  to  the  birth  of  this  one.^* 

§  2793.  Sexual  Intercourse  with  Other  Men  about  the  Time  the 
Child  Was  Begotten,  (a)  Evidence  has  been  permitted  to  go  to  you 
of  the  relatrix's  association  with  one  X.  The  purpose  of  evidence 
of  this  character  is  to  prove  that  at  about  the  time  the  child  in  ques- 
tion was  begotten  the  relatrix  had  intercourse  with  said  X.,  and  that 
the  child  was  begotten  by  such  intercourse;  and  it  is  com^Detent  only 
for  this  purpose.  It  is  your  province  alone  to  determine  the  weight 
of  the  evidence,  and  it  is  for  you  to  say  whether  or  not  the  evidence 
on  this  point  is  sufficient  to  establish  the  fact  that  such  intercourse 
did  take  place  between  the  relatrix  and  X. 

(b)  If  you  should  be  satisfied  from  the  evidence  that  the  relatrix 
did  have  intercourse  with  X.  about  the  time  the  child  in  question  was 
begotten,  it  does  not  necessarily  follow  that  your  finding  shall  be  for 
the  defendant,  but  it  is  a  circumstance  you  should  consider  in  deter- 
mining the  question  as  to  whether  or  not  the  defendant  is  the  father 
of  the  child. 

(e)  The  state  must  show  by  a  preponderance  of  the  evidence  that 
the  defendant  is  the  father  of  the  child,  and  if  j^ou  should  find  from 
the  evidence  that  about  the  time  the  child  was  begotten  both  the  de- 
fendant and  X.  had  intercourse  with  the  relatrix,  and  that  you  are 
unable  to  tell  which  of  them  is  the  father  of  the  child,  then  you  must 
find  for  the  defendant. ^^ 

14 — Morgan   v.    Stone,   4   Neb.   115  ject  of  the  testimony,  the  mere  fact 

(Unof.),    93    N.    W.    743    (745).  of  association  between  the  relatrix 

15 — Goodwine     v.     State,    5     Ind.  and  other  men  proves  nothinj  un- 

App.  63,  31  N.  E.  554.  less   it   tends  to   establish   criminal 

The  court  said  in  comment  that  connection  other  than  that  to 
"it  is  true  the  question  whether  or  which  the  relatrix  attributes  the 
not  X  is  the  father  of  the  relatrix's  conception  and  pregnancy,  and 
child  is  not  an  issue  in  this  cause,  that  the  child  was  begotten  at  a 
It  may  also  be  true  that  proof  of  time  and  by  one  other  than  as 
sexual  intercourse  with  another  claimed  by  her.  .  .  . 
would  tend  to  throw  doubt  upon  "...  We  agree  with  the  court 
the  credibility  of  the  relatrix's  that  it  does  not  necessarily  fol- 
testimonv.  O'Brien  v.  State,  14  Ind.  low  that  the  jury  must  find  for  the 
468.  But,  after  all,  the  only  pur-  defendant  even  if  they  were  satis- 
pose  of  proof  of  intimate  relation-  fled  that  the  relatrix  had  inter- 
ship  and  association  with  X  must  course  with  X  about  the  time  the 
be  to  show  criminal  connection,  child  was  begotten,  although,  in 
for  certainly  it  could  not  be  main-  our  opinion,  it  would  have  been 
tained  that  proof  of  mere  intimacy  better  to  leave  the  entire  question 
between  the  relatrix  and  another,  as  to  the  force  and  effect  of  such 
without  sexual  intercourse,  tenrled  testimony  to  the  jury.  There  is  no 
to  impeach  her  as  a  witness,  doubt,  however,  that  there  are  or 
Whatever  may  be  the  ultimate  ob-  may   be   circumstances   enabling   a 


1782  FORMS  OF  INSTRUCTIONS.  [§2794. 

§  2794.  Credibility  of  Complaining  Witness  in  Bastardy  Proceed- 
ings. The  jury  are  instructed  that  while  the  precise  day  on  which 
sexual  intercourse  took  place,  resulting  in  pregnancy  and  the  birth  of 
a  child,  in  a  ease  of  this  kind,  is  not  material,  yet  in  this  case,  if  the 
juiy  believe  that  the  complaining  witness  testified  falsely  that  the 
defendant  had  sexual  intercourse  with  her  on  Sunday,  May  19,  1901, 
the  juiy  have  a  right  to  take  that  fact,  if  such  is  the  fact,  into  con- 
sideration as  affecting  her  credibility  in  determining  whether  or  not 
the  defendant  is  the  father  of  the  child  in  question.^'' 

§  2795.  Only  Evidence  That  of  the  Prosecutrix — Jury  at  Liberty 
to  Disregard  It  if  They  Believe  It  to  Be  Untrue,  (a)  The  court 
instructs  the  jury  that  if  they  believe  from  the  evidence  that  the 
only  evidence  tending  to  prove  the  guilt  of  the  defendant  is  the 
testimony  of  the  prosecuting  witness,  Miss  R.  J.,  and  that  her  testi- 
mony on  any  material  point  is  untrue,  then  the  jury  is  at  liberty  to 
disregard  her  whole  testimony. 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the  evi- 
dence in  the  ease  that  the  crime  charged  against  the  defendant  rests 
alone  on  the  testimony  of  the  prosecuting  witness,  Miss  R.  J.,  then 
they  should  scrutinize  her  testimony  with  care  and  eaution.^'^ 


BIGAMY. 

§  2796.    Acts  and  Conduct  Which  Would  Tend  to  Prove  Marriage. 

You  may  look  to  the  fact  that  the  defendant  and  the  woman.  A.,  lived 
together  13  years;  that  they  lived  in  the  same  house  under  the  same 
roof  that  long;  that  a  few  years  ago,  when  one  of  their  children  died, 
that  the  defendant  and  A.  went  to  the  grave  of  the  child  together, 
she  leaning  on  his  arm;  and  that  they  signed  deeds  as  husband  and 
wife, — in  deciding  what  weight  you  will  give  to  the  testimony  of  the 
woman  A.^** 

§  2797.  Persons  Exempt  from  Charge  of  Bigamy  on  Account  of 
Prior  Marriage.  The  jury  is  instructed  that  section  800  of  the  Re- 
vised Statutes  as  amended  by  Act  No.  93  of  1898  reads  as  follows: 
"If  any  married  person  shall  many,  the  former  husband  or  wife 

female  to  determine  to  which  of  find  that  at  about  the  time  con- 
two  or  more  connections  her  con-  ception  took  place  both  the  de- 
ception is  due.  Kintner  v.  State,  fendant  and  X  had  carnal  knowl- 
45  Ind.  175.  There  wa.s,  therefore,  edge  of  the  relatrix,  and  they  are 
no  technical  Inaccuracy  in  the  unable  to  decide  which  of  them  is 
statement  of  the  court,  and,  as  the  the  father  of  the  child,  they  should 
jury  were  also  told  that  they  were  find  for  the  defendant.  Whitman 
the  exclusive  judges  of  the  weight  v.  State,  34  Ind.  360;  Kintner  v. 
and  effect  of  the  evidence,  no  harm  State,  supra." 

could    have   resulted    from    the   in-  16— Beck  v.   People,  115  111.   App. 

struction,  and  we  cannot  say  upon  19    (21). 

the  whole  thnt  the  province  of  the  17— State  v.  Perry,  41  W.  Va.  641, 

jury  was  invaded  by  it.  24  S.   E.   634  (63S). 

The   last  instruction  properly  in-  18— Bynon  v.  State,  117  Ala.  80,  23 

forms   the   jury,    wc    think,    if   they  So.   640,   67  Am.   St.  163. 


§  2798.]  CRIMINAL— DISORDERLY  HOUSE.  1783 

being  alive,  the  one  so  offending  shall,  on  conviction,  be  imprisoned 
at  hard  labor  in  the  state  penitentiary  for  a  period  of  not  more 
than  five  yeai-s,  and  not  less  than  one  year.  The  provisions  of  this 
statute  shall  not  extend  to  any  person  whose  husband  or  wife  shall 
absent  himself,  or  herself,  from  the  other  for  the  space  of  five  years, 
the  one  not  knowing  the  other  to  be  living  within  that  time;  nor  to 
any  person  who  shall  be  at  the  time  of  such  marriage  divorced  by 
competent  authority,  nor  to  any  person  whose  former  marriage  by 
sentence  of  competent  authority  shall  be  declared  void. '  '^^ 

§2798.  Criminal  Intent  Presumed  from  the  Doing  of  the  Pro- 
hibited Act.  The  criminal  intent  of  the  accused  is  presumed  to  exist 
whenever  a  statute  has  made  it  criminal  to  do  any  act  under  par- 
ticular circumstances,  and  the  party  voluntarily  does  the  act.  He  is 
thereby  chargeable  with  the  ciiminal  intent  by  the  doing  of  the  act.^o 


DISORDERLY  HOUSE. 

§  2799.  Disorderly  House  and  Lewdness  Defined.  A  house  resorted 
to  for  the  purpose  of  prostitution  and  lewdness  is  a  house  visited  by 
persons  of  both  sexes  for  the  purpose  of  having  sexual  intercourse, 
or  some  other  lewd  purpose;  lewdness  is  the  unlawful  indulgence  of 
the  animal  desires.^^ 

§  2800.  Keeping  Disorderly  House — Other  Offenses  Not  in  Issue. 
However  bad  she  may  be,  or  however  guilty  of  other  offenses,  the 
question  for  you  to  determine  here  is  whether  she  is  guilty  of  the 
offense  charged,  and  has  that  guilt  been  shown  beyond  a  reasonable 
doubt  ?22 

19— State    V.    Cain,    106    La.    708,  vorced,  or  those  whose   first  mar- 

31   So.   300   (301).  riages    have    been    decreed    void — 

The  court  said  in  comment  that  would    not    incur    the    penalty    de- 

"bigamy  is  a  statutory  crime,  and  nounced    by    the    first    paragraph, 

the   crime    denounced    by    the   first  even  if  they  had  not  been  specially 

paragraph  of  section  800,  Rev.  St.,  exempted,  for  the  reason  that  they 

falls  within   the  commonly  accept-  are  not   included  within  the   terms 

ed  definition  thereof.     2  Whart.  Cr.  of   the    first    paragraph;    and   with 

Law  (10th  Ed.)  §1682.  regard  to  the  other  class,  1.  e.,  per- 

The  act  of  1898  imposes  a  penalty  sons  whose  husbands  or  wives 
for  bigamy,  and  repeals  all  laws  have  been  absent,  etc., — the  de- 
in  conflict  with  its  provisions;  fendant  has  no  concern.  He  would, 
hence  it  operates  the  repeal  of  the  therefore,  have  no  reason  to  corn- 
penalty  for  that  crime  as  provided  plain  if  the  charge  had  been  er- 
in  the  first  paragraph  of  section  roneous,  but  there  was  no  error." 
800,  Rev.  St.  But  the  second  para-  20— State  v.  Cain,  106  La.  708,  31 
graph  of  that  section  purports  to  So.  300  (302).  citing  Com.  v.  Marsh, 
exempt  certain  classes  of  persons  7  Mete.  472;  4  Am.  &  Eng.  Enc. 
from    the    penalty    denounced    by  Law  p.  40  note. 

the    first,    and    the     fact    that    one  21— State    v.     Wilson,     124    Iowa 

penalty      is      substituted      for     the  264,   99  N.  W.  1060  (1061). 

other  does  not  affect  such  exemp-  22 — People    v.     "Wells,    112    Mich, 

tion.     In  fact,  of  the  three  classes  648.   71   N.   W.   176   (177). 

mentioned,     two — that    is    to    say.  The   court   held    that   "there  was 

persons   who   at    the    time   of  their  no  error  in  this  instruction.     It  had 

second    marriage     have    been    di-  crept  out  in  the  testimony  that  de- 


1784 


FORMS  OF  INSTRUCTIONS. 


[§  2801. 


§  2801.  Extorting  Money  Under  Threats  of  Criminal  Prosecution 
for  Keeping  Bawdy  House.  The  court  instructs  the  jury  that,  the 
keeping  of  a  bawdy  house  is  an  offense  against  the  ordinances  of  the 
city  of  Pensaeola,  and  if  the  defendant  thrq,atened  to  turn  M.  over  to 
the  criminal  court  for  keeping  a  bawdy  house  unless  she  paid  money, 
this  would  be  threatening  to  accuse  her  of  a  crime  against  the  ordi- 
nances of  the  city  of  Pensacola.^^ 

§  2802.  Accessory — House  of  111  Fame.  The  court  instructs  the 
jury,  as  a  matter  of  law,  that  any  one  who  aids,  abets,  assists  or 
encourages  in  the  keeping  or  superintending  of  a  house  or  of  prem- 
ises where  pi'ostitution,  fornication  or  concubinage  is  allowed  or  prac- 
ticed, is  guilty  as  principal.^* 

INCEST. 

§  2803.  Definition  of — Consent  of  Both  Parties  Not  Essential  to  the 
Crime  of  Incest.  The  court  instructs  you  that  the  consent  of  both 
parties  is  not  essential  to  the  crime  of  incest.  If  the  party  charged 
have  sexual  intercourse  with  a  female  related  to  him  within  the  de- 
gree of  consanguinity  within  which  marriage  is  prohibited,  he  is 
guilty  of  the  crime  of  incest,  whether  the  intercourse  was  with  or 
without  the  consent  of  such  female.^^ 


fendant  had  been  charged  with 
selling-  liquor  without  a  license, 
and  testimony  affecting  her  char- 
acter for  chastity  had  been  given. 
This  instruction  was  in  her  inter- 
est, and  to  ward  against  the  jury 
giving  undue  weight  to  those  items 
of  testimony  which  tended  to  show 
her  guilty   of   other   offenses." 

23— Wallace  v.  State,  41  Fla.  547, 
26  So.   713   (725). 

24— Mash  v.  People,  220  111.  86,  77 
N.  E.   92   (95). 

"This  instruction,  as  an  abstract 
proposition  of  law,  correctly  states 
the  rule  that  all  who  are  acces- 
sories to  the  commission  of  a  crime 
are  held  as  principals.  It  does  not 
purport  to  state  that  any  one  who 
aids,  abets,  etc.,  in  the  operation 
of  a  house  of  prostitution,  is  guilty 
of  the  crime  charged  in  the  indict- 
ment under  which  the  plaintiff  was 
put  to  trial,  and  is  not,  as  argued 
by  the  plaintiff  in  error,  faulty  in 
that  it  ignores  all  the  elements 
necessary  to  be  found  by  the  jury 
to  warrant  a  conviction  of  the 
plaintiff  in   error." 

25— People  v.  Stratton,  141  Cal. 
604.   75  Pac.   166   (167). 

The  court  said  in  comment  that 
"incest  is  denned  by  the  Code  as 
follows:  'Persons,  being  within  the 
degrees    of    consanguinity    within 


which  marriages  are  declared  by 
law  to  be  incestuous  and  void,  who 
intermarry  with  each  other,  or 
who  commit  fornication  or  adult- 
ery with  each  other  are  punish- 
able by  imprisonment  in  the  State 
Prison  not  exceeding  ten  years.' 
Pen.  Code,  par.  285.  Upon  this  it 
is  urged  and  argued  that  the  crime 
of  incest  cannot  be  committed 
without  the  mutual  consent  of  the 
parties,  and  that  where,  as  here, 
the  act  is  shown  to  have  been  ac- 
complished under  circumstances 
amounting  to  the  rape  of  the  fe- 
male, the  crime  is  not  incest  but 
rape.  In  support  of  this  view 
there  is  authority  of  great  weight 
and  dignity.  Incest  was  not  known 
to  the  common  law,  and  being, 
therefore,  a  statutory  crime,  its 
definition  will  be  found  to  be  as 
various  as  the  statutes  themselves. 
But  in  many  states  where  no  sub- 
stantial distinction  can  be  dis- 
cerned between  their  laws  defining 
the  offense  and  our  own,  the  de- 
cisions fully  supnort  appellant's 
contention.  The  Supreme  Court  of 
Oregon,  in  a  careful  and  learned 
opinion,  reviews  many  of  the 
cases,  and  reaches  the  conclusion 
which  it  expresses  as  follows:  'We 
think  the  decided  weight  of  au- 
thority is  that  under  a  statute  like 


§2804.] 


CRIMINAL— INCEST. 


1785 


§  2804.  Question  of  Relationship — Admission  of  Competent  Evi- 
dence, (a)  If  the  defendant  B.  has  been  proven  to  have  admitted 
that  G.  was  his  daughter,  such  admission  is  competent  evidence  for 
the  jury  to  consider  upon  the  question  of  the  relationship  of  the  de- 
fendant to  B.,  and  is  sufficient  to  establish  the  fact  she  was  his 
daughter,  if  it  satisfies  the  jury  on  that  fact  beyond  a  reasonable 
doubt. 


ours,  the  crime  of  rape  by  forcible 
ravishment  and  Incest  cannot  be 
committed  by  the  same  act,  but 
that  of  incest  requires  the  concur- 
ring assent  of  both  parties.'  State 
V.  Jarvis,  26  Pac.  302,  23  Am.  St. 
141,  20  Or.  437.  In  DeGroat  v.  Peo- 
ple, 39  Mich.  124,  the  learned  Jus- 
tice Cooley,  speaking  for  the  court, 
said:  'Fornication,  when  the  ele- 
ment of  near  relationship  makes  it 
incest,  may  be  an  offense  equally 
detestable  and  heinous,  but  it  still 
lacks  the  distinguishing  character- 
istic of  rape.  The  one  is  accom- 
plished by  the  impelling  will  of 
one  person,  and  the  other  by  the 
concurrent  assent  of  two.'  The 
reasoning  by  which  this  conclusion 
is  reached  in  all  of  the  cases  which 
so  hold  can  be  stated  in  the  lan- 
guage of  the  Supreme  Court  of 
Oregon,  in  the  case  above  cited, 
as  follows:  'It  will  be  noticed  that 
the  language  of  the  statute  is  "with 
each  other,"  which  necessarily  im- 
plies a  concurrent  act  and  the  con- 
sent of  both  parties.  If  one  of  the 
parties  is  compelled  by  force  to 
submit  to  the  act,  there  can  be  no 
consent  of  such  party,  and  the  act 
cannot  be  committed  'with  each 
other,'  as  declared  by  the  statute.' 
But  this  reasoning  does  not  com- 
mend itself.  It  interprets  the  law 
as  making  mutuality  of  agreement 
and  joint  consent  of  the  essence  of 
the  crime.  This  is  done  by  judicial 
construction,  and  not  by  the  ex- 
press declaration  of  the  law.  The 
gravamen  of  the  crime  of  incest, 
as  of  rape,  is  the  unlawful  carnal 
knowledge.  In  rape,  it  is  unlawful 
because  accomplished  by  unlawful 
means.  In  incest,  it  is  unlawful, 
without  regard  to  the  means,  be- 
cause of  consanguinity  or  affinity. 
Where  both  the  circumstances  of 
force  and  consanguinity  are  pres- 
ent, the  object  of  the  statute  being 
to  prohibit  by  punishment  such 
sexual  intercourse,  it  is  not  less  in- 
cest because  the  element  of  rape 
is  added,  and  it  is  not  less  rape 
because  perpetrated  upon  a  rela- 
tive. In  this,  as  in  every  offense, 
the  guilt  of  the  defendant  is  meas- 


ured by  his  knowledge  and  intent, 
and  not  by  the  knowledge  and  in- 
tent of  any  other  person.  That 
such  has  been  the  view  of  this 
court  is  evidenced  by  People  v. 
Kaiser,  119  Cal.  456,  51  Pac.  702, 
where  the  defendant  was  indicted 
for  the  crime  of  incest,  alleged  to 
have  been  committed  upon  his 
daughter,  a  girl  under  13  years  of 
age.  As  intercourse  with  a  female 
child  incapable  in  law  of  giving 
consent  is  declared  to  be  rape,  it 
was  argued  against  the  indictment 
that  the  offense  charged  was  rape. 
But  this  court  said:  'Assuming 
that  the  facts  stated  in  the  indict- 
ment in  this  case  were  sufficient  to 
constitute  the  crime  of  rape,  the 
daughter  then  being  under  the  age 
of  consent,  still,  under  section  285 
of  the  Penal  Code,  they  clearly 
constituted  the  crime  of  incest,  and 
the  defendant  was  therefore  prop- 
erly put  upon  trial  for  that  of- 
fense.' In  further  support  of  this 
view  may  be  cited  Bishop,  Statu- 
tory Crimes,  par.  660;  Wharton, 
Criminal  Law,  par.  1751;  State  v. 
Ellis,  74  Mo.  385,  41  Am.  Rep.  321,  8 
Am.  Dec.  175;  Mercer  v.  State,  17 
Tex.  App.  452;  People  v.  Barnes, 
2  Idaho  (Hasb.)  161,  9  Pac.  532; 
Smith  v.  State,  108  Ala.  1,  19  So. 
S06,  54  Am.  St.  140;  State  v.  Cham- 
bers, 87  Iowa  1,  53  N.  W.  1090,  43 
Am.  St.  349;  State  v.  Ellis,  11  Mo. 
App.  588;  Porath  v.  State,  90  Wis. 
527,  63  N.  W.  1061,  48  Am.   St.  954. 

If  the  prosecutrix,  being  of  the 
legal  age  of  consent,  consents  to 
the  incestuous  intercourse,  un- 
questionably she  is  particeps  crim- 
inis,  and  her  testimony,  like  that 
of  any  other  accomplice,  is  insuf- 
ficient to  uphold  a  conviction. 
Schoenfeldt  v.  State,  30  Tex.  App. 
695,  18  S.  W.  640.  But  if,  upon  the 
other  hand,  she  is  the  victim  of 
force  or  fraud  or  undue  influence, 
or  is  too  young  to  be  able  to  give 
legal  assent,  so  that  she  does  not 
willfully  and  willingly  join  in  the 
inf^estuous  act,  she  cannot  be  re- 
garded as  an  accomplice.  Porath 
v.  State,  supra.  In  this  case,  the 
instructions  fairly  left   this   matter 


1786 


FORMS  OF  INSTRUCTIONS. 


[§2805. 


(b)  If  from  the  evidence  you  believe  that  the  defendant  B.  and 
the  defendant  G.  's  mother  were  never  married  to  each  other,  and  that 
the  defendant  B.  is  not  the  father  of  G.,  then  the  court  instructs  j'ou 
that  any  sexual  intercourse  between  the  defendants,  B.  and  G.,  would 
not  be  incest,  and  you  should  acquit  the  defendant. 

(c)  If  from  the  evidence  you  believe  that  the  defendant  B.  is 
not  the  father  of  G.,  but  was  the  husband  of  her  mother,  and  that 
her  mother  was  dead  before  any  sexual  intercourse,  if  any,  occurred 
between  the  defendants,  B.  and  G.,  then  the  defendant  B.  would  not 
be  guilty  of  incest,  and  you  should  acquit  him. 

(d)  If  you  have  any  reasonable  doubt  from  the  evidence  that  B. 
is  the  father  of  G.,  then  you  should  give  him  the  benefit  of  the  doubt 
and  acquit  him. 

(e)  If  you  have  any  reasonable  doubt  from  the  evidence  of  the 
guilt  of  the  defendant  B.  according  to  the  instructions  given  you 
then  you  should  acquit  the  defendant.^^ 


RAPE. 

§  2805.  Rape  Defined.  To  constitute  the  crime  of  rape,  it  will 
be  necessary  for  you  to  find  beyond  all  reasonable  doubt  that  this 
defendant  had  carnal  knowledge  of  the  body  of  this  young  lady  by 


open  to  the  determination  of  the 
jury." 

26— Brown  v.  State,  42  Fla.  184, 
27   So.    869    (871). 

"It  is  contended,"  said  the  court 
in  comment,  "that  the  instruction 
excepted  to  is  erroneous,  under  the 
principles  governing-  the  decision  in 
Green  v.  State,  21  Fla.  403,  58  Am. 
Rep.  670.  The  indictment  in  that 
case  was  for  polygamy,  and  the 
judgment  of  conviction  w^as  re- 
versed because  the  only  evidence 
of  the  first  marriage  was  that 
proving  cohabitation  and  repute. 
If  we  admit  that  the  principles 
controlling  the  decision  in  that 
case  are  applicable  to  proof  of 
marriages  on  indictments  like  the 
one  before  us,  they  would  not  ap- 
ply to  the  instruction  complained 
of  here,  because  this  instruction 
does  not  relate  to  evidence  of  a 
marriage,  but  to  evidence  of  the 
relationship  between  the  parties 
charged  with  crime.  Perhaps,  if 
It  had  been  necessary  to  prove  that 
O.  was  the  legitimate  daughter  of 
the  plaintiff  in  error,  the  instruc- 
tion would  have  been  erroneous, 
bocfiuse,  to  prove  legitimacy,  it 
might  be  necessary  to  prove  a 
valid  marriage;  in  which  case,  ac- 


cording to  the  decision  in  State  v. 
Roswell,  6  Conn.  446,  the  principles 
of  the  Green  Case  would  be  ap- 
plicable. But  the  crime  denounced 
by  our  statute  can  be  committed 
by  a  father  with  his  illegitimate 
daughter,  and  it  was  therefore  not 
necessary  to  prove  a  valid  mar- 
riage between  plaintiff  in  error  and 
the  mother  of  G.  Bishop  St. 
Crimes,  par.  727;  Baker  v.  State, 
30  Ala.  521;  People  v.  Jenness,  5 
Mich.  305;  State  v.  Schaunhurst.  34 
Iowa  547;  State  v.  Laurence,  95 
N.  C.  659.  Evidence  of  the  char- 
acter mentioned  in  the  instruction 
is  not  only  admissible,  but  it  is 
sufficient  for  the  jury  to  found 
their  verdict  upon,  if  believed  by 
them  to  be  true.  There  was  no  er- 
ror in  giving  this  instruction  in 
connection  with  the  other  instruc- 
tions mentioned.  People  v.  Harri- 
den,  1  Parker  Cr.  R.  344;  Ewell  v. 
State,  6  Yerg.  364,  27  Am.  Dec.  480; 
State  V.  Bullinger.  54  Mo.  142; 
Cook  V.  State,  11  Ga.  53;  State  v. 
Sch'aunhursit,  34  Iowa  547;  People 
V.  Jenness,  5  Mich.  305;  Bergen  v. 
People,  17  111.  426,  65  Am.  Dec. 
672;  2  Whart.  Cr.  Law,  par.  1753; 
Bishop    St.    Crimes,   par.   735." 


§  2806.]  CRIMINAL— RAPE.  1787 

force  and  against  her  Tvill,  and  I  mean  by  that,  it  will  be  necessary 
for  you  to  find  that  the  act  was  committed  by  force  and  against  the 
will  of  this  young  lady;  that  she  did  everything  she  could  under  the 
circumstances  to  prevent  defendant  from  accomplishing  his  purpose. 
If  she  did  not  do  that,  it  is  not  rape.^'^ 

§  2806.  Proof  of  Intercourse  Alone  Not  Sufi&cient  to  Convict.  You 
are  instructed  that  you  cannot  find  the  defendant  guilty  in  this  case 
upon  proof  alone  that  defendant  had  intercourse  with  the  complaining 
witness."^ 

§  2807.  Moral  Character  of  Prosecutrix — Reputation  for  Chastity. 
Evidence  has  been  introduced  as  to  the  moral  character  of  the  prose- 
cuting witness,  and  as  to  her  reputation  for  chastity  and  virtue. 
You  are  not  to  understand  from  this  that  a  rape  cannot  be  com- 
mitted on  a  woman  of  bad  moral  character.  A  woman  may  be  a 
common  prostitute,  and  may  still  be  a  victim  of  a  rape.  This  evi- 
dence has  been  introduced  only  for  the  purpose  of  affecting  her  credi- 
bility as  a  witness,  and  as  a  circumstance  affecting  the  probability 
of  the  act  of  intercourse  being  voluntary  or  against  her  will, — upon 
the  theory  that  a  person  of  bad  moral  character  is  less  likely  to 
speak  the  truth  as  a  witness  than  one  of  good  moral  character,  and 
that  a  woman  who  is  chaste  and  virtuous  will  be  less  likely  to  con- 
sent to  an  act  of  illicit  carnal  intercourse  than  one  who  is  unchaste. 
So  that  whatever  conviction  the  evidence  may  produce  in  your  minds 
as  to  whether  she  is  of  good  or  bad  moral  character,  or  as  to  whether 
she  is  chaste  or  unchaste,  you  will  treat  it  as  a  circumstance  affecting 
her  credibility  to  aid  you  in  determining  whether  her  stoiy  is  true  or 
false,  and  the  act  of  intercourse  voluntary  or  against  her  will.-'' 

§  2808.  Defense  of  Consent  by  Prosecutrix,  (a)  To  authorize 
a  conviction  of  rape,  the  jury  must  believe  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant  had  carnal  connection  with 
the  prosecuting  witness,  forcibly  and  against  her  will,  and  that  she 
did  not  yield  her  consent  during  any  part  of  the  act.  To  constitute 
the  crime  of  rape,  the  will  of  the  female  alleged  to  have  been  outraged 
must  have  been  overcome,  either  by  force,  violence  or  fear.  If  she 
consents  to  sexual  intercourse  in  the  least  during  any  part  of  the  act 
there  is  no  such  opposing  will  as  the  law  requires  to  convict  on  the 
charge  of  rape.^° 

(b)  If  the  jury  believe  from  the  evidence  that,  on  or  about  the 
28th  day  of  last  July,  the  prosecutrix  went  to  the  barn  where  the 
defendant  was  engaged  in  harnessing  horses,  and  that  mutual  over- 
tures were  made  between  them  leading  to  a  mutual  understanding 
and  desire  to  have  intercourse  there  in  the  bara  when  they  were  dis- 

27— People  v.  Murphy,  145  Mich.  467,  4  N.  E.  64  (65),  5  N.  E.  711, 
524  (528).  108  N.  W.  1009  (1011).  5  Am.   Cr.   Rep.   601. 

28— People  v.  Howard,  143  Cal.  30— Brown  v.  People,  36  Mich. 
316,    76    Pac.    1116    (1118).  203,  2   Am.    Cr.   Rep.   586;   Ulrich   v. 

29 — Anderson    v.    State,    104    Ind.     People,     39     Mich.     245;    Maxey    v. 

State,  66  Ark.  523,  52  S.  W.  2  (6). 


1788  FORMS  OF  INSTRUCTIONS.  [§  2809. 

covered   then  the  jury  are  instructed  that  they  must  find  the  defend- 
ant not  guilty.^*^ 

§  2809.  Involuntary  Consent  Induced  "by  Fear,  (a)  If  you  be- 
lieve from  the  evidence  in  this  case,  that  an  act  of  sexual  intercourse 
did  take  place  between  the  defendant  and  the  prosecutrix,  as  averred 
in  the  indictment,  then,  the  question  as  to  whether  or  not  she  did 
voluntarily  consent  to  such  act,  is  a  question  of  fact  for  you  to  de- 
termine, from  the  evidence  in  the  case.  The  defendant  insists  that 
she  did  voluntarily  consent  thereto,  and  that  he  used  no  force  or 
coercion  of  any  kind  to  compel  such  consent,  but  that  she  yielded  to 
his  desires  upon  his  request  alone.  While  the  prosecution  insists 
that  she  did  not  voluntarily  consent,  but  that  she  resisted  to  the  full 
extent  of  her  ability,  and  only  yielded  when  her  will  was  overpowered, 
and  that  if  she  finally  submitted  to  her  fate  it  was  against  her  will, 
and  for  the  fear  of  more  serious  consequences.  You  are  to  say  from 
the  evidence,  which,  if  either,  is  right,  and,  if,  after  giving  due  weight 
to  all  the  evidence,  you  find  the  prosecutrix  did  voluntarily  consent 
to  such  act  of  intercourse,  and  not  under  coercion,  you  should  acquit; 
but  if  you  find,  beyond  a  reasonable  doubt,  that  the  act  was  by  force, 
and  against  her  will,  and  find  the  other  facts  averred  in  the  indict- 
ment established  beyond  a  reasonable  doubt,  you  should  convict.^^ 

(b)  You  are  instructed  that  rape  is  a  carnal  knowledge  of  a 
female,  forcibly  and  against  her  will;  and  where  threats  of  personal 
violence  are  made  to  overcome  her  will,  and  she  believes  that  her 
person  is  in  danger  from  said  threats,  and  defendant  has  sexual  con- 
nection with  her,  then  the  law  considers  such  carnal  knowledge  as 
having  been  forcibly  had,  and  against  the  will  of  the  female.^^ 

(c)  If,  at  the  time  'the  man  had  carnal  knowledge  of  the  female, 
her  mind  was  overpowered  by  fear  induced  by  the  man,  and  thei'efore 
she  made  no  resistance,  it  is  rape.^* 

(d)  If  she  w^as  incapable  of  resistance  through  fear,  or  if  resist- 
ance -was  entirely  useless,  there  might  be  rape  if  no  resistance  was  in 
fact  made. 

(e)  It  is  to  be  expected  that  resistance  will  be  made,  unless  the 
mind  of  the  woman  is  so  overcome  by  fear  that  she  is  incapable  of 
resistance,  or  unless  there  is  such  an  exhibition  of  brute  force  as  to 
make  resistance  useless  or  impossible.^^ 

(f)  If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 

31— Adams  v.   People,   179  111.   633  will   of   the   woman.     Surely   there 

(637),  54  N.  E.  296;  assault  with  in-  could  not  he  such  an  absurdity  as 

tent  to  rape.  claiming-    that     the     act     was     not 

32— Anderson    v.    State,    104    Ind.  against    the     will     of    the     woman 

467.   4  N.   E.   64  (65),  5  N.  E.  711,  5  when  her  will  was  paralyzed   with 

Am.  Cr.   Rep.   601.  fear   through    the   wrongful    act    of 

33— State  v.  Urie,  101  Iowa  411,  70  the   defendant    and    she   was   inra- 

N.   W.   603  (604).  pable    of    voluntarily    consenting." 

34— Rice  v.   State,   35   Fla,   236,  17  The  court   cited   Hollis  v.   State,  27 

So.   286   (287),  48   Am.   St.   245.  Fla.   387,   9  So.  67. 

"The  gist  of  the  offense  is  forci-  35— State  v.  Long,  72  Conn.  39,  43 

ble    carnal   knowledge  against   the  Atl.  493  (495). 


§  2810.]  CRIMINAL— RAPE.  1789 

doubt,  that  the  defendant  had  sexual  intercourse  with  the  said  A.  B. 
against  her  will,  then  the  defendant  may  be  guilty  of  the  crime  of 
rape,  although  the  said  A.  B.  did  not  make  the  utmost  physical  re- 
sistance of  which  she  was  capable  to  prevent  such  intercourse,  pro- 
vided the  jury  further  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  threatened  to  use  force  and  to  do  her  great 
bodily  injury  in  case  she  did  not  submit,  and  that  she  did  submit  to 
such  sexual  intercourse  through  fear  that  'the  defendant  would  do  her 
great  bodily  injurj-.^^ 

§  2810.  Rape — Prompt  Complaint  by  Prosecutrix,  (a)  Upon  the 
trial  of  a  defendant  accused  of  the  crime  of  rape  the  fact  that  the 
prosecutrix  made  prompt  and  early  complaint  of  the  wrong  and  in- 
jury committed  u^Don  her  person,  and  to  her  character  and  chastity, 
is  admissible  and  may  be  received  and  considered  by  the  jury  in  cor- 
roboration of  her  other  testimony  given  in  the  case.^'^ 

(b)  The  court  instructs  the  jury  that  if  you  believe,  from  the  evi- 
dence, that  the  prosecuting  witness  told  her  father  of  the  assault 
alleged  to  have  been  made  on  her  at  the  earliest  opportunity,  then 
that  is  a  corroborating  circumstance  tending  to  sustain  the  truth  of 
her  statements.^^ 

§  2811.  Failure  of  Prosecutrix  to  Complain.  Though  the  jury 
may  believe,  from  the  evidence,  that  the  prosecuting  witness  did  not 
tell  her  (mother)  or  others  of  the  alleged  outrage  upon  her  until,  etc., 
still,  if  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  was  guilty  of  the  crime  charged  in  the  in- 
dictment, and,  if  the  jury  further  believe,  from  the  evidence,  that  at 
the  time  of  the  alleged  outrage  the  defendant  threatened  to  take  her 
life  if  she  ever  told  of  what  had  occurred,  and  she  was  afraid  she 
would  lose  her  life,  or  suffer  soine  great  bodily  harm,  if  she  should 
tell  of  the  injuries  complained  of,  then  these  facts  would  excuse  the 
prosecuting  witness  from  communicating  the  knowledge  of  such  in- 
jury to  others.2^ 

§  2812.  Failure  of  Prosecutrix  to  Make  Outcry.  If  the  jury  be- 
lieve, from  the  evidence,  that  at  the  time  of  the  alleged  rape  other 
people  were  at  the  same  time  in  the  same  house,  who  might  easily 

36 — State  v.  Ruth,  21  Kas.  583.  guarded,    and    have    said    that    the 

37 — People  v.  Keith,   141  Cal.   686,  prosecuting-     witness'      telling     her 

75  Pac.  304.  father    of    the    assault   was    a   cir- 

"That   the    instruction    is    a    cor-  cumstance    tending   to   sustain    the 

rect   statement   of   the   law   is   held  truth    of    her    statement    on    trial, 

in  People  v.  Lambert,  120  Cal.  170,  and     that     such     an    assault     was 

52  Pac.   307,  and  in  People  v.  Wil-  made.     This    was    the    substantial 

mot,  139   Cal.   103,   72  Pac.  838,   and  meaning   of   the   instruction   given, 

we  can  see  no  error  in  so  inform-  and   was   probably   so   accepted." 
ing  the  jury."  See  also  State  v.  Niles,  47  Vt.  82; 

38— Bean    v.    People,    124    111.    576  Pefferling  v.   State,  40  Tex.  486. 
(582).  16  N.  E.  656.  39— Turner    v.     People,     33    Mich. 

The  court  said  this  "was  .strictly  363. 
too    broad    in   its    use   of   the   term        See  al.so  Brown  v.  State,  72  Miss, 

'statements.'  The         instruction  997,   17   So.   278   (279). 

might    properly    have    been    more 


1790  FORMS  OF  INSTRUCTIONS.  [§  2813. 

have  heard  her  had  she  made  any  outcry,  and  that  she  in  fact  made 
no  outcry  at  the  time  defendant  was  attempting  'to  have  connection 
with  her,  these  facts  will  tend  to  raise  a  presumption  that  no  rape 
was  committed  upon  her  at  the  time.-*** 

§  2813.  Outcry  by  Prosecutrix  Prevented  by  Fear.  If  you  find 
the  defendant  committed  the  alleged  offense  upon  the  plaintiff,  and 
that  the  defendant  threatened  her  and  put  her  in  fear,  that  is  a  cir- 
cumstance to  be  taken  into  consideration  by  you  in  rebutting  un- 
favorable inferences  from  her  not  making  outcry  and  offering  more 
physical  resistance  to  the  commission  of  the  alleged  offense-*^ 

§  2814.  Adulterous  Disposition  of  Defendant  and  Prosecutrix— 
How  Material.  You  are  further  instructed  that  evidence  of  previous 
act  of  sexual  intercourse  between  the  defendant  and  the  prosecutrix, 
and  of  improper  familiarity  on  'the  part  of  the  defendant  towards 
and  with  the  prosecutrix,  both  before  and  after  the  time  charged 
in  the  information,  is  received  and  admitted  in  evidence  to  prove 
the  adulterous  disposition  of  the  defendant  herein,  and  as  having 
a  tendency  to  render  it  more  probable  that  the  act  of  sexual  inter- 
course charged  in  the  information  was  committed  on  the  23d  day  of 
February,  1902,  and  for  no  other  pui-pose.*^ 

§  2815.  Rape — Circumstances  Summed  Up  by  the  Court.  The 
charge  of  rape  against  a  person  is  easy  to  make,  difficult  to  prove, 
and  more  difficult  to  disprove,  and  in  considering  a  case  of  this  kind, 
it  is  the  duty  of  the  jury  to  carefully  and  deliberately  consider,  com- 
pare and  weigh  all  the  testimony,  facts  and  circumstances  bearing 
on  the  acts  complained  of,  and  the  utmost  care,  intelligence  and  free- 
dom from  bias  should  be  exercised  by  the  jury  in  the  consideration 
thereof.  The  time  and  place  of  the  alleged  acts,  relation  of  the  de- 
fendant to  the  said  Y.,  upon  whom  the  assault  is  alleged  to  have  been 
made;  her  age  and  intelligence,  strength  and  physical  development, 
his  influence  and  power  over  her,  if  any;  her  condition  thereafter, 
together  with  the  condition  of  her  clothes;  evidence  of  injuries,  if 
any,  upon  her  person;  appearance  of  the  same  when  examined;  the 
time  since  said  injuries  appeared  to  have  been  made;  the  length  of 
time  after  the  alleged  transaction  before  complaint  was  made  by  her; 
the  place  where  said  acts  are  alleged  to  have  been  committed;  the 
corroborating  evidence,  if  any;  what  was  said  by  him,  if  anything 
to  the  little  girl,  W.,  at  the  time  of  the  alleged  acts;  what,  if  any- 

40 — State  v.  Hagerman,  47  la.  151.  fense  had  been  committed  was  en- 

41— Witzka   v.    Moudry,    83   Minn,  tirely  unnecessary." 

78,   85   N.    W.   911    (912).  42— People    v.    Edwards,    —    Cal. 

"It  seems  very  clear,  upon  a  — ,  73  Pac.  416  (417). 
proper  construction  of  this  request,  "In  a  ca.se  like  this  it  has  been 
that  it  cannot  be  held  prejudicial  held  not  to  be  error  to  admit  evi- 
to  the  defendant;  for,  if  the  of-  dence  of  previous  acts  of  sexual 
fense  had  actually  been  committed  intercourse  between  the  parties  for 
as  it  assumes,  the  plaintiff  was  the  purpose  of  showing  the  dis- 
entitled to  recover  whether  there  position  of  the  defendant.  People 
were  threats  or  not,  and  all  that  v.  Williams,  133  Cal.  168,  65  Pac, 
relates  to  this  subject  after  the  of-  323;  People  v.  Manahan,  32  Cal.  68." 


§  2816.]  CRIMINAL— RAPE.  1791 

thing,  she,  W.,  saw  and  heard  at  the  time, — together  with  all  the 
other  facts  and  circumstances  of  the  case,  as  the  same  have  been  de- 
veloped and  established  by  the  proof  in  the  ease,  should  be  consid- 
ered by  you  while  you  are  considering  whether  the  defendant  is  or 
is  not  guilty  of  the  crime  charged.*^ 

§  2816.  Prosecutrix  Under  Age  of  Consent,  (a)  Rape  is  the  car- 
nal knowledge  of  a  female  under  the  age  of  fifteen  years,  other  than 
the  wife  of  the  person,  with  or  without  her  consent,  and  with  or 
without  the  use  of  force,  threats  or  fraud.  To  constitute  the  crime 
of  rape,  it  is  necessary  that  penetration  be  shown,  but,  if  penetration 
be  shown  to  have  actually  taken  place  as  a  matter  of  fact,  the  degree 
of  penetration  is  immaterial.  Penetration,  as  herein  used,  means  the 
penetration  of  the  female  organ  of  a  female  with  the  male  member 
or of  a  man.** 

(b)  If  you  believe  from  the  evidence  in  this  case  beyond  a  rea- 
sonable doubt  that  the  defendant,  J.  P.,  in  the  county  of  Brazos  and 
state  of  Texas,  on  or  about  the  month  of  February,  A.  D.  1902,  did 
have  carnal  knowledge  of  L.  P.,  and  did  penetrate  the  female  organ 

of  said  L.  P.  with  his  male  member  or ,  and  that  said  L.  P.  was 

then  and  there  a  female  under  the  age  of  fifteen  years,  and  was  not 
then  and  there  the  wife  of  the  defendant,  J.  P.,  you  will  find  the  de- 
fendant guilty  under  the  first  count  of  the  indictment,  and  assess  his 
punishment  by  death  or  by  confinement  in  the  penitentiary  for  life 
or  for  any  term  of  years  not  less  than  five.*^ 

(c)  You  are  further  instructed  that  it  is  the  policy  of  our  law,  as 
expressed  in  the  statutes,  that  any  female  under  the  age  of  sixteen 
years  shall  be  incapable  of  consenting  to  the  act  of  such  intercourse, 
and  that  any  one  committing  the  act  with  a  girl  within  that  age 
shall  be  guilty  of  rape,  notwithstanding  he  obtained  her  actual  con- 

4J— ^State  V.    Watson,    81    la.    380,  Compare    People   v.   Totman,    135 

46  N.  W.  868  (869).  Cal.    133,    67    Pac.    51    (53),    where    a 

"In  the  Meshek  case,  51  Iowa  308,  like  instruction  is  held  to  be  an  in- 

1    N.    TV.    685,    an    instruction    was  vasion  of  the  province  of  the  jury, 

disapproved      because      the      effect  la  State  v.  Trusty,   122  la.   82,  97 

of  it  was  to  exclude  from  the  con-  N.    W.   989   (991),    the   following   in- 

sideration   of  the  jury  certain  evi-  struction  was  refused  by  the  trial 

dence  proper  for  the  determination  court: 

of  an  important  fact  in  the  case.  Such  an  accusation  is  easily 
No  such  objection  can  be  urged  to  made,  hard  to  prove,  and  harder  to 
this  instruction.  It  does  call  at-  be  defended  against  by  the  party 
tention  to  particular  and  important  accused,  though  ever  so  innocent, 
facts,  but  has  no  such  effect  as  The  supreme  court  said:  "While 
limiting  the  evidence  to  be  consid-  it  might  have  been  given,  yet  we 
ered  in  the  finding  of  any  fact  in  think,  in  view  of  the  entire  charge, 
the  case.  So  far  as  the  condition  there  was  no  error  in  denying  it. 
of  the  hymen  is  concerned,  it  is  No  case  has  ever  been  reversed, 
silent,  as  it  is  with  regard  to  many  to  our  knowledge,  because  of  fail- 
other  incidental  questions  in  the  ure  to  give  such  cautionary  in- 
case but  none  are  excluded   in   ef-  struction." 

feet    because   not   mentioned.     The  44 — Price    v.    State,    44    Tex.    Cr. 

mention    of    each    fact    in    instruc-  App.    304,    70    S.    W.    966    (967);    Bu- 

tions   Is   not   required  of  the   court,  chanan   v.    State,   41   Tex.   Cr.   App. 

State  v.  Miller,  65  Iowa  60,  21  N.  W.  127.   52   S.   W.   769    (771). 

181."  45 — Price  v.  State,  supra. 


1792  FORMS  OP  INSTRUCTIONS.  [§  2817. 

sent,  and  whether  the  girl  in  fact  consented  or  resisted  is  immaterial 
in  this  case.  In  the  present  case  neither  the  element  of  force  nor 
the  question  of  consent  has  any  application.  The  prosecutrix  could 
not  consent,  and  the  law  resists  for  her.*^ 

(d)  The  jury  are  instructed  that  if  you  find,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  on  the  date  mentioned  in  the  indict- 
ment the  defendant  was  above  the  age  of  sixteen  years  and  that  the 
prosecuting  witness  was  under  the  age  of  fourteen  years;  and  if  you 
further  find,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  and  the  prosecuting  witness  were  then  in  the  office  of  the 
defendant;  and  that  the  defendant  then  and  there  had  the  intent  and 
puri^ose  to  have  carnal  intercourse  with  M.  G.,  either  with  or  without 
her  consent,  and  that  in  pursuance  of  and  in  furtherance  of  such 
intent  and  purpose  the  defendant  then  and  there  did  acts  toward  the 
accomplishment  of  such  intent  and  purpose,  and  that  he  had  then 
and  there  the  present  ability  to  accomplish  such  intent  and  purpose, 
then  you  should  find  the  defendant  guilty  as  charged.*'^ 

§  2817.  Age  of  Prosecutrix — How  Proven.  The  state  would  not 
be  required  to  show  the  age  of  said  Emma  M.  by  a  family  record  or 
any  instrument  in  writing;  such  proof  may  be  made  by  oral  testimony 
of  witnesses,  and  said  Emma  M.  is  a  competent  witness  as  to  her 
age,  and  such  testimony  may  be  based  upon  information  with  respect 
thereto,  if  any  she  may  have,  from  her  parents.'*^ 

§  2818.  Reasonable  Doubt  as  to  Age  of  Girl.  If  you  believe  from 
the  evidence  that  at  the  time  the  defendant  had  sexual  intercourse 
with  the  prosecuting  witness,  as  alleged,  she  was  of  the  age  of  15 
years  or  over,  then  you  will  find  the  defendant  not  guilty;  or,  if  you 
have  a  reasonable  doubt  of  the  fact  that  she  was  under  the  age  of 
15  years,  you  will  give  defendant  the  benefit  of  such  doubt  and  find 
him  not  guilty.*'' 

§  2819.  Testimony  of  the  Prosecutrix.  The  court  instructs  the 
juiy  that  you  yourselves  are  the  sole  judges  of  the  weight  of  the 

46 — People    v.    Totman,    135    Cal.  the      offense     was      forcible      and 

133,     67     Pac.     51     (52);     People    v.  against  the  will  of  the  girl  or  not, 

Roach,    129    Cal.    33,    61    Pac.    574.  and      that      the      indictment      was 

47 — Addison     v.     People,     193     111.  good." 

405   (416),   62   N.   E.   235.     The   prin-  Note:  By  statute  in  Illinois  age  of 

ciple    stated    in    the    instruction    is  consent  is  now  sixteen  years  for  fe- 

correct    and    according^   to    our   de-  male  when  with  male  of  seventeen 

cisions,     although     the     authorities  years  or  upwards.     Male  of  sixteen 

are    not    uniform    on    the    subject,  or  upwards  guilty  of  rape   if  done 

That   view   was   adopted   in   Porter  without  consent  of  female  any  age. 

v.  People,  158  111.   370  where  W.  A.  III.  Scss.  Laws,  1905,  p.  194. 

P..    being    over    sixteen    years   old,  48 — State   v.   Scroggs,   123  la.   649, 

was   indicted    for   assault   with   in-  96   N.   W.   723   (724). 

tent   to    commit   rape   upon    a   girl  49 — Curry    v.    State,    —   Tex.    Cr. 

under  fourteen,  and  the  indictment  App.  —  94   S.  W.   1058   (1060). 

did   not  charge  force.     It  was  held  "It    did    not    impose    on    him    the 

that,     inasmuch     as    the     consum-  burden    of    proof    in    that    respect; 

mated    offense    would     have     been  nor  was  it  a  charge  on  the  weight 

rape,    it    was    immaterial    whether  of  testimony." 


§  2820.]  CRIMINAL— RAPE.  1793 

testimony  that  has  been  introduced  before  you,  and  in  determining 
what  weight  to  give  the  testimony  of  the  complaining  witness  in 
this  ease,  you  should  take  into  consideration  her  appearance  while 
upon  the  stand,  her  ajDparent  interest  or  lack  of  interest  in  the  pro- 
ceeding, if  any  appear,  and  her  manner  of  testifying;  and,  in  the 
light  of  all  her  testimony,  and  of  the  other  evidence  in  the  case,  you 
should  give  to  her  testimony  such  weight,  and  only  such  weight,  as 
you  think,  under  all  the  circumstances,  it  is  entitled  to.  And  if, 
upon  consideration  of  all  the  evidence  in  the  case  and  the  former 
instructions  of  the  court,  you  find  that  all  the  material  allegations  of 
the  complaint  have  been  proved  beyond  a  reasonable  doubt,  you 
should  find  the  defendant  guiliy.  If  you  find  that  the  material  alle- 
gations of  the  complaint  have  not  been  so  proved,  then  you  should 
find  the  defendant  not  guilty.^'' 

§  2820.  Whether  Prosecutrix  Need  to  Be  Corroborated,  (a)  You 
are  instructed  that  in  the  case  of  rape  it  is  not  essential  that  the 
prosecutrix  should  be  corroborated  by  the  testimony  of  other  wit- 
nesses as  to  the  particular  act  constituting  the  offense,  and  if  the 
jury  believe  from  the  testimony  of  the  prosecutrix,  and  the  cor- 
roborating circumstances,  and  facts  testified  to  by  other  witnesses, 
that  the  defendant  did  make  the  assault  as  charged,  the  law  would 
not  require  that  the  prosecutrix  should  be  corroborated  by  other  wit- 
nesses as  to  what  transpired  at  the  immediate  time  and  place  when 
it  is  alleged  the  assault  was  made.^^ 

50— Maxfield  v.   State,  54  Neb.   44,  State,    19    Neb.    728,    28    N.    W.    278; 

74   N.   W.   401.  Fager  v.   State,    22  Neb.    332,   35  N. 

The  above  instruction  was  given  W.  195;  Hammond  v.  State,  39  Neb. 

in    response    to    an     inquiry     by    a  252,   58   N.   W.   92.     This   is  exactly 

juror    was    held    good.  the  idea  which  the  instruction  con- 

The  court   said:  veys.      It    is    not    susceptible,    we 

"The  contention  is  that  the  in-  think,  of  any  other  reasonable  in- 
struction was  not  responsive  to  the  terpretation." 

inquiry    made    by    the    juror,    and  See    also    Matthews    v.    State,    19 

for     that     reason    was     misleading  Neb.  330,  27  N.  W.  234. 

and    prejudicial.     This    criticism    is  In  Brenton  v.  Territory,  15  Okla. 

unavailing.     The  doctrine  has  been  6   (8),   78  Pac.   83,   the  following  in- 

repeatedly    stated    that    mere    non-  struction  was  given: 

direction    by    the   trial    court    is   no  The  court  instructs  the  jury  that 

cause   for   the   reversal   of   a   crim-  they     cannot     find     the     defendant 

inal  cause  where  there  has  been  no  guilty   of    the   charge   made   in   the 

lefusal      of    a     proper    instruction  indictment  unless  the  testimony  of 

tendered.      Hill    v.    State,    42    Neb.  the   prosecutrix  is   corroborated  by 

502,   60  N.  W.   916;   Housh  v.   State,  other  testimony  admitted  upon  the 

43  Neb.  163,  61  N.   W.   571;  Pjarrou  trial   of   the  cause.     The  testimony 

v.  State,  47  Neb.  294,  66  N.  "W.  422."  required    by    law    in    corroboration 

51— Dunn    v.    State,    58    Neb.    807,  must    be     of     such     character    as, 

79  N.  W.  719   (720).  standing    alone,     and    without    the 

The  court  said:  aid  of  the  testimony  of  the  prose- 

"While  the  law  in  this  class  of  cutrix,  tends  to  connect  the  de- 
cases  requires  that  the  prosecu-  fendant  with  the  commission  of  the 
trix  shall  be  corroborated.  It  does  crime  charged;  and  such  testimony 
not  demand  that  the  corroboration  in  corroboration  must  apply  direct- 
shall  be  by  direct  evidence  of  the  ly  to  the  defendant,  and  not  be  of 
particular  fact  constituting  the  that  character  which  may  apply 
crime.  Proof  of  incriminating  cir-  as  well  to  any  other  man.  Unless 
cumstances  is  sufficient.  Krum  v.  the  evidence  in  corroboration  is  of 
113 


1794  FORMS  OF  INSTRUCTIONS.  L§  2820. 

(b)  In  this  case  the  prosecution  relies  for  a  conviction  upon  the 
testimony  of  L.  S.,  the  prosecuting  witness,  and  no  other  witness  was 
called  by  the  territory  to  testify  directly  to  the  time  and  place  or 
circumstances  of  the  alleged  offense;  and  fon  are  instructed,  in  eases 
where  the  territory  relies  upon  the  uncorroborated  testimony  of  the 
prosecutrix,  unsustained  by  other  evidence,  or  by  facts  and  circum- 
stances corroborating  it,  that  you  should  view  such  testimony  with 
great  caution,  and  it  is  the  duty  of  the  court  to  warn  the  jury  of  the 
danger  of  conviction  on  such  testimony.  You  are  further  instructed 
that  in  considering  her  testimony  you  may  take  into  consideration 
the  facts  and  circumstances  surrounding  the  place  where  the  alleged 
offense  is  charged  to  have  been  committed — all  the  facts  and  cir- 
cumstances at  the  time  and  immediately  after  the  alleged  offense 
was  committed — in  determining  the  weight  of  her  testimony, 
and  the  reasonableness  thereof,  as  tending  to  show  to  your  minds  the 
credit  to  be  given  to  the  same.^^ 

(c)  The  court  instructs  the  jury  that  it  is  their  province  to  de- 
termine the  weight  and  credibility  to  be  given  the  testimony  of  a 
female  upon  whom  it  is  alleged  in  an  information  that  a  rape  has 
been  committed,  and  who  testifies  to  the  facts  and  circumstances  of 
such  rape  as  of  any  other  witness  testifjing  in  the  case.  And,  if 
such  testimony  creates  in  the  mind  of  the  jury  a  satisfaetoiy  con- 
viction and  belief  beyond  a  reasonable  doubt  of  the  defendant's  guilt, 
it  is  sufficient  of  itself,  without  other  corroborating  circumstances 
or  evidence,  to  justify  a  verdict  of  guilty  of  rape  upon  the  trial  of  the 
case.^^ 

(d)  The  defendant  in  a  prosecution  for  rape,  or  an  assault  with 
intent  to  commit  rape,  cannot  be  convicted  upon  the  testimony  of  the 

such  a  character,  then  it  is  your  viz..  Nebraska  and  New  Mexico, 
duty  to  find  the  defendant  not  With  criminal  procedure  acts  like 
guilty.  The  test!mony  of  the  sev-  ours,  the  states  of  California, 
eral  witnesses  who  testified  to  ad-  Florida,  North  Dakota,  and  Mon- 
missions  made  by  the  defendant  tana  have  held  that  such  corrobo- 
and  the  testimony  of  C.  N.  as  to  ration  is  not  required,  and  the 
the  age  of  M.  N.  was  intended  to  same  is  held  by  the  courts  of  high- 
corroborate,  and  was  introduced  est  resort  in  Alabama,  Arkansas, 
for  the  purpose  of  corroborating,  Arizona,  Georgia,  Illinois,  Ken- 
Ihe  testimony  of  the  prosecuting  tucky,  Michigan,  Minnesota,  Missis- 
witness;  and  if  you  believe  such  sippi,  Oregon,  Pennsylvania,  Texas, 
testimony  to  be  true,  it  would  be  Utah,  Virginia,  and  Wyoming. 
a  sufficient  corroboration  of  the  Courts  of  last  resort  should  be  as 
prosecuting  witness;  if,  standing  ready  to  correct  their  own  errors 
alone  and  without  the  aid  of  the  as  they  are  that  of  inferior  courts, 
testimony  of  the  prosecuting  wit-  and,  believing  that  the  rule  as 
ness,  it  tends  to  connect  the  de-  enunciated  in  Sowers  v.  Territory, 
fendant  with  the  commission  of  6  Okla.  436,  50  Pac.  257,  is  not  the 
the  crime,  and  tends  to  prove  each  law,  said  case  is  overruled.  It 
material  fact  in  the  case  testified  follows  that  the  instruction  given 
by  her.  was  more  favorable  to  the  defend- 
The  court  said:  ant  than  the  law  authorized." 
"The  rule  of  requiring  the  prose-  52— Trimble  v.  Territory,  8  Ariz, 
cutrix  to  be  corroborated  in  rape  273,  71  Pac.  932  (933). 
cases  is  followed,  it  is  believed,  in  53 — People  v.  Keith,  141  Cal.  686, 
but  one  state  and  one  territory,  ex-  75  Pac.  304. 
cept    where     adopted     by     statute. 


§  2820.]  CRIMINAL— RAPE.  1795 

pei'soii  injured,  unless  she  be  corroborated  by  other  evidence  tending 
to  connect  the  defendant  with  the  commission  of  the  offense.  The 
fact  that  a  crime  has  been  committed  by  some  one  may  be  estab- 
lished by  the  testimony  of  the  injured  party  alone.  But  in  order  to 
convict  for  the  offense  of  rape,  or  assault  with  intent  to  commit  rape, 
it  is  necessary  that  the  testimony  of  the  injured  party  be  cor- 
roborated b}^  other  evidence  tending  to  connect  the  defendant  with 
the  commission  of  the  crime.  In  arriving  at  a  conclusion  as  to 
whether  the  prosecutrix,  M.  S.,  has  been  corroborated  by  other  evi- 
dence tending  to  connect  this  defendant  with  the  offense  of  rape,  or 
assault  with  intent  to  commit  rape,  you  may  consider  all  the  facts  and 
circumstances  surrounding  the  case  established  by  the  evidence  at 
the  time  of  the  commission  of  the  offense,  if  one  was  committed,  and 
all  other  circumstances  as  shown  by  the  evidence  may  be  considered 
by  you  in  determining  whether  the  prosecutrix,  M.  S.,  has  been  cor- 
roborated by  other  evidence  tending  to  connect  the  defendant  with 
the  commission  of  the  offense  of  rape,  or  assault  with  intent  to  com- 
mit rape,  if  either  of  such  offenses  was  committed.  Mere  proof  of 
opportunity  to  commit  the  offense  is  not  sufficient  coiroboration. 
However,  it  is  enough  that  the  corroborating  evidence  tends  to 
strengthen  and  corroborate  the  prosecutrix  in  connecting  the  defend- 
ant with  the  commission  of  the  offense,  and  point  out  the  defendant 
as  the  person  who  committed  the  offense,  if  any  was  committed.  It 
is  for  5'^ou  to  determine  whether  the  testimony  of  the  prosecutrix 
in  tins  case  has  been  sufificienth''  corroborated  by  other  evidence 
tending  to  connect  the  defendant  with  the  commission  of  the  offense 
of  rape,  or  assault  with  intent  to  commit  rape,  if  either  of  such  of- 
fenses has  been  committed. 

(e)  You  should  acquit  the  defendant  of  the  offense  of  rape  un- 
less the  testimony  of  M.  S.  has  been  corroborated  by  other  evidence 
tending  to  connect  the  defendant  with  the  commission  of  such  of- 
fense. And  you  should  acquit  the  defendant  of  the  offense  of  assault 
with  intent  to  commit  rape  unless  the  testimony  of  M.  S.  has  been 
corroborated  by  other  evidence  tending  to  connect  the  defendant  with 
the  commission  of  such  offense. 

(f)  Evidence  has  been  admitted  tending  to  show  that  the  prose- 
cutrix, M.  S.,  made  complaint  to  her  brother  and  mother  on  July  18, 
1902,  that  she  had  been  ravished  by  defendant.  Such  complaints,  if 
any,  would  not  be  evidence  corroboi'ating  the  testimony  of  prosecutrix 
tending  to  connect  the  defendant  with  the  commission  of  the  offenses 
of  rape,  or  assault  with  intent  to  commit  rape,  if  either  of  such 
offenses  was  committed;  and  neither  would  the  existence  of  injuries, 
if  any,  to  her  genital  organs,  be  corroboration  of  the  testimony  of 
the  prosecutrix  tending  to  connect  the  defendant  with  the  commis- 
sion of  either  offense  of  rape,  or  assault  with  intent  to  commit  rape, 
if  either  offense  was  committed:  but  the  evidence  of  such  complaints 
was  admitted  as  tending  to  confirm  or  corroborate  the  truth  of  her 
testimony.     The  law  is  that  a  failure  by  the  prosecutrix  to  imme- 


1796  FORMS  OP  INSTRUCTIONS.  [§  2821 

diately  complain  is  looked  upon  as  a  suspicious  circumstance  that  her 
story  is  a  fabrication.  Hence  the  testimony  of  such  complaints  was 
admitted  for  the  purpose  of  testing  the  accuracy  and  veracity  of  the 
prosecuting  witness,  and  for  no  other  i3urpose.2'* 

§  2821.  Attempted  Rape — Definition  of.  (a)  It  will  be  necessary 
for  you  to  find  that  the  defendant  made  an  assault  upon  this  young 
girl,  and  actually  intended  to  use  whatever  force  was  necessary  to 
accomj^lish  his  purpose,  and  if  you  find  that  he  did  that  and  actually 
intended  that,  it  would  be  your  duty,  and  you  would  be  authorized 
in  finding  him  guilty  of  an  assault  with  intent  to  commit  the  crime 
of  rape,  if  you  find  that  he  ought  not  to  be  convicted  of  the  graver 
charge. ^^ 

(b)  The  jury  are  instructed  that  they  should  acquit  defendant 
unless  they  believe  from  the  evidence,  beyond  a  reasonable  doubt, 
that  defendant  did  by  force  attempt  to  enter  the  house  mentioned  in 
the  indictment,  and  that  it  was  then  and  there  his  intention  to  have 
carnal  knowledge  of  the  said  X.  by  force,  and  without  her  consent.^® 

§  2822.    Assault  With  Intent  to  Commit  Rape — Essential  Elements. 

(a)  If  you  are  satisfied  beyond  a  reasonable  doubt,  from  the 
evidence,  that  the  defendant  took  hold  of  said  X.,  and  tore  open  her 
cloak,  and  seized  her  arm,  with  the  intent  of  having  carnal  inter- 
course with  her  against  her  will,  and  with  the  intent  of  accomplishing 
his  object  at  all  events,  without  regard  to  any  resistance  she  would 
make,  then  he  is  guilty  of  an  assault  with  intent  to  commit  rape; 
and,  if  you  are  satisfied  of  this  beyond  a  reasonable  doubt,  you  should 
so  find.^^ 

(b)  The  jury  should  convict  the  defendant  of  an  assault  with  in- 
tent to  commit  a  rape,  if  they  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  at  the  time  in  question  he  committed  an  assault 
on  the  prosecutrix  for  the  purpose  of  having  carnal  intercourse  with 
her,  and  that  in  making  the  assault  he  intended  to  use  whatever  force 
might  be  necessary  to  overcome  the  prosecutrix  and  accomplish  his 
purpose.^^ 

(c)  It  must  be  shown  in  this  ease  by  the  evidence,  beyond  a  rea- 

54— State   v.    Carpenter,   124    Iowa  App.   51,   51  S.   W.  923   (924).  96  Am. 

5,    98    N.    W.    775    (778).  St.    762. 

55— People    v.    Murphy,    145    Mich.  57— State    v.    Urie,    101    Iowa    411, 

524,    108   N.   W.   1009   (1011).  70   N.    W.    603    (604). 

"It   is  objected   that  in  this  case  "The  court   simply  tells  the  jury 

the  court  was  in  error  in  charging  that  certain  facts,  if  proven,  would 

the  jury  that  respondent  might  be  constitute     an     assault,     and     also 

found  guilty  of  an  offense  less  than  says  that  if  they  found  they  were 

the   crime   of  rape.     The   action   of  done    with    a     certain     intent     and 

the    court    was    authorized    by    the  against   her   will,    then    he   will   be 

decisions  of  this   court.     People  v.  guilty  of  the  crime  charged.  There 

Miller,   96   Mich.   119,   55  N.  W.   625,  is   no   doubt   of   the   correctness   of 

find  cases  cited;   People  v.  Abbott,  this  instruction." 

97   Mich.   484,   56  N.  W.   862,   37  Am.  58- State   v.    Cnnnada,   68   la.    397; 

St.  360  and  cases  cited."  Krum  v.  State,  19  Neb.  728. 

56— Byas    v.    State,    41    Tex.    Cr. 


§  2823.]  CRIMINAL— RAPE.  1797 

sonable  doubt,  not  only  that  the  defendant  committed  an  assault 
upon  the  female,  but  that  he  did  so  with  intent  to  compel  her,  by 
force  and  against  her  will,  to  have  sexual  intercourse  with  him  not- 
withstanding any  resistance  she  might  make.°^ 

(d)  If  you  are  satisfied  beyond  a  reasonable  doubt,  from  the  evi- 
dence, that  the  defendant  took  hold  of  the  prosecuting  witness  with 
intent  to  have  carnal  intercourse  with  her  against  her  will,  and  with 
an  intent  to  accomplish  his  object  at  all  events  by  his  strength  and 
power,  or  by  threats  of  violence,  against  any  resistance  which  she 
might  offer,  then  he  was  guilty  of  an  assault  with  intent  to  commit 
a  rape,  w^hether  he  succeeded  in  his  purpose  or  not.*^° 

(e)  The  information  charges  the  defendant  with  an  assault  with 
an  intent  to  commit  rape.  You  are  instructed  that  the  attempt  eon- 
temjDlated  in  this  charge  must  be  manifested  by  acts  which  would  end 
in  the  consummation  of  the  particular  offense  but  for  the  intervention 
of  circumstances  independent  of  the  will  of  the  accused;  and  al- 
though you  find  from  the  evidence  that  the  defendant  did,  at  the 
time  charged  in  the  information,  take  hold  of  the  said  X.,  expose  her 
pi'ivate  parts,  and  make  an  indecent  exposure  of  his  own  person,  yet 
if  he  desisted  in  his  attemj^ts  to  have  sexual  intercourse  or  abuse 
her  upon  his  own  volition,  without  the  intervention  of  circumstances 
independent  of  his  own  will,  the  law  would  presume  that  he  did  not 
intend  to  carnally  know  or  abuse  said  X. ;  but,  on  the  other  hand,  if 
you  should  find  from  the  evidence,  and  beyond  a  reasonable  doiabt, 
that  the  defendant  proceeded  in  efforts  to  carnally  know  or  abuse 
the  said  X.,  and  desisted  therefrom  by  reason  of  some  intervening 
circumstance  not  dependent  upon  his  own  will,  or  by  the  intei'vention 
of  some  third  party,  then  the  law  would  presume  that  he  did  intend 
to  carnally  know  or  abuse  the  child  in  question;  and  this  would  be 
true  even  though  you  should  believe  from  the  evidence  that  sexual 
intercourse  between  the  defendant  and  the  said  X.  would  be  impos- 
sible, and  that  the  only  physical  possibility  in  the  attempt  at  sexual 
intercourse  was  to  place  the  genital  organs  of  the  defendant  in  con- 
tact with  the  genital  organs  of  the  said  child. ®^ 

§  2823.  Assault  with  Intent  to  Commit  Rape — Abandonment  of 
Purpose.  The  jury  are  instructed  that  if  you  are  satisfied,  from  tho 
evidence,  bej^ond  a  reasonable  doubt,  that  the  defendant  laid  hands 
on  L.  C.  violently  and  against  her  will,  for  the  purpose  of  having 
sexual  intercourse  with  her,  and  that  at  the  time  he  so  laid  hands 
upon  her  he  intended  to  accomplish  his  purpose  at   all  hazards,  ii^ 

59— State  v.   McDevitt,   69  la.  549;  that   they   miarht   find   the   priso- 

State  V.  Kendall,  ?A  N.  W.  S43.  guilty  of  the  offense  cha'-p-ed   '^ 

60— People     v.    Lynch,     29     Mich,  though  they  beMeved  he  d''""  -■^ 

274.  tend    to    h'^ve     sexual     int'^"  ■ 

61— Palin    v.    State,    38    Neb.    862,  with  X.     Webster  de«nps  th-    ■ 

57  N.  W.  743  (744).  'afcrse'    th"s:    'To   vio'-^te;    tn    r??v- 

The  court   .said:  ish';  and  the  noun  'abuse'  t^^e  same 

"The   jury   could   not   have   infer-  authority      defines      as      'violation; 

red  from  the  language  of  the  court  rape;  as,  abuse  of  a  female  child.'  " 


1798  FORMS  OF  INSTRUCTIONS.  [§  2824. 

defiance  of  and  notwithstanding  any  resistance  that  she  might  make, 
then  the  defendant  was  guilty  of  an  assault  with  intent  to  commit 
rape,  although  he  may  have  subsequently  abandoned  his  purpose. '''- 

§  2824,  Intent  to  Overcome  Prosecutrix  with  Force  Essential.  In 
order  to  convict  the  defendant  of  an  assault  Avith  an  intent  to  commit 
a  rape,  the  jury  must  be  satisfied  beyond  a  reasonable  doubt,  from 
the  evidence,  that  the  defendant  assaulted  the  prosecuting  witness 
with  the  intent  at  the  time  to  overcome  any  resistance  which  might 
be  offered  by  her.  And  so  although  the  juiy  may  believe  that  the 
defendant,  inflamed  with  passion,  went  to  the  bed  of  the  prosecuting 
witness  with  intent  to  have  carnal  connection  with  her,  still,  if  you 
have  any  reasonable  doubt,  from  the  evidence,  as  to  whether  he  in- 
tended to  accomplish  his  purpose  by  force  and  to  overcome  by 
violence  or  fear  any  force  that  might  be  offered  to  resist  him,  or 
whether  he  went  with  the  design  only  to  accomplish  his  puipose  if  he 
could  without  force  or  threats,  then  the  act  would  only  amount  to  an 
assault  or  assault  and  battery,  but  the  defendant  cannot  be  convicted 
of  an  assault  with  an  intent  to  commit  a  rape.'^^ 

§  2825.  Reasonable  Doubt  as  to  Defendant's  Intent  to  Overcome 
All  Resistance  with  Force.  The  jury  are  further  instructed,  as  a  mat- 
ter of  law,  that  the  intent  is,  in  this  case,  the  essence  of  the  offense 
charged,  and,  although  you  may  find,  from  the  evidence,  that  the  de- 
fendant did  commit  an  assault  upon  the  prosecutrix  for  the  purpose 
of  having  carnal  intercourse  with  her,  still,  if,  after  considering  all 
the  evidence  in  the  case,  you  are  no^t  satisfied  bej'^ond  a  reasonable 
doubt,  that,  at  the  time  of  committing  the  assault,  he  intended  to 
compel  her  by  force  and  against  her  will,  to  have  sexual  intercourse 
with  him,  notwithstanding  any  resistance  she  might  make,  then  it 
will  be  your  duty,  under  the  law,  to  acquit  the  defendant. *^'^ 

§  2826.  Not  Necessary  That  Every  Instruction  Should  Show  the 
Prosecutrix  Not  to  Be  the  Wife  of  the  Defendant.  If  you  believe 
from  the  evidence  that  defendant  did  have  carnal  knowledge  of  said 
X.,  and  if  you  further  believe  from  the  evidence  that  said.  X.  was 
then  under  the  age  of  fifteen  years,  you  will  convict  defendant  of 
rape.^'^ 

§  2827.  Definition  of  Carnal  Abuse.  Carnal  abuse  means  any 
abuse  of  the  female  child's  genital  organs,  either  by  the  defendant's 

62— State   v.    Williams,    121    N.    C,  65— Hill  v.  State,  —  Tex.  Cr.  App. 

628,    28    S.    E.    405    (406).  — ,  77  S.  W.  808. 

See   also   Palin   v.   State,   38  Neb,  In  that   case  the  first   portion   of 

862.  t,7  N.  W.  743  (744).  the  charge,  in  defining-  rape,  stated 

6.3 — People     v.     Lynch,     29     Mich,  that   the   same  must   be   committed 

274.  "upon  another  than  the  wife  of  the 

64 — State  v.   Cannada,   68  la.   397;  person,"  etc.     The  evidence  showed 

Krum   V.    State,   19   Neb.   728;   State  that  prosecutrix  was   not   the   wife 

V.  Kendall,  73  Ta.  255,  34  N.  W.  843;  of      defendant.          H^d      therefore 

Strong  V.   State,  63  Neb.  440,  88  N.  there    was    no    reversible    error    in 

W.  772  (773).  the  omission   mentioned. 


§2828.]  CRIIVnNAL-RAPE.  1799 

private  parts,  or  by  rough  handling  of  or  use  of  her  private  pai'ts  by 
him  in  an3'  way.*'^ 

§  2828.    Rape— Assault    with    Intent    to    Commit    Rape— Series. 

(a)  Rape  Defined— Rape  is  the  carnal  knowledge  of  a  female, 
forcibly  and  against  her  will.  So,  in  this  case,  if  you  should  find 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant, 
J.,  in  Crawford  County,  Arkansas,  at  any  time  before  the  finding  of 
the  indictment  herein,  which  was  on  April  4, 1899,  forcibly  and  against 
the  will  of  a  female  named  H.,  had  cai-nal  knowledge  of  her,  the  said 
H.,  you  will  find  the  defendant  gniilty  of  rape.  If  you  do  not  so 
find  beyond  a  reasonable  doubt,  you  will  acquit  the  defendant  of  rape. 

(b)  Carnal  Knowledge  Defined— Carnal  knowledge  is  the  inser- 
tion of  the  male  organ  of  the  male  to  some  extent,  however  slightly, 
into  the  female  organ  of  a  female;  and  if  this  is  done  forcibly  and 
against  the  will  of  the  female  it  is  rape. 

(e)  Carnal  Knoxoledge,  Consent— li  you  believe  from  the  evi- 
dence that  the  defendant  did  not  have  carnal  knowledge  of  the  prose- 
cuting witness,  you  will,  of  course,  not  find  him  guilty  of  rape;  and 
if  you  find  from  the  evidence  that  he  did  have  carnal  knowledge  of 
her,  but  that  it  was  with  her  consent,  why,  then,  you  will  find  him 
not  guilty. 

(d)  Force — Absence  of  Consent — To  authorize  a  conviction  of 
rape,  the  jury  must  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  had  carnal  knowledge  of  the  prosecuting 
witness,  forcibly  and  against  her  will,  and  that  she  did  not  yield  her 
consent  during  any  part  of  the  act.  To  constitute  the  crime  of  rape, 
the  will  of  the  female  alleged  to  have  been  outraged  must  have  been 
overcome,  either  by  force,  violence  or  fear.    If  she  consents  to  sexual 

66 — State    v.    Hummer,    72    N.    J.  successfully     attempted     to     insert 

Law  328  (331),  62  Atl.  388.  his   into   the    private   parts   of 

"The  contention  made  on  behalf  this  girl,  causing  her  some  pain  in 
of  the  defendant  is  that  there  may  doing-  so.  No  evidence  was  intro- 
be  a  rough  handling  of  the  private  duced  showing  any  rough  handling 
parts  of  a  female  child  under  such  of  her  parts,  except  this  attempted 
circumstances  as  to  disprove  that  entrance  of  her  person.  The  ab- 
the  person  so  doing  was  guilty  of  stract  proposition  complained  of 
the  crime  of  carnal  abuse,  and  that  might  possibly  have  been  consid- 
therefore  this  instruction  was  er-  ered  by  the  jury  as  an  instruction 
roneous.  But,  assuming  that  this  that,  in  order  to  justify  a  con- 
contention  is  well  founded,  it  af-  viction,  there  must  have  been  a 
fords  no  ground  for  reversing  the  rough  handling  of  the  girl's  private 
conviction.  By  virtue  of  the  136th  parts  while  attempting  to  effect  an 
section  of  the  criminal  procedure  entrance  into  her  person.  It  is  not 
act  (P.  L.  1898,  p.  915),  no  judgment  possible,  it  seems  to  us,  that  they 
given  upon  any  indictment  shall  should  have  based  their  verdict  of 
be  reversed  for  any  error,  except  guilty  upon  a  conclusion  that  there 
such  as  shall  or  may  have  preju-  had  been  no  attempt  on  the  part 
diced  the  defendant  in  maintain-  of  the  plaintiff  to  enter  the  girl's 
ing  his  defense  upon  the  merits,  person,  but  that  he  had  roughly 
In  the  case  before  us  the  proof  handled  her  private  parts,  in  the 
submitted  by  the  state,  in  sup-  absence  of  any  evidence  whatever 
port  of  the  charge  laid  agaitjst  the  upon  which  to  found  such  a  con- 
defendant,    was    that    he    had    un-  elusion." 


1800  FORMS  OF  INSTRUCTIONS.  [§  2828. 

iBtercourse  in  the  least  during  any  part  of  the  act,  there  is  not  such 
an  opposing  will  as  the  law  requires  to  convict  on  the  charge  of 
rape. 

(e)  Penetration— li  you  have  a  reasonable  doubt  from  all  the 
evidence  in  the  ease  that  the  defendant's  private  part  or  member  ac- 
tually penetrated  the  private  part  or  organ  of  H.  forcibly  and  against 
her  will,  then  you  must  acquit  the  defendant  of  the  charge  of  rape, 

(f)  Presumption  of  Innocence— You  must  not  allow  the  gravity 
of  the  charge,  nor  the  fact  that  the  defendant  is  a  negTO  and  the 
prosecuting  witness  a  white  woman,  to  in  any  way  sway  or  bias  your 
judgment  in  your  deliberations  upon  a  verdict.  You  must  look  alone 
to  the  evidence  in  this  case,  and  from  it  make  your  decision.  The 
defendant  is  entitled  to  your  calm,  unbiased  and  deliberate  judgment 
upon  the  truthfulness  of  the  charge  against  him.  He  is  presumed 
by  the  law  to  be  innocent,  and  this  presumption  is  evidence  in  his 
behalf,  and  protects  him  from  a  conviction  until  his  guilt  is  estab- 
lished beyond  a  reasonable  doubt.  If  therefore  you  have  a  reasonable 
doubt  of  the  defendant's  guilt,  after  a  careful  and  unbiased  con- 
sideration of  all  the  evidence  in  the  case  you  must  resolve  that  doubt 
in  his  favor  and  return  a  verdict  of  not  guilty. 

(g)  Reasonable  Doubt — The  defendant  is  presumed  to  be  innocent, 
and  this  presumption  is  evidence  in  his  favor,  and  protects  him  from 
conviction  until  his  guilt  is  established  to  your  satisfaction  beyond 
a  reasonable  doubt.  If  the  evidence  does  not  so  satisfy  you,  this 
presumption  of  innocence  absolutely  entitles  the  defendant  to  an 
acquittal.  A  reasonable  doubt  is  not  a  mere  captious  or  imaginary 
doubt,  but  it  is  a  doubt  that  arises  naturally  in  your  minds  after  a 
fair  and  impartial  consideration  of  all  the  evidence  in  the  case,  and 
leaves  your  minds  in  that  condition  that  you  do  not  feel  an  abiding 
conviction  to  a' moral  certainty  of  the  truth  of  the  charge.  The  law, 
in  order  to  convict  does  not  require  the  guilt  of  the  defendant  to 
be  established  to  an  absolute  certainty,  but  it  does  require  his  guilt 
to  be  established  to  your  satisfaction  to  a  moral  certainty;  and  that 
is  a  certainty  that  convinces  and  directs  your  understanding  and 
satisfies  your  reason  and  judgment  of  the  truth  of  the  charge.  If 
therefore  the  proof  in  this  case  convinces  and  directs  your  under- 
standing, and  satisfies  your  reason  and  judgment  of  the  guilt  of  the 
defendant  of  the  charge  here  made  ag'unst  him,  you  will  convict  him. 
If  it  does  not  you  will  acquit  the  defendant. 

(h)  Credihiliti/  and  Weight— The  jury  are  the  sole  and  exclusive 
judges  of  the  credibility  of  the  witnesses,  and  of  the  weight  to  be 
attached  to  their  testimony,  and  in  determining  this  you  may  take 
into  consideration  the  intere'^t,  if  any.  the  witness  has  in  the  result  of 
the  trial;  his  bias  or  preiudiee,  if  nnv.  for  or  aca^nst  the  accused; 
his  mental  capacitv  fr\v  knnwin<r  nn^l  h'=;  moans  of  kn'-'w^ns"  that  about 
which  he  testifies:  the  reasonableness  or  unreasonableness  of  his 
statements,  his  demeanor  on  the  witness  stand;  his  candor  or  eva- 


§  2828.]  CRIMINAL-RAPE.  1801 

sion,  if  either  appear, — and  applying  your  knowledge  and  observa- 
tion of  human  actions,  motives,  and  affairs,  you  will  find  the  tx'uth, 
and  present  the  same  in  your  verdict. 

(i)  Alibi— The  defendant  in  this  case  undertakes  to  show  that  at 
the  time  the  rape  charged  was  alleged  to  have  occurred,  he  was  not 
at  the  place  where  it  was  alleged  to  have  happened,  but  at  another 
place,  and  that,  therefore,  he  is  not  guiltj'  of  the  charge  made  against 
him.  The  burden  of  showing  an  alibi  is  upon  the  defendant,  but  if, 
on  the  whole  ease,  the  testimony  raises  a  reasonable  doubt  that  the 
defendant  was  present  when  the  crime  was  committed,  if  in  fact,  it 
was  committed,  he  should  be  acquitted,  but  the  jury  should  scrutinize 
the  testimony  of  witnesses  to  see  if  some  of  them  may  or  may  not 
have  been  mistaken  as  to  the  precise  time  they  saw  the  defendant 
on  the  evening  the  offense  is  alleged  to  have  been  committed,  and 
in  arriving  at  your  conclusion  on  this  point,  the  jury  should  consider 
whether  it  may  or  maj'  not  be  true  that  the  defendant  was  present 
at  the  time  the  offense  is  said  to  have  been  committed,  if  in  fact,  it 
was  committed,  and  that  some  of  the  witnesses  are  honestly  mistaken 
as  to  the  exact  time  they  saw  the  defendant  on  the  evening  of  March 
17,  1899. 

(j)  Evidence,  Direct  or  Circumstantial— The  guilt  of  the  defendant 
may  be  established  by  either  direct  or  circumstantial  evidence  or  by 
both,  and  if  his  guilt  is  established  to  your  satisfaction  beyond  a 
reasonable  doubt,  by  either  direct  or  circumstantial  evidence,  or  by 
both,  you  will  convict;  if  not  you  will  acquit. 

(k)  Assault  with  Intent  to  Rape— An  assault  is  an  unlawful  at- 
tempt, coupled  with  present  abilitj",  to  commit  a  violent  injury  on 
the  person  of  another.  An  assault  with  intent  to  commit  a  rape,  is 
an  assault  committed  upon  a  female  with  the  intent  existing  in  the 
mind  of  the  assaulting  party  to  have  carnal  knowledge  of  the  female 
forcibly  and  against  her  will. 

(1)  Summary — In  this  ease,  if  you  should  find,  from  the  evidence 
beyond  a  reasonable  doubt  that  the  defendant  in  Crawford  County, 
Arkansas,  at  any  time  within  three  yeai's  next  before  the  4th  of  April, 
1899,  committed  an  assault  upon  a  female  named  H.  with  the  intent 
at  the  time  to  have  carnal  knowledge  of  her  forcibly  and  against  her 
will,  and  entertain  a  reasonable  doubt  as  to  whether  such  attemjDted 
carnal  knowledge  was  completely  effectuated,  you  will  convict  de- 
fendant of  assault  with  intent  to  rape,  and  assess  his  punishment  in 
the  penitentiary  at  some  period  of  time  (naming  it)  not  less  than 
three  years  nor  more  than  twenty-one  years.  If  the  defendant  is 
not  shown  beyond  a  reasonable  doubt  to  be  guilty  of  either  rape  or 
assault  with  intent  to  rape  committed  on  a  female  named  H.  you 
will  acquit  him  entirely,  but  if  he  is  shown  to  be  guilty  of  either  rape 
or  assault  with  intent  to  rape,  you  will  convict  of  the  one  of  which 
his  guilt  is  established  beyond  a  reasonable  doubt.     Or,  if  his  guilt 


1802  FORMS  OP  INSTRUCTIONS.  [§2829. 

of  both  is  made  out  beyond  a  reasonable  doubt,  you  will  convict  of 
rape.^^ 

SEDUCTION. 

§  2829.  Illicit  Intercourse  Alone  Is  Not  Seduction— What  Consti- 
tutes the  Oliense.  The  jury  are  instructed  that  illicit  intercourse 
alone  does  not  constitute  the  crime  of  seduction.  To  constitute  this 
offense  it  must  appear  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  complaining  witness  yielded  to  some  sufficient  promise  or 
inducement  held  out  to  her  by  the  defendant  and  had  been  thereby 
drawn  aside  from  the  path  of  virtue  which  previous  to  that  time  she 
had  been  honestly  pursuing. "^^ 

§  2830.  Not  Seduction  When  By  Force  and  Against  Her  Will. 
Though  the  jury  may  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  had  sexual  intercourse  with  the  complain- 
ing witness,  still,  if  the  jury  further  believe,  from  the  evidence,  that 
he  had  such  intercourse  by  force  and  against  the  will  of  the  said 
A.  B.,  this  would  not  constitute  the  crime  of  seduction,  and  the  juiy 
should  acquit  the  defendant  of  that  charge.^'' 

§  2831.  Seduction  Under  Promise  of  Marriage — Refusal  of  Prose- 
cutrix to  Marry  Defendant — Proof  Required.  If  the  jury  believe 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant  ob- 
tained carnal  knowledge  of  S.  by  virtue  of  an  exjDress  promise  of 
marriage  made  by  him  to  her,  and  that  said  marriage  was  by  agree- 
ment of  the  parties  set  to  take  place  on  the  fourth  Sunday  in  June, 
1899,  and  that  said  marriage  has  not  taken  place,  and  that  the  de- 
fendant seeks  to  justify  his  failure  to  make  said  marriage  on  the 
ground  of  the  refusal  of  the  sadd  S.  to  join  him  in  the  maiTiage,  then 
he  must  prove  such  refusal  on  the  part  of  said  S.  to  your  satisfaction, 
by  a  preponderance  of  the  testimony;  in  other  words,  the  burden  of 
proof  is  on  the  defendant  in  such  matter  of  defense.'^*' 

§  2832.  Promise  of  Marriage — Female  Thought  to  Be  of  Previous 
Chaste  Character — Unchaste  at  Time  of  Seduction.  Although  the  jury 
may  believe  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
prisoner  had  illicit  connection  with  the  prosecutrix  under  promise  of 
marriage,  and  may  have  thought  at  the  time  that  she  was  a  female 
of  previous  chaste  character,  yet  they  must  find  him  not  guilty  if 
they  believe  she  was  unchaste  at  the  time  of  said  seduction.'^' 

§  2833.  Previous  Chaste  Character— Promise  to  Marry— Reasonable 
Doubt.  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  prosecutrix  was  an  un- 
married female,  of  previous  chaste  character,  at  the  time  of  her  al- 
leged seduction,  and  that  she  was  seduced  by  the  prisoner  by  having 

f;7_l\Toxey   v.    Rtnte,    66    Ark.    523,  70— Cnlrlwell  v.  State,  69  Ark.  322, 

r.2   S.   W.   2   (3)   approves  the  above  63   S.    W.   59   (61). 

.series    of    Instructions.  71 — Barker  v.    Commonwealth,   90 

68— People  v.   Clark,  33  Mich.  112.  Va.  820,  S.  E.  20,  776  (777). 

69— Slate  v.   Dewis,   48   la.   578,   30 
Am.  Rfp.  407. 


§  2834.]  CRIMINAL— SEDUCTION.  1803 

illicit  connection  with  her  under  jiromise  of  marriage,  you  should 
find  him  guiltj\'^- 

§  2834.  Voluntary  Consent  as  a  Defense.  The  court  charges  the 
juiy  that,  if  the  evidence  shows  beyond  a  reasonable  doubt  that  P. 
consented  and  entered  into  the  sexual  act  voluntarily,  the  defendant 
cannot  be  convicted.'^ 

§  2835.  Circumstantial  Evidence  Sufficient  to  Corroljorate — Proof 
of  Acquaintance  and  Opportunity  Not  Sufficient,  (a)  The  court  in- 
structs the  jury  that  circumstantial  evidence  may  be  relied  upon  to 
establish  the  corroboration  required  by  the  statute  in  such  eases,  and, 
if  it  be  shown  by  evidence,  other  than  that  of  the  prosecuting  witness, 
that  the  defendant  visited  her  at  her  home  or  elsewhere,  and  that  they 
kept  company  together,  and  acted  as  lovers  usually  do,  is  sufficient 
to  justify  a  conviction,  if,  when  considered  in  connection  with  her 
evidence  and  all  the  other  evidence  in  the  case,  you  are  satisfied  be- 
yond a  reasonable  doubt  of  the  defendant's  guilt.  You  will  bear 
in  mind,  however,  that  you  are  the  judges  of  the  sufficiency  of  the 
corroborating  evidence  when  it  is  such  as  tends  to  connect  the  de- 
fendant with  the  commission  of  the  oifense  charged. 

(b)  Mere  proof  of  acquaintance  and  opportunity  to  have  com- 
mitted the  offense  is  not  sufficient,  but  there  must  be  such  corroborat- 
ing evidence  as  tends  to  connect  the  defendant  with  the  commission 
of  the  offense  and  coii'oborate  her  evidence  in  relation  to  the  crime 
charged.'* 

§2836.  Complainant's  Contradictory  Evidence — Reasonable  Doubt. 
In  determining  what  credit  should  be  given  to  the  testimony  of  the 
complaining  witness,  it  is  your  duty  to  consider  her  contradictory 
statements  upon  the  stand,  and  her  testimony  that  she  had  knowingly 
sworn  falsely,  and  if,  after  such  consideration,  you  have  a  reasonable 
doubt  of  the  truth  of  her  testimony  in  relation  to  the  defendant's 
promise  of  mamage,  or  her  yielding  to  him  in  consequence  thereof, 
you  must   acquit   the   defendant.''^^ 

§  2837.  Presumption  of  Innocence — Jury  Must  Reconcile  Evidence 
and  Indictment — Compromise  Cannot  Bar  Prosecution,  (a)  The 
court  instructs  the  jury  tliat  the  prisoner  comes  to  trial  presumed  to 
be  innocent,  and  this  presumption  continues  until  it  is  rebutted  by  the 
commonwealth  beyond  a  reasonable  doubt:  and  the  juiy  cannot  con- 
vict unless  they  can  reconcile  from  the  evidence  the  guilt  of  the  pris- 
oner with  all  the  necessary  allegations  of  the  indictment. 

(b)  The  court  instinicts  the  jury  that  no  compromise  between  the 
prosecutrix  and  the  prisoner,  or  any  one  else,  could  bar  a  prosecu- 
tion by  the  commonwealth  for  the  crime  charged  in  the  indictment.'''^ 

72— Barker  v.    Commonwealth,   90  74— State   v.    Smith,   124   Iowa   334 

Va.  S20,  20  S.  E.  776.  citing  Kenyon  (339),  100  N.  W.  40  (42). 

V.  People,  26  N.  Y.  203,  84  Am.  Dec.  75— People   v.    Hubbard,    92    Mich. 

177;    Boyce  v.   People.   5.5  N.   Y.   644;  322,  52   N.   W.  729  (730). 

State   v.    Heatherton,    60    Iowa   175,  76 — Barker   v.    Commonwealth,   90 

14  N.  W.  230.  Va.   820,    20   S.    E.   776. 

73— Hall   V.   State,  134  Ala.   90,   32 
So.    751    (755). 


CHAPTER  XCIII. 


CRIMINAL— ASSAULT  AND  BATTERY. 
See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


§2838.  Assault  and  battery— De- 
fined. 

§2839.  Intent— How  proven. 

§  2840.  Assault  in  sudden  affray, 
and  in  sudden  heat  of  pas- 
sion— Punishment. 

§  2841.  Mutual  combat— Both  par- 
ties guilty. 

§  2842.  Justification— Ejecting  tres- 
passer upon  land. 

§  2843.  Justification— Keeping  order 
in  religious  meeting. 

§  2844.  Repelling    seizure    of    dog. 

§2845.  Insults  as  justification. 

§  2846.  Prosecutrix  visiting  defend- 
ant. 

§  2847.  Violating  ordinance  against 
profane  sweai'ing  —  At- 
tempted arrest — Shooting 
at  offender. 

§  2848.  Assault  by  policeman- 
Striking  with  hand  or  club 
— Self  defense. 

§  2849.  Counter-assault  —  Bringing 
on     difficulty- Self-defense. 

§2850.  Use  of  fire  arms;  pointing 
g'un  in  the  air  or  discharg- 
ing same. 

§  2851.  Presence  of  others  at  the 
time  of  assault — Aiding  or 
abetting. 

§  2852.  Aggravated  assault  —  De- 
fined. 

§  2853.  Aggravated  assault  —  Em- 
bracing a  woman — Intent 
to    injure. 

ASSAULT      WITH      INTENT      TO      KILT- 

OR    MURDER. 
§  2854.  Assault  with   intent  to   mur- 
der— To   kill   defined. 


§  2855.  Assault  with  intent  to  mur- 
der— What  lesser  crimes 
included. 

§  2856.  Intent   must   be   proven. 

§  2857.  Assault  with  intent  to  mur- 
der—Intent— How     proven. 

§  2858.  Whether  intent  is  proved. 

§  2859.  What  jury  should  consider 
in  determining  whether  in- 
tent was  present. 

§  2860.  Animus,  purpose  and  intent 
may  be  shown  by  writing 
of  a  valentine. 

§  2861.  Incapable  of  f  oi-ming  intent 
from    drunkenness. 

§  2862.  Burden  of  proof— Justifica- 
tion. 

§  2863.  Adequate  cause — Insulting- 
words. 

§  2864.  Must  be  murder  had  death 
ensued — Deliberation. 

§  2865.  Assault  with  intent  to  mur- 
der— Malice  and  delibera- 
tion necessary  elements — 
Malice   defined. 

§  2866.  Assault  with  intent  to  kill 
— Malice  and  deliberation 
not  necessary  elements. 

§  2867.  Assault  with  deadly  weapon 
— Implied    malice. 

§  2868.  Assault  with  intent  to  com- 
mit voluntary  manslaugh- 
ter. 

§  2869.  Included  crimes  —  Reason- 
able   doubt    acquits. 

§  2870.  Assault  with  intent  to  kill- 
Circumstantial     evidence. 

S  2871.  Assault  with   intent  to  mur- 
der— Form  of  verdict. 
Note. — For     instructions     on     the 

subject    of    Self-Defense,    see   chap- 
ter,   Homicide — Self-defense. 


§  2838.  Assault  and  Battery — Defined,  (a)  The  court  instructs 
the  jury  that  an  assault  is  an  unlawful  attempt  to  commit  violence 
upon  the  person  of  another,  with  the  present  ability  to  do  so. 

(b)  A  battery  is  an  unlawful  beating  of  another.  Every  battery 
includes  an  fis'^rti^'''^/' 

1 — State  V.  Cndy,  'J4  li.  iuj,  o.  ''We  think  *hp  definition  in 
N.  W.  702,  10  Am.  Cr.  Rep.  41.  either  case  is  sufficiently  accurate. 

1804 


§2839.]  CRIMINAI^-ASSAULT  AND  BATTERY.  1805 

(e)  You  are  charged  that  the  use  of  any  dangerous  weapon,  or  the 
semblance  thereof,  in  an  angi-y  or  threatening  manner,  with  the  intent 
to  alarm  another,  and  under  circumstances  calculated  to  effect  that 
object  is  an  assault.^ 

(d)  The  use  of  any  unlawful  violence  upon  the  person  of  another 
with  intent  to  injure  him,  whatever  be  the  means  or  degree  of  vio- 
lence used,  is  an  assault  and  battery.  Any  attempt  to  commit  a 
battery,  or  any  threatening  gesture,  showing  in  itself  or  by  words 
accompanying  it  an  immediate  intention  coupled  with  an  ability  to 
commit  a  battery,  is  an  assault.^ 

§  2839.  Intent — How  Proven,  (a)  The  court  instructs  the  jury 
that  the  intent  with  which  an  act  is  done  is  a  mental  process,  and  as 
such  generally  remains  hidden  within  the  mind  where  it  is  con- 
ceived, and  is  rarely,  if  ever,  susceptible  of  proof  by  direct  evidence, 
but  must  be  infeiTed  or  gathered  from  the  outward  manifestations  by 
the  words  or  acts  of  the  party  entertaining  them,  and  the  facts  or 
circumstances  sun'ounding  or  attendant  ujwn  the  assault  with  which 
it  is  charged  to  be  connected.^ 

(b)  In  this  case  the  intent  must  be  derived  from  the  evidence  of 
the  deed  committed,  in  connection  with  the  other  evidence  in  the  case ; 
and  it  is  for  you  to  say  from  the  evidence  in  the  case  whether  or  not 
an  intent  existed  in  the  mind  of  the  respondent,  at  the  time  of  the 
commission  of  the  alleged  offense,  to  commit  upon  the  person  of  the 
injured  man  great  bodily  hann,  less  than  the  crime  of  murder,  or 
whether  he  committed  a  simple  assault  and  battery,  or  whether  he  is 
guilty  of  any  offense  at  all.  The  extent  of  the  injuiy  inflicted,  no 
matter  how  severe  or  disproportionate  to  the  provocation,  if  there 
was  any  provocation,  will  not  take  the  case  out  of  that  of  'an  assault 
and  battery,  unless  j^ou  find  the  existence  of  the  intent  to  do  great 
bodily  harm,  less  than  the  crime  of  murder.  But  the  severity  and 
aggravated  character  of  the  assault,  and  extent  of  the  injuiy  received, 
as  well  as  the  weapon  with  which  it  was  committed,  may  be  con- 
sidered by  you,  in  connection  with  other  evidence  in  the  case,  in  your 
endeavor  to  find  from  the  evidence  whether  or  not  such  intent  stimu- 
lated the  respondent's  action.  If  from  the  evidence  you  find  that 
the  respondent  struck  the  complainant  with  a  dangerous  and  offensive 

In    Bishop's    New    Criminal    Law  4 — Clarey  v.  State,  61  Neb.  688,  85 

(volume  1,  para.  584)  it  is  said:    'A  N.  W.  897  (898). 

battery  is  an  unlawful  beating-,   or  The  court   said: 

other    physical    violence      or    con-  "The  criticism   is  upon  the  word 

straint,    inflicted    upon     a     human  'must.'      The    court,    by   employing 

being    without    his    consent.    .    .    .  the  word,  merely  intended  to  con- 

An    assault    is    included     in     every  vey  to  the  jurj-  that  the  intent  of 

battery.'   This  language  clearly  in-  a     person     is     deducible    from     his 

dicates    that    an    unlawful    beating  words   and   conduct    only,    and   not 

is   a   wrongful   physical   violence."  that   the   jury   were   obliged   to   in- 

2 — Werner    v.    State,    —   Tex.    Cr.  fer  the  unlawful  intent  in  the  case. 

App.    — ,    68    S.    W.    681    (682).  The      instruction       was      doubtless 

3— Perrin    v.    State,    45     Tex.     Cr.  copied   from  the  opinion  in  Botsch 

App.  560,  78  S.  W.  930  (932).  v.    State,    43    Neb.    501,     61    N.     W. 

730." 


1806  FORMS  OP  INSTRUCTIONS.  [§  2840, 

weapon,  and  that  the  result  was  serious  bodily  harm  to  the  com- 
plaining witness,  less  than  the  crime  of  murder,  you  may  take  all 
these  facts  into  consideration  in  determining  whether  or  not  the 
respondent  intended  to  do  great  bodily  harm,  less  than  the  crime  of 
murder,  at  the  time  he  committed  the  assault,  if  he  committed  an 
assault  at  all.  In  this  case^  the  intent  is  the  gist  of  the  offense 
charged  in  the  information,  and  the  law  usually  presumes  that  a 
man  intends  the  natural  results  of  his  own  acts.  And  this  rule  ap- 
plies in  this  case,  with  the  usual  conditions  that  if  the  circumstances 
and  surroundings  of  the  case  shown  by  the  evidence  establish  the  fact 
that  there  was  no  intention  to  do  what  was  done,  in  the  way  of  in- 
flicting the  injury,  or  leaves  in  your  mind  a  reasonable  doubt  of  such 
intent,  then  your  duty  is  to  acquit  the  respondent  of  the  offense 
charged  in  the  information.^ 

(e)  That  to  constitute  the  offense  charged  in  this  ease,  the  intent 
alleged  in  the  indictment  is  necessarily  to  be  proved,  but  direct  and 
positive  testimony  is  not  necessary  to  prove  the  intent;  it  may 
be  inferred  from  the  evidence,  if  there  are  any  facts  proved  which 
satisfy  the  jury,  beyond  a  reasonable  doubt,  of  its  existence.^ 

§  2840.  Assault  in  Sudden  Affray,  and  in  Sudden  Heat  of  Passion 
■ — Punishment.  If,  however,  the  juiy  believe  from  all  the  evidence  in 
this  case,  to  the  exclusion  of  a  reasonable  doubt,  that  in  this  county, 
and  within  one  year  next  before  the  finding  of  the  indictment  herein, 
the  accused,  F.,  in  sudden  affray,  and  in  sudden  heat  and  passion, 
without  malice,  did  cut,  stab  and  wound  L.  with  a  weapon  and  in 
the  manner  described  in  another  instruction,  then  they  will  find  him 
guilty  of  the  misdemeanor  or  offense  included  in  the  indictment,  and 
fix  his  punishment  at  a  fine  of  not  less  than  $50  nor  more  than  $500, 
in  their  reasonable  discretion,  or  by  confinement  in  the  county  jail, 
in  their  reasonable  discretion,  for  not  less  than  six  months  nor  more 
than  one  year,  or  both  so  fine  and  imprison,  in  their  reasonable  dis- 
cretion, and  they  may  say  in  their  verdict  that  such  fine  or  imprison- 
ment, or  both,  shall  be  at  hard  labor,  in  their  reasonable  discre- 
tionJ 

§  2841.  Mutual  Combat — Both  Parties  Guilty.  If  the  jui-y  believe 
from  the  evidence  that  it  was  a  mutual  combat  engaged  in  by  both 
parties  for  the  gi'atification  of  their  evil  passions,  and  a  mutual  desire 
to  inflict  punishment  and  hurt  on  each  other,  and  voluntarily  engaged 
in  to  gratify  their  own  bad  feelings  to  each  other,  and  is  not  the 
result  of  insult  on  the  part  of  the  prosecutrix  or  defendant,  and  is 
not  the  purpose  of  self-defense,  and  is  simply  a  mutual  combat,  both 
would  be  guilty  (of  assault),  and  the  defendant  on  trial  would  be  con- 
victed.^ 

5— People  V.  Resh,  107  Mich.   251,  7 — Approved  in  Ford  v.  Common- 

K5  N.  W.  99.  wealth,   ?.0  Ky.   L.   54,  97   S.  W.   370. 

See    also    People    v.    Jassino,    100  8— Ford  v.  State,  97  Ga.  365,  23  S. 

Mich.   536,  59  N.  W.  230  (231).  E.    996    (997). 

6 — Roberts    v.     People,    19     Mich. 
401. 


§  2842.]  CRIMINAL— ASSAULT  AND   BATTERY.  1807 

§  2842.    Justification — Ejecting  Trespasser  Upon  Land.     The  court 

instructs  the  jury  that  if  you  find  and  believe  from  the  evidence  that 
the  defendant  E.  H.  was  on  the  3d  day  of  February,  1897,  on  the 
inside  of  the  building  where  the  assault  is  alleged  to  have  been  com- 
mitted, and  that  he  had  closed  and  fastened  the  doors  thereof,  then 
the  defendant  was  in  possession  of  said  building,  and  the  prosecut- 
ing witness  G.  had  no  right  to  forcibly  enter  the  said  building, 
and  if  you  find  from  the  evidence  he  did  so,  then  the  defendant  had 
the  legal  right  to  forcibly  eject  said  G.  by  using  only  such  force  and 
violence  as  was  necessary  to  eject  said  G.  therefrom.^ 

§  2843.  Justification — Keeping  Order  in  Religious  Meeting.  But  if 
he  (G.)  was  not  asked  there  to  investigate,  but  was  simply  asked  to 
come  to  the  house  there  to  attend  a  meeting  of  that  kind,  and  it 
was  a  meeting,  so  far  as  this  defendant,  H.,  was  concerned,  which 
was  fair  and  honorable  in  its  character,  it  would  be  the  duty  of  a 
person  who  came  there  under  such  circumstances  to  observe  proper 
decorum,  not  to  rudely  interfere  with  the  proceedings  and  religious 
rite,  which,  so  far  as  the  defendant  was  concerned,  was  being  held 
in  good  faith.  He  would  not  have  a  right  to  do  those  things  which 
would  interfere  with  the  comfort  and  peace  and  enjoyment  of  other 
persons  who  might  be  there  for  honest  purposes.  And  if  he  did  do 
things  of  that  character,  whether  it  was  a  religious  meeting  or 
whether  it  was  not,  I  think  this  defendant  would  have  a  right  to  use 
reasonable  means  to  restrain  such  conduct.  If  he  only  went  so  far 
as  seemed  to  him  at  the  time  to  be  reasonably  necessary  to  preserve 
decorum  there  in  his  own  house,  and  protect  the  comfort  and  peace  of 
those  whom  he  had  invited  to  his  house  there,  then  I  think  he  would 
be  justified  in  what  he  did.^° 

§  2844.  Repelling  Seizure  of  Dog.  You  are  instructed  that  de- 
fendant, J.  W.,  had  the  right  of  possession  to  the  dog  as  against 
every  person  except  the  true  owner,  and  that  even  the  true  owner 
would  not  be  authorized  to  go  upon  the  premises  of  defendant's  father 
and  forcibly  take  away  or  remove  the  dog  against  the  protest  and 
remonstrances  of  defendant.  In  this  case  defendant  had  the  legal 
possession  of  the  dog,  and  had  the  right  to  use  such  force,  and  no 
more,  as  the  surroundings  show  might  have  been  necessary  to  repel 
the  forcible  seizure  and  removal  of  the  property,  and  if  it  became 
necessary  to  slay  the  party  or  pretended  owner  making  the  seizure 
in  order  to  prevent  the  removal  of  the  dog  after  all  other  means  had 
failed,  defendant  would  have  had  the  right  to  do  so,  and  if  you  should 
so  believe  you  should  acquit  defendant.^^ 

9 — State  V.   Howell,  21   Mont.  165,  passer  or  even  burglar  who  comes 

53  Pac.   314   (315).  along-,    and    enter?;,    and    takes   pos- 

"If  a  man   may  not  lawfully  de-  session    during    his    temporary    ab- 

fend     his     property — his     home — by  sence    therefrom,"    citing    Montana 

the  use  of  whatever  force  is  neces-  Penal  Code,  Sec.  404,  subd.  3. 

sary    to    use    under    the    circum-  10— People   v.    Hughes,   116    Mich, 

stances   of  the  case,   then  he  is  at  80.   74  N.   W.   309  (310). 

the    mercy    of    every    tramp,    tres-  11 — Weaver  v.   State,  —  Tex.  Cr. 


1808  FORMS  OF  INSTRUCTIONS.  [§  2845. 

§  2845.  Insults  as  Justification,  (a)  The  law  does  not  permit  one 
to  measure  his  wrongs,  to  go  and  take  out  what  he  conceives  to  be  re- 
dress upon  any  citizen.  The  law  does  not  tolerate  that.  You  have  the 
right  to  strike  your  neighbor  to  keep  him  from  striking  you;  that  is 
based  upon  necessity;  that  is  self-defense.  All  civilized  countries  rec- 
ognize the  right  of  self-defense.  You  have  the  right  to  repel  force  with 
force.  But  it  (the  law)  does  not  give  to  any  man  the  right  to  go  and 
chastise  or  beat — inflict  punishment  on — another  for  words  spoken, 
no  matter  how  opprobrious  or  insulting.  If  you  have  been  aggrieved, 
slandered,  the  courts  are  open.  You  can  bring  your  suit  for  a  civil 
action  for  slander,  or  a  criminal  action,  either — both  branches  of  the 
court.^2 

(b)  The  court  charges  the  jury  that  the  jury  may  look  to  the  fact, 
if  it  be  a  fact,  that  S.  used  abusive  or  insulting  language  to  R.  at 
or  near  the  time  of  the  difficulty,  and  such  language  may  be  taken 
in  mitigation  or  justification  of  the  offense,  as  the  jury  may  deter- 
mine.^3 

§  2846.  Prosecutrix  Visiting  Defendant.  If  the  prosecutrix  went 
there  to  see  Cornelia  F.,  in  a  visit,  or  otherwise,  she  had  the  right  to 
be  there;  and  it  is  not  to  be  taken  against  her,  if  she  went  there  for 
that  purpose,  and  got  in  the  fight  afterwards.^* 

§  2847.  Violating  Ordinance  Against  Profane  Swearing — Attempted 
Arrest — Shooting  at  Offender.  If  the  jury  find  from  the  evidence 
that  the  plaintiff  had  violated  the  town  ordinance  against  loud  and 
profane  swearing  on  the  streets,  and  that  the  defendant  had  attempted 
to  arrest  him,  and  that  plaintiff  got  loose  and  was  running  from  de- 
fendant, and  while  so  running  defendant  had  shot  at  him  with  a 
pistol,  then,  in  law,  that  would  be  an  assault,  and  they  should  respond 
*'Yes"  to  the  first  issue.^^ 

A  pp.  — ,  76  S.  W.  564  (565),  53  Am.  when   the  offense  Is  committed   in 

Rep.  389.  his  presence,  and  to  this  part  of  the 

"We    believe    the     court     should  charge  th'sre  was   no   objection   by 

have   given   the   requested   instruc-  the    plaintiff,     but     exception    was 

tion   as   the   facts   raise   the   issue,  taken  to  the  following  passages  in 

and  the  court  nowhere  in  the  gen-  the  charge  of  the  court: 

eral  charge  instructed   the  jury  as  (1)     if  you  are  satisfied  from  the 

to  the  rights  of  defendant  in  pro-  evidence    that   the    defendant    had 

tecting  his  possession  to  the  dog  in  reasonable  grooind   to   believe    and 

the   controversy."  did  believe,  that  plaintiff  was  vio- 

12— Hayes   v.   State.  51  S.  C.  534,  lating    in    his    presence    the    ordi- 

29  S.   E.   259   (261)            ,,„    .,      ^„„  nance  prohibiting  loud  and  profane 

13— Rogers  v.  State,  117  Ala.  192,  swearing    in    the    corporate    limits 

23   So.   82.  of   the   town   of   Concord,    and    ar- 

l^Ford  V.   State,  97  Ga.  365,  23  rested    the    plaintiff    although    the 

S    E.  996  (997).  defendant  was  mistaken,  he  would 

15— Sossamon  v.  Cruse,  133  N.  C.  be  excused;  and  you  are  the  judges 

^'^?'   45  S._  E.  757.  of      the      reasonableness      of      the 

This    mstruction    the    court    re-  grounds  upon  which  the  defendant 

fused  to  give,  and  the  plaintiff  ex-  acted. 

cepted.      The    court    charged    the  (2)    If  the  jury  believe  from  the 

jury  fully   in   regard   to   the   power  evidence     that     the     plaintiff     was 

of   a   policeman    to    arrest    for   the  violating,    in    the    presence    of    the 

violation    of    a     town     ordinance,  defendant,    the  ordinance  of   Con- 


§2848.]  CRIMINAL— ASSAULT  AND   BATTERY.  1809 

§  2848.  Assault  by  Policeman — Striking  with  Hand  or  Club — Self- 
Defense.  (a)  If  tlie  juiy  believe  from  the  evidence  that  the  de- 
fendant, G.  M.,  was  standing  upon  the  sidewalk  on  the  2Gth  day  of 
October,  19 — ,  at  C.  and  N.  streets,  near  H. 's  saloon,  in  the  city  of 
St.  Louis,  Mo.,  and  that  he  was  conducting  himself  in  a  peaceable 
and  quiet  manner,  and  that  the  policeman,  D.,  ordered  and  commanded 
him  to  move  on,  or  to  move  and  go  away,  and  the  defendant  failed 
or  refused  to  obey  him,  and  that  thereupon  the  said  officer,  D.,  as- 
saulted the  defendant,  or  struck  him  with  his  hand  or  with  a  club, 
or  shoved  him,  and  that  the  defendant  then  struck  said  D.  and 
knocked  him  down,  then  such  act  was  in  the  nature  of  self-defense 
on  the  part  of  the  defendant,  and  is  in  law  justifiable. 

(b)  The  jury  are  further  instructed  that  under  the  law  a  police 
oflBcer  in  the  city  of  St.  Louis  has  no  right,  power  or  authority  to  com- 
pel any  person  who  is  standing  upon  a  public  street  or  highway  in  a 
quiet  and  peaceable  attitude  to  move  or  go  away  at  the  bidding  of 
said  officer,  or  to  do  his  mere  bidding;  and  that  the  officer,  upon 
such  person  failing  or  refusing  in  a  peaceable  way  to  obey  him,  has 
no  right  whatever  to  assault,  beat  or  strike  such  person;  and  such 
person  has  the  right  to  resist  force  by  force,  meet  violence  with 
violence,  and  to  use  all  the  means  necessary  to  preserve  his  life, 
or  so  prevent  great  bodily  harm  from  being  inflicted  upon  him,  even 
to  the  extent  to  taking  the  life  of  his  assailant,  whether  he  be  an 
officer  or  private  citizen. 

(c)  The  court  instructs  the  jury  that  if  you  believe  and  find  from 
the  evidence  that  the  defendant,  G.  M.,  was  standing  on  the  corner 

cord  prohibiting^  loud  and  profane  upon  the  facts  as  found  by  them 
swearing-  within  the  corporate  under  the  rule  of  law  as  to  the 
limits,  and  the  defendant  not  being  burden  of  proof,  and  such  proper 
actuated  by  ill  will,  malice,  hatred  instructions  from  the  court  as  will 
or  malevolent  purpose,  arrested  enable  the  jury  to  intelligently 
the  plaintiff,  and  the  plaintiff,  not  weigh  and  apply  the  evidence. 
being  out  of  the  control  of  the  de-  State  v.  Barrett,  123  N.  C.  753,  31 
fendant,  attempted  to  escape,  and  S.  E.  731;  Wilkie  v.  Railroad,  127 
to  prevent  such  an  escape,  the  de-  N.  C.  203,  37  S.  E.  204. 
fendant  fired  his  pistol,  such  firing  We  are  of  the  opinion  that,  upon 
would  not  constitute  an  assault.  the  evidence  in  the  case  the  court 
Before  discussing  what  we  re-  should  have  given  the  instruction 
gard  as  the  principal  and  vital  asked  by  the  plaintiff  in  his 
question  in  the  case,  we  will  call  prayer.  The  exception  to  the  re- 
attention  to  the  phraseology  of  fusal  to  give  the  instruction  may 
the  second  passage  taken  from  the  conveniently  be  considered  with 
charge  of  the  court.  The  jury  is  the  first  of  the  above  instructions 
there  told  that,  if  'they  believe  given  by  the  court,  to  which  ex- 
from  the  evidence'  the  facts  there-  ception  was  also  taken.  That  in- 
in  recited,  the  acts  of  the  defend-  struction  was,  in  substance,  that 
ant  did  not  constitute  an  assault,  'if  the  plaintiff  had  been  lawfully 
This  court  has  referred  to  this  arrested  and  not  being  out  of  the 
form  of  expression  as  being  open  control  of  the  defendant,  had  at- 
to  the  objection  that  the  jury  tempted  to  escape,  and  to  prevent 
might  believe  that  certain  facts  such  an  escape  th^  defendant  fired 
existed  when  they  would  not  be  his  pistol,  such  firing  would  not 
willing  to  find  that  they  did  exist,  constitute  an  assault.'  This  in- 
and  that  the  law,  as  given  by  the  struction  in  view  of  what  seems  to 
court  to  the  jury,  should  be  based,  be  the  uncontrnverted  facts  in  the 
not  upon  their  belief,  merely,  but  case  was  erroneous." 
114 


1810  FORMS  OF  INSTRUCTIONS.  [§  2849. 

of  C.  and  N.  streets,  at  the  side  of  or  near  H.'s  saloon,  on  C.  and  N. 
streets,  in  the  city  of  St,  Louis,  Mo.,  on  the  night  of  the  26th  day 
of  October,  19 — ,  and  that  he  was  acting  in  a  quiet  and  peaceable 
manner,  and  that  he  was  assaulted,  shoved  or  struck  by  the  police- 
man, D.,  then  he  (defendant)  had  the  right  in  law  to  resist  said 
assault  or  batteiy  by  such  means  and  in  such  manner  as  was  necessary 
to  repel  his  assailant.  And  the  jury  are  instructed  that  said  D., 
although  a  police  officer  of  said  city  of  St.  Louis,  with  authority  to 
make  arrests  for  offenses  against  the  law,  had  no  right  to  assault,  beat 
or  strike  or  shove  the  defendant,  G.  M.,  if  he,  the  defendant,  was 
conducting  himself  in  a  peaceable  and  law-abiding  manner.^^ 

§  2849.  Counter-Assault — Bringing  on  Difficulty — Self-Defense.  (a) 
K  the  jury  shall  find  from  the  evidence  that  the  prosecuting  wit- 
ness, T.  H.,  made  the  first  assault  without  the  right  to  do  so,  as  ex- 
plained in  these  instructions,  and  that  the  defendant  had  good  reason . 
to  believe,  and  did  believe,  that  the  said  H.  was  about  to  do  him 
some  great  bodily  harm,  then  the  defendant  had  the  right  to  meet 
such  assault  by  the  use  of  such  force  and  means  as  were  reasonable  I 
and  necessaiy  to  protect  himself  from  such  assault;  and,  if  the  jury 
shall  believe  from  the  evidence  that  the  defendant  acted  in  self- 
defense,  as  herein  explained,  they  will  find  him  not  guilty. 

(b)  The  prosecuting  witness,  T.  H.,  had  no  right  to  assault  the 
defendant  with  a  club  merely  because  the  defendant  was  using  threat- 
ening and  insulting  language  towards  him,  nor  unless  the  conduct  of 
the  defendant  at  the  time,  considered  in  connection  with  what  he  said, 
was  such  that  the  said  H.  had  good  reason  to  believe,  and  did  be- 
lieve, that  it  was  necessary  for  him  to  strike  the  defendant  in  order 
to  protect  himself  from  an  assault  by  the  defendant  then  about  to  be 
made  upon  him.^' 

(c)  The  state  claims  that  there  is  some  evidence  tending  to  prove 
that  the  defendant  in  going  upon  the  brewery  premises  and  into  the 
building  where  W.,  the  complaining  witness,  was,  under  the  circum- 
stances under  which  he  did  enter  and  with  the  knowledge  of  the 
unfriendly  relations  existing  between  himself  and  the  two  W.  boys, 
G.  and  M.,  voluntarily  went  into  said  building  where  the  complaining 
witness  was,  with  the  intent  and  for  the  purpose  of  provoking  an 
affray  or  a  difficulty  with  said  W.  and  there  so  conducted  himself 
as  to  bring  on  the  assault  and  affray  as  it  took  place  in  the  boiler 
room.  The  court  instructs  that  if  you  believe  and  find  from  the 
evidence  that  the  defendant  did  so,  that  is  to  say,  that  he  voluntarily 
entered  and  went  into  said  boiler  room  with  the  intent  and  for  the 
purpose  of  provoking  an  affray  and  difficulty  with  said  W.,  there 
so  conducted  himself  as  to  bring  on  the  assault  and  affray  as  it 

16 — In    State  v.   Meyers,   174   Mo.  fest  error  in  refusing'  the  Instruc- 

252,    74    S.    W,   862    (863).    the    court  tions  which   the  defendant  asked." 

says  of  the  above  instructions:  17— State    v.    Higigerson,    157    Mo. 

"In    the    light    of    the    uncontra-  395,  57  S.  W.  1014  (1015-6). 
dieted    evidence,   there   was    maal- 


§2850.]  CRIMINAL— ASSAULT  AND   BATTERY.  1811 

took  place  in  the  boiler  room,  that  he,  the  defendant,  is  not  entitled 
to  the  plea  of  self-defense.  And  the  assault  and  battery  which  took 
place  in  the  boiler  room  cannot  excuse  or  justify  the  shooting  which 
took  place  outside  the  boiler  room.^^ 

§  2850.  Use  of  Fire  Arms,  Pointing  Gun  in  the  Air  or  Discharging 
Same.  I  instruct  the  juiy  that  the  ix)inting  of  a  gun  in  the  air  is 
not  an  unlawful  act,  and  I  charge  you  that  the  respondent  would 
have  a  right  to  take  a  gun  out  in  the  field  to  the  east  of  the  house 
and  point  the  same  in  the  air,  so  long  as  in  doing  so  he  did  not  take 
it  there  for  the  purpose  of  obstructing  or  resisting  the  officer,  Elisha 
Moore,  and  did  not  use  it  for  that  purpose.  I  instruct  you  that  the 
discharging  of  the  gun,  by  respondent  in  the  air,  is  not  an  unlawful 
act,  and  I  charge  you  that  the  respondent  would  have  the  right  to 
take  the  gun  out  into  the  field  east  of  the  house  and  discharge  the 
same  in  the  air,  so  long  as  by  doing  so  he  did  not  take  it  there  for 
the  purpose  of  obstructing  or  resisting  the  officer,  Elisha  Moore, 
and  did  not  use  it  for  that  purpose,  and  did  not  use  it  in  such  man- 
ner as  to  amount  to  a  reckless  disregard  of  human  life  by  so  using 
it.  The  respondent,  under  the  law,  had  a  right  to  take  the  gun  with 
him  to  the  field  where  the  shooting  occurred,  so  long  as  'by  doing  so  he 
did  not  take  it  there  for  the  purpose  of  obstructing  and  resisting  the 
officer,  Elisha  Moore,  and  did  not  use  it  for  that  purpose,  and  to 
carry  said  gun  in  his  hands  and  to  point  the  same  in  the  air,  so  long 
as  he  did  not  have  the  gun  there  for  the  purpose  of  obstructing  the 
officer  or  resisting  the  officer,  but  he  would  not  have  the  right  to 
knowingly  point  said  gun  in  the  direction  of  any  person. ^^ 

§  2851.  Presence  of  Others  at  the  Time  of  Assault — Aiding  or 
Abetting.  If  the  juiy  believe  from  the  evidence  that  the  prisoner, 
B.,  in  pursuance  of  an  understanding  and  combination  between  him- 
self and  D.  and  E.,  or  either  of  them,  assaulted  B.  in  the  nighttime, 
on  the  street,  in  the  City  of  Huntington,  in  this  county,  for  the  pur- 
pose of  whipping  him  or  doing  him  an  injury,  and  did  then  and  there 
inflict  any  punishment  or  bodily  injury  upon  said  B.,  and  the  said  D. 
and  E.,  or  either  of  them,  were  present  when  the  said  assault  was 
so  made  and  injury  inflicted  by  said  prisoner,  and  that  they,  or  either 
of  them,  aided  or  abetted  said  prisoner,  in  said  assault,  either  by 
word  or  action,  then  they  must  find  the  prisoner  guilty  as  charged  in 
the  indictment.-*' 

18 — Holmes     v.    State,     124     Wis.  the  lower  field,  so  long  as  the  logs 

133,    102    N.    W.    321    (324).  called    for,    had    not    in    fact    been 

19— People    V.     Sauer,    143     Mich,  secured,  the  writ  had  not  spent  its 

308.   106   N.   W.    866.  force.     If,   however,   the  jury  were 

The  court  said:  satisfied   that    the  officer   was   not, 

"We  think  this  charge  sufficient-  at  the  time  he  was  shot  down  act- 

ly       recognized       the      defendant's  ing  under  the  writ,  the  charge  ful- 

theory    insofar    as    it    was    entitled  ly   protected   the   rights   of   the  ac- 

to    consideration.      The     writ     was  cused." 

still    in    the    officer's    hands,    and,  20 — State  v.   Bingham,  42  W.  Va. 

whatever    may    have    occurred    in  234,  24  S.  E.  883. 


1812  FORMS  OF  INSTRUCTIONS.  [§  2852. 

§  2852.  Aggravated  Assault — Defined,  (a)  You  are  iostrueted 
that  if  any  male  adult  should  use  any  unlawful  violence  upon  the 
person  of  a  female  with  intent  to  injure  her,  whatever  be  the  means 
or  degree  of  violence,  he  is  deemed  guilty,  under  the  law,  of  an  ag- 
gravated assault  and  battery.^^ 

(b)  An  assault  and  battery  become  aggravated  when  a  serious 
bodily  injury  is  inflicted  upon  the  person  assaulted  or  when  com- 
mitted with  a  deadly  weapon.  A  deadly  weapon  is  one  which,  from 
the  manner  used,  is  calculated  or  likely  to  produce  death  or  serious 
bodily  injui-y. 

(e)  If  you  find  that  defendant  struck  M.  with  a  stick  or  club 
with  no  intention  to  take  his  life,  and  that  he  was  not  justifiable  on 
the  ground  of  self-defense,  and  if  you  further  find  that  such  stick 
or  club  was  then  and  there  a  deadly  weapon,  or  that  by  means  of 
such  assault  serious  bodily  injury  was  inflicted  upon  M.,  then  you 
may  find  defendant  guilty  of  an  aggravated  assault  and  battery,  and 
if  you  find  him  guilty  you  will  assess  his  punishment  at,  etc.^^ 

§  2853.  Aggravated  Assault — Embracing  a  Woman — Intent  to  In- 
jure.    If  you  believe  the  defendant  put  his  arm  on  the  back  of  the 

buggy  seat,  and  thereby  touched  the  prosecutrix,  ;    or  if  you 

believe  that  he  took  hold  of  her  and  endeavored  to  embrace  her,  but 
did  so  with  no  intention  of  injuring  her  or  her  feelings,  and  had 
probable  ground  to  believe,  and  did  believe,  that  such  touching  or 
taking  hold  of  her,  if  any,  or  such  attempt  to  embrace  her,  if  any, 
would  not  be  objected  to  by  her,  or  w^ould  not  be  offensive  to  her,  or 
hurt  her  feelings — then  he  would  not  be  guilty  of  any  offense,  and 
you  will  acquit.  And  in  passing  upon  this  issue,  you  will  look  to 
all  the  facts  and  circumstances  in  evidence,  and  the  conduct  of  the 
parties,  both  before  and  after  the  commission  of  the  alleged  offense; 
and  if  you  have  a  reasonable  doubt  of  the  defendant's  guilt,  or  of 
his  intent  to  injure  the  prosecuting  witness,  yovi  will  find  him  not 
guilty." 

ASSAULT  WITH  INTENT  TO  KILL  OR  MURDER. 

§2854.     Assault  With  Intent  to  Murder— To  Kill— Defined,      (a) 

An  assault  becomes  and  is  an  assault  with  intent  to  murder  when  it 

21— Millard  v.   State,  —  Tex.   Cr.  feet  that  if  the  defendant  tried  to 

App.  — ,  59  S.  W.  273.  kiss    plaintiff,    but   did    so   with    no 

"We  think  the  charge  presents  a  intent  to  injure  her  or  her  feelings, 
correct  proposition  of  law,  and  is  and  had  probable  grounds  to  be- 
not  subject  to  the  criticism  urged  lieve,  and  did  believe,  that  said 
by   appellant."  trying  to  kiss  her  would  not  be  ob- 

22 — Perrin    v.    State,    45   Tex.    Cr.  jectionable    to    her,    or    would    not 

App.  561,  78  S.  W.  930  (932).  be    offensive   to   her   feelings,    then 

23 — Stripling  v.  State,  —  Tex.  Cr.  he  would  not  be  guilty  of  any  of- 

App.  — ,  SO  S.  W.  376  (377).  fense.        As      we      understand      the 

"The    court    should    have    given  charge   asked   by   appellant   in   this 

this  charge.     The  case  of   Chamb-  case,   it  is  practically  the  same  as 

less  V.   State,  —  Tex.   Cr.   App.   — ,  in  the  Chambless  case.     Citing  also 

79  S.  W.  577,  in  many  of  its  phases  Floyd    v.    State,   29   Tex.    App.    341, 

Is   like   this   case.     We    there   held  15  S.  W.  819." 
that  the  court  should  charge  in  ef- 


§2855.]  CRIMINAL— ASSAULT  AND   BATTERY.  1813 

is  committed  -^'ith  a  deadly  weapon  and  with  intent  to  kill  the  person 
assaulted,  done  unlawfully  and  intentionally  and  with  malice  afore- 
thought and  under  such  circumstances  that,  had  death  resulted  there- 
from to  the  person  assaulted,  the  killing  would  have  been  murder.-* 

(b)  The  court  charges  the  jury  that  if  they  believe,  from  the 
evidence  in  this  case,  beyond  a  reasonable  doubt,  that  the  defendant 
on  the  1st  day  of  February,  1902,  assaulted  M.  H.  with  the  intent 
to  murder  him,  then  they  must  find  the  defendant  guilty  as  charged. ^^ 

(c)  If  from  the  evidence  you  are  satisfied  bej^ond  a  reasonable 
doubt  that  defendant,  L.,  at  any  time  within  three  years  before 
the  filing  of  the  indictment,  to-wit,  the  28th  day  of  January,  1904, 
in  the  countj'  of  Webb  and  state  of  Texas,  with  a  deadly  weapon,  or 
instrument  reasonably  calculated  and  likely  to  produce  death  or  seri- 
ous bodilj^  injury  from  the  manner  in  which  it  was  used,  and  with 
malice  aforethought,  did  assault  the  said  G.,  with  intent  then  and 
there  to  kill  and  murder  her,  then  you  will  find  defendant  guilty  of 
an  assault  with  intent  to  murder.-*^ 

(d)  You  cannot  find  defendant  guilty  of  the  crime  charged 
here  unless  you  would  find  defendant  guilty  of  murder  if  he  had 
killed  C,  and  was  on  trial  for  mui'der.-" 

(e)  If  from  the  evidence,  and  under  these  instructions,  you  find 
and  believe  that  at  the  city  of  St.  Louis  and  state  of  Missouri,  on 
December  31,  1899,  the  defendant  V.,  either  alone  or  acting  together 
with  another  one,  with  a  common  intent,  feloniously  made  an  as- 
sault upon  and  shot  B.  with  a  pistol  loaded  with  gunpowder  and 
leaden  ball,  and  that  he  did  so  willfully,  on  puipose,  and  of  his  malice 
aforethought,  and  with  the  intent  to  kill  the  said  B.,  you  will  find 
the  defendant  guilty  of  an  assault  with  intent  to  kill,  and  assess 
his  punishment,  etc.;  and  unless  you  find  the  facts  so  to  be,  you 
wil  acqui't  the  defendant  of  such  assault  with  intent  to  kill.-^ 

(f)  The  court  instructs  the  jury  that  if  you  find  [and  believe, 
beyond  a  reasonable  doubt,]  from  the  evidence  in  the  case  that  the 
defendant  at  the  county  of  St.  Charles  in  the  state  of  Missouri,  on 
or  about  the  25th  day  of  March,  1899,  on  purpose  and  intentionally 
made  an  assault  on  one  Z.  W.,  with  a  loaded  pistol  and  shot  him,  with 
the  intent  to  kill  him,  the  said  W.,  and  not  under  such  circumstances 
as  to  justify  him  on  the  gi'ounds  of  self-defense,  as  explained  in 
other  instructions,  then  you  will  find  the  defendant  guilty  of  assault 
with  intent  to  kill  as  charged,  and  assess  his  punishment  at  impris- 
onment, etc.-'' 

§  2855.  Assault  With  Intent  to  Murder — What  Lesser  Crimes  In- 
cluded.    The  following  crimes  are  included  necessarily  in  the  charge 

24— Alvarez   v.   State.  —  Tex.   Cr.  27— Goodwin    v.     State,     73    Miss. 

App.  — ,  58  S.  W.  1013  (1014),  13  Am.  873.  19  So.  712,  55  Am.  St.  573. 

Cr.   Rep.   137.  28— State    v.    Valle,    164    Mo.    539, 

25— Deal  v.   State,   136  Ala.   52,   34  65  S.  W.  232   (235). 

So.   23   (24).  29— State    v.    Moore,    168    Mo.    432, 

26— Lozano   v.    State,   —  Tex.    Cr.  68  S.  W.  358  (360). 
App.    — ,    81    S.    W.    37    (38). 


1814  FORMS  OF  INSTRUCTIONS.  [§  2856. 

contained  in  the  indictment,  viz.,  assault,  assault  and  battery,  assault 
with  intent  to  do  a  great  bodily  injury,  assault  with  intent  to  commit 
manslaughter,  and  assault  with  intent  to  commit  murder;  and  the  de- 
fendant may,  if  the  evidence  justifies  the  finding,  be  convicted  of 
either  one  of  these  crimes.^° 

§2856.  Intent  Must  Be  Proven,  (a)  If  you  believe,  [beyond  a 
reasonable  doubt,  from  the  evidence,]  that  the  defendant  and  the 
prosecuting  witness  B.  got  into  a  fight,  and  the  defendant  cut  the 
prosecuting  witness  B.,  without  intent  to  do  so,  then  you  will  find 
the  defendant  not  guilty.^^ 

(b)  If  it  appears  that  the  alleged  assault  was  committed  under 
such  circumstances  as  would,  had  death  ensued,  have  mitigated  the 
offense  from  murder  to  manslaughter,  S'Uch  intent  was  not  premedi- 
tated, and  you  cannot  find  the  defendant  guilty  of  the  charge  pre- 
ferred against  him.^^ 

(c)  Should  you  believe  [from  the  evidence,  beyond  a  reasonable 
doubt,]  that  the  said  pistol  was  discharged  by  the  defendant,  but 
have  a  reasonable  doubt  as  to  whether  the  same  was  discharged  ac- 
cidentally, you  will  find  the  defendant  not  guilty.^^ 

§  2857.  Assault  With  Intent  to  Murder — Intent — How  Proven,  (a) 
The  jury  are  further  instructed  thai  they  may  take  into  consideration 
whether  it  is  true  that  the  defendant  made  any  declaration  or  state- 
ment at  the   time,  or  immediately  before  the  shooting,   as  to  what 

30 — State  v.  Graham,  51  Iowa  72,  another  with  intent  to  murder,'  etc. 

50  N.  W.  285  (286).  Intent    is    one    of    the   essential    in- 

It  was  argued  "that  this  instruc-  gredients  of  the  crime  charged 
tion  is  erroneous  because  the  crime  against  the  defendant.  U.  S.  v. 
of  an  assault  and  battery  is  not  Buzzo,  18  Wall.  125,  21  L.  Ed.  812; 
necessarily  included  in  the  crime  Territory  v.  Pino,  9  N.  M.  598,  58 
of  an  assault  with  intent  to  mur-  Pac.  393;  U.  S.  v.  Folsom,  7  N.  M. 
der.  Section  4466  of  the  Code  pro-  532,  38  Pac.  70;  Territory  v.  Vigil, 
vides  that  'in  all  other  cases  the  8  N.  M.  583,  45  Pac.  1117.  There- 
defendant  may  be  found  guilty  of  fore  if  the  defendant  did  what 
any  offense  the  commission  of  he  is  charged  to  have  physically 
which  is  necessarily  included  in  done  without  any  intent  in  fact, 
that  with  which  he  is  charged  in  the  defendant  would  not  be  guilty, 
the  indictment.'  It  is  doubtless  Whether  or  not  he  did  intend  to 
correct  that  if  this  indictment  had  do  that  which  he  is  alleged  to 
charged  an  assault  inerely,  with-  have  done  was  a  fact  to  be  deter- 
out  a  battery,  as  by  discharging  a  mined  by  the  jury  upon  the  evi- 
gun  at  the  prosecuting  witness  or  dence  in  the  case.  If  there  was 
the  like,  the  crime  of  assault  and  any  evidence  tending  to  show  that 
battery  would  not  be  necessarily  the  defendant  did  not  cut  the  pro- 
included  in  the  crime  charged.  But  secuting  witness  with  intent  to 
the  defendant  is  charged,  not  only  murder  him,  then  the  court  should 
with  an  assault  but  a  most  griev-  not  have  refused  to  give  this  in- 
ous  battery.  It  is,  in  fact,  an  in-  struction  asked  by  the  defendant, 
dlctment  for  an  assault  and  bat-  as  the  court  nowhere  gave  its 
tery  under  such  allegations  as  to  equivalent  in  its  own  instructions." 
have  made  the  crime  murder,  if  32 — People  v.  Mendenhall,  135  Cal. 
death  had  ensued.  We  think  the  344,  67  Pac.  325  (327). 
instruetion  was  not  erroneous."  33 — Alvarez   v.   State,  —  Tex.    Cr. 

31— Territory    v.    Baca,    11    N.    M.  App.  — ,  58  S.  W.  1013  (1014),  13  Am. 

559,   71   Pac.    460   (462).  Cr.    Rep.    137.    approves    the    above 

"The    Code     (Section     1083)     pro-  without   the  words   in  ibrackets. 
vides,   'if   any  person   shall   assault 


§  2858.]  CRIMINALr-ASSAULT  AND   BATTERY.  1815 

his  intentions  "were,  and  also  his  testimony  regarding  his  intentions 
at  the  time  of  the  shooting,  if  any,  and  also  the  testimony  regarding 
the  defendant's  chai-aeter  and  reputation  as  a  peaceable  and  quiet 
citizen;  and  if,  after  considering  all  these  matters,  together  with  all 
the  other  evidence  in  the  case,  the  jury  entertain  any  reasonable  doubt 
as  to  whether  the  defendant  intentionally  shot  the  said  pistol  at  or 
against  the  said  C,  or  if  they  entertain  any  reasonable  doubt  as  to 
whether  the  defendant  fired  the  pistol  with  the  intention  thereby  to 
take  the  life  of  said  C,  then  the  defendant  is  not  guilty  of  an  assault 
with  intent  to  murder.^* 

(b)  The  court  instructs  the  jury  that  direct  and  positive  testi- 
mony is  not  necessary  for  proving  the  intent  alleged  in  the  indict- 
ment, but  such  an  intent  may  be  inferred  from  the  evidence,  if  there 
are  any  facts  and  circumstances  proven  that  show  beyond  a  reason- 
able doubt  that  the  assault  in  question  was  made  with  an  abandoned 
and  malignant  heart  and  a  reckless  disregard  of  human  life,  and  in 
such  a  manner  as  was  likely  to  cause  the  death  of  the  party  as- 
saulted.^^ 

(c)  The  intent  to  murder  cannot  be  implied  as  matter  of  law. 
It  must  be  proved  as  a  matter  of  fact,  and  its  existence  the  jury 
must  determine  from  all  the  facts  and  circumstances  in  evidence. 
The  offense  of  intent  to  murder  cannot  exist  unless,  if  death  had 
resulted,  the  completed  offense  would  have  been  murder;  and  even 
if  the  act  of  shooting  would  have  been  murder  if  death  had  resulted, 
still,  if  the  defendant  did  not  intend  to  kill,  he  is  not  guilty  of  assault 
with  intent  to  murder.^® 

§  2858.  Whether  Intent  Is  Proved,  (a)  The  court  instructs  the 
jury,  for  the  defendant,  that  if  they  believe  the  evidence  in  this  case 

34 — Rollins  v.   State,  62  Ind.  46.  evidence   if   there   were    'facts   and 

35 — Crosby   v.    People,   137   111.   325  circumstances    proved   which    show 

(338),  27  N.  E.  49  (51),  in  which  case  beyond    a    reasonable    doubt    that 

judgment  was  reversed  because  of  the   assault   in   question   was  made 

a   bad   instruction   as   to   drunken-  with  an  abandoned  and  malignant 

ness.  heart    and    reckless    disregard    of 

The   court   said:     "It   is   objected  human  life,  and  in  such  a  manner 

that   the    latter   clause   of   this    in-  as   was   likely   to   cause   the   death 

struction    lays    down    an    improper  of    the    party    assaulted.'      If    one 

rule,    and    that   there   was   no   evi-  with    an    abandoned    disregard    of 

dence  that  there  was  an  assault  of  human  life  makes  an  assault  that 

a     character    likely    to    cause    the  in    its    manner    and    circumstances 

death  of  the  party  assaulted.     And  is    likely   to    produce   the    death    of 

again,   the  instruction  is  divided,  by  the    party     assailed,     not     only     is 

counsel,  in  argument,  and  it  is  in-  malice    presumed,    but   the    specific 

sisted    that    the    intent    to    murder  intent  to  take  life  may  also  be  in- 

cannot  be   inferred   from   the   facts  ferred,     for     if,     with     malice,     he 

and  circumstances  which  show  be-  makes  an  assault  in  a  manner  likely 

yond   a   reasonable   doubt   that   the  to  produce  death,  he  must  be  pre- 

assault   was   made  with   an   aban-  sumed   to   intend    the   result   likely 

doned    and    malignant    heart    and  to,    that    is,    which    probably    and 

reckless    disregard    of    human    life,  naturally     would,     flow     from     his 

It  is  sufficient  to  say  that  no  such  act." 

division  is  made  of  the  instruction        36 — Keady  v.   People,  32  Colo.  57, 

itself.    The  jury  were  told  that  the  74  Pac.  892  (894). 
intent  might  be  inferred   from   the 


1816  FORMS  OF  INSTRUCTIONS.  §  2859. 

shows  that  defendant  had  another  load  in  his  gun,  and  could  have 
used  it,  and  killed  said  F.,  if  he  had  so  desired,  but  did  not  do  so 
because  he  did  not  want  to  kill  him,  the  jury  should  take  this  into 
consideration,  along  with  all  the  other  facts  and  circumstances  in  the 
case,  in  determining  whether  the  defendant  did  intend  to  kill  and 
murder  P.,  and  if,  from  all  the  facts  and  circumstances  in  evidence, 
they  have  a  reasonable  doubt  as  to  whether  he  really  meant  to  murder, 
they  cannot  lawfully  convict  him  of  assault  and  battery  with  intent 
to  kill  and  murder.^''' 

(b)  If  the  jury  have  a  reasonable  doubt,  from  the  evidence  in  the 
case,  whether  the  gun  was  accidentally  or  intentionally  discharged, 
the  defendant  is  entitled  to  'the  benefit  of  such  doubt,  and  the  jury 
should  find  the  defendant  not  guilty.^^ 

(e)  If  you  believe  from  the  evidence  that  the  defendant  shot  X,  as 
charged  in  the  bill  of  indictment,  and  that  in  doing  so  he  was  not 
acting  in  self-defense,  nor  under  other  circumstances  justifying  him 
in  shooting,  yet,  if  you  should  believe  that  at  the  time  of  the  shooting 
it  was  not  'the  intention  on  the  part  of  the  defendant  to  take  the 
life  of  the  prosecutor,  X.,  then  you  would  not  be  authorized  to  return  a 
vei'diet  finding  the  defendant  guilty  of  an  assault  with  intent  to  com- 
mit murder;  but,  if  you  should  believe  that  to  be  the  truth  of  the 
case,  then  you  would  be  authorized  to  return  a  verdict  finding  the 
defendant  guilty  of  the  offense  of  shooting  at  another.^^ 

(d)  If  you  believe  that  the  instrument  used  is  one  not  likely  to 
produce  death,  intent  to  murder  is  not  presumed,  but  must  be  proved 
from  the  nature  of  its  use,  or  by  specific  proof.  Where  an  assault 
oceui's  under  the  influence  of  sudden  passion,  or  by  the  use  of  means, 
not  in  their  nature  calculated  to  produce  death,  the  person  assaulting 
is  not  deemed  guilty  of  assault  to  murder,  unless  it  appears  that  there 
was  an  intention  to  kill,  but  he  should  be  convicted  of  a  lower  grade 
of  assault  and  battery.*" 

§  2859.  What  Jury  Should  Consider  in  Determining  Whether  In- 
tent Was  Present.  In  order  to  convict  the  prisoner  at  the  bar,  in 
manner  and  form  as  he  stands  indicted,  it  is  necessary  for  the  state 
to  satisfy  you,  beyond  a  reasonable  doubt,  that  the  assault  was  com- 
mitted by  the  prisoner,  that  it  was  committed  with  an  intent  to 
murder  the  person  assaulted,  and  that  if  the  person  assaulted  had 
died  from  the  effects  of  the  injuries  received  thereby,  the  prisoner 

37— MrCaa  V.    State,  —  Miss.   — ,  appellant  was  a  negro,  and  C,  N. 

38   So.  228.  and  B.  were  white  men.    Under  this 

38— State  v.  Connor,  59  la.  357,  13  state   of  facts  we  believe   that  the 

N.  W.  327.  provisions  of  article  717  Pen.  Code, 

39— Frazier  v.    State,   112   Ga.   868,  1895,     should     have    been    given     in 

38   S.    K.   349   (350).  charge   to   the   jury,   and   the  court 

■40 — Johnson  v.   State,  —  Tex.   Cr.  erred   in   refusing  to  give  the  spe- 

App.  — ,  93  S._W.  735  (736).  cial    requested    instruction,    which, 

"We  think   it  reasonably  appears  in     suh.stance,     submits    the    provi- 

that  he  could   have  used  his  knife  sions  of  said  article." 
oftener.     The  evidence  shows  that 


§2860.]  CRIMINAL— ASSAULT  AND   BATTERY.  1817 

would  have  been  guilty  of  murder,  either  of  the  first  or  second  degree. 
The  intent  to  commit  murder  is  an  essential  ingredient  of  the  charge, 
and  it  must  be  jDroved  to  your  satisfaction,  just  as  any  other  material 
fact  in  the  case.  It  may  be  proved,  however,  by  direct  evidence, 
such  as  the  declarations  of  the  prisoner  made  at  the  time  of  the 
shooting,  or  by  circumstantial  evidence.  It  is  your  duty  therefore 
to  consider  all  the  facts  proved  in  the  case  in  order  'to  determine 
whether  such  an  intent  to  commit  murder  existed  or  not ;  and  in  de- 
termining whether  there  was  such  intent,  you  should  consider  the 
words  or  threats  which  may  have  been  made  by  the  prisoner  at  the 
time  of  the  shooting,  the  character  of  the  assault,  the  kind  of  weapons 
used,  the  danger  of  producing  death,  and  the  means  used  to  avoid  or 
cause  death,  and  all  the  acts  and  conduct  of  the  prisoner  with  the 
circumstances  attending  them,  as  shown  by  the  evidence.*^ 

§  2860.  Animus,  Purpose  and  Intent  May  Be  Shown  By  Writing  of 
a  Valentine.  If  the  juiy  believe  from  the  evidence,  beyond  a  reason- 
able doubt,  that  defendant  wrote  the  valentine  in  question,  then  you 
can  consider  said  fact  as  a  circumstance  going  to  show  the  animus, 
purpose,  and  intent  of  appellant  at  the  time  of  the  attempted  homi- 
cide; and  if  the  jury  do  not  believe,  beyond  a  reasonable  doubt,  that 
defendant  was  the  author  of  said  valentine,  you  should  not  consider 
said  valentine  in  the  case  for  any  purpose. ■*- 

§  2861.  Incapable  of  Forming  Intent  from  Drunkenness,  (a)  In- 
toxication is  no  defense  or  excuse  for  crime ;  but  in  certain  cases, 
where  a  specific  intent  is  an  element  in  the  offense,  the  fact  of  in- 
toxication, if  shown,  is  to  be  eonsidei'ed.  If  it  appears  from  the 
evidence  that  the  prisoner  was  intoxicated  at  the  time,  and  if  you 
find  that  his  state  of  intoxication  was  such  that  he  had  so  far  lost  his 
intelligence,  and  his  reason  and  faculties,  that  you  have  a  reasonable 
doubt  whether  he  was  able  to  form  and  have  a  purpose  to  kill,  or  to 
know  what  he  was  doing,  then  you  should  find  him  not  guilty  of 
intent  to  kill.^^ 

(b)  The  court  instructs  the  juiy,  that,  in  this  case,  in  order  to 
warrant  a  conviction  of  the  defendant,  the  jury  must  be  satisfied, 
from  the  evidence,  not  only  that  the  defendant  made  an  assault  upon 
the  said  A.  B.,  as  charged  in  the  indictment,  but  it  must  also  appear, 
from  the  evidence,  that,  at  the  time  he  made  the  assault,  he  had 
formed  in  his  own  mind  an  intention  to  take  the  life  of  the  said 
A.  B. ;  and,  if  the  jury  further  believe,  from  the  evidence,  that  at 
the  time  of  the  alleged  assault,  the  defendant  was  so  deeply  in- 
toxicated or  besotted  with  drink  that  he  was  incapable  of  entertain- 
ing or  forming  an  intent  to  kill  the  said  A.  B.,  then  the  juiy  should 

41— State  V.  Brown  —  Del.  — ,  63  State,  37  Tex.  Cr.  App.  314,  39  S.  "W. 

Atl.  328.  674;    Wilson    v.    State,    —    Tex.    Cr. 

42— Kellv    V.    State,    43    Tex.    Cr.  App.  — .  36   S.   W.   587. 

App    40,  62  S.  W.  915  (917).  43— State   v.    Fiske,    63   Conn.    388, 

Citing    Martin    v.    State,    38    Tex.  28  Atl.  572  (573). 
Or.  App.  285,  43  S.  W.  91;  Russell  v. 


1818  FORMS   OF  INSTRUCTIONS.  [§2862. 

acquit  the  defendant  of  the  crime  of  an  assault  with  intent  to  commit 
murder,** 

§  2862.  Burden  of  Proof — Justification,  (a)  If  you  find  defendant 
guilty  as  charged  in  the  infoi-mation  under  the  instructions  so  far 
given  you  by  the  court,  of  course  that  is  the  end  of  your  labors  in 
this  case,  and  you  will  return  such  a  verdict. 

(b)  You  should  find  him  guilty  as  charged  in  the  information, 
unless  you  find  that  such  shooting  was  justifiable  under  the  rules 
which  will  hereafter  be  given  to  you  by  the  court.*^ 

(c)  The  burden  of  proof  is  on  the  state,  in  order  to  convict  of 
the  crime  charged,  to  show  that  the  shooting  was  not  only  done  de- 
liberately and  feloniously  and  with  malice  aforethought,  but  that  it 
was  done  without  legal  excuse  or  justification ;  and  unless  it  has 
made  such  proof  so  clearly  on  the  whole  evidence  as  to  remove  from 
your  minds  every  reasonable  doubt,  you  must  acquit  of  the  crime 
charged.*^ 

§  2863.  Adequate  Cause — Insulting  Words,  (a)  If  the  jury  be- 
lieve that  defendant  committed  an  assault  upon  S.  with  the  specific 
intent  to  kill  him,  but  you  further  believe  that  said  assault  was  com- 
mitted under  the  immediate  influence  of  sudden  passion,  arising  from 
having  been  told  that  said  S.  had  used  insulting  words  or  had  been 
guilty  of  insulting  conduct  towards  defendant's  sister,  then  you  will 
acquit  defendant  of  assault  with  intent  to  murder  and  convict  him  of 
an  aggravated  assault;  and  this  though  you  should  believe  that  said 
S.  had  not  used  insulting  words  or  been  guilty  of  insulting  conduct 
towards  defendant's  sister. 

(b)  By  the  expression  "adequate  cause"  is  meant  such  as  would 
commonly  produce  a  degree  of  anger,  rage,  resentment,  or  terror,  in 
a  person  of  ordinary  temper,  sufficient  to  render  the  mind  incapable 
of  cool  reflection;  and  the  condition  of  the  mind  at  the  time  of  the 
homicide  is  a  question  to  be  determined  by  the  jury  from  all  the  facts 
and  circumstances  in  evidence;  and  when  a  sudden  transport  passion 
is  once  engendered  in  a  mind,  the  law  does  not  prescribe  any  specific 
length  of  time  for  the  mind  to  become  cool  and  deliberate,  if  it  does 
so  change,  but  leaves  that  as  a  question  of  fact  to  be  determined  by 
the  jury  from  the  evidence.  Insulting  words  or  conduct  of  the  person 
killed  towards  a  female  relative  of  the  party  guilty  of  the  homicide 
is  such  adequate  cause,  provided  the  homicide  occurs  upon  the  first 
meeting  of  the  person  committing  the  homicide  with  the  person  slain. *^ 

(c)  If  you  believe  from  the  evidence  that  defendant  shot  C.  when 
he  appeared  to  be  in  no  danger  at  C. 's  hands,  but  that  such  shooting 

44 — Mooney  v.  The  State,  33  Ala.  charge  in  Holmes  v.  State,  124  Wis. 

419;   State  v.   Garvey,   11   Minn.   154;  133,  102  N.  W.  321  (324). 

Plgman    v.    State,    14    Ohio    555,    45  46— Godwin  v.  State,  73  Miss.  873, 

Am.  Dec.  558;  Pays  v.  State,  5  Tex.  19  So.  712,  55  Am.  St.  573. 

App.    35;    Parke    v.    State,    5    Tex.  47— Jones    v.    State,    —   Tex.    Cr. 

App.  552.  App.  — ,  85  S.  W.  5  (6). 

45 — Approved     as     part     of     the 


§  2864.]  CRIMINAI^-ASSAULT  AND   BATTERY.  1819 

was  in  the  heat  of  passion,  and  without  deliberation,  j'ou  must  acquit 
of  the  crime  charged.*^ 

§  2864.    Must  Be  Murder  Had  Death  Ensued — Deliberation,    (a)   In 

order  to  justify  a  verdict  of  guilty  of  the  crime  of  an  assault  with 
intent  to  commit  murder,  the  facts  and  circumstances  proved  in  the 
case  must  be  such  that  if  death  had  resulted  from  the  shooting,  the 
jury  would  have  found  the  defendant  guilty  of  willful  murder.'*^ 

(b)  You  are  instructed  that  while  the  law  requires,  in  order  to 
constitute  an  assault  with  intent  to  commit  murder,  that  the  assault, 
killing,  and  murder  must  have  been  committed  under  such  circum- 
stances and  with  such  premeditation  and  design  as  would  have  made 
the  killing  murder  had  death  ensued,  while  it  does  not  require  that 
willful  intent,  premeditation  or  deliberation  shall  exist  for  any  length 
of  time  before  the  crime  was  committed,  it  is  sufficient  if  there  was 
a  design  and  determination  to  kill  distinctly  formed  in  the  mind  at 
any  moment  before  or  at  the  time  the  blow  was  struck  or  pistol  fired. 
In  this  case  if  you  believe  from  the  evidence  beyond  reasonable  doubt 
that  the  respondent  discharged  his  pistol  at  the  undersheriff,  and  that 
before  or  at  the  time  he  did  so,  he  had  formed  in  his  mind  a  willful, 
deliberate,  and  premeditated  desig-n  to  take  the  life  of  X.,  or  any 
person  who  should  attempt  to  seize  the  boat  under  the  warrant  intro- 
duced in  this  case,  and  that  the  pistol  was  fired  in  furtherance  of 
that  design  or  purpose,  and  without  justifiable  cause  or  legal  excuse 
therefor,  then  you  should  find  the  defendant  guilty.  ♦  *  *  j^  de- 
termining the  defendant's  intent,  you  may  consider  the  threats  made 
by  him,  if  you  are  satisfied  beyond  reasonable  doubt  that  they  were 
so  made;  and  you  will  also  consider  the  fact  of  his  leaving  the  state 
in  the  manner  he  claimed  he  did  as  well  as  the  fact  that  some  of 
the  witnesses  testified  to  having  heard  four  shots,  as  claimed  by  the 
defendant.^" 

§  2865.  Assault  with  Intent  to  Murder — Malice  and  Deliberation 
Necessary  Elements — Malice  Defined,  (a)  You  are  instructed  that 
malice  and  deliberation  are  essential  elements  of  the  crime  of  assault 
with  intent  to  murder;  and  that  malice  is  not  necessarily  inferred 
from  the  use  of  a  deadly  weapon,  or  the  mere  fact  of  shooting  or 
killing  a  person;  and,  while  it  is  true  that  malice  may  be  implied, 
it  is  not  an  offense  or  presumption  of  law,  but  a  question  of  fact  to 
be  found  by  the  juiy  from  the  proof  of  facts  and  circumstances,  and 
sufficient  to  warrant  such  implication ;  and  the  evidence  of  such  facts 
and  circumstances  surrounding  and  attending  the  shooting  should  be 

48 — Godwin  v.  State.  73  Miss.  873,  portionate     to     such     abusive     lan- 

19  So.  712,  55  Am.  St.  573.  guage." 

In   Ford   v.    State,    97    Ga.    365.   23  49— King  v.    State,    21   Ga.   220,    68 

S.    E.    996    (997),    the    court    said    to  Am.  Dec.   457;   State  v.   Malcomb,  8 

the   jury:  la.  413;  Sharp  v.  State,  19  Ohio  379. 

"See  whether  the  nature  and  ex-  50 — People   v.    Bernard,    125    Mich, 

tent  of  the  battery,  taken  together  550,  84  N.  W.  1092  (1094),  65  L.  R.  A. 

with     the     nature    and     extent     of  559. 
abusive  language,  was  not  dispro- 


1820  FORMS   OF  INSTRUCTIONS.  [§2866. 

of  such  a  character  as  to  remove  all  reasonable  doubt  in  your  minds 
on  the  question  of  defendant's  malice  before  you  can  find  him  guilty.^^ 

(b)  ** Malice,"  in  its  legal  sense,  means  the  intentional  doing  of 
a  wrongful  act  towards  another,  Avithout  legal  justification  or  excuse. ^^ 

§  2866.  Assault  with  Intent  to  Kill — Malice  and  Deliberation  Not 
Necessary  Elements.  But  the  state  goes  further,  and  has  alleged 
another  element  of  criminality  in  this  case — the  element  of  malice, 
which  is  not  necessary  in  the  offense  known  as  assault  with  intent  to 
kill.  And  if  the  evidence  justifies  you  in  finding  that  the  element  of 
malice  existed  in  this  case,  beyond  a  reasonable  doubt,  as  well  as  the 
assault  with  intent  to  kill,  then  the  state  will  have  made  out  the  full 
offense  as  charged.  I  have  to  say  to  you  that  no  deliberation  or 
previous  design  or  premeditation  is  necessary  to  constitute  this  offense 
of  an  assault  with  intent  to  kill  and  murder  with  malice  aforethought. 
Thei'e  are  necessary  only  the  assault,  the  intent  to  kill,  and  the  malice 
aforethought;    no  deliberation  being  neeessary.^^ 

§  2867.  Assault  with  Deadly  Weapon — Implied  Malice.  Implied 
malice  means  that  which  may  be  inferred  from  the  acts  and  facts 
shown.  Thus,  when  a  wanton,  wicked,  cruel,  or  i-evengeful  act  is 
shown,  the  inference  or  implication  may  be  drawn  that  the  person 
who  did  such  an  act  was  actuated  by  malice.  And  when  one  person 
assaults  another  with  a  deadly  weapon— that  is  a  weapon  that  will 
likely  produce  death — ^the  law  presumes  malice  from  that  fact  alone, 
in  the  absence  of  proof,  either  direct  or  implied,  to  the  contrary.  The 
selection  and  use  of  a  weapon,  such  as  a  revolver,  in  a  deadly  manner, 
without  legal  excuse,  raises  a  presumption  and  is  evidence  of  malice.^* 

51 — Keady  v.  People,  32  Col.  57,  74  books  and   adjudicated   cases.     See 

Pac.  892  (894).  Com.  v.  York,  9  Mete.  (Mass.)  93,  43 

52— Beau    v.    State,    —    Tex.    Cr.  Am.  Dec.  373,  opinion  by  Shaw,  C.  J. 

A'pp.  — ,  51  S.  "W.  946.  The  statement  of  the  facts  referred 

"If  the  court  had  used  the  ex-  to  'raised  a  presumption  and  is 
pression  'malice  aforethought,'  in-  evidence  of  inalice'  added  nothing 
stead  of  the  word  'malice,'  in  this  to  what  was  already  stated,  and 
sentence,  it  seems,  in  the  view  of  should  be  taken  in  connection  with 
appellant,  the  charge  would  have  what  preceded,  to  the  effect  that 
been  correct.  His  objection  is  such  presumption  arose  in  the  ab- 
hypercritical,"  citing  Martinez  v.  sence  of  other  proof  to  the  con- 
state, 30  Tex.  App.  129.  See  also  trary.  The  rule  almost  everywhere 
State  V.  Moore,  168  Mo.  432,  68  S.  W.  is  that  from  the  mere  fact  of  kill- 
358   (360).  ing,  the  inference  of  malice  arises; 

53 — State   v.   Fiske,   63   Conn.   388,  the  burden   being   on   the   prosecu- 

28  Atl.  572  (573).  tion    to    raise   it   to    murder    in    the 

54 — State  v.  Hayden,  131  la.  1  (7),  first  degree  and   on  the  defense  to 

107  N.  W.  929  (931).  reduce     it    to    manslaughter.       See 

"It  has  support  in  the  following  cases  cited  in  21  Am.  &  Eng.  Ency. 

oases:     State  v.  Gillick,  7  Iowa  311;  pp.  140  and  170.     Of  course,  we  do 

State    v.    Ostrander,    18    Iowa    435;  not  mean  to  say  that  a  jury  should 

State    v.    Hockett,    70    Iowa    442,    30  ever  be  instructed   that  the  burden 

N.     W.     742;   State    v.    Zeibart,    40  is  upon  a  defendant  to  show  want 

Iowa  169;  State  v.  Sullivan,  51  Iowa  of  malice.     We   use  the  above  ex- 

142,   50  N.   W.   572;   State  v.   Town-  pression    for   want   of   better   term 

Rfiid,    66    Iowa    741,    24    N.    W.    535;  in    which    to    convey    the    thought. 

State   V.   Roan,  122  Iowa  136,   87  N.  What    we    mean    is    that    an    unex- 

W.    997;    and    except    for    the    last  plained  killing  with  a  deadly  weap- 

clause    in   practically    all   the    text  on  is  evidence  of  malice,  and  that 


§2868.]  CRIMINAI^-ASSAULT  AND  BATTERY.  1821 

§  2868.  Assault  with  Intent  to  Commit  Voluntary  Manslaughter, 
(a)  To  convict  the  defendant  of  an  assault  and  battery  with  intent 
to  commit  the  crime  of  voluntary  manslaughter,  the  evidence  must 
prove,  beyond  a  reasonable  doubt,  that  the  defendant  committed  an 
assault  and  battery  upon  the  person  of  X.,  as  charged  in  the  indict- 
ment, and  that  at  the  time  he  did  so  he  was  in  a  sudden  heat  or 
passion,  produced  by  a  provocation  given  by  said  X.,  in  the  use  of 
personal  violence  by  him,  upon  his  person,  and,  being  in  such  heat, 
he,  by  said  assault  and  batter}^,  without  malice,  purposed  and  designed 
to  kill  said  X.^^  / 

(b)  If  you  find,  from  the  evidence,  that  the  defendant,  at  the  time 
and  place  charged  in  the  indictment,  unlawfully  assaulted  said  R. 
with  a  pistol,  and  shot  him  in  the  breast,  and  you  further  find  that 
said  assault  was  made  upon  reasonable  provocation,  in  the  heat  of 
blood,  but  without  malice,  and  without  legal  excuse,  and  with  the 
intent  to  kill,  then  you  would  be  justified  in  finding  the  defendant 
guilty  of  an  assault  with  intent  to  commit  manslaughter.^^ 

§  2869.  Included  Crimes — Reasonable  Doubt  Acquits,  (a)  If  you 
are  satisfied  bej'ond  a  reasonable  doubt  in  this  case  that  the  defendant 
did,  within  three  years  prior  to  the  filing  of  the  information  in  this 
case,  assault  the  prosecuting  witness  in  manner  and  form  as  charged 
in  the  information,  in  the  county  of  Yakima,  state  of  Washington, 
and  that  he  intended  to  commit  the  crime  of  murder,  as  previously 
defined  to  you,  it  will  be  your  duty  to  find  him  guilty  as  charged.  If 
you  find  he  committed  the  assault  alleged,  but  without  intent  to  com- 
mit murder,  you  will  find  him  guilty  of  assault.  If  you  entertain  a 
reasonable  doubt  as  to  whether  or  not  he  committed  the  assault  al- 
leged to  have  been  committed  in  the  information,  or  that  he  com- 
mitted it  with  intent  to  commit  murder,  then  it  will  be  your  duty  to 
give  the  defendant  the  benefit  of  that  doubt  and  acquit  him.^'' 

(b)  The  crime  charged  in  the  indictment  included  assault  with 
intent  to  commit  great  bodily  injury,  assault  and  battery  and  assault, 

the  burden  is  on  the  accused  in  instruction  requires  the  defendant 
that  sense  that  he  must  make  pi'oof  to  prove  the  facts,  beyond  a  rea- 
of  leg-al  excuse,  justification,  or  ex-  sonable  doubt,  necessary  to  reduce 
tenuation,  or  take  the  risk  of  a  the  grade  of  the  offense  from  that 
conviction  upon  the  presumption  charged  in  the  indictment  to  the 
or  inference  of  malice.  3  Current  lowest  degree.  The  indictment  con- 
Law  1651,  5  Current  Law  1711  and  tained  charges  of  all  three  degrees, 
cases  cited;  State  v.  Moore,  25  Iowa  namely,  an  assault  and  battery 
128,  95  Am.  Dec.  776;  Harkness  v.  with  intent  to  commit  murder  in 
State,  129  Ala.  71,  30  So.  73;  People  the  first  degree,  the  same  with  in- 
V.  Phelan,  —  Cal.  — ,  56  Pac.  424;  tent  to  commit  murder  in  the  sec- 
Com.  V.  Webster,  5  Cush.  (Mass.)  ond  degree,  the  same  with  intent 
295,  52  Am.  Dec.  711.  Moreover,  the  to  commit  manslaughter,  and  a 
court  fully  and  carefully  explained  simple   assault." 

all    the    degrees    of   homicide,    and  56 — The  former  edition  cited  State 

the  instruction   upon   manslaughter  v.    White,   45   la.   325,    and    State  v. 

was   as   favorable   to   defendant  as  Connor,  59  la.  357,  13  N.  W.  327,  in 

he  could  ask."  support  of  the  instruction. 

55— Newport    v.     State,    140    Ind.  57— State   v.    Williams,    36   Wash. 

299,  39  N.  E.  926,  holds  that  "An  ob-  143,  78  Pac.   780  (781). 
jection  is  not  well  taken  that  this 


1822  FORMS  OF  INSTRUCTIONS.  [§  2870. 

and  if  you  find  defendant  guilty,  it  should  be  of  the  highest  of  the 
included  offenses  of  which  the  evidence  showed  him  guilty  beyond  a 
reasonable  doubt,  but  if  there  is  a  reasonable  doubt  of  his  guilt  of 
the  higher  charge,  you  should  then  consider  the  lower  degree,  and 
so  consider  each  to  the  last  included  crime  if  necessary,  and  if  there 
was  a  reasonable  doubt  in  respect  to  his  guilt  in  each  instance,  then 
he  should  be  acquitted.^* 

§  2870.  Assault  with  Intent  to  Kill — Circumstantial  Evidence,  In 
this  case  the  state  seeks  a  conviction  on  circumstantial  evidence  alone, 
and,  while  it  is  the  law  that  a  person  may  be  convicted  of  such  an 
offense  on  circumstantial  evidence  alone,  before  you  can  convict  on 
such  evidence,  the  circumstances,  when  all  taken  together,  should  be 
consistent  with  each  other  and  consistent  with  the  theory  of  defend- 
ant's guilt,  and  absolutely  inconsistent  with  any  reasonable  theoiy  of 
innocence ;  and  circumstantial  evidence  should  always  be  cautiously 
considered,  and,  to  warrant  a  conviction,  it  must  be  such  as  to  produce 
in  the  minds  of  the  jury  that  certainty  of  guilt  that  a  discreet  man 
would  be  willing  to  act  upon  in  his  own  most  important  affairs;  and, 
if  you  are  not  satisfied  of  the  guilt  of  the  defendant  on  this  charge 
beyond  a  reasonable  doubt,  you  ought  to  acquit  him,  although  the 
unfavorable  circumstances  [if  any]  may  not  have  been  disproven  or 
explained. ^^ 

§  2871.  Assault  with  Intent  to  Murder — Form  of  Verdict.  If,  after 
a  careful  consideration  of  all  the  testimony  in  the  case,  you  are  not 
satisfied  beyond  a  reasonable  doubt  that  the  prisoner  committed  the 
assault  alleged,  your  verdict  should  be  not  guilty.  But  if  you  believe 
that  he  did  commit  the  assault,  and  are  not  satisfied  that  it  was  his 
intent  to  commit  murder,  your  verdict  should  be  not  guilty  in  the 
manner  and  form  as  he  stands  indicted,  but  guilty  of  assault  only. 
If,  however,  you  believe  and  are  satisfied  that  he  not  only  committed 
the  assault  alleged,  but  that  it  was  his  intention  at  the  time  to  murder 
the  person  assaulted,  your  verdict  should  be  guilty  in  manner  and 
form  as  he  stands  indicted.®" 

58 — State  v.  Leuhrsman,  123  Iowa  been  better  if  the  bracketed  words, 

476.  99  N.  W.  140  (142).  "if   any,"    liad    been    inserted   after 

59 — State    v.    Naves,    185    Mo.   125  "unfavorable  circumstances." 

(138),  84  S.  W.  1  (4).  60— State  v.  Brown,  —  Del.  — ,  63 

The  court  thought  it  would  have  Atl.  328. 


CHAPTER  XCIV. 

CRIMINAL— BURGLARY— ROBBERY. 


See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


BUKGLARY. 

S2872.  Burglary  defined— Limita- 
tion. 

§  2873.  Burglary— Robbery— What  is 
necessary  to  constitute. 

5  2874.  What  is  sufficient  proof  of 
ownership  in  charge  of 
burglary. 

§  2875.  Intent  to  steal  necessary  ele- 
ment to  constitute  bur- 
glary. 

§  2876.  Prima  facie  case — Intent  pre- 
sumed. 

§  2877.  How  intent  is  manifested — 
Sound  mind  and  discretion. 

§  2878.  What  constitutes  a  break- 
ing. 

§  2879.  Breaking    into    car. 

§  2880.  Breaking   into    chicken  coop. 

§  2881.  What  constitutes  an  entry. 

5  2882.  In  charge  for  burglary  ac- 
cused may  be  found  guilty 
of   larceny. 

§  2883.  Time  burglary  committed 
generally  immaterial — May 
be   material. 

§  2884.  Day   time   or  night  time. 

§  2885.  Possession  of  stolen  goods 
— Reasonable    doubt. 

§  2886.  Possession  —  Explanation 
must   be  reasonable. 

§  2887.  Attempt  of  burglary— Co- 
operating  with   burglar. 

9  2888.  Must  prove  defendant  com- 
mitted burglary  beyond 
reasonable  doubt. 


ROBBERY. 

§  2889.  Robbery   defined. 

§  2890.  What  acts  would  constitute 
robbery. 

§  2891.  Not  necessary  that  force  be 
used. 

§  2892.  Violence  used  must  not  be 
subsequent    to   the   taking. 

§  2893.  Intending  to  use  whatever 
force  is  necessary. 

§  2894.  Holding  up  a  train— Intent. 

§  2895.  Taking  from  the  immediate 
presence  does  not  necessa- 
rily mean  the  immediate 
view. 

§  2896.  Taking  must  be  from  the 
person   of  another. 

§  2897.  What  is  meant  by  taking 
from   the  person — Series. 

§  2898.  Taking  from  the  very  per- 
son  not  necessary. 

§  2899.  Taking  from  the  person  or 
in  his  presence  by  putting 
in  fear  or  by  force  and 
violence    held     sufficient. 

§  2900.  Retaking  of  one's  property 
by  force  and  putting  in 
fear. 

§  2901.  Possession  of  the  fruits  of 
the  robbery. 

§  2902.  Case  of  each  co-defendant 
to  be  considered  separately 
— Common  enterprise. 


BUKGLARY. 

§  2872.  Burglary  Defined— Limitation.  The  court  instructs  the  jury 
that  the  allegation  of  time  in  the  information  filed  in  this  case  is  only 
material  for  the  pui-pose  of  fixing  the  commission  of  the  crime  within 
the  statute  of  limitations,  which,  in  the  state  of  Nebraska,  is  three 
years  for  the  crime  of  burglary.  And  if  you  find  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  forcibly,  feloniously 
did,  on  or  about  the  28th  day  of  May,  18 — ,  in  the  night  season,  at 
the  place  charged  in  the  information,  break  and  enter  the  bam  of  X. 

1823 


1824  FORMS  OP  INSTRUCTIONS.  [§2873. 

by  opening  a  closed  door,  as  explained  in  these  instructions,  and  after 
so  entering-  said  barn  of  said  X.  did  feloniously  take  therefrom  any 
property  of  any  value  belonging  to  said  X.,  then  your  verdict  should 
be  guilty  as  charged  in  the  information.^ 

§  2873.  Burglary — Robbery — What  Is  Necessary  to  Constitute,  (a) 
The  court  instructs  the  jury  that  if  you  believe  and  find  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendants,  at  the 
county  of  P.  and  state  of  Mo.,  at  any  time  within  three  years  before 

the  finding  of  this  indictment,  which  was  on  the ,  did  forcibly 

break  the  outer  door  of  the  dwelling  house  of  M.,  and  enter  said 
building,  and  at  the  time  of  such  breaking  and  entering  there  was  a 
human  being  in  said  building,  and  that  the  defendants  did  break  and 
enter  said  building  with  the  intent  to  rob  the  said  M.  of  any  money 
cr  property  that  might  be  in  said  building,  they  will  find  the  defend- 
ants guilty  as  charged  in  the  indictment,  and  assess  their  punish- 
ment at  imprisonment  in  the  penitentiary  for  a  term  not  less  than 
ten  years. 

(b)  The  crime  of  robbing  may  be  committed  by  taking  the  money 
or  property  of  another  from  his  person  or  presence,  forcibly  and 
against  his  will,  or  by  violence  to  his  person,  or  by  putting  him  in  fear 
of  some  immediate  injury  to  his  person.^ 

(c)  The  ecurt  instructs  the  jury  that  if  you  believe  and  find  from 
the  evidence  that  the  defendant,  W.  S.,  at  and  in  the  county  of  D. 
and  state  of  Mo.,  on  the  night  of  the  9th  day  of  ,  did  will- 
fully and  unlawfully  break  into  and  enter  a  certain  storehouse,  and 
if  the  said  storehouse  was  at  the  time  and  place  aforesaid  in  the 
possession  of  the  D.  Co.,  a  corporation  organized  under  the  laws  of 
the  state  of  Mo.,  and  if  the  said  defendant  broke  into  and  entered 
the  said  store  building,  at  the  time  and  place  aforesaid,  with  the 
intent  then  and  there  to  take,  steal,  and  carry  away,  and  convert 
to  his  own  use,  and  deprive  the  owners  of  the  use  thereof,  of  any 

l_Ferguson  v.  State,  52  Neb.  432,  fense.'    In  Yeoman  v.  State,  21  Neb. 

72  N.  W.  590,  66  Am.  St.  512.  171,    31   N.    W.   669,   the   same   prin- 

The  court  said:  ciple  was  stated  and  applied.     The 

"The  objection  to  this  portion  of  question   has   been   set   at   rest   by 

the  charge  is  twofold:     First.  The  those  decisions,   if,    indeed,   it  ever 

authorization  of  a  conviction  if  the  was  a   doubtful   one   in   this   state, 

offense  was  committed  at  any  time  The   instruction   quoted    is   further 

within    the    statute    of    limitations  criticised  for  the  use  of  the  words 

is   claimed   to   be   wrong.     The   de-  'on  or  about.'    Time  was  not  of  the 

cision«    are    the    other    way.      The  essence  of  the   offense,  and  it  was 

identical  question  was  passed  upon  not  error  to  direct  the  jury  that  it 

in   Palin   v.    State,   38   Neb.    862,   57  was  sufficient  to  find  that  the  crime 

N.  W.  743,  where  this  language  was  was    committed    on    or    about    the 

used:     'The  allegation  in  the  infor-  time    charged    in    the    information, 

mation   as   to    the    time   the    crime  State   v.    Fry,    67    Iowa   475,    25    N. 

was  committed  is  not  material.  The  W.  738;  State  v.  Williams,  13  Wash, 

state    was    not    required    to    prove  335,  43  Pac.  15;  State  v.  Thompson, 

that    the    transaction    occurred    on  10  Mont.   549,  27  Pac.   349;   State  v. 

the  day  alleged,  but  it  is  sufficient  Harp,  31  Kas.  496,  3  Pac.   432." 

if  proven  to   have  been   committed  2 — State   v.    Hale,   156  Mo.   102,   56 

within  the  time  limited  by  the  stat-  S.  W.  881  (882). 
ute  for  the  prosecution  of  the  of- 


§  2874.]  CRIMINALf— BURGLARY— ROBBERY.  1825 

valuable  goods,  wares  and  merchandise  situate,  kept  and  deposited 
in  the  said  building,  then  you  will  find  him  guilty  of  burglary,  and 
assess  his  punishment  at  imprisonment  in  the  penitentiary  for  a  term 
of  not  less  than  three  years.  And  if  you  further  believe  and  find  from 
the  evidence  that  this  defendant,  W.  S.,  at  the  time  and  place  afore- 
said, did  willfully  and  feloniously  steal,  take,  and  eari-y  away  from 
within  said  building,  with  intent  to  convert,  to  his  own  use,  and  de- 
prive the  owners  of  the  use  thereof,  any  goods,  wares,  and  merchan- 
dise of  any  value  whatever,  and  if  such  goods,  wares,  and  merchan- 
dise were  then  and  there  the  property  of  the  D,  Co.,  a  corporation 
as  aforesaid,  you  will  also  find  him  guilty  of  larceny,  and  assess 
his  punishment  for  such  larceny  at  imprisonment  in  the  penitentiaiy 
for  not  less  than  two  years  nor  more  than  five  years. 

(d)  Although  you  may  not  believe  and  find  from  the  evidence 
that  the  defendant  broke  into  and  entered  the  building  in  ques- 
tion, yet  if  you  find  and  believe  from  the  evidence  that  the  defend- 
ant, W.  S.,  on  the  night  of ,  at  and  in  the  county  of  D.  and 

state  of  Mo.,  did  willfully  and  feloniously  take,  steal,  and  carry 
away  any  of  the  goods,  wares  and  merchandise  charged  in  the  indict- 
ment, with  the  intent  to  convert  the  same  to  his  own  use,  and  to 
deprive  the  owners  of  the  use  thereof,  and  if  said  goods,  wares  and 
merchandise  you  may  find  to  have  been  so  taken  by  defendant,  if 
you  find  they  were  so  taken  by  him,  were  of  the  value  of  thirty  dollars 
or  more,  and  were  at  the  time  and  place  aforesaid  the  property  of  the 
D.  Co.,  a  corporation  organized  under  the  laws  of  Mo.,  you  will 
find  him  guilty  of  larceny,  and  assess  his  punishment  at  imprison- 
ment in  the  state  penitentiaiy  for  a  term  of  not  less  than  two  nor 
more  than  five  years.^ 

§  2874.  What  Is  Sufficient  Proof  of  Ownership  in  Charge  of 
Burglary,  Proof  that  a  room  in  the  building  was  entered  with  an 
intent  to  commit  the  misdemeanor  charged,  such  room  being  used 
for  an  office,  and  in  the  possession  of  L.,  would  sustain  the  charge 
in  the  indictment  of  the  building  being  the  property  of  L.* 

§  2875.  Intent  to  Steal  Necessary  Element  to  Constitute  Burglary. 
I  charge  you,  gentlemen  of  the  jury,  that,  in  order  to  obtain  at  j^our 
bands  a  verdict  of  guilty,  the  state  must  establish  by  competent 
evidence  to  your  satisfaction  beyond  a  reasonable  doubt  every  essen- 
tial element  of  the  crime  of  burglary.  One  of  the  essential  elements 
of  the  crime  of  burglary,  as  charged  in  this  indictment,  is  that,  after 
breaking  by  force,  the  car  described  in  the  indictment,  under  circum- 
stances such  as  would  constitute  a  burglarious  breaking  under  the 
instructions  already  given  you.  the  defendant  entered  into  such  car 
with  intent  to  steal  the  coal  therein  contained.  This  intent  to  steal 
thus  required  to  be  established  by  the  state  to  your  satisfaction 
beyond  a  reasonable  doubt  on  the  part  of  the  defendant  at  the  time 

3— State  V.  Sprague.  149  Mo.  409,  4— State  v.  Tough,  12  N.  D.  425, 
50   S.   W.    901.  96  N.  W.  1025  (1027), 

115 


1826  FORMS  OF  INSTRUCTIONS.  [§2876. 

of  breaking  and  entering  the  car  must  have  been  the  intent  on  the 
part  of  the  defendant  to  take,  steal,  and  carry  away  the  coal  in 
said  ear  contained,  without  the  consent  of  the  owner,  and  with  the 
intent  to  deprive  him  thereof;  such  taking,  stealing,  and  carrying 
away  to  be  accomplished  by  fraud  and  stealth.  If,  therefore,  the 
defendant's  intent  at  the  time  of  entering  said  car,  or  at  the  time 
of  forcibly  breaking  the  same,  if  you  find  he  did  so  forcibly  break 
the  car  under  the  instructions  already  given  you,  was  not  to  steal 
the  coal  therein  contained,  but  that  such  entry  was  made  under  the 
belief  that  he  had  a  right  to  tak.-^,  the  coal,  or  if  you  have  a  reasonable 
doubt  that  it  was  his  intent  to  steal  the  coalj  then  your  verdict  must 
be  not  guilty.^ 

§  2876.  Prima  Facie  Case — Intent  Presumed.  If  the  jury  believe, 
from  the  evidence,  that  the  defendant  was  found,  on  the  night  in 
question,  in  the  house  of  the  said  A.  B.,  and  in  the  bed-room  of  the 
witness  E.  D.,  and  that  he  entered  the  house  by  raising  a  window, 
then  such  being  in  the  house,  unless  explained  in  some  way  by  the 
evidence,  consistently  with  innocence,  will  justify  the  jury  in  presum- 
ing that  such  entry  was  made  with  a  felonious  intent,  in  manner  and 
form  as  charged  in  the  indictment.® 

§  2877.  How  Intent  Is  Manifested — Sound  Mind  and  Discretion. 
In  every  crime  or  public  offense  there  must  exist  a  union  or  joint 
operation  of  act  and  intent  or  criminal  negligence.  The  essence  of 
every  crime  is  criminal  intent  without  which  the  offense  cannot  be 
committed.  It  is  the  intent  with  which  an  act  is  done  that  constitutes 
its  criminality.  The  act  and  criminal  intent  must  concur  to  consti- 
tute the  crime.  The  intent  or  intention  is  manifested  by  the  circum- 
stances connected  with  the  offense  and  the  sound  mind  and  discre- 
tion of  the  accused.  *  *  *  As  to  the  intent  or  intention,  you  must 
arrive  at  it  from  all  the  testimony  in  the  case,  and  all  the  acts,  con- 
duct or  circumstances  shown  in  the  case.'^ 

§  2878.  What  Constitutes  a  Breaking,  (a)  The  court  instructs 
the  jury,  tliat  while  it  is  necessary,  in  order  to  constitute  the 
crime  of  burglary,  that  there  should  be  a  breaking  and  an  entry  of  the 
building  described  in  the  indictment,  with  the  intent  therein  charged, 
yet  to  constitute  a  breaking  into  the  building  it  is  not  necessai*y  that 
any  injury  should  be  done  to  the  building,  its  doors  or  windows ; 
such  breaking  may  be  actual  or  constructive.  An  actual  breaking 
may  be  by  lifting  a  latch  and  opening  a  door,  by  turning  back 
or  opening  the  lock  and  opening  the  door,  removing  or  breaking 
a  pane  of  glass,  or  raising  a  window,  or  anything  by  which  an 
obstruction  to  entering  the  building  by  the  body,  or  any  part  of  it, 
is  removed,  is  a  breaking  within  the  meaning  of  the  law.^ 

5— Leslie  v.  State,  35   Fla.  171,  17  8— Timmons  v.  State,  34  Ohio  St. 

So.    555    (558).  426,    32    Am.    Rep.    376;    Dennis    v. 

6— Com.  V.  Shedd,  140  Mass.  451.  People,  27  Mich.  151;  State  v.  Reid, 

7— People   V.   Gilmore,   —  Cal.  — ,  20    la.    413;    Harris    v.    People,    44 

53  Pac.   806   (807).     Not  reported.  Mich.    305,    38   Am.    Rep.   267. 


§  2879.]  CRIMINAL—BURGLARY— ROBBERY.  1827 

(b)  A  constructive  breaking  is  committed  when  admission  is 
obtained  by  threats,  or  by  fraud,  or  false  pretenses." 

§  2879.  Breaking  into  Car.  If  you  find  from  the  evidence,  and  be- 
yond a  reasonable  doubt,  that  at  the  time  and  place  named  in  the  in- 
dictment the  witness  A.,  or  any  other  person  or  persons,  unlawfully 
broke  and  entered  the  car  in  question,  and  that  said  ear  was  then 
under  the  charge  and  control  of  the  Railway  Company,  and  was 
sealed,  and  contained  goods  and  merchandise  for  transpoi'tation,  and 
that  the  defendant  B.  aided  and  abetted  such  other  person  or  persons 
in  the  acts  just  named  herein,  then  the  defendant  is  guilty  as  charged 
in  the  indictment,  and  you  should  so  find.^'* 

§  2880.  Breaking  into  Chicken  Coop.  If  the  jury  believe  from 
the  evidence  in   this  cause  and  beyond  a  reasonable  doubt  that   the 

defendant,  on  or  about  the  8th  day  of at  the  county  of and 

state  of  ,  broke  into  and  entered  in  the  night  time  the  chicken 

house  of  one  L.  S.,  by  forcibly  unfastening  the  latch  of  the  outer  door 
of  said  chicken  house  building  and  forcibly  pushing  said  door  open, 
and  that  there  were  at  said  time  in  said  chicken  house  building 
goods,  wares,  and  merchandise,  and  other  valuable  things,  to  wit, 
chickens  and  turkeys,  kept  and  deposited,  and  further  believe  from 
the  evidence  and  beyond  a  reasonable  doubt  that  the  defendant  did 
so  break  into  and  enter  said  chicken  house  building  with  the  intent 
of  stealing,  taking  and  carrying  away,  converting  to  his  own  use,  and 
of  depriving  the  owner  permanently  of  his  property,  and  against  the 
owner's  consent,  and  without  any  honest  claim  of  right  thereto, 
any  of  the  chickens  and  turkey's  then  in  said  chicken  house  and  be- 
longing to  said  L.  S.,  then  the  jury  will  find  the  defendant  guilty  of 
burglaiy  in  the  second  degree,  and  will  assess  his  punishment  at  im- 
prisonment in  the  penitentiary  for  a  term  of  years  not  less  than 
three  years.^^ 

§  2881.  What  Constitutes  an  Entry.  And  to  constitute  an  entry 
within  the  meaning  of  the  law  it  is  not  necessary  that  the  whole  body 
should  be  introduced  into  the  building.  It  is  sufficient  if  the  hand, 
or  even  a  finger,  or  any  instrument  held  in  the  hand  is  introduced 
into  the  building  for  the  pui-pose  and  with  the  intent  charged  in  the 
indictment. ^^ 

§  2882.  In  Charge  for  Burglary  Accused  May  Be  Found  Guilty  of 
Larceny.  The  jury  are  instructed  that  under  an  information  for 
burglary  the  accused  may  be  found  guilty  of  larceny- ;  and  if,  in  this 
case,  the  jury  are  not  satisfied  from  the  evidence  beyond  a  reasonable 
doubt,  that  the  defendant  committed  the  burglaiy  as  charged  in  the 
information,  still,  if  the  jury  believe  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  did  steal  the  goods  described 

9— Johnson  v.  Com.,  85  Penn.   St.  11— State  v.  McGuire,  193  Mo.  215, 

54.    27   Am.    Rep.    622.  91    S.    W.    939    (940). 

10— State  V.  Berger,  121  Iowa  581,  12—1  McClain  Grim.  Law,  §  503. 
96  N.  W.  1094. 


1828 


FORMS  OF  INSTRUCTIONS. 


[§  2883. 


in  the  information  from  the  possession  of  the  said  X.,  then  the  jury 
may,  under  this  information,  find  the  defendant  guilty  of  larceny.^^ 

§  2883.  Time  Burglary  Committed  Generally  Immaterial — May  Be 
Material.  Perhaps  I  ought  to  charge  you  that  the  time  this  burglary 
was  committed,  if  you  believe  that  a  burglary  was  committed,  is  im- 
material. The  law  allows  the  state  to  go  back  four  years,  in  cases 
of  this  sort,  prior  to  the  date  when  the  bill  of  indictment  was  found. 
But  if,  upon  the  testimony,  the  time  is  made  by  the  evidence 
material,  it  may  be  made  from  the  run  of  the  evidence  material,  and 
therefore,  if  that  is  the  case,  you  are  to  consider  the  time." 

§  2884.  Day  Time  or  Night  Time.  If  you  find  that  the  defendant 
was  guilty  of  breaking  and  entering  the  house  of  the  said  X.  with  the 
intent  charged,  but  have  a  reasonable  doubt  as  to  whether  such 
breaking  and  entering  was  done  in  the  night  time,  then  the  defendant 
would  not  be  guilty  of  the  offense  of  burglary,  but  he  would,  under 
such  circumstances,  be  guilty  of  the  offense  of  breaking  and  entering 
in  the  day  time.^^ 


13— Ferguson  v.  State,  52  Neb. 
432,  72  N.  W.  590  (591),  66  Am.  St. 
512. 

"The  objection  brought  forward 
against  the  foregoing  is  that  it  as- 
sumed that  a  burglary  had  been 
committed,  and  withdrew  that 
question  of  fact  from  the  consider- 
ation of  the  jury;  and  Metz  v. 
State,  46  Neb.  547,  65  N.  W.  190,  is 
relied  upon  to  sustain  the  argu- 
ment. This  criticism  is  absolutely 
without  foundation.  From  the  lan- 
guage complained  of,  no  fair  in- 
ference can  be  drawn  that  the  trial 
court  assumed  or  stated  as  a  fact 
that  a  burglary  had  been  commit- 
ted by  any  one,  much  less  by  the 
defendant.  That  question  was  left 
for  the  jury  to  ascertain  from  the 
evidence;  and,  if  they  failed  to  find 
that  the  crime  of  burglary  had 
been  committed,  as  charged  in  the 
information,  then  the  jury  were  di- 
rected to  ascertain  and  determine 
whether  or  not  the  accused  was 
guilty  of  larceny  of  the  harness. 
The  decision  in  the  Metz  case  lacks 
analogy.  There  the  trial  court  in- 
structed the  jury  that  'If  you  be- 
lieve from  the  evidence,  beyond  a 
reasonable  doubt,  that  soon  after 
the  burglary  of  the  storehouse  or 
warehouse  of  the  said  B.,  and  the 
larceny  of  the  corn  therefrom,  por- 
tion of  the  said  corn  so  stolen  was 
in  the  exclusive  possession  of  the 
defendant,  M.,  you  are  instructed 
that  this  circumstance,  if  so  prov- 
en, is  presumptive,  but  not  con- 
clusive, evidence  of  the  defendant's 
guilt.'     Undoubtedly,  the  foregoing 


practically  told  the  jury  that  the 
storehouse  had  been  burglarized 
and  that  the  corn  had  been  stolen 
therefrom;  and  this  court  so  held. 
The  mere  quoting  of  the  two  in- 
structions is  sufficient  to  make 
plain  that  the  case  cited  has  no 
bearing  upon  the  question  under 
consideration." 

14— Johnson  v.  State,  92  Ga.  577, 
20  S.  E.  8  (9). 

15— State  v.  Jordan,  87  Iowa  86, 
54   N.   W.   63   (64). 

The  court  said: 

"It  is  said  that  the  giving  of  this 
instruction  is  erroneous,  because 
the  defendant  is  not  charged  with 
such  a  crime,  and  there  is  no  evi- 
dence to  sustain  it.  In  State  v. 
Frahm,  73  Iowa  355,  35  N.  W.  451, 
this  court  held  that  'burglary  of  a 
dwelling  house  is  of  two  degrees — 
the  first,  the  breaking  and  enter- 
ing in  the  nighttime  with  intent  to 
commit  a  felony;  the  second,  the 
breaking  and  entering  in  the  day- 
time.' Code,  §  4465,  is  as  follows: 
'Upon  an  indictment  for  an  offense 
consisting  of  different  degrees,  the 
jury  may  find  the  defendant  not 
guilty  of  the  degree  charged  in  the 
indictment,  and  guilty  of  any  de- 
gree inferior  thereto,  or  of  an  at- 
tempt to  commit  the  offense,  if 
punishable  by  indictment.'  The 
statute  is  authority  for  the  in- 
struction. Breaking  and  entering 
in  the  daytime  is  a  degree  of  the 
offense  charged.  As  to  there  being 
no  evidence  of  such  an  offense,  we 
need  only  say  there  is  testimony  on 
which    the   jury    found    that   there 


§  2885.]  CRIMINALr— BURGLARY— ROBBERY.  1829 

§  2885.    Possession  of  Stolen  Goods — Reasonable  Doubt,     (a)     The 

court  charges  the  jury,  while  the  law  is  that  the  recent  possession  of 
stolen  goods,  if  unexplained,  may  justify  a  conviction  yet,  if  defendant 
has  explained  his  possession  of  the  goods  to  the  reasonable  satisfaction 
of  the  jury,  and  if,  upon  a  fair  consideration  of  all  the  evidence,  the 
juiy  have  a  reasonable  doubt  growing  out  of  any  part  of  the  evidence, 
as  to  defendant's  guilt  the  juiy  must  acquit  him. 

(b)  The  court  charges  the  jury  that  if,  after  considering  all  the 
evidence  the  jui'y  have  a. reasonable  doubt  as  to  defendant's  guilt 
growing  out  of  the  evidence  of  B.  G.  the  jury  must  acquit  the 
defendant.^" 

(c)  The  exclusive  possession  of  stolen  property  by  the  prisoner 
soon  after  the  theft,  the  property  being  shown  by  the  evidence  to 
have  been  stolen  from  a  building  entered,  such  possession,  unex- 
plained, is  sufficient  to  warrant  a  conviction  of  the  offense  charged.^'' 

(d)  Possession  of  goods  recently  stolen  does  not  in  itself  create 
presumption  or  amount  to  ijrima  facie  proof  that  the  possessor  is 
guilty  of  breaking  and  entering  the  building  in  which  the  goods  were 
kept;  but  if  other  evidence  in  the  case  shows  beyond  a  reasonable 
doubt  that  the  building  was  broken  and  entered  by  some  one,  that  the 
theft  of  the  goods  was  accomplished  at  the  time  and  by  means  of 
the  breaking  and  entering,  proof  of  possession  unexplained,  or  in  the 
absence  of  circumstances  raising  a  reasonable  doubt  as  to  whether 
the  possession  of  the  goods  had  been  acquired  otherwise  than  by  the 
crime  charged,  is  sufficient  to  warrant  a  conviction.^* 

(e)  If  you  find  from  the  evidence,  beyond  a  reasonable  doubt, 
that  on  or  about  the  18th  of  March,  19 — ,  a  building  belonging  t>o 

or  in  the  possession  or  occupancy  of  ,  and  situated  in  Benton 

Count}^,  Iowa,  was  broken  into  and  entered,  and  that  personal  prop- 
erty was  stolen  therefrom,  and  you  further  find  that  within   a  few 

was  a    breaking    and    entering  at  session  sliown  in  tliis  case  has  been 

some   time,    with   tlie   felonious   in-  explained   to   the   reasonable  satis- 

tent    necessary    to    constitute    bur-  faction  of  the  jury,  and  upon  a  fair 

glary.   This   breaking  and  entering  consideration    of    all    the    evidence 

must  have  been  either  in  the  night-  they     have     a     reasonable     doubt, 

time  or  in  the  daytime.     If  the  evi-  growing    out    of    any    part    of    the 

dence  did  not,  with  that  degree  of  evidence,    as    to    defendant's    guilt, 

certainty      necessary     to      convict,  he   should    be    acquitted.      This   in- 

show  the  offense  to  be  of  the  high-  struction  does  not  authorize  acquit- 

est  degree,   it  was  the  duty  of  the  tal   on   a   reasonable   doubt   resting 

jury,  under  a  familiar  rule,  to  find  on  a  part  of  the  evidence  only,  but 

it  of  the  lower  degree  and  hence,  if  upon  such  doubt   which  may  have 

there    was   evidence    to    convict   of  been  created  by  a  part  of  the  evi- 

burglary,    it    is    certainly   sufficient  dence,    but    remains    after    a    fair 

to  sustain  a  verdict  for  the  lower  consideration    of    all    the   evidence 

degree."  and  thus  rests  upon  the  whole  evi- 

16— Hale  v.   State,  122  Ala.   85,   26  dence.     The  second   charge  refused 

So.    2"6  (237).  to  the  defendant  is,  upon  like  c"n- 

The  frst   charge,   the  court  said,  siderati^ns.    free    from    infirmitv." 

shouVl    have   been   given.     "It   cor-  17— "There  was  no  error  in  g'ving 

rectly  t^^^ates  the  law  in   respect   of  th's    charge."      Leslie    v.    State     35 

possession  of  stolen  goods,  and  the  Fla.  171.  17  So.  555  (558). 

explanation  offered  of  such  posses-  18— State  v.  Donovan,  129  la.  239 

sion,  and  declares  that  if  the  pos-  101  N.  W.   122  (123).                               * 


1830  FORMS  OF  INSTRUCTIONS.  [§  2885. 

liours  thereafter  the  property  so  stolen  was  in  the  possession  of  the 
defendants,  you  will,  in  such  case,  be  warranted  in  concluding  and 
finding  that  such  property  was  stolen  by  the  defendants  from  said 
building  by  breaking  and  entering  the  same,  unless  the  facts  and  cir- 
cumstances disclosed,  or  the  evidence  introduced  by  the  state  or  the 
defendants,  raises  in  your  minds  a  reasonable  doubt  as  to  whether  the 
defendants  did  not  come  honestly  into  the  possession  of  such  property. 
If  such  reasonable  doubt  has  been  raised  in  your  minds  by  the  testi- 
mony and  facts  and  circumstances  introduced  and  appearing  in  the 
ease,  then  you  should  not  act  upon  said  presumption  in  convicting 
the  defendants,  and  should  not  convict  the  defendants,  unless  their 
guilt  has  otherwise  been  proven,  as  you  are  directed  it  must  be.^^ 

(f )  The  jury  are  instructed,  if  they  believe  from  the  evidence  that 
the  house  of  X.  was  burglariously  entered  by  some  person  about  the 
time  alleged  in  the  indictment,  and  recently  thereafter  defendant  was 
found  in  possession  of  the  property  which  was  situated  and  con- 
tained in  the  house  of  X.  at  the  time  it  was  burglarized,  which  had 
been  stolen  from  said  house  at  the  time  said  burglary  was  committed, 
if  it  was,  and,  when  his  possession  of  said  propei'ty  was  first  ques- 
tioned, he  made  an  explanation  how  he  came  by  it,  and  accounted 
for  his  (defendant's)  possession  in  a  manner  consistent  with  his 
innocence,  and  you  believe  such  explanation  is  reasonably  and  proba- 
bly true,  then  you  should  acquit  the  defendant.^" 

(g)  I  charge  you,  gentlemen,  that  the  mere  fact  of  the  defendant 
having  in  his  possession,  and  disposing  of  the  property  alleged  to 
have  been  stolen ;  that  is,  if  you  are  satisfied  beyond  a  reasonable 
doubt  that  he  had  in  his  possession  the  property  alleged  to  have  been 
stolen,  and  attempted  to  dispose  of  it — I  say  that  these  facts  are  only 

19 — 'State  V.   Ryan,  113  Iowa  536,  that     the     defendant     is     on     trial 

85  N.  W.   813.  charged  with  an  offense,  and  is  an 

^  The  court  said:  interested  witness;  but,   while   this 

'  "This  instruction  is  supported  by  should  not  cause  you  to  disregard 

the  following   cases:   State  v.   Tay-  his  testimony,  yet  you  should  con- 

lor,  25  Iowa  275;  State  v.  Hessians,  sider  that  fact  while  weighing   his 

50    Iowa    137;    State    v.    Richart,    57  testimony.'  This  instruction  is  fully 

Iowa    246,    10    N.    W.    657;    State    v.  sustained  in   State  v.   Moelchen,    53 

Kelly,   57   Iowa   645,    11    N.    W.    635;  Iowa    316,    5    N.    W.    186;    State    v. 

Johnson   v.    Miller,    63   Iowa   538,    17  Sterrett.  71  Iowa  388,  32  N.  W.  387." 

N.  W.  34,  50  Am.  Rep.  758;  State  v.  20— McCoy   v.    State,    —   Tex.    Cr. 

Golden,  49  Iowa  49;  State  v.  Rivers,  App.   — ,    81   S.   W.  46,   78  Am.  Dec. 

68  Iowa  616,  27  N.  W.  781;   State  v.  '  520. 

La   Grange,   94   Iowa   61,   62   N.   W.  "This    charge    is     a     substantial 

664.     Other  cases  might  be  cited  to  copy    of    the    first    portion    of   the 

the  same  effect.    Williams  v.  State,  charge   approved    by   this   court  in 

60  Neb.  526,  83  N.  W.  681.  is  not  in  Wheeler    v.    State,    34    Tex.    Cr.    R. 

point,  as  a  different  rule  prevails  in  350,  30  S.  W.  913.     The  latter  clause 

that  state.     The  defendant,  having  of  the  charge  approved  authorized 

testified     in    his    own     behalf,     the  the  jury  to  consider  the  falsity  of 

court   instructed   that   such   weight  the  explanation  as  a  circumstance, 

and    influence    should    be    given    to  if  they  believed  it  was  false.    This 

his  testimony  as  it  was  entitled  to,  portion  was  not  given  to  the  jury, 

and  that  'in  weighing  his  testimony  The    charge   given   in   this   case   is 

you   have  the   right   to  and  should  correct." 
take    into    consideration    the    fact 


§2886.]  CRIMINALr-BURGLAEY— ROBBERY.  1831 

circumstances  tending  to  show  guilt,  but  they  are  not  of  themselves 
sufficient  to  prove  that  he  committed  the  burglary.  And  if  the 
defendant  has  explained  satisfactorily  how  he  came  into  possession 
of  the  alleged  stolen  property,  and  from  such  explanation  you  be- 
lieve that  he  did  not  participate  in  the  burglary,  and  there  is  no  other 
evidence  connecting  him  with  the  crime,  then  you  will  return  a  verdict 
of  not  guilty.2^ 

§  2886.  Possession — Explanation  Must  Be  Reasonable.  Where 
property  taken  by  breaking  and  entering  with  intent  to  commit  a 
felony  is  found  in  the  exclusive  possession  of  the  defendant  being 
tried  on  the  charge,  recently  after  the  breaking  and  entering  and  the 
theft  of  the  goods  so  found,  when  standing  alone,  is  sufficient  to  cast 
upon  him  or  them  the  burden  of  explanation  how  he  came  by  them, 
or  of  giving  some  explanation ;  and  if  he  fail  to  do  so,  to  warrant  the 
jury  of  convicting  him  of  the  crime  charged.  The  explanation  given 
must  not  only  be  reasonable;  it  must  be  credible,  or  enough  so  to 
raise  a  reasonable  doubt  in  the  minds  of  the  jury,  who  are  the  judges 
of  the  reasonableness  and  probability  as  well  as  credibility.^^ 

§  2887.  Attempt  of  Burglary — Co-operating  with  Burglar.  You 
have  obser\-ed  that  the  charge  is  that  defendant  attempted  to  break  and 
enter  into  said  building  with  intent  to  commit  a  larceny.  If  another 
man  than  the  defendant  feloniously  broke  and  entered  said  building 
with  intent  to  commit  a  larceny,  he  must  first  have  attempted  to  do  so 
before  consummating  the  breaking  and  entering  and  if  the  defendant 
was  concerned  in  the  commission  of  that  offense,  and  co-operating 
with  the  person  committing  it  in  its  commission,  then  he  is  charge- 
able with  the  attempt  made  by  such  a  person  the  same  as  if  he  had 
made  the  attempt  himself.  If  such  a  breaking  and  entering  was  with 
intent  to  commit  a  larceny  and  the  defendant  was  concerned  in  the 

21 — People  V.   Lang-,   142   Cal.   482,  tending  to  show  guilty  knowledge 

76  Pac.   232   (234).  on  his  part,  and  it  is  evidence,  with 

State  v.    Harrison,    66  Vt.   523,  29  the     other     circumstances     in     the 

Atl.  807,  44  Am.  St.  864,  is  authority  case,    tending    to    show    that    he    is 

for    the    following    instruction:  guilty  of  the  crime  with  which  he 

One  of  the  gentlemen  from  Can-  stands  charged.     The  mere  posses- 

ada — I  think  Mr.  M. — testifies  that  sion  of  these  shirts,   although  they 

this  respondent,  when  telling  about  were    stolen    property,    is    not    suf- 

the  shirts  taken  from  him,  told  him  flcient   of   itself,    to  convict  him   of 

that   he   obtained   these   shirts   be-  a  crime;  but  if  you  are  satisfied,  as 

tween  this  place  and  that,  without  I  say,   beyond   a   reasonable  doubt, 

saying  where.     The  respondent   R.  that    he    falsified    about    the    time 

testifies  that  the  shirts  were  given  and  place  and  manner  in  which  he 

to  H.  south  of  here,  in  that  barn,  became  thus  possessed  of  the  shirts. 

If  you  are  satisfied  beyond  a  rea-  that   is   evidence   tending   to   show 

sonable  doubt  that  this  respondent  his   guilt. 

did  tell  M.  that  he  obtained  these  22— Robertson    v.    State,    40    Fla. 

shirts    between   this    place   and    S.,  509,  24  So.  474  (479),  52  L>.  R.  A.  751. 

and  are  satisfied  that  that  was  not  The  court  said: 

true,    and    that    he     obtained     the  "This  instruction  was  correct  and 

shirts  as  the  respondent  R.  says  he  strictly   in   line   with   the   decisions 

obtained    them,    and   find   that   this  of  this  court,"  citing  Tilly  v.  State, 

respondent   falsified  in     respect    to  21  Fla.  242;  Leslie  v.   State,  35  Fla. 

when  and  where  he  got  the  shirts,  171,  17   So.   555;   Rimes  v.   State,   36 

then   that   falsification   is   evidence  Fla.  90,  18  So.  114. 


1832  FORMS  OF  INSTRUCTIONS.  [§  2888. 

commission  of  the  breaking  and  entering  with  that  intent  he  is 
chargeable  with  such  an  intent.  If  you  find  beyond  a  reasonable,  well 
founded  doubt  upon  all  the  evidence  that  the  defendant  did  thus  at- 
tempt to  break  and  enter  into  said  building,  and  the  said  attempt  to 
break  and  enter  was  with  intent  to  commit  a  larceny,  then  you  will  find 
him  guilty;  but  if  upon  a  view  of  the  whole  evidence  you  have  a 
reasonable  doubt  of  his  guilt  as  charged,  you  will  acquit  him.^^ 

§  2888.  Must  Prove  Defendant  Committed  Burglary  Beyond 
Reasonable  Doubt,  (a)  The  court  instructs  the  jury  that  it  was 
incumbent  upon  the  state  to  show  beyond  a  reasonable  doubt  that 
the  defendant  at  the  time  and  in  the  county  alleged,  entered  the  house 
alleged,  with  the  parties  named  in  the  accusation,  and  after  entering 
said  house,  did  privately,  with  the  parties  named  in  the  accusation 
steal   therefrom   the   pi'operty   described.-* 

(b)  If  you  have  a  reasonable  doubt  whether  the  defendant  broke 
into  the  office  of  the  company  in  this  case,  you  will  find  him  not 
guilty. 

(c)  Before  the  jury  should  convict  the  defendant,  the  hypothesis 
of  his  guilt  should  flow  naturally  from  the  facts  proved,  and  be  con- 
sistent with  all  of  them. 

(d)  If  you  believe  that  the  defendant  has  reasonably  accounted 
for  his  possession  of  the  stolen  checks  in  this  case,  you  should  find  him 
not  guilty.25 


ROBBERY. 

§2889.  Robbery  Defined.  The  term  ''robbery,*'  as  mentioned  in 
these  instructions,  means  the  felonious  taking  of  the  money  or  prop- 
erty of  another  from  his  person  or  in  his  presence,  and  against  his 
will,  either  by  violence  to  his  person,  or  by  putting  him  in  fear  of 
some  immediate  injury  to  his  person,  with  the  intent  to  permanently 
deprive  the  owner  of  such  money  or  property,  and  without  any 
honest  jlaim  to  it.  An  attempt  to  perpetrate  a  robbery  means  the 
willful  doing  of  an  act  or  acts  towards  the  commission  of  a  robbery 
for  that  purpose  with  that  intent,  but  a  failure  in  the  perpetration 
thereof.-" 

§  2890.  What  Acts  Would  Constitute  Robbery.  If  the  jury  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  some  time  about 
the  day  of,  etc.,  A.  B.  was  at  the  saloon  of  E.  M.,  in  this  county,  and 
that  he  then  had  in  his  possession  any  of  the  treasury  notes  or  bank 

23— Stnte    v.    Mahoney,    122    Iowa  v.    Schmidt,   136   Mo.   651,   38   S.   W. 

168,   97  N.   W.   1089  (1090).  719;    Same    v.    Foster,    136    Mo.    655, 

24— Hargrove    v.     State,    117    Ga.  38   S.   W.  721;   Same  v.   Hopkirk,   84 

706     45   S.   E.    58.  Mo.    278;    Same    v.    Meyers,    99    Mo. 

25_Brown  v.   State,  118  Ala.  Ill,  107,  12  S.  W.  516;  Same  v.  Donnel- 

23  So.  81.  ly.    130    Mo.    642,    32    S.    W.   1124,    51 

26— State    v.    McGlnnis.    158    Mo.  Am.  St.  585. 
105,    59    S.    W.    83    fS7),    citing   State 


§2891.]  CRIMINAL— BURGLARY— ROBBERY.  1833 

bills  described  in  the  indictment  in  this  case,  and  that  such  notes  or 
bills  were  genuine,  and  of  some  value,  and  further,  that  one  C.  D. 
requested  the  said  A.  B.  to  loan  him  some  money,  and  that  thereupon 
the  said  A.  B.  took  out  his  said  treasury  notes  or  bank  notes  for  the 
purpose  of  making  such  loan,  and  further,  that  the  said  defendant 
then  grabbed  the  said  money  and  forcibly  took  the  same  from  the 
person  of  the  said  A.  B.,  and  then  ran  away  with  said  money,  with 
the  intention  of  stealing  the  same,  this  would  constitute  robbeiy  on 
the  part  of  the  defendant,  and  the  jury  should  find  him  guilty,  in 
manner  and  form  as  charged  in  the  indictment.-^ 

§  2891.  Not  Necessary  that  Force  Be  Used.  The  jury  are  in- 
structed that,  to  constitute  the  crime  of  robbery,  it  is  not  necessary 
•that  any  force  be  used  to  obtain  possession  of  the  property.  It  is 
sufficient  if  such  possession  is  obtained  from  the  person  of  the  owner, 
against  his  will,  by  threats  or  menaces  of  personal  violence  against 
him.2^ 

§  2892.  Violence  Used  Must  Not  Be  Subsequent  to  the  Taking. 
The  jui-y  are  instructed  that  violence,  in  order  to  constitute  an  assault 
■with  intent  to  rob,  must  not  be  subsequent  to  the  attempt  to  take  the 
property.29 

§  2893.    Intending  to  Use  Whatever  Force  Is  Necessary.    You  are 

further  instructed  that  you  should  convict  the  defendant  of  assault 
with  an  intent  to  commit  robbeiy  if  you  believe  from  the  evidence 
beyond  a  reasonable  doubt  that  at  the  time  in  question  he  committed 
an  assault,  or  aided  or  advised  the  assault  upon  the  prosecuting  wit- 
ness for  the  purpose  of  robbeiy  and  that  in  making  the  assault  he 
intended  to  use  whatever  force  might  be  necessary  to  overcome  the 
prosecuting  witness  and  accomplish  his  pui-pose, — that  of  robbery.-^'^ 

§  2894.  Holding  Up  a  Train— Intent.  The  court  instructs  the  juiy 
that  to  flag  and  stop  a  train  is  not  in  itself  unlawful,  unless  coupled 
with  evidence  of  an  intent  to  commit  the  specific  crime  charged  in  the 
indictment.^i 

27— Roscoe's  Crim.  Evi.  893.  "The   testimony   tended   to    show 

McClain,    in    his    Criminal    Law,  that  after  the  taking-  of  the  prop- 

vol.  1,  sec.  469,  states  that  the  mere  erty    had    been    abandoned    by    the 

snatching    of    property    from     the  defendant,   a  struggle   to  avoid   an 

hand  of  another  before  any  resist-  arrest     ensued.       However    violent 

ance  is  made  is  not  sufficient,   but  this  struggle,  it  did  not  characterize 

if     resistance,     however    slig-ht,     is  the    attempt   to    take   the   diamond 

overcome,  the  violence  is  sufficient;  stud.     The  jury  should   have   been 

so,  where  a  handbag  carried  on  the  plainly  told  that  the  charge  of  as- 

arm  was  taken  with  such  force  as  sault    with    intent   to    rob    by   vio- 

to    bruise    the    arm,    the    violence  lence    was    not    proved    by    subse- 

was  held  sufficient,  citing  Klein  v.  quent  violence  used  to  avoid  an  ar- 

People.   113  111.   596.  rest." 

28— Phinn   v.   State,   64  Ind.  13,   31  30— State     v.     Fenton      30    Wash 

Am.   Rep.   110,   3  Am.   Cr.  Rep.  396.  325.    70   Pac.   741    (742). 

29— Hanson  v.  State,  43  Ohio  376,  31— State  v.   West    157  Mo    309    57 

1   N.    E.   136    (137),   5  Am.   Cr.   Rep.  S.  W.  1071  (1076).      ' 
625. 


1834  FORMS   OF   INSTRUCTIONS.  [§2895. 

§  2895.  Taking  from  the  Immediate  Presence  Does  Not  Necessarily 
Mean  the  Immediate  View.  You  are  further  instructed  that  it  is  not 
necessary,  to  constitute  the  stealing  or  carrying  away  from  the  imme- 
diate presence  of  the  deceased,  that  it  should  have  been  done,  if  done, 
in  his  immediate  view,  Avhere  he  could  see  it  done;  and  if  you  find 
from  the  evidence  beyond  a  reasonable  doubt  that  he  made  a  violent 
assault  upon  the  deceased,  by  choking  him  and  causing  him  to  fall 
upon  the  ground,  and  that  he  then  took  from  his  pockets  the  sum  of 
money  as  charged  in  the  information,  then  you  will  find  the  defendant 
guilty  of  robbery  as  charged  in  the  information.^^ 

§  2896.  Taking  Must  Be  from  the  "Person"  of  Another.  If  a  con- 
vict take  a  gun  from  a  guard  forcibly  for  the  purpose  of  making  safe 
his  escape,  but  not  feloniously,  with  intent  to  appropriate  the  same 
to  his  own  use,  the  offense  would  not  be  robbery,  and  not  a  felony.^^ 

§  2897.    What  Is  Meant  by  Taking  from  the  Person — Series,     (a) 

It  is  provided  by  our  statutes  that  if  any  person  with  force  or  violence, 
or  by  putting  in  fear,  steal  and  take  from  the  person  of  another  any 
property  that  is  subject  of  larceny,  he  is  guilty  of  robbery. 

(b)  Under  this  statutory  provision,  it  is  not  essential  that  the 
stealing  and  taking,  if  any,  was  literally  from  the  person,  or,  in  other 
Avords,  that  the  property,  if  any,  was  on,  or  attached  to,  or  touching, 
the  literal  physical  person  of  the  party  alleged  to  have  been  robbed, 
but  it  is  sufficient  if  the  stealing  and  taking,  if  any,  was  done  in  the 
immediate  presence  of  such  person,  and  while  the  property  was  under 
the  control  and  in  the  custody  of  such  party. 

(c)  If,  therefore,  you  find  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  in  this  county  and  state,  at  a  time  within 
three  years  next  preceding  the  finding  of  the  indictment  in  this  case, 
did  steal  and  take  from  the  immediate  presence  of  the  said  N.  B., 
named  in  the  indictment,  the  property  named  in  the  indictment,  oi- 
some  part  of  it,  and  that  the  stealing  and  taking,  if  any,  was  ac- 
complished with  force  or  violence  towards  said  N.  B.,  or  by  putting 
her  in  fear,  and  you  further  so  find  that  the  property,  if  any,  thus 
stolen,  was  at  the  time  owned  by,  or  in  the  possession  of,  said  N.  B., 
and  was  of  some  value,  then  and  in  such  case  you  should  return  a 

32 — State    v.    Mitchell,    32    Wash,  lent    taking    of    money,     goods     or 

64.    72    Pac.    707    (708).  chattels    from    the    person    of    an- 

33— State  v.  Whittle,  59  S.  C.  297,  other     by      force     or     intimidation 

37    S.    E.    923    (926).  without  the  consent  of  the  owner.' 

"This   charge  was   upon   a  hypo-  By  this  statute,  as  at  common  law, 

thetical   statement  of  facts,  which  it  is  essential  to  the  crime  of  rob- 

it  has  frequently  been  held  is  not  a  bery  that  the  taking  shall  be  'from 

charge  in  respect  to  matter  of  fact,  the  person'  of  another.    As  the  fact 

in     violation     of    the     Constitution  hypothetically  stated  did  not  neces- 

prohihiting  the  same.    Nor  was  the  sarily    include    a    taking   from    the 

charge    contrary     to     the     law     of  person,    the   charge    was   not   erro- 

Georgia  as   to  felony.     It  appears,  neous,    even    if   under   the    Georgia 

from  the  Criminal  Code  of  Georgia,  statute,     the     animus     furandi     is 

offered   in  evidence  by  the  defend-  eliminated  as  an  essential  element 

ants  (section   151),    that   'robbery  is  of  robbery." 
the  wrongful,   fraudulent   and  vio-        But  see  next  section. 


§2897.]  CRIMINAI^-BURGLARY— ROBBERY.  1835 

verdict  of  guilty  of  robbery;    but  if  you  do  not  so  find  as  to  these 
several  matters,  you  cannot  find  the  defendant  guilty  of  robbeiy. 

(d)  It  is  not  necessary,  in  order  to  constitute  a  stealing  and  car- 
rying away  in  the  immediate  presence  of  the  said  N.  B.,  that  it 
should  have  been  done,  if  done,  in  her  immediate  view  or  where  she 
could  see  it  done.  And  if  you  find,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  made  a  violent  assault  upon 
said  N.  B.  by  choking  her  and  causing  her  to  fall  upon  the  floor  of 
one  of  the  rooms  or  apartments  of  her  house,  and  then  tied  her  hands 
and  feet  for  the  purpose  and  with  the  intention  of  stealing  some 
money  or  property  in  the  house,  and  you  further  so  find  that  she, 
through  fear  of  personal  violence,  told  defendant  where  her  money 
or  watch  was  in  an  adjoining  room  or  rooms,  and  you  further  so 
find  that  thereupon  defendant  passed  through  a  door  or  doors  into 
such  room  or  rooms,  and  did  there,  within  hearing  of  said  N.  B.,  take 
and  carry  away  from  said  room  or  rooms  the  property  described  in  the 
indictment,  or  some  part  thereof,  and  you  further  so  find  that  such 
property  was  under  her  immediate  control,  and  that  such  taking,  if 
any,  was  against  the  will  of  the  said  N.  B.,  and  was  without  any  right 
or  claim  of  right  of  defendant  in  said  property,  and  with  the  intent 
to  permanently  deprive  her  thereof,  then,  and  in  such  case,  there 
would  be  a  sufficient  stealing  and  taking  from  the  immediate  presence 
of  the  said  N.  B.,  within  the  meaning  of  the  law. 

(e)  It  is  charged  in  the  indictment  that,  at  the  time  of  the 
alleged  robbery,  the  defendant  was  armed  with  a  dangerous  weapon, 
with  intent,  if  resisted,  to  kill  or  maim  the  said  N.  B.,  and,  being  so 
armed,  did  wound  said  N,  B.  If  you  find  the  defendant  guilty  of 
robbery,  you  will  determine  whether  this  charge  in  the  indictment  is 
sustained.  The  only  evidence  relied  upon  by  the  state,  as  tending 
to  show  that  defendant  was  armed  with  a  deadly  weapon,  is  the 
evidence  tending  to  show  that,  at  the  time  of  the  alleged  robbery, 
the  defendant  had  with  him  the  piece  of  cord  or  rope  introduced 
in  evidence.  It  is  for  you  to  say  from  the  evidence,  whether  he  did 
have  and  used  such  cord  or  rope ;  and  if  he  did,  whether  the  same 
was  a  dangerous  weapon;  and,  if  it  was,  whether  he  intended  by  the 
use  of  it  (if  he  did  use  it)  if  resisted,  to  kill  or  maim  said  N.  B. 
therewith  or  did  wound  her. 

(f)  A  dangerous  weapon  is  one  which,  from  the  use  made  of  it 
at  the  time,  is  likely  to  produce  death,  or  do  great  bodily  harm;  and 
unless  you  find  that  said  cord  or  rope  was  of  such  a  character  you 
cannot  find  that  the  defendant  was  armed  with  a  dangerous  weapon. 
If  it  was  only  calculated  to  produce,  from  the  use  of  it  (if  used),  a 
slight  injury  upon  the  person  of  the  said  N.  B..  then  it  would  not  be 
a  dangerous  weapon  within  the  meaning  of  the  law.^* 

34 — The     above     instructions    for  The  facts  in  th^  case  were  as  fol- 

the    State    was    sustained    in    State  lows:      The    defendant    bound    the 

V.    Calhoun,    72    la.    432,    34    N.    W.  prosecuting  witness  and  putting  her 

194,   2  Am.   St.   252.  in  fear  by  this  violence  he  extorted 


1836  FORMS  OF  INSTRUCTIONS.  [§  2898. 

§  2898.  Taking  from  the  Very  Person  Not  Necessary.  If  you  find 
that  X.  was  holding  Y.,  and  that  Y.,  to  keep  defendants  from  taking 
his  money,  threw  his  poeketbook  down  on  the  ground,  and  tried  to 
kick  the  same  under  a  railroad  tie,  and  the  defendant  Z.  picked  it 
up  and  ran  away  with  it,  then  the  fact,  if  it  be  a  fact,  that  the 
defendant  did  not  get  the  poeketbook  out  of  the  pocket  of  Y.,  but  off 
the  ground,  where  Y.  had  thrown  it,  would  not  make  the  act  any  the 
less  robbery.^'^ 

§  2899.  Taking  from  the  Person  or  in  His  Presence  by  Putting  in 
Fear  or  by  Force  and  Violence  Held  SuflEicient.  The  court  instructs 
the  jui-y  that  if  you  find  and  believe  from  the  evidence  that  at  any 
time  within  three  years  next  before  the  19th  day  of  December,  1903, 
D.,  either  alone  or  acting  in  concert  with  another  or  others,  took  and 
carried  away  any  money ,  or  property  described  in  the  information, 
the  property  of  one  T.,  from  his  person,  or  in  his  presence,  and 
against  his  will,  by  force  and  violence  to  his  person,  by  putting  him  in 
fear  of  an  immediate  injury  to  his  person,  without  honest  claim  to 
such  money  or  property  on  the  part  of  the  defendant,  and  with  the 
intent  to  deprive  said  T.  of  his  ownership  therein,  and  convert  the 
same  to  his  own  use,  then  you  will  find  defendant  guilty  of  robbery 
in  the  first  degree,  and  assess  his  punishment  at  imprisonment  in 
the  State  Penitentiary  for  any  term  not  less  than  five  years.^^ 

§2900.  Retaking  of  One's  Property  from  Another  by  Force  and 
Putting  in  Fear.  Although  you  might  believe  from  the  evidence  that 
M.  had  taken  the  property  from  defendant,  or  from  defendant  and 
W.,  and  had  the  same  in  his  possession  at  the  time  of  the  alleged 
robbery,  such  fact  would  not  justify  the  defendant  and  the  said  W., 
or  either  of  them,  in  assaulting  and  putting  M.  in  fear  of  life  or  bodily 
injuiy,  and  thereby  fraudulently  taking  from  his  person  and  posses- 
sion the  money  described  in  the  indictment;  but  their  act  in  so  doing 
would  be  robbery,  and  you  should  find  the  defendant  guilty,  provided 
you  believe  from  the  evidence,  beyond  a  reasonable  doubt,  that  de- 
fendant, acting  alone,  or  in  connection  with  the  said  W.,  in  such 
manner  as  to  make  him  a  principal  offender,  took  said  money  from 

from   her  information  of  the  place  is  that,  as  the  statute  is  in  the  dis- 

where    she    kept    her    money    and  junctive,    by    the    omission    of    tlie 

watch    in    another     room     of     the  word     'or'    after     the     phrase,     'by 

house.  Leaving-  her  bound  he  went  force   and   violence    to   his   person,' 

into     that     room     and     took     the  and  before  the  phrase  'by  putting 

money.        The    Supreme    Court    of  him    in   fear   of   an   immediate   in- 

lowa    held    that    the    money    was  jury,'    etc.,    in    its    effe(^t    tells    the 

taken  from  her  person  in  the  sense  jury  the   two    phrases   are   equiva- 

of   the   words   used   in   the  statute.  lents.      We    cannot    take    the    view 

Citing    2    Bish.    Crim.    Law,    §    975;  that    this    instruction    could     have 

Whart.   Crim.   Law,   §  1696.  misled    the  .inr■'^     All   the  evidence 

But    see    previous    section.  tended    tn    s^nw   robbery    'by   force 

35— Rains    v.    State,    137    Ind.    83,  and   ->'in1en(-p.'   aiid  so  much  of  the 

36  N.  ■R.  532  (533).  instrur'tion  as  related  to  putting  in 

36— State  v.  Davis,  186  Mo.  533,  85  fear   was   unnecessary   and   useless 

S.    W.   354   ("355).  surplusage." 

To  this  instruction  "the  insistence 


§  2901.]  CRIMINAL^BURGLARY— ROBBERY.  1837 

the  said  M.  under  such  circumstances  as  to  make  him  guilty  of  rob- 
bery as  explained  to  you  in  another  part  of  this  charge.^' 

§  2901.  Possession  of  the  Fruits  of  the  Robbery,  (a)  The  posses- 
sion of  the  fruits  of  a  crime  recently  after  the  crime,  if  unexplained 
to  the  satisfaction  of  the  jury,  becomes  a  very  strong  circumstance 

of  guilt.    In  this  case,  the  witness was  knocked  down  and  robbed 

on   the   streets   of  the   night   of  ,   18 — .     The 

defendant  is  seen  next  day  with  his  watch,  and  gives  his  explanation 
of  his  possession.  A  few  days  later  he  gives  other  explanations  of 
his  possession,  and  in  his  testimony  here  on  the  stand  gives  his  ex- 
planation. The  witness  M.,  from  whom  he  claims,  personally  testifies, 
denying  having  had  the  watch ;  and  it  is  for  you  to  consider  all  these 
matters  and  determine  whether  the  defendant  has  explained  his 
possession  of  the  watch  in  such  a  way  as  to  raise  a  reasonable  doubt 
in  your  mind  as  to  his  guilt.  If  he  has  not,  then  the  law  -oakes  that 
possession  a  very  strong  presumption  of  guilt,  and  very  justly  so,  for 
the  reason  that  any  one  getting  property  honestly  can  usually  present 
ample  proof  of  it.^* 

(b)  The  jui-y  are  instructed  that  if  the  defendant  obtained  from 
J.  S.  possession  of  any  of  the  property  described  in  the  indictment, 
or  if  any  other  persons  were  in  company  with  defendant  and  obtained 
possession  of  any  of  such  property  from  J.  S.,  yet  if  you  believe  that 
such  possession  of  said  property  was  obtained  by  purchase  or  by  gift, 
or  by  both  purchase  and  gift,  from  said  J.  S.,  or  if  you  have  a  rea- 
sonable doubt  as  to  whether  said  possession  of  the  property  was  ob- 
tained by  purchase  or  gift,  or  by  means  of  assault,  violence  or  putting 
said  S.  in  fear  of  his  life  or  bodily  injmy,  then  you  must  acquit 
the  defendant.^" 

§  2902.  Case  of  Each  Co-defendant  to  Be  Considered  Separately — 
Common  Enterprise.  Bearing  in  mind  what  I  have  said,  you  are  to 
consider  the  case  of  the  defendants  separately.  In  order  to  convict 
either  defendant  however  of  the  charge  made  against  him  in  this  in- 
formation there  should  be  evidence  against  such  defendant  which  con- 
vinces you  beyond  a  reasonable  doubt  of  the  guilt  of  that  particular 
defendant.  While  these  defendants  are  tried  together,  and  are 
charged  with  a  joint  offense,  it  is  necessary  that  evidence  should  be 
given  against  each  one  of  them,  and  it  is  w-ithin  the  power  of  the 
jury,  and  it  is  the  duty  of  the  juiy,  to  consider  the  case  of  each  de- 
fendant separately,  as  though  he  were  on  trial  here  alone;  and  if 
the  evidence  is  not  sufficient  to  convict  him,  no  matter  whether  it  is 
sufficient  to  convict  the  other  or  not,  then  you  should  consider  the  ease 
of  each  one,  just  the  same  as  if  he  were  on  trial  alone,  and  you 
can  render  a  verdict  with  regard  to  one  which  may  be  one  way,  and 

37_Beard  v.  State.  44  Tex.  Cr.  39— Ford  v.  State,  41  Tex.  Cr. 
App.  402.  71  S.  W.  960  (961).  App.    1,   51    S.    W.    935    (937). 

38_State  v.  Harris.  97  la.  407,  66 
N.   W.  728   (730). 


1838  FORMS  OF  INSTRUCTIONS.  [^  2ii02 

with  regard  to  the  other  which  may  be  the  other  way.  Now  if  you 
find  from  the  testimony  in  this  case  beyond  a  reasonable  doubt,  that 
both  the  men  who  are  accused  in  this  case,  that  is  McL.  and  B. 
had  hold  of  the  peddler  with  the  intention  of  robbing  him,  and  that 
McL.  did  not  take  anything  from  the  person,  and  that  B.  did,  you  can 
find  both  guilty  of  robbery.  If  you  find  from  the  testimony  in  this 
case  that  they  were  not  engaged  in  this  common  purpose,  but  that 
McL.  intended  to  rob  without  having  any  knowledge  or  taking  any 
part  in  B.  's  acts  and  intentions,  and  was  prevented  from  doing  so,  you 
can  find  him  guilty  of  assault  with  intent  to  rob.  In  either  case  as  I 
said  you  must  be  satisfied  beyond  a  reasonable  doubt  that  they  are 
guilty,  or  else  it  is  your  duty  to  acquit  them.*<> 

40— People   v.   Blanchard,    et   al.,   136  Mich.  146,  98  N.  W.  983. 


CHAPTER  XCV. 


CRIMINAL— CONSPIRACY. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2903.  Conspiracy    defined. 

§  2904.  What  must  be  proved  to 
convict. 

S  2905.  Sufficient  to  prove  con- 
spiracy by  circumstantial 
evidence — What  is  and 
what  is  not  necessary  to 
prove. 

J  2906.  Sufficient  proof  of  common 
design. 

§  2907.  Act  of  one   is  act   of  all. 

§  2908.  One  conspirator  responsible 
for  acts  of  all  until  he 
withdraws —  -Rule  after  he 
withdraws — When  previous 
agreement   is   entered   into. 

§  2909.  What  facts  tend  to  show 
conspiracy. 

§  2910.  Participants  after  the  con- 
spiracy is  formed. 

§  2911.  Not  necessary  that  the  de- 
sign should   succeed. 


§  2912.  Not  necessary  that  the  meet- 
ing should  have  been  for 
an    unlawful   purpose. 

§  2913.  Conspiracy  to  commit  mur- 
der. 

§  2914.  Conspiracy  to  rob  or  mur- 
der— Former  acquittal  of 
one  conspirator  —  Testi- 
mony of  conspirator. 

§  2915.  Conspiracy  to  escape  from 
prison. 

§  2916.  Conspiracy  to  escape,  when 
a   felony    or   misdemeanor. 

§  2917.  Conspiracy  to  tar  and 
feather. 

§  2918.  Assent  to  or  knowledge  of 
conspiracy  by  defendant — ■ 
Identity. 

§  2919.  Intoxication  as  defense  to 
conspiracy. 

§  2920.  Proof  of  conspiracy  beyond 
reasonable    doubt. 


§  2903.  Conspiracy  Defined.  The  court  instructs  the  jury,  as  a 
matter  of  law,  that  a  conspiracy  is  a  combination  of  two  or  more 
persons  by  some  concert  of  action  to  accomplish  some  criminal  or 
unlawful  purpose,  or  some  purpose,  not  in  itself  criminal  or  unlawful, 
by  criminal  or  unlawful  means. ^ 

§  2904.  What  Must  Be  Proved  to  Convict,  (a)  The  court  charges 
the  jury  that  before  you  can  convict  defendant  upon  the  theory  of  a 
conspiracy  between  defendant  and  J.,  S.,  and  B.,  his  alleged  associ- 
ates, you  must  find  from  the  evidence  beyond  a  reasonable  doubt,  and 
to  a  moral  certainty,  that  they  conspired  together,  before  the  blow 
was  struck,  to  do  some  unlawful  act,  or  to  do  some  lawful  act  in  an 
unlawful  manner,  and  that  the  fatal  wound  was  inflicted  by  one  of 
them,  and  in  furtherance  of  the  purpose  for  which  they  had  so  con- 
spired.^ 

(b)  The  court  instructs  you  that  if  the  evidence  before  you 
shows  any  conversations  between  parties  other  than  defendant,  you 
will    not    consider   such    conversations   as   evidence    against    this    de- 


l_Ptate  V.  Rowley,  12  Conn.  101;  2— Liner  v.   State,   124   Ala.    1,    27 

Smith  V.   People.  25  111.   17,  76   Am.  So.  438  (440). 
Dec.    780;    Alderman    v.    People,    4 
Mich.  414,  69  Am.  Dec.  321. 

1839 


1840  FORMS  OF  INSTRUCTIONS.  L§  2905. 

fendant,  unless  the  state  has  established  beyond  a  reasonable  doubt 
that  a  conspiracy  had  been  formed  to  slay  A.,  and  that  this  defen- 
dant was  a  party  to  this  conspiracy,  or  had  guilty  knowledge  of  the 
same,  and  with  such  knowledge,  aided  by  words  or  acts  in  pursuance 
of  such  common  design;  and  you  are  the  judges  of  the  evidence, 
and  you  can  only  say  if  such  conspiracy  existed,  and  if  defendant 
acted  in  pursuance  of  the  same.^ 

§  2905.  Sufficient  to  Prove  Conspiracy  by  Circumstantial  Evidence 
— What  Is  and  What  Is  Not  Necessary  to  Prove,  (a)  The  court 
instructs  the  jury  that  evidence  in  proof  of  conspiracy  will  generally 
be  circumstantial,  and  it  is  not  necessary,  for  the  purpose  of  showing 
the  existence  of  the  conspiracy,  for  the  state  to  prove  that  the  de- 
fendant and  some  other  person  or  persons  came  together  and  actually 
agreed  upon  a  common  design  or  purpose,  and  agreed  to  pursue  such 
common  design  and  purpose  in  the  manner  agreed  upon.  It  is  suffi- 
cient if  such  common  design  and  purpose  is  shown  to  your  satisfaction 
by  circumstantial  evidence. 

(b)  The  court  instructs  the  jui*y  that  while  it  is  necessary,  in 
order  to  establish  the  existence  of  a  conspiracy,  to  prove  a  combina- 
tion of  two  or  more  persons  by  concert  of  action  to  accomplish  a 
criminal  or  unlawful  purpose,  yet  it  is  not  necessary  to  prove  that  the 
conspirators  came  together  and  entered  into  a  formal  agreement  to 
effect  such  pui'pose;  that  such  common  design  may  be  regarded  as 
proved  if  the  jury  believe  from  the  evidence  that  the  parties  to  such 
conspiracy  were  actually  pursuing  in  concert  the  common  design  or 
purpose,  whether  acting  separately  or  together,  by  common  or  differ- 
ent means,  provided  they  all  were  leading  to  the  same  unlawful 
result.* 

(c)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  the 
evidence  in  proof  of  a  conspiracy  will,  in  general,  be  circumstantial; 
and,  although  the  common  design  is  the  essence  of  the  charge,  it  is 
not  necessary  to  prove  that  the  defendants  came  together  and  actually 
agreed,  in  terms,  to  have  that  design  and  to  pursue  it  by  common 
means.^ 

(d)  The  court  instnicts  the  jury,  as  a  matter  of  law,  that  if 
the  juiy,  from  the  acts  of  the  parties,  as  proven,  and  from  all  the 

3_]Srel.son  v.  State,  43  Tex.  Grim.  E.  225;   Kelley  v.   People,   55  N.    Y. 

App.  553,  67  S.  W.  320.  565,  14  Am.  Rep.  342,  350;  People  v. 

4_Mu.sser   v.    State,   157    Ind.    423,  Arnold,   46   Mich.   277,   9  N.  W.   406; 

61  N.  E.  1  (7).  Dayton    v.    Monroe,    47    Mich.    194. 

The  court  said  that  "the  law  as  196,   10  N.   W.  196;  Spies  v.   People, 

declared  in  said  instructions  is  sus-  122    111.    1.    12    N.    E.    865,    17    N.    E. 

tained     by     many      authorities.     3  898,    3   Am.    St.    Rep.    320.    395,    and 

Oreenl.      Ev.      para.     93;     3     Russ.  note  page  476,  Am.  St.  Rep.,  5  Am. 

Crimes    f9th    Am.    Ed.)    marg.    pp.  Cr.   Rep.   637,  6  Am.   Cr.   Rep.   570." 

165,  166;  Whart.   Cr.   Law  (9th  Ed.)  5— Spies   et   al.    v.    People,   supra; 

paras.    1398,    1.399.    1401;    Whart.    Cr.  The    Mussel-Slough     Case,    5    Fed. 

Ev.  paras.  32,  698;  McKee  v.  State,  Rep.  680;  Tucker  v.  Finch,  66  Wis. 

Ill  Tnd.  378,  383,  12  N.  E.  510;  Arch-  17,  27  N.  W.  817. 
er  v.    State,   106  Ind.   426,   432,   7   N. 


§  2906.]  CRIMINAL— CONSPIRACY.  1841 

facts  and  circumstances  in  evidence,  believe,  beyond  a  reasonable 
doubt,  that  the  defendants  did  pursue  the  common  object  of,  etc.,  as 
charged  in  the  indictment,  and  by  the  same  means,  one  perform- 
ing one  part,  and  another  another  part,  so  as  to  accomplish  the 
common  object,  then  the  jury  would  be  justified  in  the  conclusion 
that  the  defendants  were  engaged  in  a  conspiracy  to  effect  that 
object.^ 

§  2906.  Sufficient  Proof  of  Common  Design.  The  court  instructs 
the  jury,  as  a  matter  of  law,  that  while  it  is  necessary,  in  order 
to  establish  a  conspiracy,  to  prove  a  combination  of  two  or  more 
persons,  by  concerted  action  to  accomplish  the  criminal  or  unlawful 
purpose  alleged  in  the  indictment,  yet  it  is  not  necessary  to  prove 
that  the  parties  ever  came  together  and  entered  intx)  any  formal 
agreement  or  arrangement  between  themselves  to  effect  such  purpose; 
the  combination,  or  common  design,  or  object,  may  be  regarded  as 
proved,  if  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  parties  charged  were  actually  pursuing,  in  concert,  the 
unlawful  object  stated  in  the  indictment,  whether  acting  separately 
or  together,  by  common  or  different  means ;  providing  all  were  leading 
to  the  same  unlawful  result.''' 

§  2907.  Act  of  One  Is  Act  of  All.  If  two  or  more  persons,  moved 
and  influenced  by  a  common  intent  and  purpose  to  feloniously  as- 
sault another  with  deadly  weapons  and  take  his  life,  and  each  knows 
of  the  common  felonious  intent  and  purpose  of  the  other  to  make 
such  a  felonious  assault  upon  such  person,  and  take  his  life,  then 
the  law  says,  under  such  circumstances,  the  aec  of  one  is  the  act  of  all 
the  assailants;  the  blow  of  one  is  the  blow  or  shot  of  all;  they  are 
all  responsible  under  such  cii'cumstances,  for  the  acts  of  each  other.^ 

§  2908.  One  Conspirator  Responsible  for  Acts  of  All  Until  He 
Withdraws — Rule  After  He  Withdraws — When  Previous  Agreement 
Is  Entered  Into,  (a)  But  in  a  second  ease,  where  a  conspiracy 
arises  out  of  a  concert  of  action  simply,  and  without  any  previous 
agreement  of  compact  as  to  its  extent  or  purpose,  the  responsibility 
of  any  one  of  the  parties  thereto  would  cease  when  he  abandoned 
the  common  purpose  and  withdrew  from  any  further  concert  of 
action  with  the  others,  and  withdrew  all  his  aid,  countenance,  and 
encouragement  from  the  enterprise;  but  his  resix)nsibility  for  the 
acts  of  all,  done  in  furtherance  of  the  common  purpose,  would 
continue  until  he  did  this. 

(b)  Accordingly,  if  the  evidence  in  this  case  is  such  as  to  lead 
you  to  believe  that  a  large  body  of  these  striking  miners,  including 
this  defendant,  assembled  together  on  ,  vrithout  any  spe- 

6 — Rose.   Grim.  Ev.   416;  Smith  v.  that  conspiracy  need  not  be  proven 

People.    25   111.   1.  by  direct  evidence,"  M^as  approved. 

In  Caddell  v.  State,  136  Ala.  9,  34  7— U.  S.  v.  Cole,  5  M.  C.  Lane  513. 

So.  191  (192),  the  instruction:  8— Hinkle  v.   State,  94  Ga.  595,  21 

"The    court     instructs    the    jury  S.   E.   595   (601). 

116 


1S42  FORMS  OF  INSTRUCTIONS.  [§  2909. 

cifie  agreement  or  understanding  as  to  what  they  would  do;  that 
they  united  in  attacking  the  men  from  the  Standard  mine,  and 
drove  them  away;  that  defendant  took  part  in  such  attack;  but  that, 
when  the  same  was  ended,  lie  withdrew  from  the  crowd,  and  withdrew 
all  his  aid,  countenance,  and  encouragement,  in  any  further  action; 
that  he  neither  went  to  Keystone  No.  2,  nor  aided,  encouraged,  nor 
advised  the  others  in  going  there;  and  that  previous  to  their  going 
there  the  defendant  had  withdrawn  entirely  from  any  and  all  concert 
of  action  with  the  others,  and  had  withdrawn  all  his  aid,  countenance 
and  encouragement  from  the  enterprise, — he  will  not  be  responsible 
for  any  acts  of  the  other  parties  after  he  had  so  severed  his  connec- 
tion with  them;  and,  if  you  find  this  to  be  the  state  of  the  case,  the 
defendant  should  be  acquitted.  But  if  he  went  to  Keystone  No.  2, 
and  assisted  in  attacking  the  house  where  M.  and  his  comrades  were; 
or  if  he  did  not  in  fact  go  there  himself,  but  if  he  advised,  aided  or 
encouraged  others  to  go  there,  for  the  purpose  of  driving  or  taking 
the  new  miners  away,  and  in  the  prosecution  of  that  purpose  the 
house  where  Munson  and  the  other  new  miners  were,  was  attacked 
and  fired  into  by  them,  and  M.  was  killed  by  any  of  such  shots, — the 
defendant  will  be  lial^le,  with  all  the  others  so  engaged  with  him, 
for  such  killing.^ 

§  2909.  What  Facts  Tend  to  Show  Conspiracy.  The  court  further 
instructs  the  jury  that  if  they  believe  from  the  evidence  in  this 
case   that   the   prisoner   assaulted    and   beat   B.,   and   inflicted   upon 

him  injuiy,  in  this  county,  on  or  about  the  night  of  ,  and 

that  D.  and  E.  were  present  when  said  assault  was  so  made  by  said 
defendant,  upon  said  B.,  and  that  they  'aided  and  abetted  said 
defendant  in  said  assault  and  battery,  either  by  preventing  others 
from  interfering  to  prevent  or  stop  said  assault,  or  by  assisting  in 
administering  punishment  to  said  B.  themselves,  then  they  must 
presume  that  said  assault  was  made  and  such  injury  inflicted  in  pur- 
suance of  a  combination  and  conspiracy  between  said  prisoner, 
D.,  and  E. ;  and  the  burden  of  proving  that  such  combination  and 
conspiracy  did  not  exist,  and  that  such  assault  w^as  not  made  and 
such  injury  inflicted  in  pursuance  thereof,  is  upon  the  prisoner,  and 
unless  he  shows  by  clear,  satisfactoi-y,  and  convincing  proof  that 
such  combination  and  conspiracy  did  not  exist,  or  it  appears  from  the 
whole  circumstances  and  evidence  of  the  case,  then  they  must  find  the 
prisoner  guilty.^** 

9— State  V.  McCahill,  72  Iowa  111,  present.     The  rule  announced  can- 

.33   N.   W.  599-601.  not  be  questioned,  and  we  can  dis- 

"The  instructions  read  together  cover  no  possible  prejudice  result- 
present   the   correct   rule   of   law.  ing'   to   defendant   from    its   repeti- 

Counsel  think  the  court  erred  in  tion.     It  does  not  appear  to  us  that 

repeating  in  three  or  four  instruc-  it  was  broug-ht  to  the  attention  of 

lions,    the  thought   that  defendant  the   jury    in    an    improper   connec- 

is   guilty   if   he   aided,  abetted,    or  tion." 

enr-ouraged   others   to   commit    the  10— State  v,  Bingham,  42  W.  Va, 

^rime,   even    though    he    was    not  234,  24  S.  E.  883. 


§  2910.]  CRIMINAI^-CONSPIRACY.  1843 

§  2910.  Participants  After  the  Conspiracy  Is  Formed.  The  court 
instructs  the  jury,  as  a  matter  of  law,  that  all  who  take  part  in  a 
conspiracy  after  it  is  formed,  and  while  it  is  in  execution,  and  all 
who,  with  knowledge  of  the  facts,  concur  in  the  plans  originally 
formed  and  aid  in  executing  them,  are  fellow  conspirators.  Their 
concurrence,  without  proof  of  an  agreement  to  concur,  is  conclusive 
against  them.  They  commit  the  offense  when  they  become  partners  to 
the  transaction,  or  further  the  original  plan.^^ 

§  2911.  Not  Necessary  that  the  Design  Should  Succeed,  (a)  The 
court  instructs  the  jurj^,  as  a  matter  of  law,  that  to  constitute  the 
crime  of  conspiracy  it  is  not  necessaiy  that  the  conspirators  should 
.succeed  in  their  designs.  Nor  is  any  overt  act  necessary  to  complete 
the  crime ;  the  offense  is  complete  when  the  confederacy  to  pursue  the 
common  purpose  is  made.^- 

(b)  The  court  instructs  the  jury-,  as  a  matter  of  law,  that  to  con- 
stitute the  crime  of  conspiracy  it  is  not  necessary  that  the  con- 
spirators should  succeed  in  their  design ;  it  is  enough  if  the  common 
design  was  formed,  in  manner  and  form  as  charged  in  the  indict- 
ment, and  that  any  act  was  done  in  furtherance  of  such  design  by  any 
one  of  the  conspirators.  If  the  conspiracy,  charged  in  the  indictment, 
has  been  proved  to  the  satisfaction  of  the  jury,  beyond  a  reasonable 
doubt,  then  the  act  of  any  one  of  the  conspirators,  in  furtherance 
of  the  common  design,  if  proved,  will  be  regarded  as  the  act  of  all.^^ 

§  2912.  Not  Necessary  that  the  Meeting  Should  Have  Been  for  an 
Unlawful  Purpose.  Though  the  jury  may  believe,  from  the  evi- 
dence, that  when  the  parties  came  together  upon  the  occasion  in 
question,  they  met  for  some  lawful  purpose,  yet,  if  the  juiy  fui'ther 
believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that  they 
then  joined  in  attempting  to  accomplish  the  unlawful  purpose  stated 
in  the  indictment,  in  manner  and  form  as  therein  alleged,  then  this 
would  be  sufficient  evidence  of  a  conspiracy  to  accomplish  such 
purpose,  and  it  is  unnecessary  to  prove  any  previous  plan  or  under- 
standing to  that  effect  by  the  parties. i* 

§  2913.  Conspiracy  to  Commit  Murder,  (a)  The  court  instructs 
the  jury,  as  a  matter  of  law,  that  if  they  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  and  others,  known 
or  unknown,  conspired  and  agreed  to  kill  S.,  and  in  pursuance  of  such 
conspiracy  S.  was  killed,  the  defendant,  B.,  is  guilty  of  murder, 
whether  present  at  the  killing  or  not. 

(b)  The  court  instructs  the  jury,  that  if  you  believe,  beyond  a 
reasonable  doubt,  that  the  defendant  shot  and  killed  S.,  or  that  he 

11— People    V.    Mather,    4    Wend.  H.    393;    Johnson   v.    State,    3   Tex. 

229  (N.  Y.),  21  Am.  Dec.  122.  App.  590. 

12— State    v.    Ripley.    31    Me.    386;  13— State   v.    Norton.   23   N.    J.   L. 

Alderman    v.    People,    4    Mich.    414,  33;  Com.  v.  Crowninshield,  10  Pick. 

69  Am.  Dec.  321;  State  v.  Pulle,  12  497  (27  Mass.). 

Minn.    164;    State   v.    Straw,    42   N.  14— Lowery  v.  State,  30  Tex.  402. 


1844  FORMS  OF  INSTRUCTIONS.  [§  2913. 

aided  or  abetted  any  other  person  or  persons,  in  pursuance  of  a  con- 
spiracy or  agreement,  it  matters  not  that  such  evidence  is  circum- 
stantial.^^ 

(c)  If  you  should  find  that  C.  H.  and  P.  D.,  or  either  of  them, 
unlawfully  killed  J.  J.,  you  cannot  convict  the  defendant,  J.  M.,  of 
the  homicide,  unless  you  further  believe  from  the  evidence  before  you 
beyond  a  reasonable  doubt  either  that  such  killing  was  the  result  of  a 
previously  formed  conspiracy  between  said  defendant  and  the  party 
who  did  the  same,  or  that  the  defendant'  was  present  when  the  same 
was  done,  and  knew  the  unlawful  intent  of  the  party  who  did  such 
killing,  and  aided  such  party  by  acts,  or  encouraged  him  by  words  or 
gestures  to  do  such  killing,  in  such  manner  as  to  make  him  a  principal 
thereto,  as  the  term  "principal"  is  herein  explained.^^ 

(d)  Some  testimony  has  been  admitted  tending  to  show  that  X., 
who  was  jointly  indicted  with  the  defendant  for  the  murder,  shortly 
after  the  alleged  murder  was  committed  had  in  his  possession  large 
sums  of  money,  which,  it  is  claimed  by  the  state,  w^as  the  property  of 
ihe  deceased.  This  fact,  if  it  has  been  proved,  is  proper  for  you  to 
consider,  together  with  all  the  other  facts  and  circumstances  pi'oved 
on  the  trial,  in  determining  the  guilt  or  innocence  of  the  defendant, 
if  you  further  find  that  said  money,  or  any  part  thereof,  was  ob- 
tained or  procured  by  said  X.,  and  from  the  deceased,  as  the  fruits 
of  a  conspiracy  theretofore  entered  into  by  and  between  the  defendant 
and  the  said  X.,  or  by  and  between  the  defendant,  Y.,  and  some 
other  person  or  persons,  for  the  robbing  and  murder  of  the  deceased, 
or  for  the  burglarizing  of  the  house  of  the  deceased;  and  said 
facts,  if  any  such  facts  have  been  proven,  must  be  considered  by 
you  with  all  the  other  facts  and  circumstances  proved,  in  determin- 
ing the  guilt  or  innocence  of  the  defendant,  whether  the  defendant 
was  or  was  not  present  at  the  time  said  X.  was  seen  with  said 
money,  or  any  part  thereof,  in  his  possession.!'^ 

15 — Boone   v.    People,    148   111.    440  case  also  tending-  to  prove  the  guilt 

(446,   451),   36  N.  E.   99.  of  appellant.     There  was  no  doubt 

"The  last   clause  of   the  instruc-  that  a  homicide  had  been  commit- 

tioii  does  not  require  that  the  con-  ted.     The   question   of  the  guilt   or 

spiracy  or  agreement,  in  which  the  innocence    of    appellant    was    to    be 

defendant   aided   any  other  person  determined  by  the  jury.  There  was 

or  persons,  was  one  to  kill  S.,  and  evidence     tending     to     show     that 

left  it  to  the  jury  to  speculate  as  three  persons  were  present  at  the 

to   whether  the   defendant  was  an  commission   of  the  crime,  and  any 

accessory  after  the  fact,  and,  there  fact    tending    to    connect    any    of 

was  no  evidence  on  which  to  base  them   with   the   crime   was   compe- 

it."  tent    evidence    against    the    others. 

16 — Moore   v.    State,    44   Tex.    Cr.  That  evidence  of  this  character  is 

App.  45,  68  S.  W.  279  (281).  admissible   is   well   settled.    Frazier 

17— Musser  v.   State,  157  Ind.  423,  v.    State,    135   Ind.   38,    40,   41,    34   N. 

61    N.   E.  1    (4).  E.  817;  Fitzpatrick  v.  U.  S.,  178  U. 

The  court  said  in  approving  the  S.    304,   20   Sup.    Ct.   944,   44   L.    Ed. 

instruction,  that  "the  evidence  was  1078;  St.  Clair  v.  U.  S.,  134,  139,   14 

concerning    a    physical     fact,     and  Sup.   Ct.  1002,  38  L.  Ed.  936;  People 

tended    to   prove   the   guilt   of  ,  v.    Cleveland,    107   Mich.    367,    65    N. 

and    was   considered    in    connection  W.    216;    Angley    v.    State,    35    Tex. 

■with  all  the  other  evidence  in  the  Cr.  R.  427,  34  S.  W.  116;  Pierson  v. 


§2914.] 


CRIMINAL— CONSPIRACY. 


1845 


§  2914.  Conspiracy  to  Rob  or  Murder— Former  Acquittal  of  One 
Conspirator— Testimony  of  Conspirator,  (a)  The  court  instructs 
the  jury  if  you  believe  beyond  a  reasonable  doubt  from  all  the 
facts  and  circumstances  in  evidence,  that  defendant  and  said  X.,  or 
defendant,  X.,  and  some  other  person  or  persons,  entered  into  a 
conspiracy  to  commit  the  offense  charged,  such  proof  is  sufficient  to 
establish  the  existence  of  such  conspiracy,  though  no  direct  evidence 
showing  such  conspiracy  was  introduced. 

(b)  The  court  instructs  the  jury  that  the  declarations  of  X.  be- 
fore the  crime  charged  was  committed,  in  the  absence  of  the  de- 
fendant, are  proper  to  be  considered  by  you,  with  all  the  other  facts 
and  circumstances  proven  on  the  trial,  in  determining  the  guilt  or  in- 
nocence of  defendant,  if  the  jury  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  defendant  prior  to  the  murder  entered  into 
a  conspiracy  with  said  X.  to  rob  or  murder  or  to  burglarize  the 
house  of  the  deceased,  and  that  such  declarations  were  made  in  fur- 
therance of  such  conspiracy  or  common  design ;  and  the  fact,  if  it  be 
a  fact,  that  X.  has  been  tried  and  acquitted  of  said  charge,  will  not 
make  such  statements  or  declarations  incompetent,  if  such  conspiracy 
has  been  shown  by  the  evidence.^® 


State,  IS  Tex.  App.  524;  Mimms  v. 
State,  16  Ohio  St.  221;  Allen  v. 
State,  80  Tenn.  424;  Rvan  v.  State, 
83  Wis.  486,  53  N.  W.  836;  Clark  v. 
State,  28  Tex.  App.  189,  12  S.  W. 
729,  19  Am.  St.  817;  Jackson  v. 
State,  28  Tex.  App.  370,  13  S.  W. 
451,  19  Am.  St.  839;  Pace  v.  State 
(Tex.  Cr.  App.),  20  S.  W.  762;  Conde 
V.  State,  33  Tex.  Cr.  Rep.  10,  24  S. 
W.  415,  60  Am.  St.  22;  Thompson  v. 
State,  35  Tex.  Cr.  R.  511,  34  S.  W. 
629;  Armstrong-  v.  Com.,  16  Kv.  L. 
494,  29  S.  W.  343;  Watt  v.  People, 
126  111.  9,  18  N.  E.  340,  1  L.  R.  A. 
403." 

In  Renner  v.  State,  43  Tex.  Cr. 
App.  347,  65  S.  W.  1102  (1103-4),  the 
court  said  that  the  following 
charge,  taken  in  connection  with 
the  charge  requested  by  appellant 
to  be  given  the  jury  in  answer  to 
their  query,  should  have  been 
given,  or  the  principle  announced 
in  the  two  charges  should  have 
been  given  the  jury: 

The  court  instructs  you,  in  an- 
swer to  your  query,  that  if  you 
find  the  facts  to  be  as  stated,  you 
will  acquit  the  defendant.  Before 
you  can  find  him  guilty,  you  must 
find  beyond  a  reasonable  doubt 
that  he  was  actually  present  at 
the  time  the  fire  was  ignited,  and, 
knowing-  the  unlawful  intent  of  C. 
and  F.,  aided  and  abetted  therein. 
If  his  participation  therein  was 
without  knowledge  of  their  unlaw- 
ful    intention,     he     could     not     be 


guilty.  His  failure  to  try  to  ex- 
tinguish flames  would  not  make 
him  guilty,  unless,  as  hereinbefore 
stated,  he  had  knowledge  of  the 
unlawful  intent  of  the  other 
parties.  If  what  he  did  was  in  a 
joke,  you  are  told  to  acquit  him. 
Before  he  could  be  bound  by  the 
acts  of  others,  he  must  have  had  a 
knowledge  of  their  guilty  inten- 
tions. 

You  are  instructed  that,  if  you 
should  find  and  believe  beyond  a 
reasonable  doubt  that  an  unlawful 
conspiracy  to  slay  C.  P.  B.  had 
been  formed  between  J.  C.  and  E. 
F.  at  the  time  of  or  before  the  de- 
fendant entered  C.  &  F.'s  saloon, 
then,  in  that  event,  before  this  de- 
fendant could  be  convicted,  he 
must  have  had  knowledge  of  the 
conspiracy,  if  any,  and  aided  and 
abetted  therein,  as  charged  in  the 
main    charge. 

IS— Musser  v.  State,  157  Ind.  423, 
61   N.   E.   1   (8). 

"The  instructions,"  said  the  court, 
"are  to  be  read  and  construed  to- 
gether as  an  entirety  (Shields  v. 
State,  149  Ind.  395,  406,  407,  410,  49  N. 
E.  351),  and  when  so  construed  it 
appears  that  on  the  subject  of 
proof  of  the  facts  constituting  the 
conspiracy  they  were  more  favor- 
able to  appellant  than  he  was  en- 
titled to  demand.  It  is  clear  from 
what  we  have  alreadv  said  on  the 
admissibility  of  the  record  of  X.'s 


1846  FORMS  OF  INSTRUCTIONS.  [§  2915. 

(e)  A  conspiracy  cannot  be  established  by  the  testimony  of  an  ac- 
complice or  accomplices  alone,  and  in  this  connection  I  charge  you 
that  unless  you  believe  from  the  evidence  outside  of  the  evidence  of 
P.  D.,  and  also  outside  of  the  evidence  of  B.  J.,  if  you  find  that  B.  J. 
was  also  an  accomplice,  that  there  was  a  conspiracy  to  rob  J.  J.,  or 
rob  and  murder  J  J.,  then  the  evidence  is  not  sufficient  to  establish  a 
conspiracy,  and  you  cannot  consider  any  of  the  acts  or  declarations 
of  P.  D.,  or  any  of  the  acts  and  declarations  of  C.  H.,  as  to  such  con- 
spiracy, against  the  defendant  in  this  case.^^ 

§  2915.  Conspiracy  to  Escape  from  Prison.  If  a  person  serving  a 
sentence  for  a  misdemeanor  enter  into  a  conspiracy  to  make  his 
escape,  and  not  to  commit  murder  the  offense  is  not  a  felony.  If  a 
convict  or  a  person  under  sentence  as  for  a  misdemeanor  is  serving 
out  that  sentence,  and  enters  into  a  conspiracy  to  make  his  escape  for 
the  purpose  of  escaping  and  not  to  commit  murder,  the  offense  is  not  a 
felony;  that  is,  a  conspiracy  to  esoajje  is  one  offense, — a  misde- 
meanor; a  conspiracy  to  murder  is  another  offense,  and  o^  a  higher 
grade.2° 

§  2916.     Conspiracy  to  Escape,  When  a  Felony  or  Misdemeanor. 

If  a  person  serving  sentence  for  a  misdemeanor  enters  into  a  con- 
spiracy to  make  his  escape,  and  not  to  commit  murder,  the  offense  is 
not  a  felony.-i 

§  2917.  Conspiracy  to  Tar  and  Feather.  If  you  find  from  the 
evidence  in  this  ease,  beyond  a  reasonable  doubt,  and  to  a  moral 
certainty,    that    the    defendant    and    some    other    person    or   persons 

entered   into   a  conspiracy   to   go    to   jail    at   at    the   time    and 

place  alleged  in  the  information  for  the  purpose  of  unlawfully 
tarring  and  feathering  the  deceased,  and  that  said  defendant  and 
others,  in  pursuance  of  said  act,  also  agreed  and  conspired  together  at 

the  ,  on  the  way  to  the  jail,  after  they  had  arrived  at  the 

jail,  or  at  any  other  time  and  place,  that  they  or  either  of  them 
would  shoot  and  kill  the  deceased,  if  necessary  in  order  to  carry  out 

acquittal  that  the  court  did  not  err  a   conspiracy  to  escape  from  serv- 

in   informing-    the    jury,    in    the   in-  ing   under   a    sentence    for    a   mis- 

struction  last  quoted,  that  the  dec-  demeanor    is    more    than    a    misde- 

larations  of  X.  referred  to  in  said  meanor.      On    the    contrary,    it   ap- 

instruction    were    to    be    considered  pears    in    the    brief    that    escaping 

by   the  jury,   even   if  X.    had    been  fi'om  a  chain  gang  under  sentence 

tried  and  acquitted  on  said  indict-  for   selling    liquor   is    in    Georgia   a 

ment,  if  the  conspiracy  was  proven  misdemeanor,    and    punishable    not 

by  the  evidence.     Holt  v.   State,  39  exceeding    one    year    on    the    chain 

Tex.   Cr.  R.  282,  45  S.  W.  1016,  46  S.  gang.  It  further  appears  by  section 

W.   829;   People   v.    Kief,    126   N.   Y.  2,  Cr.  Code  Ga.,  offered  in  evidence, 

661,  27  N.  E.  556."  that    the    term    'felony'    means    an 

19 — Moore   v.    State,    44   Tex.    Cr.  offense   for   which   the   offender  on 

App.  45.  68  S.  W.  279  (281).  conviction     shall     be     liable    to    be 

20 — State  v.  Whittle,  59  S.   C.  291,  punished  by  death  or  imprisonment 

37  S.  E.   923  (925).  in  the  penitentiary  and  not  other- 

21 — State   v.    Whittle,   supra.  wise.     From   these   it  does  not  ap- 

The    court    held     that     it    is    not  pear  that    there   was   any   error    in 

shown  "that  by  the  law  of  Georgia  the  charge,  as  complained  of." 


§  2918.]  CRIMINAI^OONSPIRACY.  1847 

the  unlawful  design  of  tari-ing"  and  feathering  the  deceased,  then  I 
instruct  you  that  under  such  circumstances,  if  you  should  find  beyond 
all  reasonable  doubt  that  defendant  feloniously  and  of  his  malice 
aforethought  shot  and  killed  the  deceased,  your  verdict  should  be 
guilty;  and  should  you  have  a  reasonable  doubt  in  your  minds 
as  to  whether  the  defendant  fired  the  shot  that  killed  the  deceased, 
and  still  you  believe  beyond  a  reasonable  doubt  that  he  fired  a  shot 
feloniously  at  the  deceased,  and  about  the  same  time,  or  shortly  aft- 
erwards, another  shot  was  feloniously  and  with  malice  aforethought 
fired  at  the  deceased,  which  caused  his  death,  and  that  said  shot  was 
fired  feloniously  in  furtherance  of  the  unlawful  design  and  con- 
spiracy so  entered  into  by  defendant  and  the  other  person  or  persons, 
then  I  instruct  you  that  under  such  circumstances  it  would  be  your 
duty  to  find  the  defendant  guilty,  and  then  proceed  to  determine 
from  the  evidence  and  instructions  of  the  court,  whether  it  is  murder 
in  the  first  degree,  murder  of  the  second  degree,  or  manslaughter.-- 

§  2918.  Assent  to  or  Knowledge  of  Conspiracy  by  Defendant — 
Identity,  (a)  If  you  should  believe  from  the  evidence  that  there 
was  a  conspiracy  to  commit  a  robbery,  as  before  explained,  and 
that  the  same  was  so  undertaken,  and  that  said  B.  was  killed,  yet  if 
you  have  'a  reasonable  doubt  whether  such  general  purpose  was 
contemplated  and  assented  to  by  defendant,  or  whether  it  was 
done,  if  at  all,  with  his  knowledge,  and  in  furtherance  of  a  common 
design  to  commit  said  offense ;  or  if  you  have  a  reasonable  doubt  of 
defendant's  identity  as  one  of  the  persons  engaged  in  such  robbery,  if 
any,  or  if  you  have  a  reasonable  doubt  of  the  presence  of  defendant 
at  the  robbery,  if  any,  at  the  time  thereof, — in  either  event  you  will 
find  him  not  guilty.^^ 
X^  (b)  You  are  charged  that  mere  knowledge  of  the  existence  of  a 
conspiracy,  on  the  part  of  defendant  does  not  make  him  a  party  to 
such  conspiracy,  but  the  evidence  must  show  beyond  a  reasonable 
doubt  that  the  defendant  not  only  knew  of  the  conspiracy,  but 
participated  in  such  conspiracy,  and,  if  you  do  not  so  find  from 
the  evidence,  you  will  not  consider  the  evidence  of  acts  and  declara- 
tions of  S.  and  Mrs.  S.,  but  disregard  the  same  in  your  consideration 
of  the  case.**  '' .       ' 

§  2919.  Intoxication  as  Defense  to  Conspiracy.  It  is  claimed  by  the 
state  that  the  defendant  conspired  with  others  to  go  to  C. 's  barn  for 
the  purpose  of  engaging  in  an  unlawful  act,  and  it  is  claimed  on  the 
part  of  the  defendant  that  he  was  so  drunk  at  the  time  as  to  be  in- 
capable of  entering  into  such  a  conspiracy  with  a  free  will  and  under- 
standing.   Now  you  are  instructed  on  this  branch  of  the  case  that  if 

22 — People  v.  Cowan,  1  Cal.  App.  clearly,  fairly  and  succinctly  states 

411,  82  Pac.  339.  the   law   applicable   to   the   defense 

23— Nite    v.     State,     41    Tex.     Cr.  urged    by    appellant." 

App.    340,    54    S.    W.   763    (767).  24— Smith    v.    State,    —    Tex.    Cr. 

The  court  said:  App.  — ,  89  S.  W.  817. 

"We     think     this     charge     very 


1848  FORMS  OF  INSTRUCTIONS.  [§  2920. 

you  find  that  the  defendant  was  so  drunk  as  to  be  incapable  of 
knowing  and  understanding  the  nature  of  the  contemplated  con- 
spiracy and  the  consequences  thereof,  in  going  to  C. 's  barn  then  you 
should  find  him  not  guilty  of  entering  into  such  a  conspiracy.^^ 

§  2920.  Proof  of  Conspiracy  Beyond  Reasonable  Doubt,  (a)  The 
court  further  instnicts  the  jury  that,  before  you  can  find  the  defen- 
dant, J.  R.,  guilty  as  charged  in  the  indictment,  you  must  believe  be- 
yond all  reasonable  doubt  that  he  entered  into  a  conspiracy  and  eon- 
federation  with  T.  H.,  E.  M.,  M.  P.  and  J.  R.,  or  any  one  of  them, 
for  the  purpose  of  robbing  B.,  and  in  pursuance  of  such  conspiracy 
said  B.  was  robbed,  as  charged  in  the  indictment  and  that  such  be- 
lief must  be  founded  upon  the  evidence  adduced  before  them  in  the 
trial  of  this  case.^^ 

(b)  The  court  charges  the  jury  that  if  you  find  from  the  evidence 
that  defendant  and  his  associates  acted  illegally  and  maliciously  in 
what  they  did,  with  the  same  end  in  view,  yet,  unless  you  are  satis- 
fied from  the  evidence  beyond  a  reasonable  doubt,  and  to  a  moral 
certainty  that  their  acts  were  done  pursuant  to  a  mutual  agreement, 
you  should  convict  the  defendant,  unless  you  believe  from  the  evi- 
dence beyond  a  reasonable  doubt,  and  to  a  moral  certainty,  that 
defendant  inflicted  the  fatal  wound,  or  aided  or  abetted  whoever  did 
inflict  it;  and  if  you  have  a  reasonable  doubt  of  defendant's  guilt, 
under  the  rules  above  stated,  you  should  acquit  the  defendant.-'^ 

(c)  If  the  jury  are  in  doubt  as  to  which  of  the  prisoners  shot  the 
deceased,  and  have  a  reasonable  doubt  as  to  whether  E.  shot  the  de- 
ceased, or  whether  C.  shot  him,  then  the  verdict  should  not  be  guilty 
as  to  both,  unless  the  jury  shall  be  satisfied  beyond  a  reasonable 
doubt  that  there  was  a  conspiracy  on  the  part  of  the  prisoners  to 
kill  the  deceased,  or  that  they  were  aiding  or  abetting  each  other.'" 

25— State  V.  Pasnau,  118  la.  501,  27— Liner  v.  State,  124  Ala.  1,  27 
92    N.    W.    682    (683).  So.    438    (440). 

26— State  v.  Roberts,  50  W.  Va.  28— State  v.  Edwards,  126  N.  C. 
422,   40   S.   E.   484   (486).  1051,  35  S.   E.  540  (541). 


CHAPTER  XCVI. 

CRIMINAL— EMBEZZLEMENT— FALSE  PRETENSES- 
FORGERY. 

See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


EMBEZZLEMENT. 

§  2921.  Meaning-  of  the  term— No 
embezzlement,  unless  done 
secretly,  with  intent  to  de- 
fraud. 

§  2922.  Ownership  of  property — In- 
tent. 

§  2923.  Felonious   intent   necessary. 

§  2924.  No    felonious    intent,    when. 

§  2925.  Felonious  intent  inferred 
from  the  act — Embezzle- 
ment   by    employee. 

§  2926.  Embezzlement,  from  a  dis- 
tracted person — Consent. 

§  2927.  Bailee  cannot  commit  em- 
bezzlement— Obtaining  pos- 
session by  trick  device  or 
fraud    requisite. 

§  2928.  Original  taking  of  bailee  need 
not  be  felonious — Gist  of 
the  offense  is  conversion. 

§  2929.  Venue  of  conversion. 

§  2930.  Embezzlement  of  money — 
Check  is   not   money. 

§  2931.  Whether  wrongfully  con- 
verted or  drawn  for  ben- 
efit of  bank. 

§  2932.  Pledging  bonds,  held  as 
treasurer,  in  security  for 
his  notes — Intent. 

§  2933.  Special    or   general    deposit. 

§  :;934.  Embezzlement  by  employee 
during  employment. 

§  2935.  Embezzlement — Right  to  re- 
tain  commission  by  agent. 

§  2936.  Selling  horse  as  own  prop- 
erty, instead  of  as  agent, 
and  converting  proceeds. 

§  2937.  Embezzlement  by  banker — 
Illinois  statute. 

§  2938.  Receipts    as    evidence. 
FALSE   PRETENSES. 

5  2939.  False  pretenses,  some  prop- 
erty must  have  been  ob- 
tained thereby. 


§  2940.  False  pretenses — Knowledge 
and  intent. 

FORGERY. 

§  2941.  Forgery,  elements  necessary 
to  be  proved. 

§  2942.  Elements  constituting  for- 
gery— Assisting  or  encour- 
aging another  to  commit 
though  without  writing 
same   himself. 

§  2943.  Intent  to  defraud  must  be 
proved  beyond  a  reason- 
able doubt,  gain  or  profit 
not  material — Presumption 
from  attempt  to  utter. 

§  2944.  Presumption  that  one  in- 
tends the  natural  conse- 
quences of  his  act. 

§  2945.  Attempt  to  utter  or  pass  for 
personal  gain  must  be 
proved. 

§  2946.  Possession  of  forged  instru- 
ment— Lack  of  revenue 
stamp,   invalid   instrument. 

§  2947.  Possession  and  uttering  of  a 
forged  instrument  is  strong 
evidence  of  forgery — Ven- 
ue. 

§  2948.  Possession  of  and  claiming 
under  a  forged  deed  consti- 
tutes strong  evidence  of 
guilt. 

§  2949.  Forgery  of  the  name  of  a 
deceased  party  to  a  deed 
of  certain  land. 

§  2950.  Proof  that  part  of  a  forged 
writing  was  in  the  same 
handwriting  as  the  balance 
as  evidence  of  guilt. 

§  2951.  Drunkenness  as  a  defense  to 
forgery. 

§  2952.  Forgery  of  telegram — Induc- 
ing girl  to  marry  through 
forging  mother's  name  to 
telegram — Series. 


EMBEZZLEMENT. 


§  2921.    Meaning   of  the   Term — No    Embezzlement,   Unless   Done 
Secretly,  with  Intent  to  Defraud.     The    court    instructs    the    jury, 

1849 


1850  FORMS  OF  INSTRUCTIONS.  [§  2922. 

that  the  meaning  of  the  word  embezzlement  is  the  fraudulently  re- 
moving or  secreting  personal  property,  with  which  a  party  has  been 
intrusted,  for  the  purpose  of  applying  it  to  his  own  use.  There  can 
be  no  embezzlement,  within  the  legal  meaning  of  the  word,  unless 
the  party,  when  he  takes  the  property  or  money,  does  it  secretly, 
with  an  intent  to  defraud  the  owner.^ 

§  2922.  Ownership  of  Property — Intent,  (a)  If  you  find  from 
the  testimony,  or  have  reasonable  doubt  in  the  matter,  that  the  de- 
fendant honestly  believed  that  he  was  entitled  to  the  $20,500  so  paid 
to  him  by  check  on  the  First  National  Bank  of  Seattle,  Washington, 
and  that  he,  so  believing  retained  the  money  as  his  part  of  the 
transaction  by  which  the  money  was  obtained,  then  your  verdict 
must  be  "Not  guilty."  There  can  be  no  conviction  of  embezzlement, 
unless  there  was  a  criminal  intent  at  the  time,  on  the  part  of  the 
defendant ;  and,  that  if  the  defendant  believed  he  was  entitled  to  keep 
the  money,  no  matter  how  groundless  you  may  find  that  belief  was, 
yet  he  cannot  be  convicted  of  embezzlement  if  you  have  a  reasonable 
doubt  as  to  wdiether  or  not  he  believed  it  was  his  money,  and  he  was 
entitled  to  keep  it. 

(b)  If  you  find  from  the  evidence  in  this  case  that  the  defendant 
H.  was  the  owner  of  $20,500  referred  to  in  the  information,  or  that 
Torrence  paid  the  defendant  that  amount,  by  cheek  or  otherwise, 
in  part  payment  of  mining  claims  owned  by  the  defendant,  referred 
to  in  the  mining  deed  introduced  in  evidence,  you  must  find  the 
defendant  not  guilty. 

(c)  If,  after  hearing  all  the  evidence  in  the  ease,  you  have  any 
reasonable  doubt  as  to  whether  the  said  sum  of  $20,500  was  or  was 
not  the  property  of  the  defendant  in  part  settlement  of  such  mining 
claims,  you  must  return  a  verdict  of  not  guilty.' 

§  2923.  Felonious  Intent  Necessary.  To  constitute  the  crime 
of  larceny  a  felonious  intention,  that  is  an  intention  to  steal,  must 
always  exist.  And,  under  our  statute,  making  the  conversion  of 
property  to  his  own  use  by  a  bailee  larceny,  the  crime  is  not  made 
out  by  merely  showing  a  conversion  of  the  property  to  his  own  use 
by  the  bailee,  but  it  must  further  appear  that  such  conversion  was 
with  an  intent  to  steal  the  same.  The  jury  are  instructed,  that  the 
taking  or  conversion  of  personal  property  which  renders  'a  person 
guilty  of  simple  larceny,  or  of  embezzlement,  is  a  feloniously  taking 
or  conversion,  and  before  you  can  convict  the  defendant  in  this  case, 
you  must  be  satisfied,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  property  mentioned  in  the  indictment,  or  some  part  of  it, 
was  converted  to  his  own  use  by  the  defendant,  with  an  intention,  at 
the  time,  to  steal  the  same.^ 

1— People  v.   Hurst,  62  Mich.   304,  People   v.    Husband,    3(5   Mich.    306; 

28   N.   W.    838.  Hill  v.  State,  57  Wis.  377.  15  N.  W. 

2— State  v.  Hoshor,  26  Wash.  643,  445;    People    v.    Galland,    55    Mich. 

67  Pac.  386  (390).  628,  22  N.  W.   81. 

3— Phelps   V.    People,    55   111.    334; 


§  2924.]  CRIMINALr— EMBEZZLEMENT.  1851 

§  2924.  No  Felonious  Intent,  When.  If  the  jury  believe,  from 
the  evidence,  that  the  defendant,  as  clerk  or  salesman  of  the  said 
A.  B.,  received  moneys  belonging  to  him,  and  honestly  and  fairly 
charged  himself  with  the  same  on  the  account  books  kept  for  that 
purpose,  and  afterwards  used  the  money  for  his  own  benefit,  without 
the  knowledge  of  the  said  A.  B.,  never  attempting  to  conceal  the  fact, 
but  acknowledged  the  same  when  spoken  to  about  it,  and  promised 
to  repay  it  as  soon  as  he  was  able,  these  facts  are  all  proper  to  be 
taken  into  account  by  the  jury,  with  all  the  other  evidence  in  the 
case,  in  determining  the  question  whether  the  defendant  used  the 
money  with  any  felonious  or  f I'audulent  intent ;  and  if,  upon  a  con- 
sideration of  all  the  facts  and  circumstances  proved,  the  jury  have 
any  reasonable  doubt  of  such  felonious  and  fraudulent  intent,  they 
should   find    the    defendant   not   guilty.* 

§  2925.  Felonious  Intent  Inferred  from  the  Act — Embezzlement  by- 
Employee,  (a)  The  court  instructs  the  jury  that  the  law  presumes 
that  every  man  intends  the  natural  and  probable  consequences  of  his 
own  acts,  and  if  you  find  from  the  evidence  that  the  defendant  un- 
lawfully converted  the  money  alleged  in  the  information  to  have  been 
embezzled,  to  his  own  use,  you  will  be  authorized  to  infer  therefrom 
the  criminal  intent,  and  that  he  did  at  the  time  intend  to  embezzle 
and  convert  the  same  to  his  own  use,  and  to  deprive  E.  B.  of  it.  The 
court  further  instructs  the  jui-y  that  ** feloniously "  means  a  wrong- 
ful act  willfully  done.^ 

(b)  The  court  instructs  the  juiy  that  every  sane  person,  old 
enough  to  be  accountable  for  his  acts,  is  presumed  to  intend  to  do 

4 — 2  Bishop  on  Cr.   Law,  §  360;  1  with  him  as  to  his  further  inten- 

McCIain  Cr.   Law,  §  641.  tlon    of  returning   the   money   at   a 

5— State  v.  Lentz,  184  Mo.  223,  83  later  period,  or  making-  good  his 
S.  W.  970  (971),  citing  State  v.  Man-  shortage  when  called  to  account, 
ley,  107  Mo.  364,  17  S.  W.  800;  State  It  suffices  for  the  state  to  prove 
v.  Pratt,  98  Mo.  483,  11  S.  W.  977;  an  intent  on  the  part  of  the  de- 
State  v.  Adams,  108  Mo.  208,  18  S.  fendant  to  do  that  which  the  law  in 
W.  1000;  State  v.  King,  86  N.  C.  fact  forbids.  The  effort  of  counsel 
603;  Bishop's  New  Cr.  Law,  Par.  to  have  the  court  require  the  jury 
300.  "The  taking  of  an  employer's  to  find  some  other  or  further  in- 
money  by  his  clerks  or  agents  is  tent  was  to  open  the  door  for  argu- 
legally  wrong  in  itself.  The  action  ment  that  the  defendant  might 
of  the  trial  court  in  giving  the  in-  knowingly  and  intentionally  do 
struction  was  not  erroneous.  the    very    act    which    the    law    de- 

This  court,  in  State  v.  Silva,  130  nounced  as  criminal,  and  yet  not 
Mo.  463,  32  S.  W.  1007,  in  discussing  be  guilty,  provided  he  did  not  in- 
the  question  of  intent,  as  appli-  tend  to  keep  the  money  permanent- 
cable  to  the  offense  of  embezzle-  ly,  or  intended  to  return  it  in  the 
ment,  very  clearly  announced  the  future.  But  when  an  act  forbid- 
correct  rule.  Gantt,  J.,  speaking  for  den  by  law  Is  intentionally  done, 
this  court,  said:  'When  the  agent  the  intent  to  do  the  act  is  the  crim- 
or  servant  takes  his  employer's  inal  intent  which  imparts  to  it 
money  with  the  intent  to  convert  the  character  of  the  offense,  and 
it  to  his  own  use  without  the  mas-  no  one,  who  violates  a  law  which 
ter's  knowledge,  that  moment  he  he  is  conclusively  presumed  to 
is  guilty  of  the  criminal  intent  de-  know,  can  be  heard  to  say  he  had 
nounced  by  the  statute.  The  law  no  criminal  intent  in  doing  it.'  " 
will    not    enter    upon    the    inquiry 


1852  FORMS  OF  INSTRUCTIONS.  [§  2926. 

that  which  he  does  do,  and  is  presumed  to  intend  the  natural  and 
probable  consequences  of  his  voluntary  acts;  and  such  presumption 
becomes  conclusive  in  the  absence  of  evidence  to  the  contrary.® 

(e)  The  intent  with  which  an  act  is  done  may  be  proved  by  direct 
and  positive  testimony,  or  the  intent  may  be  inferred  from  all  the 
facts  and  circumstances  surrounding  and  attending  the  act  as  shown 
by  the  evidence  in  the  case,  and  the  intent  in  this  case  must  be  de- 
termined from  the  evidence  given  in  this  ease.'^ 

(d)  The  rule  of  law  in  regard  to  intent  is  that  intent  to  defraud  is 
to  be  inferred  from  willfully  and  knowingly  doing  that  which  is  illegal, 
and  which,  in  its  necessary  consequences  and  results,  must  injure  an- 
other. The  intent  may  be  presumed  from  the  doing  of  the  wrongful 
and  fraudulent  or  illegal  act,  and  in  this  case,  if  you  find  that  the  de- 
fendant placed  that  which  was  worthless  or  of  little  value  among  the 
assets  of  the  bank  at  a  greatly  exaggerated  value  and  had  that  ex- 
aggerated value  placed  to  his  own  personal  account  upon  the  books 
of  the  bank,  from  such  finding  of  fact  you  must  necessarily  infer  that 
the  intent  with  which  he  did  that  act  was  to  injure  or  defraud  the 
bank,  but  this  inference  or  presumption  is  not  necessarily  conclusive. 
There  may  be  other  evidence  which  may  satisfy  the  jury  that  there 
was  no  such  intent,  but  such  an  inference  or  presumption  throws 
the  burden  of  proof  upon  the  defendant,  and  the  evidence  upon  him 
in  rebuttal  to  do  away  with  that  presumption  of  guilty  intent  must  be 
sufficiently  strong  to  satisfy  you  beyond  a  reasonable  doubt  that  there 
was  no  such  guilty  intent  in  such  transaction.^ 

§  2926.  Embezzlement,  from  a  Distracted  Person — Consent.  If 
Mrs.  T.  was  a  demented  or  distracted  person,  of  unsound  mind  and 
memory,  and  not  capable  of  transacting  the  ordinaiy  business  of  life, 
and  defendant  knew  it,  it  was  not  material  whether  she  parted  with 
the  possession  of  the  check  willingly  or  unwillingly.^ 

§  2927.  Bailee  Cannot  Commit  Embezzlement — Obtaining  Posses- 
sion by  Trick,  Device  or  Fraud  Requisite.  A  bailee  who  has  lawful 
possession  cannot  commit  larceny.  The  possession,  however,  must 
have  been  originally  obtained  lawfully,  ^and  without  the  intent  to  ap- 
e—Ford V.  State,  46  Neb.  390,  64  derstood  by  the  instruction  that, 
N.    W.    1082    (1085).  from  the  fact  of  the  conversion  of 

"Doubtless,    where   one   who   has     the   ring-,  they  were   bound  to  find 
the  lawful  possession  of  the  prop-     that   the   defendant   had  a  specific 
erty  of  another  converts  the  same     intent  to  steal  the  same.     The  in- 
to his  own  use,  the  intent  to  con-     struction,    as    entirety,    left   to    the 
vert  alone  mig-ht  be  inferred  from     jury   to   determine  the  question   of 
the  acts,  rather  than  the  intent  to     intent  with  which  the  act  was  corn- 
steal.     But  whether  such  inference     mitted,  from  a  consideration  of  all 
shall   be   drawn   depends   upon   the     the  evidence  adduced." 
facts  of  each  particular  case.     The         7— State    v.    Merkel,    189    Mo.    315, 
mere    proving   of     the     conversion     87    S.    W.    1186    (1187). 
alone,  not  coupled  with  any  crimi-         8 — Agnew    v.    United    States,    165 
natinj-  circumstances,  would  be  in-     U.  S.  36  (49),  17  S.  Ct.  235. 
sufficient  to  establish  the  intent  to         9— Kobbs    v.    People,    183    111.    336 
steal.    The  jury  could  not  have  un-      (338),  55  N.  E.  692,  47  L.  R.  A.  795. 


§  2928.]  CRIMINAL— EMBEZZLEMENT.  1853 

propriate  the  property  to  his  own  use.  One  who  obtains  the  possession 
by  trick,  device,  or  fraud,  with  intent  to  appropriate  the  property  to 
his  own  use — the  owner  intending  to  part  with  the  possession  only — 
commits  larceny  when  he  subsequently  appropriates  it.^" 

§  2928.  Original  Taking  of  Bailee  Need  Not  Be  Felonious— Gist  of 
the  Offense  Is  Conversion.  If  you  find  from  the  evidence,  beyond  a 
reasonable  doubt,  that  defendant  obtained  the  ring  in  question  tem- 
porarily from  said  X.,  and  that  he  afterwards,  without  the  knowledge 
or  consent  of  said  X.,  unlawfully  disposed  of  said  ring  at  a  pawn  shop, 
and  received  money  thereon,  such  an  act  on  the  part  of  the  defendant 
would  be  a  conversion  of  the  property  in  question  to  defendant's  own 
use:  and  if  you  find,  beyond  a  reasonable  doubt,  that  defendant  un- 
lawfully converted  said  ring  to  his  own  use,  by  disposing  of  the  same 
at  a  pawn  shop,  and  received  money  thereon,  with  intent  to  steal  the 
same,  then  defendant  would  be  guilty  of  larceny  of  said  ring,  the 
same  as  if  he  had  originally  feloniously  stolen  said  property  from  the 
said  X.  at  the  time  he  obtained  possession  thereof  from  said  X.,  if 
he  did  obtain  it.^^ 

§  2929.  Venue  of  Conversion.  Although  the  jury  may  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant  had 
in  his  possession,  in  this  county,  money  of  the  said  A.,  and  afterwards 
converted  the  same  to  his  own  use,  still,  if  you  further  believe,  from 
the  evidence,  that  he  canied  said  money  into  the  county  of  S.,  and 
then  for  the  first  time  formed  a  purpose  in  his  own  mind  of  convert- 
ing the  same  to  his  own  use,  and  did  afterwards  convert  the  same, 
etc.,  in  the  said  county  of  S.,  then  the  jury  should  find  the  defendant 
not  guilty.^2 

§  2930.     Embezzlement  of  Money — Check  Is  Not  Money,     (a)     The 

10— Finlayson  v.  State,  46  Fla.  81,  ceny,   while   this   is   for  larceny   as 

35  So.   203.  bailee.    In  the  decisions  referred  to, 

The    court    said    "the   authorities  the  original  taking  must  have  been 

sustaining   the   charge  are  abund-  felonious  in  order  to  constitute  the 

ant.      Clark's    Crim.    Law.    p.    250,  ofCense  charged,   while   such  is  not 

and  cases  cited:  Bish.  Stat.  Crimes,  the  case  in  a  prosecution  like  this, 

par.  419;  1  Whart.  Crim.  Law,  par.  Here  the  gist  of  the  offense  is  not 

1009;    Johnson    v.     People,     113     111.  the    felonious    taking    of    the    ring, 

99;  State  v.  Woodruff,  47  Kan.  151,  but   the   conversion    thereof   by   F.' 

27    Pac.    842.    27   Am.    St.    Rep.    285;  without  the  knowledge  and  consent 

Levy  v.  State,  79  Ala.  259;  State  v.  of   the    owner,    with   the   intent   to 

Williams.    35   Mo.     229;     People    v.  steal  it.     The  statute  under  vs^hich 

Smith,   23   Cal.   280."  the    information    in    this   case    was 

11— Ford  v.  State,  46  Neb.  390,  64  filed    (section    121b.    Cr.    Code)    de- 

N.  W.   1082  (1084).  Clares   'that,   if  any  bailee   of  any 

"It   is   argued   that   this   instruc-  money,  bank  bill  or  note,  goods  or 

tion  is  fatally  defective,  in  that  it  chattels  shall  convert  the  same  to 

omitted    the    element    of    'felonious  his    own   use,    with    intent   to    steal 

taking';  and  Mead  v.  State,  25  Neb.  the  same,  he  shall  be  deerhed  guilty 

444,   41   N.   W.    277.    and   Barnes   v.  of  larceny,  in  the  same  manner  as 

State,  40  Neb.  545,  59  N.  W.  125,  are  if    the    original     taking    had    been 

cited    to    support    the    proposition,  felonious.'    The  instruction  includes 

Those  cases  are  clearly  distinguish-  every    element    of   the   offense   de- 

able   from    the   one   at   bar.     They  scribed  in  the  statute." 

were   prosecutions   for   simple   lar-  12— Campbell  v.  State,  35  Ohio  70. 


1854  FORMS  OF  INSTRUCTIONS.  [§  2931. 

court  instructs  the  jury  that  a  cheek  is  not  money,  and  if  you  believe 
from  the  evidence  that  defendant  received  from  Mrs.  R.  no  money, 
then  you  must  find  him  not  guilty. 

(b)  If  the  state  has  failed  to  prove  'to  the  satisfaction  of  the  juiy, 
beyond  all  reasonable  doubt,  that  C.  was  the  agent  of  Mrs.  R,  and  as 
such  received  her  money,  the  jury  will  find  him  not  guilty  on  the  first 
count  of  the  indictment. 

(e)  If  the  state  has  failed  to  prove,  beyond  all  reasonable  doubt, 
to  the  satisfaction  of  the  jury — First,  that  C.  was  the  agent  of  Mrs. 
R. ;  second,  that  C.  received  bank  notes  to  his  own  use,  or  embezzled 
the  same,  then  the  jury  will  find  him  not  guilty.^^ 

§  2931.  Whether  Wrongfully  Converted  or  Drawn  for  Benefit  of 
Bank,  (a)  If  you  are  convinced  the  accused  embezzled  or  wrongful- 
ly converted  to  their  own  use  the  money  of  the  bank,  it  will  be  your 
duty  to  convict. 

(b)  If,  on  the  O'ther  hand,  you  find  that  though  the  money  of 
the  bank  was  taken  by  the  accused,  or  either,  that  it  was  not  em- 
bezzled or  wrongfully  converted,  but  was  drawn  for  the  benefit  of 
the  bank,  and  was  so  used,  it  will  be  your  duty  to  acquit.^* 

§  2932.  Pledging  Bonds,  Held  as  Treasurer,  in  Security  for  His 
Note — Intent.  The  court  instructs  the  jui'y  that  intent  in  this  case 
may  be  inferred  from  the  fact  if  you  find,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  it  is  a  fact  that  the  defendant,  while  treas- 
urer of  the  University  of  Illinois,  pledged  the  bonds  in  question  in 
this  ease,  held  by  him,  as  such  treasurer,  as  part  of  an  endowment 
fund  of  the  University,  to  secure  his  note  to  the  First  National  Bank 
of  Chicago;  and  the  jury  in  considering  the  subject  of  intent  should 
consider  it  with  reference  to  the  pledging  of  the  bonds  in  question  if 
the  jury  shall  find  that  he  did  so  pledge  the  said  bonds  as  distin- 
guished from  his  motive  or  purposes  as  to  the  use  of  any  fruits  of 
such  pledge. ^^ 

§  2933,  Special  or  General  Deposit.  The  state  must  prove  to  you, 
by  evidence,  all  the  material  ingredients  constituting  the  offense.  Now, 
gentlemen  of  the  jury,  if  the  evidence  leaves  you  a  reasonable  doubt 
as  to  whether  or  not  the  agreement  between  Mrs.  R.  and  the  defend- 
ant was  that  the  defendant  'took  the  check,  and  to  collect  and  account 

13— Carr  v.   State,  104  Ala.  43,  16  first    of    above    charg-es,    asked    by 

So.  155  (158,  160),   53  Am.  St.  17.  defendant,  asserts  this,  and  should 

The  court  said   that  "each  count  have  been  given.     Upon   the  same 

of   the   complaint   charges   the   de-  considerations,    charges    2    and    3, 

fendant    with    having    received    in  having    reference    to    the    first    and 

one  form   or  another,   money  from  second    counts  of    the    indictment, 

Mrs.  R.     On  one  aspect  of  the  evi-  respectively,      should      have     been 

dence,    he    received    only    a    check  given." 

from    her,     directly    or    indirectly.  14 — State  v.  Nichols,  50  La.  Ann. 

Obviously,   a  check   is   not   money;  699.    23    So.    980    (986). 

and   obviously,   also,   unless   he  did  15— Spalding  v.  People,  172  111.  40 

receive    money    of    hers,    the    jury  (55),  49  N.  E.  993. 
should    have    acquitted    him.      The 


§  2934.]  CRIMINAL— EMBEZZLEMENT.  1855 

for  the  money  as  ordinary  or  general  depositors,  with  the  understand- 
ing that  it  was  to  be  held  out  as  Mrs.  R's.  special  fund,  to  prevent 
her  husband's  creditors  from  interfering  with  it,  or  whether  it  was  a 
special  deposit  in  law,  then  you  must  give  the  defendant  the  benefit 
of  such  doubt.^*^ 

§  2934.  Embezzlement  by  Employee  During  Employment,  (a) 
The  court  instructs  the  juiy  that  if  you  believe  and  find  from  the  evi- 
dence in  this  cause  that  at  any  time  within  three  years  jDrior  to  the  fil- 
ing of  the  infoi'mation  in  this  cause  that  the  defendant  was  the  agent 
and  attorney  of  a  certain  private  person,  to  wit,  E.  B.,  and  that  the  de- 
fendant during  the  time  of  his  employment  as  such  agent  and  attorney 
of  said  E.  B.  was  not  a  person  under  the  age  of  sixteen  years,  and 
that,  during  such  employment  as  such  agent,  did,  by  virtue  of  his  em- 
ployment, take  or  receive  into  his  possession,  as  the  money  of  said  E. 
B.,  the  sum  of  eighty-nine  dollars,  or  any  portion  thereof  of  the  value 
of  thirty  dollars  or  more,  and  that  after  receiving  said  money  the  de- 
fendant did,  at  the  county  of  Butler  and  state  of  Missouri,  and  with- 
in three  years  prior  to  the  filing  of  the  information  in  this  cause, 
feloniously,  unlawfully,  and  intentionally  embezzle  and  fraudulently 
convert  said  money,  or  any  portion  of  the  same,  to  the  amount  of 
thirty  dollars  or  more,  to  his  (the  defendant's)  own  use,  without  the 
assent  of  his  employer,  E.  B.,  and  that  he  (the  defendant)  did  so  con- 
vert the  same  with  the  felonious  intent  to  deprive  the  said  E.  B.  of 
the  said  money,  and  that  said  money  so  embezzled  and  converted  by 
the  defendant  then  and  there  belonged  to,  and  was  the  property  of, 
said  E.  B.,  then  you  should  find  the  defendant  guilty  of  embezzlement, 
as  charged,  and  assess  his  punishment  at  imprisonment  in  the  peni- 
tentiary for  a  period  of  not  less  than  two  nor  more  than  five  years. ^''^ 

(b)  You  may  take  the  books  of  defendant  together  with  the  expense 
bills,  and  consider  them  in  connection  with  all  of  the  evidence,  and 

16 — Carr  v.  State,  104  Ala.  43,  16  jury  had  a  reasonable  doubt,  be- 
So.    155    (158,    159),    53    Am.    St.    17.  cause  of  this  evidence,  whether  the 

The  court  said  that  "there  was  deposit  was  special  or  not,  the  de- 
also  evidence  upon  which  it  was  fendant  should  not  have  been  con- 
open  to  the  jury  to  conclude  that  victed,  since  a  general  deposit  is 
notwithstanding  the  pass  book  not  alleged  in  the  indictment,  and 
given  Mrs.  R.  by  C.  described  her  confessedly,  if  it  had  been,  no  crim- 
deposit  as  a  special  deposit,  and  inal  responsibility  attached  to  the 
notwithstanding,  also,  that  C.  fur-  use  of  money  so  deposited  by  the 
nished  her  with  a  form  of  a  filled-  defendant  or  the  bank;  it  being 
out  check  to  be  used  in  drawing  on  the  money  of  the  bank,  on  account 
this  fund,  whereon  he  wrote  the  of  which  the  relation  of  debtor  and 
words  'Special  Deposit,'  the  deposit  creditor  only  could  exist  between 
was  nevertheless  a  general  one,  the  parties.  The  charge  above  as- 
and  was  called  and  written  down  a  serts  this  proposition  and  should 
'special  deposit'  only  for  the  pur-  have  been  given,  unless  its  refusal 
pose  of  keeping  it  safe  from  the  may  be  justified  on  the  ground 
creditors  of  Mrs.  R.'s  husband,  and  that  it  refers  a  legal  question  to 
not  to  the  end  that  the  bank  should  the  jury." 

safely   keep   the   particular   money  17 — State  v.  Lentz,  184  Mo.  223,  83 

as  hers,   for  her,  and   return  it  to  S.   "W.   970. 
her.      If   this   was   true,    or   if   the 


1856  FORMS  OF  INSTRUCTIONS.  [§  2935. 

that  if  the  books  thus  considered  show,  beyond  a  reasonable  doubt, 
a  shortage,  and  that  the  defendant  knew  it  was  as  to  money  collected 
by  him  as  agent  of  the  S.  Railway  Company,  and  that  said  money  be- 
longed to  said  railway  company,  and  that  said  defendant  knowingly 
withheld  said  money,  and  knowingly  failed  to  account  for  it,  then 
this  would  be  a  circumstance  tending  to  show  a  criminal  intent. 

(c)  If  the  jury  is  satisfied  from  the  evidence  beyond  a  reasonable 
doubt,  that  in  the  county  of  Cherokee,  and  within  three  years  before  the 
finding  of  this  indictment  against  the  defendant,  there  was  a  shortage 
of  more  than  $25  of  money  collected  by  the  defendant  for  the  S. 
Railway  Company;  that  at  the  time  of  said  collection  the  defendant 
was  the  agent  of  said  railway  company,  and  that  said  money  was 
the  property  of  said  railway  company,  and  that  the  defendant  knew 
it  at  the  time  of  the  collection,  and  that  defendant  collected  said 
money  by  virtue  of  his  employment  as  said  agent,  and  that  the  de- 
fendant had  fraudulently  converted  it  to  his  own  use — that  then  you 
must  find  the  defendant  guilty  as  charged  in  the  indictment.^^ 

§  2935.  Embezzlement — Right  to  Retain  Commission  by  Agent. 
The  jury  are  instructed  that,  if  you  believe,  from  the  evidence,  that 
she  was,  at  the  time  of  the  alleged  embezzlement,  a  collector  for  the 
company  with  the  right  to  retain  he.  commission,  that  is,  that  she  was 
not  required  to  pay  over  to  the  company  the  gross  sum  or  sums  of 
money  collected  by  her,  but  might  first  deduct  her  commissions  and 
then  pay  over  the  balance  or  net  amount  due  the  company, — she  was 
not  such  an  agent  or  servant  as  is  contemplated  in  the  statute  defining 
embezzlement,  and  the  verdict  should  be  not  guilty.^° 

§  2936.  Selling  Horse  as  Own  Property,  Instead  of  as  Agent,  and 
Converting  Proceeds.  And  so,  if  you  believe  from  the  evidence  that 
defendant  received  from  T. 's  possession  the  horse  in  question,  under 
the  agi'eement  that  defendant  should  act  as  the  agent  of  the  said  T. 
in  the  sale  of  said  horse,  and  that  defendant  should  sell  said  horse, 
and  pay  over  to  and  deliver  to  said  T.  the  proceeds  which  defendant 
should  secure  from  the  sale  of  said  horse;  and  you  further  believe 
that  defendant  sold  said  horse  as  his  own  property,  and  not  as  the 
agent  for  said  T.,  and  that  at  the  time  of  said  sale  defendant  had  the 
fraudulent  intent  to  appropriate  the  proceeds  of  said  sale  to  his  own 
use  and  benefit,  without  tile  consent  of  said  T., — you  will  find  de- 
fendant guilty  of  embezzlement  of  said  horse,  etc.^" 

§  2937.     Embezzlement  by  Banker — Illinois   Statute,     (a)     If  you 

18— Willis   V.    State,   134   Ala.   429,  opinion    that    the    evidence    amply 

33   So.   226   (230).  supports    the    verdict    of   the   jury. 

19— McElroy  v.  People,  202  111.  473  Epperson  v.  State.  22  Tex.  App.  694, 

(477-8).  66  N.  E.  1058.  3    S.    W.   789,    as   sug-arested    by   our 

20 — Huffg-ins  v.  State,  42  Tex.  Cr.  able  assistant  attorney  general,   is 

App.  364.  60  S.  W.  52.  almost   identical   with   the   case   at 

"We  think,"  said  the  court,  "that  bar.     See,   also.    Leonard  v.   State, 

1.S  a  proper  presentation  of  the  law  7  Tex.  App.  417." 
applicable  to  the  facts,  and  are  of 


§2938.]  CRIMINAL,— FALSE  PRETENSES.  1857 

ibelieve,  beyond  a  I'easonable  doubt,  from  the  evidence,  that  the  de- 
fendant was  engaged  in  the  business  of  banking,  and  in  such  busi- 
ness received  on  ueposit  with  intent  to  defraud,  from  one  fe.  i).,  the 

sum  of  $ ,  or  any  other  sum,  that  at  the  time  such  deposit  was 

made  said  D.  was  not  indebted  to  the  defendant,  that  at  the  time  of 
receiving  said  deposit  the  defendant  was  insolvent,  and  knew  himself 
to  be  so,  and  that  said  deposit  or  any  portion  of  it  was  lost  to  said 
D.,  then  you  should  find  the  defendant  guilty. 

(b)  It  is  not  necessary  that  the  prosecution  should  prove,  by 
direct  and  positive  evidence,  that  the  defendant  was  insolvent  on  the 

day  of,  etc.,  or  that  he  knew  he  was  insolvent,  but  it  is  sufficient, 

if  you  are  satisfied  beyond  a  reasonable  doubt,  from  all  the  circimi- 
stanees  in  evidence  in  the  case,  that  he  was  insolvent  at  that  time, 
and  took  and  converted  the  deposit  with  fraudulent  intent. 

(e)  It  is  your  province,  as  jurors,  to  say  under  your  oaths,  from 
the  evidence,  whether  or  not  the  defendant  was  insolvent  at  the  time 
he  received  the  deposit. 

(d)  A  depositor  of  money  in  a  bank  is  a  person  who  places  his 
money  therein  for  safe  keeping.^^ 

§  2938.  Receipts  as  Evidence.  You  are  instructed  that  the  re- 
ceipts and  other  writings  introduced  in  evidence  in  this  ease  are  only 
prima  facie  evidence  of  the  receipt  of  the  money,  and  are  not  con- 
clusive, and  may  be  qualified  and  explained  by  other  competent  evi- 
dence; and,  in  determining  the  truth  in  relation  thereto,  you  will 
take  into  consideration  all  the  evidence  introduced  bearing  upon  this 
point.22 

FALSE  PRETENSES. 

§  2939.  False  Pretenses,  Some  Property  Must  Have  Been  Ob- 
tained Thereby.  If  the  defendant  at  the  time  such  representations 
were  made  obtained  any  of  the  property  charged  in  the  indictment 
from  said  B.  by  reason  of  the  alleged  false  pretenses,  the  indictment 
may  be  sustained. ^^ 

§  2940.  False  Pretenses — Knowledge  and  Intent.  Now  if  he  knew, 
when  he  did  that  (made  out  the  bill  for  services  and  attached  the 
certificate)  that  she  was  not  a  stranger  not  belonging  to  this  state 
and  intended  in  presenting  that  bill  to  cheat  and  defraud  the  state 
out  of  the  amount  of  the  'bill,  and  deceive  the  state  by  it,  so  that  he 

21 — Murphy  v.  People,  19  111.  App.  23 — Approved  in  Commnnwealth 
125.  V.  Lee,  149  Mass.  179,  21  N.  E.  299 


In  Carr  v.   State,   104  Ala.   43,  16      (300). 


>. 


So.    155    (157),    53    Am.    St.    17,    the  This   instruction,   said  the*  court, 

court   held  that  collecting  a  check  "compelled    the    commonwealth    to 

or  certificate  through  a  New  York  show  that  some  definite  portion  of 

bank    and    not    bringing:    it    to    the  the  property  charged  in  the  indict- 

defendant's  state,  Alabama,  would  ment  had  been  obtained  by  the  al- 

not    be   embezzlement.  leged     false    pretenses.      Common- 

22— Mills  v.  State,  53  Neb.  263,  73  wealth  v.   Stone,   4  Mete.   43;   Com- 

N.   W.   761    (766).  monwealth  v.  Coe,  115   Mass.  481." 

117 


1858  FORMS  OF  INSTRUCTIONS.  [§  2941. 

got  the  amount  of  his  bill,  then  the  offense  is  proved.  »  »  *  it 
is  for  you  to  say,  when  the  respondent  made  up  that  bill  and  sent  it 
to  the  Auditor  General,  did  he  know  that  she  was  a  resident  here?  If 
he  knew  that,  did  he  intend  to  cheat  and  defraud  the  state  by  making 
a  state  case  out  of  that  inquest  in  submitting  that  bill"?  If  the  state 
was  deceived  by  it,  and,  relying  on  that  bill,  paid  the  money,  and  the 
facts  are  as  set  forth  in  'the  information  then  the  offense  is  proved. 
It  is  not  disputed  that  the  defendant  as  coroner,  submitted  this  bill, 
but  the  knowledge  existing  in  the  mind  of  'the  defendant  at  the  time 
of  the  act  is  disputed.  Was  he  aware  that  the  representations  made 
in  the  bill  and  certificate  were  false?-* 

FORGERY 

§  2941.  Forgery,  Elements  Necessary  to  Be  Proved.  If  you  find 
from  the  evidence,  beyond  a  reasonable  doubt,  that  said  note  is  a 
forged  instrument,  and  you  further  find  from  the  evidence,  beyond  a 
reasonable  doubt  that  the  defendant  uttered  said  note  and  published 
same  as  true,  knowing  that  same  was  false  or  forged,  with  intent  to 
defraud,  then  he  is  guilty  of  the  crime  of  uttering  a  forged  instru- 
ment, as  charged  in  the  indictment;  but  if  you  fail  to  find  from  the 
preponderance  of  the  evidence  either  that  said  instrument  was  a 
forged  instrument,  or  that  the  defendant  uttered  and  published  said 
note  as  true,  knowing  the  same  to  be  false  or  forged  with  intent  to 
defraud  then  you  should  find  the  defendant  not  guilty,  and  so  return 
your  verdict.^^ 

§  2942.  Elements  Constituting  Forgery — Assisting  or  Encouraging 
Another  to  Commit  though  without  Writing  Same  Himself.  In  order 
to  establish  defendant's  guilt  it  is  necessary  for  the  state  to  prove 
beyond  a  reasonable  doubt  that  the  instrument  described  in  the  in- 
dictment is  a  writing  obligatory;  that  it  was  not  signed  by  T.  or  any 
one  for  him  with  his  consent,  and  not  afterwards  ratified  by  him; 
and  that  the  defendant  made  all  of  it,  or  a  distinct  part  of  it,  and 
thereby  intended  to  defraud  the  G — ■  Company  or  the  A —  Company.^^ 

§  2943.  Intent  to  Defraud  Must  Be  Proved  Beyond  a  Reasonable 
Doubt,  Gain  or  Profit  Not  Material — Presumption  from  Attempt  to 
Utter.  Defendant  is  indicted  for  forgery.  Bill  contains  two  counts. 
In  order  to  convict  under  either  count,  the  state  must  satisfy  you 
from  the  evidence  beyond  a  reasonable  doubt  of  defendant's  guilt. 
Now,  what  does  it  take  to  constitute  the  crime  of  forgery  or  the 
uttering  and  publishing  of  such?     (Here  the  court  reads  the  statutes). 

24— people  v.  Hoffman,  142  Mich,  may  become  a  principal  in  forgery. 

531  (r.75),  105  N.  W.  838  (854).  If  a  party  be  present,   aiding:,    ad- 

25— Stnte  v.   Rivers,  124  la.  17,  98  vising?,     assisting:,     or    encourag:ing: 

N.  W.  785  (787).  annthor  to  commit  a  forgery,  hfi  is 

26— King:  V.   State,  43  Fla.  211,  31  Ruilty  of  forg-ery,  thoug-h  lie  writes 

So.  254  (259).  no    part    of    the    instrument.      The 

"The  instruction,"  said  the  court,  incompleteness    of    the    instruction 

"so    far    as    it    goes,     is     correct,  complained     of    does     not     operate 

though    it   does    not    state    all    the  again.st  defendant  but  in  his  favor, 

circumstances  under  which  a  parly  and  he  has  no  ground  to  complain." 


§  2944.]  CRIMINAL— FORGERY.  1859 

You  will  observe  that  in  either  case — that  of  forgery  or  that  of 
uttering  or  publishing  the  instrument — the  guilty  intent  to  injure 
or  defraud  must  appear.  It  is  not  necessary,  in  order  to  consti- 
tute the  crime,  that  the  person  committing  the  forgeiy  should  be 
the  gainer  thereby,  but  it  is  sufficient  if  there  is  a  fraudulent  intent 
to  deceive  by  a  forged  paper;  and  the  fact  that  no  one  is  defrauded 
is  immaterial,  the  other  elements  of  the  crime  being  established. 
That  where  one  is  found  in  possession  of  a  forged  instrument,  and 
is  endeavoring  to  obtain  money  or  advances  upon  it,  this  raises  a 
presumption  that  the  defendant  either  forged  or  consented  to  forging 
such  instrument,  and,  nothing  else  appearing,  the  person  would  be 
presumed  to  be  guilty.  Therefore,  if  you  are  satisfied  beyond  a  rea- 
sonable doubt  that  the  pajDer  (in  this  case  the  note)  was  a  forgery 
and  that  defendant  had  it  in  his  possession,  and  tried  to  obtain 
money  from  C.  or  S.  or  the  bank  upon  it,  then  this  raises  a  presump- 
tion of  guilt,  and,  unless  he  has  rebutted  it,  you  will  return  a  verdict 
of  guilty.  If,  upon  the  whole  evidence,  any  reasonable  doubt  re- 
mains as  to  the  innocence  of  defendant,  you  will  give  him  the  benefit 
of  it,  and  return  a  verdict  of  not  guilty.^^ 

§  2944.  Presumption  that  One  Intends  the  Natural  Consequences 
of  His  Act.  The  court  instructs  the  jury  that  the  law  presumes  a 
man  to  intend  the  reasonable  and  natural  consequences  of  any  act  in- 
tentionally done.-^ 

§  2945.  Attempt  to  Utter  or  Pass  for  Personal  Grain  Must  Be 
Proved.  If  you  find  from  the  evidence  that  the  note  referred  to  in  the 
indictment  was  forged,  you  cannot  convict,  unless  you  find  further, 
beyond  a  reasonable  doubt,  that  defendant  attempted  to  utter,  pass  or 
deliver  said. note  for  personal  gain  or  for  a  fraudulent  pui'j)0se.-^ 

§  2946.  Possession  of  Forged  Instrument — Lack  of  Revenue  Stamp, 
Invalid  Instrument,  (a)  The  possession  of  a  forged  paper  does  not 
raise  even  a  prima  facie  presumption  of  guilt. 

(b)  It  being  shown  by  the  state  that  the  note  did  not  bear  upon  it 
a  revenue  stamp,  and  such  paper  writing  being  one  on  which  no  action 

27— State   v.    Peterson,   129   N.    C.  116   Mo.   548,  22   S.   W.   792.     '(2)     If 

556,  40  S.  E.  9  (10),  85  Am.  St.  756.  you  are  satisfied  beyond  a  reason- 

The  court  said   that  in  this   case  able  doubt  that  the  paper  (in  this 

"the     defendant    excepted    to     this  case  the  note)  was  a  forgery,  and 

charge  because  of  the  following  in-  that  defendant   had   it  in   his  pos- 

structions:  '(1)  Where  one  is  found  session   and  tried  to  obtain  money 

in  the  possession  of  a  forged  instru-  from  C.  or  S.  or  the  bank  upon  it, 

ment,  and  is  endeavoring  to  obtain  then    this   raises   a   presumption   of 

money  or    advances    upon  it,    this  guilt,   and,   unless  he  has   rebutted 

raises  a  presumption  that  defend-  it,   you   w^ill    return   a    verdict    of 

ant    either   forged   or  consented    to  guilty.'     This  is  also  warranted  by 

the   forging  such   instrument,   and,  the  precedents.  2  McClain,  Cr.  Law, 

nothing  else  appearing,  the  person  par.  809,  and  cases  there  cited." 

would    be   presumed   to    be  guilty.'  28 — Spears   v.    People,    220   111.    72, 

In  this  there  was  no   error.     State  77  N.  E.  112  (114). 

V.   Morgan,   19   N.   C.   348;   State  v.  29— State  v.  Peterson,  supra, 
Britt,  14  N.  C.  122;   State  v.  Allen, 


1860  FORMS  OF  INSTRUCTIONS.  [§  2947. 

of  debt  or  contract  might  be  based,  you  are  instructed  that  in  this 
case  you  cannot  return  a  verdict  of  guilty. ^° 

§  2947.  Possession  and  Uttering  of  a  Forged  Instrument  is  Strong 
Evidence  of  Forgery — Venue.  The  court  instructs  the  jury  that,  in 
order  to  find  the  defendant  guilty  under  the  indictment,  it  is  not  neces- 
sary for  state  to  prove  by  direct  evidence  (that  is,  it  is  not  necessary 
for  witnesses  who  saw  the  act  done)  that  the  defendant  signed  the 
names  of  B.  and  H.  to  the  note  in  controversy,  but  the  same  may  be 
infeiTed  from  the  proof  of  other  facts  and  circumstances  in  the  case. 
Therefore,  if  the  juiy  find  and  believe  from  the  evidence  that  the 
said  note  was  in  the  possession  of  the  defendant,  in  the  county  of 
Harrison,  recently  after  the  same  is  dated  and  purports  to  have  been 
executed,  and  if  you  further  believe  that  the  defendant  sold  and  de- 
livered said  note  as  a  genuine  note  to  the  witness  W.,  then  ifhese  facts, 
if  proven,  unless  satisfactorily  explained  by  the  defendant,  will  war- 
rant you  in  finding  that  the  names  of  B.  and  H.  were  actually  writ- 
ten and  signed  by  'the  defendant,  and  you  will  find  the  defendant 
guilty,  as  defined  in  other  instructions.^^ 

§  2948.  Possession  of  and  Claiming  Under  a  Forged  Deed  Consti- 
tutes Strong  Evidence  of  Guilt,  (a)  The  court  instructs  the  jury 
that  if  you  find  and  believe  from  the  evidence  that  the  deed  read  in 
evidence  and  described  in  the  information,  or  any  part  thereof  (not  in- 
cluding the  acknowledgment  of  the  same),  was  falsely  made  and 
forged,  with  intent  to  cheat  and  defraud,  as  defined  in  other  instruc- 
tions, and  that  the  defendant  had  possession  of  the  same  in  Saline 
county,  Missouri,  and  that  he  made  claim  to  the  land  described  there- 
in, or  any  part  thereof,  by  virtu©  of  and  under  said  deed,  then  these 
facts  constitute  evidence  that  he  committed  the  forgery  .of  the  same, 
or  caused  the  same  to  be  forged,  and  that  he  committed  said  forgery 
in  Saline  county  and  state  of  Missouri;  and,  unless  he  explains  or  ac- 
counts for  his  possession  thereof  in  a  manner  consistent  with  his  in- 
nocence, then  these  facts  are  sufficient  to  warrant  the  jury  in  finding 
him  guilty  of  forgery,  as  charged  in  the  information. 

(b)  The  court  instructs  the  jury  that  if  you  find  and  believe  from 
the  evidence  that  the  deed  read  in  evidence  and  described  in  the  in- 
formation, or  any  part  thereof  (not  including  the  acknowledgment  of 
the  same),  was  falsely  made  and  forged,  with  intent  to  cheat  and  de- 
fraud, as  defined  in  other  instructions,  and  the  defendant  had  had 
possession  of  the  same  in  Saline  county,  Missouri,  and  that  he  made 
claim  to  the  land  described  therein,  or  any  part  thereof,  by  virtue  of 

30 — State  v.   Peterson,   supra.  strument,  or  the  uttering'  of  it,  by 

31— Ptate  V.  Millig-an,  170  Mo.  215,  one  in  the  county  where  the  indict- 

70  R.  W.  473  (474).  ment   Is   found,    is  strong-   evidence 

The  court  said  this  "instruction  is  not  only  to  show  thnt  he  forgred  it. 

In    accordance    with    the    rule    an-  hut    to    show    that    the   forgery   of 

nounced    in    the    case    of    State    v.  the  instrument    was   committed   by 

Yorker,  86  Mo.  33,  wherein  it  is  said  him  in  the  same  county.     State  v. 

that  the  possession  of  a  forged  In-  Burd,  115  Mo.  405,   22  S.   W.   377." 


§  2949.]  CRIMINAL— FORGERY.  1861 

and  under  said  deed  in  said  county  of  Saline,  then  such  facts  raise 
the  presumption  that  he  forged  or  caused  the  same  to  be  forged  in 
Saline  county,  state  of  Missouri,  and  that,  unless  such  possession  by 
the  defendant  of  said  deed  and  his  claim  thereunder  are  satisfactorily 
explained  to  the  jury  by  the  evidence  in  the  case  in  a  manner  con- 
sistent with  the  innocence  of  the  defendant,  then  such  presumption  of 
guilt  becomes  conclusive.^^ 

§  2949.  Forgery  of  the  Name  of  a  Deceased  Party  to  a  Deed  of 
Certain  Land.  If  the  jury  find  and  believe  from  the  evidence  that  the 
defendant,  at  the  county  of  Saline,  in  the  state  of  Missouri,  at  any 
time  within  three  years  before  the  filing  of  the  information  in  this 
ease,  to  wit,  November  27,  1901,  caused  or  procured  to  be  forged  or 
falsely  made  the  deed  described  in  the  information  and  read  in  evi- 
dence, or  any  part  thereof  (not  including  the  acknowledgment  of  the 
same),  purporting  to  be  the  act  of  one  K.,  who  was  not  then  living, 
but  had  formerly  lived  and  died  in  Saline  county,  Missouri,  the  name 
of  said  K.  being  affixed  to  said  deed,  by  which  an  interest  in  the  lands 
described  in  said  deed  and  in  the  infonnation  purported  to  be  trans- 
ferred or  conveyed  to  one  P.,  and  that  the  same  was  done  feloniously 
(that  is,  wickedly  and  wrongfully),  against  the  admonition  of  the 
law,  and  with  intent  on  the  part  of  the  defendant  to  cheat  and  de- 
fraud, then  you  will  find  the  defendant  guilty  under  the  second  count 
of  the  information,  and,  so  finding,  will  so  state  in  your  verdict,  and 
assess  his  punishment  at  imprisonment  in  the  penitentiary  for  a  term 
of  not  less  than  ten  years. ^^ 

32 — State  v.  Pyscher,  179  Mo.  140,  session   of   this   deed,    and   defend- 

77  S.  W.  836  (841).  ant's  claim  under  it,  were  not  de- 

"These     instructions,"     said     the  nied.     It  was  his  defense  that  the 

court,    "correctly    declare    the    law  deed  was  not    foi-g-ed,  but    was    a 

as   applicable  to   the  facts   of  this  valid  instrument,   properly  execut- 

case.     .     .     .    The  possession  of  *'his  ed   and   delivered   to  the  defendant 

deed  by  the  defendant,  and  claim-  by  Mrs.   K.     This  issue  was  fairly 

ing  the  land  described  in  it,  if  the  submitted    to    the    jury,    and    they 

jury  first  determine  that   the  deed  found  adversely  to  the  defendant." 

was  forged,  was    sufficient    to  au-  33 — State   v.    Pyscher,    supra, 

thorize     a     conviction.       State     v.  The  court  held  that  "there  is  no 

Haws,  98  Mo.  188,  11  S.  W.  574,  12  S.  merit  in  the  complaint  against  this 

W.  126.  The  instructions  now  being  instruction.    It  is  insisted  that  it  is 

discussed,  while  not  strictly  in  ac-  erroneous    because    it    fails   to    tell 

cord  with  the  approved  precedents,  the   jury   that   they   must    find    the 

are     substantially     correct.        The  facts  as  enumerated  in  the  declara- 

court,   in     the    instructions,     fairly  tion    beyond    a    reasonable    doubt, 

and  fully  submitted  the  question  as  There  is  no  necessity  for,  and  the 

to    whether    or    not    the    deed    had  law  of  this  state  does  not  require, 

been   forged.     This  being  done,   we  the  application  of  the  term  'beyond 

think  it  is  a  clear  legal  proposition  a   reasonable   doubt'    to   each    item 

that  if  defendant  had  possession  of  of  evidence  introdviced  in  the  cause, 

the  deed,   and   was  claiming  under  It  is  sufficient  to  give  a  general  in- 

it,  it  constituted  strong  evidence  of  structinn    on    that    subject,    ar.pii- 

guilt,    and,    unless    explained    upon  cable  to  the  testimony  as  a  whole, 

some  theory  consistent  with  his  in-  State  v.  Good,  132  Mo.  126,  33  S.  W. 

nocence,  authorized   his  conviction.  790." 
It  will  also  be  noted  that  the  pos- 


1862  FORMS  OF  INSTRUCTIONS.  [§  2950. 

§  2950.  Proof  that  Part  of  a  Forged  Writing  was  in  the  Same 
Handwriting  as  the  Balance  as  Evidence  of  Guilt.  The  court  instructs 
the  jury  that,  although  you  cannot  find  the  defendant  guilty  of  the 
charge  in  the  information  upon  proof  that  the  acknowledgment  to 
said  deed  was  forged  and  fraudulently  made,  yet  the  jury  are  further 
instructed  that  if  you  believe  from  the  evidence  that  the  acknowledg- 
ment to  said  deed,  and  the  name  of  the  notary  before  whom  the  same 
purports  to  have  been  made,  was  forged,  and  that  the  body  of  the 
deed,  containing  the  names  of  the  grantor  and  grantee,  and  the  de- 
scription of  the  land  conveyed  in  said  deed,  was  written  by  the  same 
person  who  wrote  said  acknowledgment,  then,  in  determining  whether 
or  not  the  deed  was  a  forgery,  you  have  a  rig-ht  to  consider  the  fact 
that  the  acknowledgment  to  said  deed,  and  the  name  of  the  notary 
before  whom  the  same  purpoi'ts  to  have  been  taken,  were  forgeries, 
along  with  the  other  facts 'and  circumstances  in  evidence.^* 

§  2951.  Drunkenness  as  a  Defense  to  Forgery.  Drunkenness,  al- 
though not  an  excuse  for  crime,  may  be  considered  in  passing  upon 
a  question  of  intent,  and  in  an  indictment  for  forgery  the  burden  is 
on  the  state  to  establish  a  guilty  knowledge  and  a  guilty  and  fraudu- 
lent intent.^^ 

§  2952.  Forgery  of  Telegram — Inducing  Girl  to  Marry  Through 
Forging   Mother's  Name  to   Telegram — Series,     (a)     I   charge   you 

34 — State  v.  Pyscher,  179  Mo.  140,  knowledg-ment  was  introduced,  not 

77  S.  W.  836  (842).  for  the    purpose  of  showing  intent 

"It  is  insisted,"  said  the  court,  on  the  part  of  defendant,  but  that 
"that  this  instruction  is  erroneous  it  miglit  be  considered  in  the  estab- 
for  the  reason  it  does  not  restrict  lishment  of  the  important  fact  that 
the  purpose  of  the  forgery  of  the  the  deed  had  been  forged.  An  anal- 
acknowledgment  to  the  question  of  ysis  of  the  instruction  makes  it  ap- 
inteut  on  the  part  of  the  defendant,  parent  that  this  w^as  the  purpose, 
It  is  also  urged  that  the  instruction  and  also  shows  clearly  that  the 
assumes  the  forgery  of  the  ac-  fact  that  the  acknowledgment  was 
knowledgment.  This  contention  is  forged  was  not  assumed,  but  the 
a  misconception  of  the  purposes  of  jury  are  expressly  required,  before 
the  acknowledgment.  The  testi-  considering  it,  to  find  that  it  was 
mony  as  to  the  forged  acknowl-  forged.  While  the  defendant  was 
edgment  and  the  introduction  of  not  charged  with  the  forgery  of  the 
the  acknowledgment  was  not  for  acknowledgment  of  the  deed,  and 
the  purpose  of  showing  intent  on  the  instrvictions  all  strictly  guard 
the  part  of  the  defendant.  If  de-  his  rights  in  that  respect,  yet  the 
fendant  in  fact  forged  or  caused  to  acknowledgment  being  so  closely 
be  forged  the  deed,  it  required  no  connected  with  the  deed,  its  forg- 
evidence  of  intent.  The  act  itself  ery  may  shed  light,  in  very  im- 
carried  with  it  the  intent.  But  the  portant  particulars,  upon  the  in- 
evident  purpose  of  showing  the  vestigation  of  the  forgery  of  the 
forgery  of  the  acknowledgment —  deed  itself.  There  was  no  error  in 
it  being  on  the  same  paper,  and  so  this  instruction,  and  the  cases  cited 
closely  related  to  the  deed — was  relied  upon  by  counsel  for  appel- 
that  this  fact  might  be  considered  lant  (State  v.  Myers,  82  Mo.  558,  52 
in  determining  whether  the  deed  Am.  Rop.  389;  State  v.  Baynes,  88 
had  been,  in  fact,  forged.  The  Mo.  611),  are  not  applicable  to  this 
forgery  of  the  deed  was  a  fact  that  instruction." 

had  to  be  proved  in  the  case,  and  35 — State   v.   Peterson,   129   N.   C. 

the  testimony  in  respect  to  the  ac-  556,  40  S.  E.  9,  85  Am.  St.  756. 


§  2952.]  CRIMINAL— FORGERY.  1863 

that  even  if  you  find  that  the  defendant  falsely  represented  himself 
as  a  man  of  wealth  and  social  position  to  Norine  S.,  and  concealed 
from  her  the  fact  that  he  had  previously  been  convicted  of  felony,  and 
thereby  induced  her  to  marry  him,  that  this  of  itself  was  not  sufficient 
to  convict  the  defendant,  nor  does  it  prove  any  element  of  the  crime 
charged  in  the  information. 

(b)  In  the  contract  of  marriage  which  forms  the  gateway  to  the 
marriage  status,  the  parties  take  each  other  for  better  or  worse,  for 
richer  or  pooi'er,  to  cherish  each  other  in  sickness  or  in  health;  and 
consequently  a  mistake  by  one  of  the  parties  to  the  marriage,  whether 
resulting  from  accident  or  in  general  from  fraudulent  practices  in 
respect  to  character,  fortune,  health  or  the  like,  is  not  a  crime  under 
the  laws  of  this  state. 

(c)  The  law  indulges  in  no  presumption,  nor  is  a  jury  permitted 
to  indulge  in  any  presumption  that  it  is  more  probable  that  a  person 
previously  convicted  of  felony  will  commit  a  subsequent  crime. 

(d)  I  charge  you  that  if  you  find  that  Norine  S.  on  the  23d 
day  of  February,  19 — ,  was  moi'e  than  18  years  of  age,  that  the  consent 
of  her  mother  or  father  or  either  of  them  was  not  essential  or  neces- 
sary to  consummate  a  legal  marriage  between  the  said  Norine  S.  and 
the  defendant. 

(e)  I  charge  you  that  if  you  find  that  on  Februaiy  23d,  19 — ,  that 
Norine  S.  was  more  than  18  years  of  age,  that  she  had  the  right  to 
marry  the  defendant  or  any  other  person  without  the  consent  of  either 
of  her  parents. 

(f)  I  charge  you  that  if  you  find  on  Februaiy  23d,  19 — ,  that 
Norine  S.  was  18  years  of  age  or  more,  that  her  parents  or  either  of 
them  had  no  right,  by  process  of  law  or  otherwise,  to  prevent  the  said 
Norine  S.  from  marrying  any  man  of  her  choice. 

(g)  If  you  find  from  the  evidence  that  at  the  time  of  the  sending 
of  said  telegram  there  w^as  a  preconceived  arrangement  between  the 
defendant  and  Norine  S.  that  such  a  telegram  should  be  sent 
by  the  defendant  without  the  consent,  authority  or  knowledge  of 
Marie  S.,  and  that  at  the  time  of  the  sending  of  the  telegram  the 
defendant  did  not  intend  to  defraud,  deceive  or  injure  Norine  S.  by 
the  sending  of  the  said  telegram,  and  if  the  said  Norine  S.  knew  when 
said  telegram  was  received  that  it  was  sent  without  the  authority  of 
her  mother  then  your  verdict  must  be  "We,  the  jury,  find  the  de- 
fendant not  guilty." 

(h)  If  you  find  that  Norine  S.  at  the  time  she  received  said  tele- 
gram at  Crockett,  knew  that  the  said  telegram  was  not  signed,  au- 
thorized or  sent  by  her  mother  M.  S.,  and  knew  that  said  telegram 
was  sent  in  pursuance  of  an  arrangement  between  her  and  the  de- 
fendant, and  that  she  was  not  deceived  thereby,  and  that  the  defend- 
ant did  not  intend  to  deceive,  defraud  or  injure  her,  in  the  sending  of 
the  said  telegram,  then  your  verdict  must  be  not  guilty. 


1864  FORMS  OF  INSTRUCTIONS.  [§  2952, 

(i)  As  has  been  stated  to  you,  the  defendant  is  on  trial  for  the 
crime  charged  in  this  information,  and  for  no  other  crime.  The  law 
in  its  wisdom  does  not  undertake  to  regulate  the  moral  conduct  of  its 
subjects,  and  even  if  you  find  that  the  defendant's  conduct  has  been 
very  reprehensible  morally,  still  if  you  are  not  convinced  of  his  guilt 
beyond  a  reasonable  doubt  of  the  crime  charged  in  the  information, 
you  should  find  the  defendant  not  guilty,  no  matter  what  your  opinion 
may  be  of  his  conduct  otherwise.^® 

36— People   v.   Chadwick,  143  Cal.  116,  76  Pac.  884  (886), 


CHAPTER  XCVII. 


CRIMINAL— HOMICIDE. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  2953.  Murder    defined — Alabama. 

§  2954.  Murder  defined — Malice  de- 
fined— Delaware. 

§  2955.  Murder — Essential  elements 
— Illinois. 


§  2956.  Murder  defined — Mississippi. 

§  2957.  Murder  defined — Malice  de- 
fined— North   Carolina. 

§  2958.  Killing  wife  caught  in 
adultery. 

§  2959.  Killing  by  corporal  punish- 
ment. 

§  2960.  Killing  servant  or  child  by 
cruel   treatment. 

§  2961.  Killing  policeman  in  pur- 
suance of  unlawful  con- 
spiracy. 

§  2962.  Homicide  —  Preventing  es- 
cape  of    prisoner. 

§  2963.  Conspiracy  to  kill — Con- 
spirators  equally  liable. 

§  2964.  Death  caused  by  reckless 
driving   of   horses. 

§  2965.  Homicide  —  Previous  rela- 
tions of  parties. 

§  2966.  Shooting  at  one  man,  killing 
another. 

§  2967.  Defendant  charged  with 
killing  one,  evidence  of 
killing  of  another  not  to  be 
considered. 

§  2968.  Mutual  threats  to  kill  both 
carrying  deadly  weapons. 

§  2969.  Shooting  with  gun  or  pistol, 
loaded  with  power  and 
leaden  balls. 

§  2970.  Homicide — Discharging  of 
gun  into  the  air. 

§  2971.  Mere  peacemaker  should  be 
acquitted. 

§  2972.  Killing  by  accident  excus- 
able. 

§  2973.  "Wound  not  necessarily  fatal 
— Death   from   neglect. 

§  2974.  Murder— No  defense  that  life 
might  have  been  saved. 

§  2975.  Defense  of  death  from  other 
causes. 

§  2976.  Turbulent  disposition  of  de- 
ceased. 

§  2977.  Immaterial  whether  defend- 
ant  angry   or   excited. 

§  2978.  Instruction  to  jury  to  con- 
sider only  unlawful  homi- 
cide. 

1865 


§  2979.  Essential  elements  to  con- 
vict— Must  be  proved  be- 
yond  reasonable   doubt. 

§  2980.  Recommending  a  person  to 
mercy. 

§  2981.  Furnishing  forms  of  ver- 
dicts. 

§  2982.  Homicide  —  General  sum- 
mary. 

§  2983.  Murder  in  first  or  second  de- 
gree— Series. 

§  2984.  Homicide^Various  elements 
— Series. 

MURDER   IX   FIRST   DEGREE. 

§  2985.  Murder  in  the  first  degree— 
What  constitutes. 

§  2986.  Murder  first  degree— What 
constitutes  —  Duration  of 
deliberation. 

§  2987.  Murder  in  the  first  and  sec- 
ond   degree    distinguished. 

§  2988.  Whether  murder  or  man- 
slaughter. 

§  2989.  Murder  in  the  first  and  sec- 
ond degree  and  man- 
slaughter defined  and  dis- 
tinguished— Elements  of — 
Michigan. 

§  2990.  Murder  in  the  first  degree — 
Idaho  statute. 

§  2991.  Order  in  which  jury  may 
consider  the  issues — New 
York  code. 

§  2992.  Deceased  assaulting  defend- 
ant—Defendant killing  de- 
ceased after  cooling  time. 

§  2993.  Seeking  quarrel  with  de- 
ceased with  expectation  of 
shooting  him. 

§  2994.  Deceased  making  first  hostile 
demonstration — Direct  evi- 
dence  not   necessary. 

§  2995.  Murder  by  poison— Essen- 
tial facts. 

§  2996.  Deceased  having  had  illicit 
intercourse  with  defend- 
ant's  wife. 

§  2997.  Murder  in  the  first  degree- 
Definition  of — Murder  com- 
mitted in  perpetration  of 
robbery. 

§2998.  Murder— i\ttempt   to   escape. 

§  2999.  Killing  while  attempting  to 
commit    rape. 

§  3000.  Fatally  wounded  by  striking 
with  billiard  cues. 


1866 


FORMS  OF  INSTRUCTIONS. 


§  3001.  Deadly  weapon— Killing  with 
a  large  stone  or  piece  of 
iron. 

§  3002.  Murder  in  first  degree— Met- 
al knucks  or  means  un- 
known —  Stabbing  with 
knife. 

§  3003.  Murder  in  the  first  degree 
— Form  of  verdict. 

MURDER  IN  SECOND  DEGREE. 

§  3004.  Murder  in  the  second  de- 
gree— Elements  of. 

§  3005.  Murder  in  second  degree  de- 
fined—Shooting with  re- 
volving pistol  loaded  with 
gunpowder  and  leaden 
balls. 

§  3006.  Murder— Distinction  between 
first    and    second    degree. 

§  3007.  Murder  in  second  degree- 
Elements  to  consider — Cali- 
fornia   statute. 

§  3008.  Murder  in  second  degree- 
North  Carolina. 

§  3009.  Murder  in  second  degree- 
Killing  must  be  malicious 
— Reasonable  doubt — Ala- 
bama, 

§  3010.  Malice  necessary  in  murder 
in  second  degree,  but  will 
be  implied — Texas. 

§  3011.  Need  not  be  previously  plan- 
ned or  deliberated  upon, 
but  must  be  a  cold  blooded 
and  malicious  act — Wyo- 
ming. 

§  3012.  Murder  in  the  second  degree 
— Killing  before  cooling 
time  had  elapsed. 

§  3013.  In  violent  passion  from  of- 
fensive  language   used. 

§  3014.  Heat  of  passion — Determined 
with  reference  to  ordinary 
men. 

§  3015.  Under  such  passion  as  to  de- 
prive defendant  of  the 
power  to  form  intent  to 
kill. 

§  3016.  Sudden  transport  of  passion 
— Without  adequate  cause 
— Deadly  weapon — Leather 
belt    may    be. 

§  3017.  Mutual  combat  —  Deadly 
weapon  suddenly  snatched 
up. 

§  3018.  Criminal  intimacy  of  de- 
ceased with  defendant's 
sister  no   defense. 

§  3019.  Killing  child  by  beating  its 
mother. 

§  3020.  Murder  in  second  degree  pre- 
sumed— Burden    of    proof. 

§  3021.  Murder  in  second  degree — 
Presumed  from  killing 
with  billiard   cues. 

§  3022.  Murder  in  second  degree — 
Form  of  verdict. 


MANSLAUGHTER. 

§  3023.  Manslaughter   defined. 

§  3024.  Manslaughter  defined— U.  S. 
Courts. 

§  3025.  Manslaughter  defined — Sud- 
den conflict  arising  from 
quarrel. 

§  3026.  Manslaughter—  Facts 
amounting  to. 

§  3027.  Voluntary  manslaughter — 
What    constitutes. 

§  3028.  Manslaughter  in  the  first  de- 
gree— Definition   of. 

§  3029.  Manslaughter  —  Second  de- 
gree. 

§  3030.  Manslaughter  in  third  degree 
—In  a  heat  of  passion  and 
without  a  design  to  kill — 
Missouri. 

§  3031.  Manslaughter  in  the  fourth 
degree. 

§  3032.  Murder  and  voluntary  man- 
slaughter  distinguished. 

§  3033.  Manslaughter  distinguished 
from  self-defense. 

§  3034.  Under  indictment  for  mur- 
der. 

§  3035.  Murder  or  voluntary  man- 
slaughter —  Reasonable 
doubt  as  to  which,  to  be 
resolved  in  favor  of  man- 
slaughter— Where  there  are 
two  motives  ascribed — any 
doubt  should  be  resolved 
in  favor  of  defendant. 

§  3036.  Homicide — Degree  of — Sever- 
al defendants. 

§  3037.  Under  the  immediate  in- 
fluence of  sudden  passion — 
Provocation  must  arise  at 
the  time  of  the  killing — 
Passion  and  adequate 
cause  defined. 

§  3038.  In  the  heat  of  overwhelming 
passion,  superinduced  by 
sudden  and  sufficient 
provocation  —  Sudden  and 
uncontrollable    passion. 

§  3039.  Provocation  and  passion 
must  concur. 

§  3040.  Slight  or  trivial  provocation 
not  sufficient — Provocation 
defined. 

§  3041.  Manslaughter — Malice  and 
intent  not  essential. 

§  3042.  Manslaughter— Sheriff  kill- 
ing one  who  attempts  to 
release    prisoner. 

§  3043.  Manslaughter  —  Killing  in 
attempt  to  procure  abor- 
tion. 

§  3044.  Manslaughter — Intimacy  of 
deceased  with  defendant's 
wife. 

§  3045.  Manslaughter  —  Negligence 
causing   boiler   explosion. 

§  3046.  Form  of  verdict. 


§2953.]  CRIMINAL— HOMICIDE.  1867 

§  2953.  Murder  Defined — Alabama.  If  the  deceased  died  from  the 
effects  of  a  wound  inflicted  by  a  gun  in  the  hands  of  the  defendant, 
and  such  Avound  was  intentionally  inflicted  in  pursuance  of  a  previous- 
ly formed  design  to  take  his  life,  he  would  be  guilty  of  murder.^ 

§  2954.  Murder  Defined — Malice  Defined — Delaware.  Murder  is 
the  unlawful  killing  of  a  human  being,  under  the  peace  of  the  state, 
by  a  person  of  sound  memory  and  discretion,  with  malice  afoi-e- 
thought,  either  express  or  implied.  The  chief  characteristic  of  this 
crime,  distinguishing  it  from  manslaughter  and  every  other  kind  of 
homicide,  and  therefore  indispensably  necessary  to  be  proved,  is 
malice  preconceived  or  aforethought.  This  tenii  "malice,"  is  not  re- 
stricted to  spite  or  malevolence  toward  the  deceased  in  particulai*, 
but,  in  its  legal  sense,  it  is  understood  to  mean  that  general  malignity 
and  recklessness  of  the  lives  and  personal  safety  of  others  which  pro- 
ceed from  a  heart  void  of  a  just  sense  of  social  duty  'and  fatally  bent 
on  mischief.  Malice  is  implied  by  law  from  every  deliberate,  cruel  act 
committed  by  one  person  against  another,  no  matter  how  sudden  such 
act  may  be.  For  the  law  considers  that  he  who  does  a  cruel  act  vol- 
untarily, does  it  maliciously.- 

§  2955.  Murder — Essential  Elements — Illinois.  You  are  further 
instructed  that,  if  you  believe,  from  the  evidence  in  this  case,  beyond 
a  reasonable  doubt,  that  the  defendant,  with  malice  aforethought^ 
either  expressed  or  implied,  inflicted  upon  the  deceased,  H.  M.,  the 
mortal  wound  or  wounds  in  manner  and  fonn  as  charged  in  the  in- 
dictment, not  in  self-defense  as  the  same  is  defined  in  these  in- 
structions, and  not  upon  a  sudden  heat  of  passion,  caused  by  a  provo- 
cation apparently  sufficient  to  make  the  passion  irresistible,  and  that 
the  said  H.  M.  did  thereafter  die  from  said  mortal  wound  or  wounds, 
in  manner  and  form  as  charged  in  the  indictment,  then  the  jury  should 
find  the  defendant  guilty  of  murder.^ 

§  2956.  Murder  Defined — Mississippi.  The  court  instructs  the  jury 
that  murder  is  the  killing  of  a  human  being  with  the  deliberate  de- 
sign to  effect  the  death  of  the  person  killed,  [without  authority  of 
law,]  and  if  the  juiy  believe  from  all  the  evidence  in  the  case,  be- 
yond a  reasonable  doubt,  that  the  defendant  so  killed  the  deceased, 
then  the  jury  will  find  the  defendant  guilty  as  charged.* 

1 — Harknoss  v.  State,  129  Ala.  71,  was  the  duty  of  the  jury  to  find  the 

30  So.  73  (74).  defendant  g-uilty  of  murder.     Th^s 

2 — State  v.    Brinte.  —  Del.  — .   58  being     so.     the     concluding-     words 

Atl.  258  (262),  citing  State  v.  Golds-  were  proper." 

borousrh.  Houst.  Cr.  Cas.  314.  4— Ivy   v.    State,    84   Miss.    264,    36 

3_Carle    v.    People.    200    Til.     494  So    ''fiS  (266). 

(500).  66  N.   E.  32,  93  Am.  St.  208.  "The    above    instruction    fn^-    the 

"This  instruction  contains  all  the  stite   oueht   to   ha^'e   contained   the 

elements    of    the    crime    of    murder  words    'without    authority   of   law,' 

in    the    facts   which    it   assumes    to  since  it  was  manifestly  drawn  un- 

exist.    and   if  those  elements   were  der   the   statute." 
established    by    the     testimony,     it 


1868  FORMS  OF  INSTRUCTIONS.  [§  2957. 

§  2957.  Murder  Defined— Malice  Defined — North  Carolina.  It  is 
murckr  when  a  person  of  sound  mind  and  discretion  nnlawfully  killeth 
any  reasonable  creature  in  being  and  under  the  peace  of  the  state, 
with  malice  aforethought,  either  express  or  implied.  By  sound  mind 
and  discretion  is  meant  that  the  one  doing  the  killing  has  a  will  or 
legal  discretion.  Malice  is  a  wicked  intention  to  do  the  injury,  and 
is  of  two  kinds^express  malice  and  implied  malice.  When  a  party 
evinces  an  intention  to  commit  the  crime  it  is  express  malice.  When 
a  person  commits  an  act  unaccompanied  by  any  circumstances  justify- 
ing its  commission  it  is  implied  malice ;  the  law  presumes  he  has  acted 
advisedly,  and  intended  the  consequences  produc'ed  by  his  act.^ 

§  2958.  Killing  Wife  Caught  in  Adultery.  The  law  is  that  if  a 
man  discovers  his  wife  in  the  act  of  adultery,  and  his  passion  is 
greatly  aroused,  and  through  this  passion  he  strikes  and  kills  his  wife, 
it  would  not  be  murder,  but  manslaughter.  The  law  does  not  say  that 
under  all  circumstances  a  man  is  not  guilty  of  murder  if  he  kill  his 
wife,  even  if  in  the  act  of  adultery  at  the  time  of  the  killing.  The 
test  is,  does  the  slayer  slay  by  reason  of  passion  aroused  or  induced 
by  revenge  or  malice  ?  If  a  wife  has  lost  her  virtue  and  continues  to 
defile  her  marriage  bed,  and  the  husband  knows  this,  and  after  so 
knowing,  and  after  reflection,  while  the  mind  is  coolly  operating, 
kills  her  to  avenge  his  wounded  honor,  and  not  by  reason  of  passion, 
it  would  be  murder,  not  manslaug'liter.  Therefore,  in  the  case  at  bar, 
gentlemen  of  the  jury,  if  you  should  find  from  the  evidence  that  the 
defendant  caught  her  in  the  act,  and  through  the  influence  of  passion, 
shortly  thereafter  killed  her,  this  would  be  manslaughter;  but  if  you 
should  find  that  the  defendant  caught  his  wife  in  the  act  of  adultery, 
and  before  the  killing  there  was  sufficient  cooling  time,  and  he  killed 
her  through  hatred  and  revenge,  this  would  be  murder  and  not  man- 
slaughter.*^ 

5 — State   V.    Mills,    116   N.    C.    992,  and   provoked   by  the  wrong   done 

21  S.   E.  106   (107).  him,    and    moved    by    the    passion 

6 — McNiMll   v.    State,   102   Ala.   121,  naturally     ensrendered,     he     imme- 

15   So.   352    (354),    48   Am.    St.   17.  diately    kills   her,    he    is   not   guilty 

The  court   said   that   the   several  of    murder,   but    of    manslaughter 

sentences   of    the     general    charge  only;   but  that  on   the   ether   hand 

should  be  read  in  the  light  of  the  if  he  does  not  strike  and  kill  until 

context.     Citing  Montgomery,   etn.,  after  there    has  been   time  for   his 

R.    R.   Co.    V.    Stewart,   91   Ala.   421,  passion   to   cool   and   for  reason    to 

427,  8  So.  708;  Williams  v.  State,  83  reassert  itself,  or  if  he  strikes  and 

Ala.     68,    3     So.    743;     O'Donnell     v.  kills  immediately,  but  is  not  moved 

Rodiger,   76    Ala.   222,   52   Am.    Rep.  thereto  by  the  heat  of  passion,  but 

322;  Liouisville  R.  R.  Co.  v.  Orr,  94  by  prior  malice  or  hatred,  a  desire 

Ala.  602,  10  So.  167.  to  nvonge  the  wrong  done  him,  or 

Continuing  the   court  said:  bv  any  other  motive,  or  upon  any 

"Considered    in     this     way     nnd  dcsiarn  whatever,  except  such  as  is 

P'-obabiy  •P'ithont   rf^fereni^e   to   the  pr-csently  enarendered  by  the  parox- 

p»-incip1e   lust   st'^ted.   t^at   part   of  ysm     of     rage     into     which     he     is 

th"  court's  general  charce  to  whir>h  thrown    by    th's    extreme    provoca- 

p-^T-pntion*?    wcp     rPF'^T"^''^d    asse'-ts  ti'^n   hp  is   gin'ltv  o*'  murdpr.     And 

no  mnrp  than  th'<=;  Th^t  if  a  man  this  beyond  all  doubt  is  the  law." 
find  his  wife  in  the  act  of  adultery, 


§  2959.]  CRIMINAL— HOMICIDE.  1869 

§  2959.  Killing  by  Corporal  Punishment.  Where  a  killing  is  ef- 
fected by  unlawful  means,  productive  of  corporal  punishment,  and 
the  natural  consequence  of  which  is  to  produce  death,  it  may  be 
murder  or  manslaughter,  though  there  was  no  specific  intention  to 
kill,  such  as  where  one  in  cold  blood  unlawfully  and  deliberately  beats 
another  so  that  he  dies,  it  might  be  murder,  though  he  did  not  intend 
to  kill,  if  the  instrument  or  manner  of  beating  be  apt  to  kill,  or  the 
natural  consequence  of  which  was  to  produce  death.'^ 

§  2960.  Killing  Servant  or  Child  by  Cruel  Treatment.  Killing  by 
cruel  treatment  might  be  murder,  though  the  murderer  might  have 
the  authority  to  correct  in  a  reasonable  and  proper  manner, — as  a 
father  his  child,  or  a  master  his  servant.^ 

§  2960a.  Policeman— When  Not  Justifiable  in  Killing  Citizen.  If 
defendant  used  the  warrant  of  arrest  as  a  mere  pretext  for  killing 
deceased,  or  if  defendant  did  shoot  deceased  before  deceased  mani- 
fested any  intention  of  offering  serious  resistance,  or  if,  at  the  time 
of  shooting,  defendant  knew  his  own  life  was  not  in  danger,  nor 
was  he  threatened  with  great  bodily  injuiy,  then  he  would  not  be 
justified  in  taking  the  life  of  deceased.^ 

§  2961.  Killing  Policeman  in  Pursuance  of  Unlawful  Conspiracy. 
Although  you  may  believe  that  said  M.  had  threatened  to  arrest  de- 
fendant and  parties  with  him,  and  had  exhibited  his  pistol  for  that 
purpose,  and  although  you  may  further  believe  that  said  M.,  as  an 
officer,  had  no  right  to  arrest  said  parties  outside  of  the  corporate 
limits  of  D,,  still  if  you  believe  beyond  a  reasonable  doubt,  from 
the  evidence,  that  said  killing  was 'done  in  compliance  with  and  in 
furtherance  of  an  unlawful  conspiracy,  such  killing  would  be 
murder.^** 

§  2962.  Homicide — Preventing  Escape  of  Prisoner,  (a)  The  court 
instructs  the  jury  that,  if  you  believe  from  the  evidence  deceased 
was  drunk  and  disorderly  in  the  presence  of  appellant,  the  latter, 
as  marshal  of  the  town  of  McH.,  had  the  right  to  arrest  him  without 
a  warrant,  and  to  hold  him  in  custody  until  the  presence  of  the  police 
judge  could  be  secured  to  make  some  disposition  of  the  ease,  and, 
if  you  further  believe  from  the  evidence  that,  after  the  arrest  of 
the  deceased,  and  while  appellant  had  him  in  custody,  deceased  at- 
tempted by  force  or  violence  to  effect  his  release  from  appellant's 
custody  as  an  officer,  appellant  had  the  right  to  use  such  force  as 
was  necessary  or  what  reasonably  appeared  to  him  to  be  necessaiy, 
but  no  more,  to  ovei'come  the  forcible  resistance  of  deceased,  and 
if,  under  these  circumstances,  he  shot  and  killed  deceased,  the  kill- 
ing  was   excusable,  if  appellant  could  not  otherwise   overcome   the 

7— Winter  v.  State,  123  Ala.  1,  26  9— Bartay  v.  State,"  —  Tex.  Cr. 
So.    949    (950).  App.  — .  67  S.  W.   416  (417). 

8— Winter  v.  State,  123  Ala.  1,  26  10— Rruner  v.  United  States,  4 
So.    949   (950).  Ind.  Ter.  80,  76  S.  W.  244  (246). 


1870  FORMS  OF  INSTRUCTIONS.  [§  2963. 

forcible  resistance  of  deceased,  or  it  reasonably  appeared  to  liim  that 
he  could  not  do  so.^^ 

(b)  If  an  officer  has  lawfully  in  his  custody  a  person  charged 
with  having  committed  a  crime  not  a  felony,  the  officer  is  not  au- 
thorized in  order  to  prevent  his  escape  to  shoot  him  or  at  him  or  to 
draw  a  dangerous  weapon  for  the  purpose  of  preventing  such  es- 
cape.^2 

§  2963.  Conspiracy  to  Kill — Conspirators  Equally  Liable,  (a)  If 
you  believe  from  the  evidence  beyond  a  reasonable  doubt  that  there 
was  a  conspiracy  between  the  defendants  and  the  father  to  take 
the  life  of  the  deceased  or  do  him  great  injury,  and  the  father  of 
defendants  fired  the  fatal  shot  that  killed  the  deceased,  then  de- 
fendants would  be  equally  liable  with  the  father,  if  the  shooting 
by  the  father  was  done  in  carrying  out  the  conspiracy  previously 
entered  into  by  them.^^ 

(b)  If  you  cannot  say  from  the  evidence  beyond  a  reasonable 
doubt  who  killed  G.  (that  is,  whether  it  was  H.  or  T.)  but  can  say 
from  the  evidence  beyond  a  reasonable  doubt  that  one  of  the  two 
killed  him,  and  that  H.  and  T.  were  acting  together  in  the  killing, 
the  defendant  would  be  guiltj^,  and  it  would  be  your  duty  to  convict 
him.i* 

(c)  The  court  instructs  the  jury  that  when  two  or  more  persons 
act  together  in  the  commission  of  an  unlawful  act  or  purpose,  that 
what  either  does  in  carrying  out  suoh  unlawful  act  or  purpose  is, 
in  law,  the  act  of  each  of  said  persons. ^^ 

§  2964.  Death  Caused  by  Reckless  Driving  of  HorseSo  If  you  find 
from  the  evidence  in  the  case  that  the  deceased  came  to  his  death 
by  the  mutual  mistake  of  the  deceased  and  the  defendant  in  the 
honest  endeavor  to  avoid  a  collision  both  on  the  part  of  the  deceased 
and  the  defendant,  then  in  that  event  such  killing  would  be  acci- 
dental and  not  criminal,  and  your  verdict  should  be  not  guilty.  In 
connection  with  that  instruotion,  gentlemen  of  the  jury,  I  instruct 
you  that  if  the  defendant  was  at  the  time  alleged  in  this  information 
engaged  in  an  unlawful  act,  to  wit,  the  aot  of  driving  horses  and 
a  wagon  upon  the  public  highway  in  such  a  manner  as  to  endanger 
the  lives  and  persons  of  others,  and  such  unlawful  act  resulted  in 
the  killing  of  the  person  named  in  the  information  mentioned,  it 
would  then  be  immaterial  whether  the  killing  was  accidental  or  in- 
tentional;  the  defendant  would  be  guilty.^** 

§  2965.    Homicide — Previous  Relations  of  Parties.    If  in  this  you 
are  in  doubt  as  to  the  precise  circumstances  under  which  the  homi- 
cide was   committed — that  is,  are  in   doubt   as   to  whether  the  de- 
ll—Stevens     v.      Commonwealth        14— Hunt  v.   State,  135  Ala.  1,  33 
—  Ky.  — ,  98   S.  W.  284.  So.   329   (330). 

12— Commonwealth  v.  Carter,  —  15— State  v.  Hottman,  196  Mo. 
Mass.  — ,  66  N.   E.  716  (719).  110,   94  S.   W.   237   (240). 

13— Ptovens  v.  State,  133  Ala.  28,  16— State  v.  Stentz,  -33  "Wash. 
32  So.  270  (271).  444.  74  Pac.  588  (590). 


§2966.]  CRIMINAL— HOMICIDE.  1871 

ceased,  at  the  vei'y  moment  of  the  killing,  was,  in  fact,  about  to 
inflict  upon  defendant  great  bodily  harm — then  the  previous  relations 
between  the  parties  and  their  previous  conduct  towards  each  other 
and  defendant 's  knowledge  of  the  deceased  become  important  for 
your  consideration;  and  those  previous  relations  and  that  previous 
conduct  and  knowledge  embrace  every  word  and  act,  in  short,  every 
fact  and  circumstance,  bearing  upon  that  point,  of  which  evidence 
has  been  received.  You  are  to  place  yourselves  as  nearly  as  possible 
in  the  situation  of  the  parties,  as  respects  each  other,  at  the  veiy 
scene  and  time  of  the  homicide. ^^ 

§  2966.  Shooting  At  One  Man,  Killing  Another.  If  the  jury  be- 
lieve from  the  evidence,  beyond  a  reasonable  doubt,  that  the  de- 
fendant, in  Hardin  county,  and  before  the  finding  of  the  indictment, 
did  unlawfully,  willfully,  and  feloniously,  not  in  his  necessary  or 
apparently  necessary  self-defense,  shoot  at  D.  with  a  pistol  loaded 
with  powder  and  leaden  balls,  but  that  the  ball  or  balls  so  shot  at 
said  D.  did  miss  him,  and,  instead,  then  and  thei'e  strike  and  kill 
W.,  they  should  find  defendant  guilty.  That  is,  guilty  of  murder, 
if  they  believe  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  shooting  was  done  with  malice  aforethought;  or,  of  voluntary 
manslaughter  if  they  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  it  was  done  in  a  sudden  affray,  or  in  sudden  heat  and 
passion,  and  without  previous  malice.  If  they  find  the  defendant 
guilty  of  murder,  'the  jury  should  fix  the  punishment  at  death,  or 
confinement  in  the  penitentiaiy  for  life,  in  their  discretion.  But  if 
they  find  him  guilty  of  voluntary  manslaughter,  they  should  fix  his 
punishment  at  confinement  in  the  penitentiary  not  less  than  —  nor 
more  than  —  years,  in  their  diseretion.^^ 

§  2967.  Defendant  Charged  With  Killing  One,  Evidence  of  Kill- 
ing of  Another  Not  to  Be  Considered.  The  defendant  is  on  trial, 
charged  with  shooting  Abe  C.  only,  and  if  you  do  not  believe  the  evi- 
dence sufficient  to  convict  him  under  that  charge  you  cannot  convict 
him  for  shooting  the  Italian  girl.^^ 

§  2968.  Mutual  Threats  to  Kill,  Both  Carrying  Deadly  Weapons. 
If  the  jury  believe  from  the  evidence  established  beyond  a  reasonable 
doubt  that  the  defendant  and  the  deceased  bore  malice  to  each  other, 
and  that  there  had  been  mutual  threats  to  kill  against  the  other, 

17— People    V.     Gallanar,    3    Cal.  the   case,   and   no    intimation    was 

App.  431,  86  Pac.  814  (815).  given    that    appearances    might    be 

"Appellant  contends  that  this  in-  determined  from  probabilities  aris- 

struction    amounted    to    the    advice  ing  from  circumstances  not  in  evi- 

of    the    court    to    the    jury    that    it  dence.       Besides,     this     instruction 

might    discard   the   direct   evidence  must   be   read   with    other   instruc- 

in  the  case  and  arrive  at  a  verdict  tions   which   were  given   upon   ap- 

on   certain  circumstantial  evidence  pearances." 

and     probabilities.       But     such     a  18— Held  that  the  trial  court  erred 

theory    cannot    be    maintained,    for  in  refusing  this  instruction.  Wheat- 

the  jury  was   distinctly    told    that  ley    v.    Commonwealth,    26    Ky.    L. 

the     previous     relations,     previous  436,   81    S.   W.   687   (689). 

conduct    and    knowledge    must    be  19 — Watson  v.    State,  —  Tex.   Cr. 

such  as  shown  by  the  evidence  in  App.  — ,  89  S.  W.  270  (271). 


1872  FORMS  OF  INSTRUCTIONS.  [§  2969. 

known  to  each  of  them,  and  that  each,  with  the  knowledge  of  the 
other,  had  deliberately  procured  pistols  for  the  purpose  of  fighting 
with  them,  and  had  thereupon  deliberately  fought  with  their  pistols, 
and  under  these  circumstances  the  defendant,  being  quicker  than  the 
deceased,  fired  and  killed  the  deceased,  the  juiy  would  be  authorized 
to  find  the  defendant  guilty  of  the  crime  of  murder.-" 

§  2969.  Shooting  With  Gun  or  Pistol,  Loaded  With  Powder  and 
Leaden  Balls.  The  jury  should  find  the  defendant  not  guilty,  unless 
the  juiy  believe  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  defendant  did,  in  F.  county,  Ky.,  and  prior  to  the  28th  day  of 
March,  1905,  willfully  shoot  and  kill  L.,  by  shooting  said  L.,  with 
a  gun  or  pistol,  or  both,  loaded  with  powder  and  leaden  balls,  or 
other  hard   substances.-^ 

§  2970.  Homicide — Discharging  of  G-un  Into  the  Air.  I  instruct 
you  that  the  pointing  of  a  gun  in  the  air  is  not  an  unlawful  act, 
and  I  charge  you  that  the  respondent  would  have  the  right  to  take 
a  gun  out  into  the  field  to  the  east  of  the  house  and  to  point  the  same 
in  the  air,  as  long  as  in  doing  so  he  did  not  take  it  there  for  the 
purpose  of  obstructing  or  resisting  the  officer,  E.  M.,  and  did  not 
use  it  for  that  i^urpose.  1  instruct  you  that  the  discharging  of  the 
gun,  by  respondent,  in  the  aii',  is  not  an  unlawful  act,  and  I  charge 
you  that  the  respondent  would  have  the  right  to  take  the  gun  out 
into  the  field  east  of  the  house  and  discharge  the  same  into  the  air, 
as  long  as  by  doing  so  he  did  not  take  it  there  for  the  purpose  of 
obstructing  or  resisting  the  officer,  E.  M.,  and  did  not  use  it  for  that 
purpose  and  did  not  use  it  in  such  manner  as  to  amount  to  a  reckless 
disregard  of  human  life  by  so  using  it.  The  respondent,  under  the 
law,  had  a  right  to  take  the  gun  with  him  into  the  field  where  the 
shooting  occurred,  so  long  as  by  so  doing  he  did  not  take  it  there 
for  the  purpose  of  obstructing  and  resisting  the  ofifleer,  E.  M.,  and 
did  not  use  it  for  that  purpose,  and  to  carry  said  gun  in  his  hands 
and  to  point  the  same  in  the  air,  so  long  as  he  did  not  have  the  gun 
there  for  the  purpose  of  obstructing  the  officer  or  resisting  the  offi- 
cer, but  he  would  not  have  the  right  to  knowingly  point  said  gun  in 
the  direction  of  any  person. -- 

§  2971.  Mere  Peacemaker  Should  Be  Acquitted.  The  court  charges 
the  jury  that  if  the  jury  believe  from  all  the  evidence  that  E.  B. 
and  C.  N.  shot  and  killed  S.,  and  that  defendant  did  no  more  than 

20— Roark  v.  State,  105  Ga.  736,  32  ever    may    have   occurred    in    the 

S.  E.  125  (126).  lower    field,    so    long    as    the    logs 

21 — Stout   V.     Commonwealth,     29  called  for  had  not  in  fact  been  se- 

Ky.   L.   627,   94   S.  W.   15.  cured,   the   writ   had   not   spent   its 

22— People  v.  Sauer,  143  Mich.  308,  force.     If,   however,   the  jury  were 

106  N.  W.  866.  satisfied    that    the   ofl^cer   was   not, 

"We  think  this  charge  sufficient-  at  the  time  he  was  shot  down,  act- 

ly       recognized      the       defendant's  ing  under  the  writ,  the  charge  fully 

theory  in   so  far  as  it  was  entitled  protected     the     rights     of    the    ac- 

to  cnnsideration.  The  writ  was  still  cused." 
in   the   officer's   hands,   and,   what- 


§  2972.]  CRIMINAL— HOMICIDE.  1873 

try  to  keep  peace,  the  night  of  the  shooting,  then  the  defendant  is 
not  guilty,  and  the  jury  ought  to  acquit  the  defendant.-'* 

§  2972.  Killing  By  Accident  Excusable,  (a)  If  you  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  defendant  J.  S.,  abouit 
the  time  alleged  in  the  indictment,  did  shoot  and  thereby  kill  the 
deceased,  and  you  further  believe  from  the  evidence  that  such  shoot- 
ing was  accidental,  and  not  intentional,  upon  the  part  of  defendant, 
then  and  in  that  event  the  homicide  is  excusable ;  and  if  you  so 
'believe  from  the  evidence,  or  if  you  have  a  reasonable  doubt  thereof, 
then  you  will  find  the  defendant  not  guilty.-* 

(b)  If,  after  reviewing  all  the  evidence  in  the  case,  the  jury 
entertains  a  reasonable  doubt  therefrom,  as  to  whether  or  not, 
at  the  time  the  pistol  was  fired,  the  defendant  and  the  deceased  were 
scuffling  for  the  possession  of  the  pistol,  and  [believe]  that  it  was 
fired  accidentally  during  such  scuffle,  and  without  intent  to  take 
life,  then  the  jury  must  acquit.-^ 

(c)  If  you  fail  to  find  that  R. 's  death  was  due  to  human  agency, 
that  will  end  the  case  in  favor  of  the  pi'isoner.  But  if  you  consider 
that  fthe  theory  of  accidental  death  cannot  reasonably  be  entertained 
on  this  evidence,  there  remains  the  question  whether  the  prisoner 
inflicted  the  injuries.-^ 

§  2973.  Wound  Not  Necessarily  Fatal— Death  From  Neglect,  (a) 
If  you  believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  gunshot  wound  was  in  itself  mortal  and  reasonably  calculated 
from  its  nature  and  extent  to  produce  death  without  any  medical 
or  surgical  treatment,  then  it  would  be  no  defense  that  the  deceased, 
under  better  or  different  medical  treatment,  might  or  probably  would 
have  recovered,  nor  will  the  law  justify  a  verdict  of  acquittal,  merely 
upon  the  ground,  if  proved,  that  the  medicine  administered  or  the 
surgical  treatment  adopted  to  restore  or  relieve  the  deceased  in  point 
of  fact,  co-operated  with  the  wound  in  producing  death.  It  would 
be  enough  if  you  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  gunshot  wound  of  itself,  would  have  resulted  in  death 
and  that  it  did  in  fact  contribute  directly  to  the  death,  provided 
also,  you  further  believe,   from  the   evidence,  beyond   a  reasonable 

23 — Nicholson    v.    State,    117    Ala.  lishing  the  offense  beyond  a  reason- 

32,  23  So.  792.  able  doubt,  and  told  them,  that  the 

24 — Scott   V.    State,     46     Tex.     Cr.  evidence     being     entirely     circum- 

App.  536,  81  S.  W.  294.  stantial,  it  must  be  such  as  to  ex- 

"We  think  the  charge  is  correct,  elude  every  reasonable  theory  con- 

and    not    subject    to    the    criticism  sistent    with    the    prisoner's    inno- 

urged  by  appellant.    Hull  v.  State,  cence;   that  that   was   but   another 

—  Tex.  Cr.  App.  — ,  80  S.  W.  380.  statement  of  the  rule  that  the  of- 

25 — Johnson  v.  State,  —  Miss^  — ,  fense  must  bo  established  beyond  a 

30  So.  39  (40).  reasonable    doubt,   for,   if   there  re- 

26 — State  v.    Bean,  77  Vt.    384,   60  mained     a    reasonable    ground    on 

Atl.  807  (814).  which     the    killing     could     be     ac- 

In    this   case    "the   couvt   had   al-  counted  for  without  the  agency  of 

ready  instructed  the  ju  ry  ns  to  the  the    prisoner,   it   could    not   be   said 

burden    of    proof     res'^ing     on     the  that  his  guilt  was  established  be- 

Btate,   and  the   neceF.gjty  of  esta^^  yond.  a  reasonable  doubt." 
118 


1874  FORMS  OF  INSTRUCTIONS.  [§2974. 

doubt,  that  the  said  wound  was  inflicted  with  malice  aforethought.^^ 

(b)  Upon  the  question,  what  was  the  cause  of  the  death  of  the 
deceased,  the  court  instructs  you  that  in  order  to  convict  the  de- 
fendant under  this  indictment,  you  must  be  able,  from  the  evidence, 
to  trace  the  death  to  the  injury  alleged  to  have  been  inflicted  by 
the  defendant  and  that,  too,  beyond  any  reasonable  doubt. ^* 

(c)  If  one  person  inflicts  wounds  upon  another,  which  are  dan- 
gerous in  themselves,  though  not  necessarily  fatal,  but  which  do  pro- 
duce death  through  a  chain  of  natural  causes  and  elfects,  unin- 
fluenced by  human  action,  then  the  wounds  are  to  be  regarded  as 
the  cause  of  the  death.  And  in  this  case  if  you  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  did  inflict 
wounds  upon  the  deceased,  in  manner  and  form  as  charged  in  the 
indictment,  and  that  these  wounds  were  dangerous  in  themselves 
though  not  necessarily  fatal,  and  that  these  wounds  caused  conges- 
tion of  the  brain,  and  that  the  deceased  died  of  such  congestion 
or  that  the  congestion  caused  him  to  expose  himself  to  the  inclemency 
of  the  weather,  and  that  such  exposure  was  the  immediate  cause 
of  his  death,  still,  in  law,  it  will  be  held  that  the  defendant,  by  in- 
flicting the  wounds,  caused  the  death  of  the  deceased. ^^ 

(d)  If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  cut  the  deceased,  G.  W.,  in  the  arm  with 
a  knife  or  other  instrument  capable  of  inflicting  a  similar  wound, 
as  charged  in  the  indictment,  it  is  no  excuse  to  say  that  the  de- 
ceased would  not  have  died  if  he  had  taken  proper  care  of  himself, 
or  that  neglect  or  the  want  of  proper  applications  to  the  wound  had 
brought  on  blood  poisoning,  and  of  that  he  died,  provided  you  be- 
lieve, from  the  evidence,  beyond  a  reasonable  doubt,  that  the  wound 
was  the  primary  or  true  cause  of  his  death.^*' 

(e)  The  law  is,  that  if  one  unlawfully  inflicts  upon  another  a 
wound  which  is  not  in  its  nature  necessarily  mortal,  but  which 
might  be  cured  by  proper  care  and  surgical  treatment,  and  the  person 
injured  neglects  to  procure  such  care,  or  refuses  to  receive  such 
surgical  treatment,  and  he  die  of  the  wound  owing  to  such  want 
of  care  and  treatment,  this  will  not  excuse  the  person  inflicting  the 
wound;  and  if,  in  such  case,  the  jury  further  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  injury  was  inflicted 
by  accused  with  malice  aforethought,  as  explained  in  these  instruc- 
tions, and  that  the  deceased  died  from  such  wounds,  then  the  jury 
should  find  the  accused  guilty  of  murder.^^ 

§  2974.  Murder — No  Defense  that  Life  Might  Have  Been  Saved. 
(a)  If  the  jury  believe  and  find  from  the  evidence  that  the  death 
of  X.  resulted  from  the  effects  of  a  blow  upon  the  head  inflicted 

27— People  v.  Cook.  39  Mich.  236;  (118),   24   N.    E.   765,    affirming   con- 

Powles  v.  State,  58  Ala.  335.  viction  of  manslaughter. 

28— Ppoplo  v.   Cook,  39   Mich.   236.  31—2   Bishop     Crim.     Law,    §   638- 

29— Kplley   v.    State,   53   Ind.    311.  639;  State  v.  Bantley,  44  Conn.  537; 

30— Duncan  v.  People,  134  111.  110  Williams  v.  State,  2  Tex.  App.  271. 


§  2975,]  CRIMINAL— HOMICIDE.  1875 

by   defendant   with    a   pistol   in   D.   county,   Missouri,   in   November, 

,  said  death  occurring-  in  said  county  and  state  in  December, 

,  you  cannot,  in  arriving  at  your  verdict,  take  into  considera- 
tion the  fact,  if  fact  it  be,  that  said  X. 's  life  might  have  been  saved, 
after  the  infliction  of  said  blow,  by  a  proper  medical  or  surgical 
treatment.^^ 

(b)  If  a  man  gives  another  a  stroke  or  wound  which  it  may  be 
is  not  of  itself  mortal  or  fatal,  but  might  with  good  treatment 
be  cured,  yet,  if  death  was  accelerated  by  the  violence  of  the  de- 
fendant, he  may  be  guilty.^^ 

§  2975.  Defense  of  Death  From  Other  Causes.  If  the  jury  should 
find  from  the  evidence  in  this  case  that  the  accused  died  of  the 
effects  of  alcoholism,  extreme  heat,  cr  other  causes  than  the  alleged 
violence  of  the  defendant,  as  I  have  defined  it  to  you,  he  cannot  be 
convicted  of  murder  or  manslaughter,  but  might  be  convicted  of  an 
assault  with  intent  to  murder.-''* 

§  2976.  Turbulent  Disposition  of  Deceased.  If  the  jury  believe 
from  the  evidence  that  the  deceased  was  of  a  rash,  violent,  and 
turbulent  disposition,  and  that  the  defendant  had  knowledge  of  such 
disposition,  then  it  is  a  circumstance  for  the  consideration  of  the 
jury  in  considering  the  reasonable  cause  for  defendant's  apprehen- 
sion of  great  personal  injury  to  himself.^^ 

§  2977.  Immaterial  Whether  Defendant  Angry  or  Excited.  Whether 
or  not  the  defendant  was  angry  or  excited  at  the  time  he  killed  the 
decedent  is  immaterial,  provided  that  you  find  that  the  killing  was 
unjustifiable,   and  with  malice   aforethought,  as  heretofore  defined. ^"^ 

§2978.  Instruction  to  Jury  to  Consider  Only  Unlawful  Homicide. 
More  precisely,  gentlemen,  you  are  concerned  with  that  species  of 
homicide  which  the  law  defines  to  be  unlawful  or  criminal,  for  no 
possible  aspect  of  the  case  presented  upon  the  evidence  makes  it 
necessary  or  profitable  for  you  to  consider  that  class  of  homicide 
which  the  law  regards  as  excusable  or  justifiable.^'' 

32— State  v.  Lane,  158  Mo.  572,  59  33— Winter  v.  State,  123  Ala.  1,  26 

S.  W.  965  (967).  So.   949   (950). 

"No    effort    had    been     made    to  34 — Winter  v.  State,  supra, 

show     any     maltreatment     of     the  35 — State  v.   Darling,  199  Mo.  168, 

wound,   or  any   misconduct   on   the  97  S.  W.  592. 

part  of  deceased   with  reference  to  36 — State   v.    Hunter,   118    la.    686, 

his  wound,  and  the  evidence  of  all  92  N.  W.  872  (875).     See  also  People 

the    physicians    was    to    the    effect  v.  Tuczlcewitz,  149  N.  Y.  240,  43  N. 

that  the  wound  caused  the  death  of  E.  548  (553). 

X.     The  court  was  right  in  telling  37— State  v.  Marx,  78  Conn.  18,  60 

the  jury  in  plain  language  that  the  Atl.  690  (692). 

post    mortem    discovery    that    tre-  The  court  said  that  "there  is  no 

phining  at   the  proper  time  would  error  in   this.     It   does  not   appear 

have  saved  the  life  of  the  deceased  that    any    possible    aspect    of     the 

was  no   defense    whatever    to    the  case,    as   it    was   presented    to    the 

charge.     State,  v.  Landgraf,  95  Mo.  jury    upon    the    evidence,    required 

97,  8  S.  "W.  237,  6  Am.  St.  26;   State  a    consideration    of    the   law   which 

v.  Strong,  153  Mo.  548,  55  S.  W.  78;  defines    an   excusable   or  justifiable 

Com.    v.    Hackett,    2    Allen    136,    1  homicide.      No    claim    of    this    kind 

Hale,  P.  C.  428."  was  made  upon   the   trial.     Under 


1876  FORMS  OF  INSTRUCTIONS.  [§  2979. 

§  2979.  Essential  Elements  to  Convict — Must  be  Proved  Beyond 
Reasonable  Doubt,  (a)  It  is  incumbent  upon  the  prosecution  to  es- 
tablish all  the  material  allegations  of  the  information  beyond  a 
reasonable  doubt.  The  material  allegations  of  the  information  as 
here  used  are  as  follows:  (1)  That  A.  B.  was  killed  by  some  criminal 
agency;  (2)  that  he  was  killed  within  this  county  at  or  about  the 
time  stated;  and  (3)  that  the  defendant  had  a  criminal  agency  in 
that  killing.  If  these  allegations  are  established  in  your  minds  be- 
yond a  reasonable  doubt,  then  the  prosecution  has  established  beyond 
a  reasonable  doubt  all  the  material  allegations  of  the  information. 
It  is  not  necessary  that  other  facts  or  circumstances  surrounding 
such  testimony  as  has  been  given  on  behalf  of  the  state  should  be 
established  by  a  preponderance  of  evidence,  or  may  not  be  estab- 
lished. It  is  not  meant  that  it  is  incumbent  upon  the  prosecution 
to  establish  every  fact  surrounding  such  testimony,  as  given,  beyond 
a  reasonable  doubt.  All  that  is  incumbent  on  the  prosecution  is 
that  all  the  facts  and  circumstances  taken  together  should  establish 
the  defendant's  guilt  beyond  a  reasonable  doubt.  If  you  are  satis- 
fied beyond  a  reasonable  doubt,  from  all  the  evidence  in  the  case,  of 
the  defendant's  guilt,  you  should  find  him  guilty.^* 

(b)  If,  after  careful  consideration  of  all  the  evidence,  you  en- 
tertain in  your  minds  a  reasonable  doubt  of  the  guilt  of  the  de- 
fendants of  murder  in  the  first  or  second  degree,  and  of  man- 
slaughter, then  you  should  acquit  the  defendants  by  a  general  verdict 
of  not  guilty.^^ 

(e)  This  is  a  very  grievous  offense.  It  is  easily  charged,  and 
the  negative  of  it  difficult  to  prove.  The  prosecution  must  satisfy 
you,  beyond  a  reasonable  doubt,  of  the  defendant's  guilt.  The  evi- 
dence should  be  plain  and  satisfactory  in  proportion  as  the  crime  is 
detestable.  You  must  acquit  the  defendant  unless  you  are  satisfied 
that  his  guilt  has  been  strictly  and  impartially  proven — that  it  is 
true  beyond  a  reasonable  doubt.*" 

§  2980.  Recommending  a  Person  to  Mercy,  (a)  Now,  upon  the 
question  of  recommendation  for  mercy,  that  is  a  matter  the  law 
leaves  entirely  with  you,  and  I  give  you  this  in  charge:  You  may 
recommend,  if,  in  your  judgment,  you  think  you  are  justified  in  so 
doing.  It  is  for  you  to  say  whether  the  facts — all  the  circumstances 
in  the  case — warrant  yon  in  making  such  a  recommendation:  but  you 
are  not  limited  or  circumscribed  in  any  respect,  and  the  law  pre- 
scribes no  rule  for  the  exercise  of  your  discretion.  It  is  a  matter 
entirely  with  you.*^ 

these     circumstances,     instructions  Pac.   705   (723),   citing  1   Bish.   New 

upon  the  law  defining  excusable  or  Cr.  Proc.  1076. 

justifiable  homicide  could  serve  no  39 — McCoy    v.    State,    40   Fla.    494, 

useful  purpose,  and  the  court  prop-  24  So.  485  (487). 

rrlv  so  stated  to  the  jury.    State  v.  40 — People     v.     Graney,    91     Mich. 

Smith.   49  Conn.   388."  646,   52   N.    W.   66   (67). 

38— Horn  v.   State,  12  Wyo.  80,  73  41— Hackett   v.    State,    108   Ga.   40, 

33  S.   E.   842  (843). 


§  2981.]  CRIMINAL— HOMICIDE.  1877 

(b)  Now,  gentlemen,  as  to  the  form  of  your  verdict.  If  you  be- 
lieve that  defendant  struck  this  blow  in  self-defense,  write  a  verdict 
of  not  guilty.  If  you  believe  he  struck  this  blow  to  keep  J.  H.  fi-om 
entering  his  house,  write  a  verdict  of  not  guilty.  If  you  disbelieve 
both  of  these  defenses  and  believe  that  he  struck  out  of  a  malicious 
heart,  write  a  verdict  of  guilty.  If  you  believe  he  did  not  strike  out 
of  a  hard  heart,  write  a  verdict  of  manslaughter.  With  reference 
to  a  general  verdict  of  gTiilty,  gentlemen,  it  is  proper  for  me  to  say 
to  you,  in  special  cases,  that  it  is  proper  for  the  jury  to  recommend 
a  party  to  mercj'.  That  practically,  gives  them  the  right  to  fix  the 
penalty.  No  man  can  forfeit  his  life,  under  the  laws  of  this  country, 
except  by  consent  of  a  jury.  To  recommend  a  party  to  mercy  is  to 
thereby  save  his  life,  and  the  law  fixes  the  punishment  at  lifetime 
imprisonment.  Now,  gentlemen,  this  is  a  solemn  business  for  you. 
I  am  going  to  put  it  where  the  law  puts  it — where  the  constitutional 
law  puts  it — upon  your  shoulders.  This  is  your  country.  The  de- 
fendant at  the  bar  is  your  fellow  citizen.  The  dead  man  was  your 
fellow  citizen.  Whatever  your  verdict  be,  gentlemen,  write  it  upon 
the  back  of  this  indictment,  and  sign  your  name  as  foreman. 

§  2981.  Furnishing  Forms  of  Verdicts.  You  will  be  furmshed  with 
five  forms  of  verdicts,  as  follows:  One  finding  the  defendant  guilty 
of  murder  in  the  first  degree,  and  fixing  the  penalty  of  death; 
another  finding  him  guilty  of  murder  in  the  first  degree,  and  fixing 
the  penalty  of  imprisonment  in  the  penitentiaiy  during  life;  another 
finding  him  guilty  of  murder  in  the  second  degree;  another  finding 
him  guilty  of  manslaughter;  another  finding  him  not  guilty.  From 
these  you  will  select  the  one  you  desire  to  use,  and  sign  and  return 
the  same.'*^ 

§  2982.  Homicide — General  Summary.  The  duty  of  counsel  and 
the  court  has  now  been  performed.  The  counsel  engaged  in  this 
case  have  been  untiring  in  their  efforts  to  bring  before  you  all  pos- 
sible evidence  that  may  aid  you  in  arriving  at  the  truth.  They  have 
ably  assisted  you  in  apphang  the  evidence  to  the  facts  in  conten- 
tion. The  court  has  endeavored  to  rightly  advise  you  in  the  law, 
and  now  there  confronts  you  the  final  and  important  duty  of  pro- 

In  holding  this    instruction    cor-  this  court.     In  the  case  of  Inman 

rect   the   court   commented   as   fol-  v.     State,    72  Ga.    269,    where    the 

lows:  judge,    in    the    trial   of    a     capital 

"So  far  as  I  am  concerned,  if  it  case,  charged  the  jury  that:  'If 
were  an  original  proposition,  I  you  find  him  guilty,  and  the  case 
should  not  hesitate  to  pronounce  be  one  in  which  you  think  you  are 
this  charge  error,  and  wholly  un-  justified  in  doing  so  (the  facts  and 
warranted  by  the  law.  The  qual-  circumstances  justify  you  in  doing 
ity  of  mercy  is  free.  "Whether  it  sn).  you  can  say  in  ynur  verdict 
shall  be  exercised  or  not  in  a  cap-  that  'we  recommend  that  he  be 
ital  case  is  for  the  jury  alone  to  imnrisoned  in  the  penitentiary  for 
determine,  and  the  judge  may  not  life:'  and,  upon  that  recnmmenda- 
lawfully  abridge  this  right  by  in-  tinn.  it  would  be  my  duty  to  in- 
structions which,  even  in  the  slight-  flict  that  puni<5hment  upon  him.'  " 
est  degree,  qualify  its  exercise.  But  42— Rhea  v.  State,  63  Neb.  461,  88 
I  am  bound  by  previous  rulings  of  N.   W.   789   (799). 


1878  FORMS  OF  INSTRUCTIONS.  [§  2983. 

ncuucing  upon  the  guilt  or  innocence  of  the  defendant.  I  submit 
this  case  to  you  with  the  eonfidenee  that  you  will  faithfully  discharge 
the  grave  duty  resting  upon  you  without,  upon  the  one  hand,  being 
moved  by  any  undue  demand  for  conviction  on  the  part  of  counsel 
for  the  state,  or  being  swayed  from  its  right  performance  by  any 
undue  appeal  to  your  sympathies.  You  will  bear  in  mind  that  neither 
the  life  nor  the  liberty  of  the  accused  may  be  trifled  away,  and 
neither  taken  by  careless  or  inconsiderate  judgment.  But  if,  after 
a  careful  consideration  of  the  law  and  the  evidence  in  the  case,  you 
are  satisfied  beyond  a  reasonable  doubt  that  the  defendant  is  guilty, 
you  should  return  your  verdict  accordingly.  Duty  demands  it  and 
the  law  requires  it.  You  must  be  just  to  the  defendant  and  equally 
just  to  the  state.  As  manly,  upright  men,  charged  with  the  respon- 
sible duty  of  assisting  the  court  in  the  administration  of  justice, 
you  will  put  aside  all  sympathy  and  sentiment,  all  consideration  of 
public  approval  or  disappi'oval,  and  look  steadfastly  and  alone  to 
the  law  and  evidence  in  the  case,  and  return  into  court  such  a  verdict 
as  is  warranted  thereby.*^ 

§  2983.  Murder  in  First  or  Second  Degree — Series,  (a)  If  the 
jury  believe  from  the  evidence,  be.yond  a  reasonable  doubt,  that  the 
defendant,  A.  A.,  in  Howard  county,  Missouri,  on  or  about  the  16th 
day  of  December,  1899,  with  a  certain  pistol,  willfully,  deliberately, 
premeditatedly  and  of  his  malice  aforethought,  shot  and  killed  H. 
H.,  then  the  jury  will  find  the  defendant  guilty  of  murder  in  the 
first  degree,  and  will  so  state  in  their  vei-diet. 

(b)  If  the  jury  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  th'e  defendant,  A.  A.,  in  Howard  county,  Missouri,  on 
or  about  the  16th  day  of  December,  1899,  with  a  certain  pistol,  will- 
fully, premeditatedly,  and  of  his  malice  aforethought,  but  without 
deliberation,  shot  and  killed  H.  H.,  then  the  jury  will  find  the  de- 
fendant guilty  of  murder  in  the  second  degree,  and  assess  his  punish- 
ment at  imprisonment  in  the  penitentiary  for  a  term  of  not  less  than 
ten  years. 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  intentionally 
killed  H.  H.,  by  shooting  him  with  a  loaded  pistol,  in  a  vital  jiart 
of  the  body,  then  the  law  presumes  such  killing  was  murder  in  the 

43 — Hinshaw    v.    State,    147    Ind.  impaired  or  infringed   by  the  jury 

334,   47  N.   E.   157   (173).  strictly  following  tlie  instruction  in 

"An     instruction     involving      the  the  consideration  of  the  case?    The 

same    sort    of    generalization    was  question  admits  of  no  other  than  a 

upheld   by    this   court   in    Lynch   v.  negative  answer,  if  we  confine  our- 

Bates,    139    Ind.     206-08,    38    N.     E.  selves   to    the   language   of   the   in- 

806;  and   in   Stout   v.   State,   90   Ind.  struction.      We    need    scarcely    say 

1-13.     Indeed,  the  only  proper  test  that  we  are  bound   to  presume,  in 

we  know  of,  by  which  to  determine  the  absence  of  a  contrary  showing 

whether    the    instruction    amounts  in   the  record,   that  the  jury  would 

to  error  prejudicial  to  the  rights  of  and    did    strictly    obey    and    follow 

the  appellant,  is  the  answer  to  the  the     instruction.      Therefore     there 

question:      Would    the    appellant's  was   no   available    error   in   giving 

legal  rights  in  any  way  be  invaded,  it." 


§  2983.]  CRIMINAI^HOMICIDE.  1879 

second  degree,  in  the  absence  of  proof  to  the  contrary,  and  it  de- 
volves upon  the  defendant  to  adduce  evidence  to  meet  or  repel  that 
presumption,  unless  it  is  met  or  overcome  by  evidence  introduced  by 
the  state. 

(d)  The  court  instnicts  the  juiy  that  ''willfully"  means  in- 
tentionally, not  accidentally,  and,  in  the  absence  of  qualifying  facts 
and  circumstances,  the  law  presumes  that  a  person  intends  the 
ordinary  and  probable  results  of  his  own  acts  and  conduct. 

(e)  The  court  instructs  the  jury  that  "malice,"  as  used  in  the 
indictment  and  foregoing  instructions,  does  not  mean  mere  spite 
and  ill  will  or  dislike,  as  it  is  ordinarily  understood,  but  means  that 
condition  of  the  mind  which  prompts  one  person  to  take  the  life  of 
another  without  just  cause  or  provocation,  and  it  signifies  a  state 
of  disposition  which  shows  a  heart  regardless  of  social  duty  and 
fatally  bent  on  mischief. 

(f)  The  court  instructs  the  jury  that  "malice  aforethought" 
means  that  the  act  was  done  with  malice  and  premeditation.  "Pre- 
meditation" means  thought  of  beforehand  for  any  length  of  time, 
however  short. 

(g)  The  court  instructs  the  jury  that  "deliberately"  means  in 
a  cool  state  of  the  blood.  It  does  not  mean  brooded  over  or  re- 
flected upon  for  a  week,  a  day  or  an  hour;  but  it  means  an  intent  to 
kill,  executed  by  defendant  in  a  cool  state  of  the  blood,  in  further- 
ance of  a  formed  design  to  gratify  a  feeling  of  revenge  or  to  ac- 
complish some  other  unlawful  purpose,  and  not  done  under  the 
influence  of  a  violent  passion  suddenly  aroused  by  some  provoca- 
tion. 

(h)  If  the  jury  have  a  reasonable  doubt  as  to  defendant's  guilt, 
they  should  acquit;  but  a  doubt,  to  authorize  an  acquittal  on  that 
ground,  ought  to  be  a  substantial  doubt  touching  defendant's  guilt, 
and  not  a  mere  possibility  of  his  innocence. 

(i)  The  jury  are  the  sole  judges  of  the  weight  of  the  evidence 
and  credibility  of  the  witnesses.  In  determining  what  weight  they 
will  give  to  the  testimony  of  any  Avitness,  the  jury  should  take  into 
consideration  the  interest  of  the  witness  in  the  event  of  the  case  as 
a  party  or  otherwise ;  the  manner  and  conduct  of  the  witness  on 
the  stand;  any  feeling  or  motive  which  may  have  influenced  the 
witness  in  testifying;  the  probability  or  improbability  of  the  testi- 
mony of  such  witness  in  view  of  all  the  evidence,  facts  and  circum- 
stances surrounding  the  case. 

(j)  If  the  jury  believe  that  any  witness  has  willfully  sworn 
falsely  to  any  material  facts  in  the  case,  you  are  at  liberty,  in 
the  exercise  of  their  judgment,  to  disregard  all  or  anj'  pai't  of  such 
witness's   testimony. 

(k)  The  court  instructs  the  jury  that  the  defendant  is  a  compe- 
tent witness  in  his  own  behalf,  but,  in  determining  the  weight  and 
credibility  you  will  give  to  his  testimony,  the  jury  may  take  into 


1880  FORMS  OF  INSTRUCTIONS.  [§  2983. 

consideration  that  he  is  the  defendant,  testifying  in  his  own  behalf, 
and  the  interest  he  may  have  in  the  result  of  this  tiial. 

(1)  The  court  instructs  the  jury  that,  before  you  can  acquit  the 
defendant  on  the  ground  of  self-defense,  you  must  find  and  believe 
from  the  evidence  that  the  defendant  had  reasonable  cause  to  ap- 
prehend, and  did  apprehend,  that  H.  H.,  the  deceased,  was  about  to 
inflict  upon  him  some  great  bodily  harm  or  take  his  life,  and  de- 
fendant believed,  and  had  reasonable  cause  to  believe,  that  such 
danger  was  imminent  and  impending;  and,  unless  the  jury  so  believe, 
you  cannot  acquit  the  defendant  on  the  ground  of  self-defense. 

(m)  He  who  willfully  (that  is,  intentionally)  uses  upon  another, 
at  some  vital  point,  a  deadly  weapon,  such  as  a  pistol,  must,  in  the 
absence  of  qualifying  facts,  be  presumed  to  know  that  the  result  is 
likely  to  be  death,  and,  knowing  this,  must  be  presumed  to  intend 
death,  which  is  the  probable  consequence  of  such  an  act ;  and,  if 
such  deadly  weapon  is  used  without  just  cause  or  provocation,  he 
must  be  presumed  to  do  it  wickedly  and  from  a  bad  heart.  If, 
therefore,  you  believe  and  find  from  the  evidence  in  this  cause  that 
the  defendant  killed  H.  H.  by  shooting  him  in  a  vital  part  with  a 
pistol,  with  a  manifest  design  to  use  such  pistol  upon  him,  and  with 
sufficient  time  to  deliberate  and  fully  form  the  conscious  purpose  to 
kill,  then  such  killing  is  murder  in  the  first  degree.  And  while  it 
devolves  upon  the  state  to  prove  the  willfulness,  deliberation,  pre- 
meditation and  malice  aforethought,  all  of  which  are  necessary  to 
constitute  murder  in  the  first  degree,  yet  these  need  not  be  proven 
by  direct  evidence,  and  may  be  deduced  from  all  the  facts  and 
circumstances  attending  the  killing;  and,  if  you  can  satisfactorily 
and  reasonably  infer  their  existence  from  all  the  evidence,  you  will 
Ibe  waiTanted  in  finding  the  defendant  guilty  of  murder  in  the  first 
degree. 

(n)  The  court  instructs  the  juiy  that  the  previous  good  character 
of  the  defendant,  if  proved  to  your  reasonable  satisfaction,  is  a 
fact  which  the  jury  should  consider  in  determining  his  guilt  or 
innocence,  for  the  law  presumes  that  a  man  who«e  reputation  is  good 
is  less  likely  to  commit  an  offense  than  one  whose  reputation  is  bad; 
but  if  all  the  evidence  proves  the  defendant  to  he.  guilty,  to  your 
satisfaction,  beyond  a  reasonable  doubt,  then  his  previous  reputation 
cannot  palliate,  mitigate,  justify  or  excuse  his  offense- 

(o)  The  jury  are  instructed  that  the  law  presume?  the  defendant 
innocent  in  this  case,  and  not  guilty  as  charged  in  the  indictment. 
And  you  are  further  instructed  that  the  legal  presumption  of  in- 
nocence is  not  a  mere  form,  to  be  disregarded  by  the  jury  at 
pleasure,  but  it  is  an  essential,  substantial  part  of  the  law  binding 
upon  the  juiy  in  this  ease;  and,  unless  the  state  satisfies  ycu  of 
defendant's  guilt  beyond  a  reasonable  doubt,  it  is  your  duty  to 
act  upon  this  presumption  of  innocence,  and  render  a  verdict  ol  not 
guilty. 

(p)     The  jury  are  instructed   that,  in  law,  a  person   accused   of 


§2983.]  CRIMINAL— HOMICIDE.  1881 

crime  is  presumed  to  be  innocent.  This  presumption  entitles  him  to 
an  acquittal  unless  it  is  overcome  by  evidence  which  establishes  his 
guilt  beyond  a  reasonable  doubt.  A  juror  is  understood  to  entertain 
a  reasonable  doubt  when  he  has  not  an  abiding  conviction,  to  a 
moral  certainty,  that  the  party  accused  is  guilty  as  charged.  You 
should  acquit  the  defendant  if  you  entertain  a  reasonable  doubt 
as  to  his  guilt,  and  you  should  also  acquit  if  it  is  as  reasonable,  con- 
sidering all  the  facts  and  circumstances  proven,  to  conclude  that  he 
is  innocent  as  to  conclude  that  he  is  guilty,  or  if  all  the  facts  and 
circumstances  can  be  reasonably  reconciled  with  any  theory  other 
than  that  of  his  guilt. 

(q)  The  juiy  are  instracted  that  the  indictment  in  this  case  is 
of  itself  a  mere  accusation  or  charge  against  the  defendant,  and  is 
not  of  itself  any  evidence  of  the  defendant's  guilt,  and  no  juror 
should  permit  himself  to  be  to  any  extent  influenced  against  the 
defendant  because  or  on  account  of  the  indictment  in  this  case.  And 
you  are  further  instructed  that  in  this  ease  the  law  does  not  require 
the  defendant  to  prove  his  innocence,  but  the  law  requires  the 
prosecution  to  prove  that  the  defendant  is  guilty  in  manner  and  form 
as  charged  in  the  indictment,  beyond  all  reasonable  doubt;  and, 
unless  the  state  has  done  this,  the  law  makes  it  your  duty  to  find 
the  defendant  not  guilty. 

(r)  The  jury  are  instructed  that  it  is  not  sufficient  in  criminal 
cases,  to  justify  a  verdict  of  guilty,  that  there  may  be  very  strong 
probabilities  or  strong  suspicions  of  guilt,  nor,  as  in  civil  cases,  a 
preponderance  of  the  evidence  in  favor  of  the  charge;  but  the  jury 
must  be  satisfied,  from  all  the  evidence  and  circumstances  in  the 
case,  beyond  a  reasonable  doubt,  before  you  can  convict.  If  not 
so  satisfied,  you  must  acquit. 

(s)  The  court  instructs  the  jury  that  evidence  of  previous  good 
character  is  competent  evidence  in  favor  of  a  party  accused  of  crime, 
as  tending  to  show  he  would  not  be  likely  to  commit  the  offense  al- 
leged against  him.  And  in  this  case,  if  the  jury  believe  fi'om  the 
evidence  that  prior  to  the  commission  of  the  alleged  crime  the  de- 
fendant had  borne  a  good  character  for  peace  and  order  among  his 
acquaintances,  and  in  the  neighborhood  where  he  lived,  this  is  a 
fact  proper  to  be  considered  by  the  jurj',  with  all  the  other  evidence 
in  the  ease;  and  if,  after  a  careful  consideration  of  all  the  evidence 
in  the  ease,  including  that  bearing  upon  defendant's  character,  the 
jury  entertain  a  reasonable  doubt  of  the  defendant's  guilt,  then  it 
is  your  sworn  duty  to  acquit  him. 

(t)  The  court  instructs  the  juiy  that  a  man  may  kill  another, 
and  not  be  guilty  of  any  crime  against  the  law,  A  killing  is  justi- 
fiable when  committed  in  the  lawful  defense  of  one's  self,  or  when 
committed  by  one  who  has  reasonable  cause  to  apprehend  a  design 
on  the  part  of  another  to  commit  a  felony  upon  him,  or  to  do  him 
some  great  personal  injury,  and  there  is  reasonable  cause  to  appre- 
hend immediate  danger  of  such  design  being  accomplished.     And  in 


1882  FORMS  OF  INSTRUCTIONS.  [§2983. 

this  ease,  although  you  shall  believe  and  find  from  the  evidence  that 
the  defendant,  and  in  the  manner  and  by  the  means  named  in  the 
indictment,  shot  and  killed  H.  H.,  yet  if  you  shall  also  find  and 
believe  that  in  so  doing  he,  the  defendant,  was  acting  in  tlie  neces- 
sary self-defense  of  his  person,  either  from  death  or  from  great 
personal  injury,  you  should  find  him  not  guilty  of  any  offense  what- 
ever. You  will  observe  that,  to  acquit  on  the  ground  of  self-defense, 
it  must  only  appear  that  a  party  was  apprehensive,  in  consequence 
of  the  acts  of  the  deceased,  that  injury  of  a  bodily  nature  to  himself 
was  impending  and  about  to  fall  on  him,  and  that  the  taking  of  the 
life  of  the  deceased  was,  under  the  eireumstances,  apparently  or 
actually  necessary  to  prevent  such  injury.  If,  therefore,  you  shall 
believe  from  the  evidence  that,  from  the  conduct,  actions,  manner 
and  declarations  of  the  deceased,  H.  H.,  at  the  time  he  was  shot  by 
the  defendant,  A.  A.,  be,  the  defendant,  had  reasonable  cause  to  ap- 
prehend, and  did  apprehend,  that  the  deceased,  H.  H.,  was  about  to 
do  him  some  great  bodily  harm  or  to  take  his  life,  and  that  he, 
the  defendant,  had  reasonable  cause  to  apprehend,  and  did  appre- 
hend, that  there  was  danger  of  the  deceased  executing  his  purpose 
and  accomplishing  his  design,  and  that  defendant  shot  the  deceased 
for  the  purpose  of  preventing  such  execution  and  such  accomplish- 
ment, the  verdict  should  be  that  the  defendant  is  not  guilty,  because 
such  killing,  under  such  circumstances,  is  justifiable  in  the  law, 
because  done  in  self-defense.  To  acquit  on  the  ground  of  self-de- 
fense, it  is  not  necessary  that  the  danger  of  death  or  injury  to  which 
the  defendant  apprehended  himself  to  be  exposed  was  real  or  actual, 
or  that  it  was  impending  and  about  to  fall  on  him.  It  is  only  neces- 
sary that  it  should  appear  to  you  that  the  defendant  so  apprehended 
himself  to  be  exposed  to  such  danger,  and  that  his  apprehension 
was  reasonable,  considering  all  the  circumstances  of  the  ease  as 
proven,  and  the  situation  of  the  parties  at  the  time,  and  that  the 
defendant  acted  in  good  faith  upon  the  situation  as  it  appeared  to 
him,  and  under  a  real  apprehension  of  danger  to  himself. 

(u)  The  jury  are  instructed  that  if  you  believe  from  the  evidence 
that  the  defendant,  A.  A.,  at  the  time  he  shot  H.  H.,  had  reasonable 
cause  to  apprehend  from  him,  and  did  apprehend,  immediate  danger 
of  being  killed  or  receiving  some  serious  injury  to  his  person,  and 
to  prevent  such  danger  he  shot  the  said  H.  H.,  then  you  must  acquit 
the  defendant  on  the  ground  of  self-defense.  And  if  the  defendant 
acted  in  a  moment  of  apparently  impending  peril  from  an  assault 
by  H.  H.,  it  was  not  for  him  to  nicely  gauge  the  proper  quantity  of 
force  necessary  to  repel  the  assault,  but  he  had  the  right  to  act  upon 
appearances,  and  use  such  force  as  he  had  reasonable  cause  at  the 
time  to  believe  was  necessary. 

(v)  The  court  instructs  you  that  a  person  about  to  be  attacked, 
or  who  believes  he  is  about  to  be  attacked,  and  has  reasonable  cause 
for  so  believing,  is  not  bound  to  wait  until  his  adversary  gets  close 
enough  to  him  to  strike  him  with  some  deadly  weapon,  but  may  act 


§  2984.]  CRIMINAL— HOMICIDE.  1883 

on  appearances,  and  take  steps  to  prevent  such  striking,  even  unto 
the  taking'  of  life. 

(w)  The  court  instructs  you  that,  although  you  may  find  and 
believe  from  the  evidence  that  the  defendant  went  to  the  house  of 
E.  R.  and  voluntarily  entered  into  a  difficulty  with  the  deceased  for 
some  unlawful  purpose,  yet  if  you  find  and  believe  fi'om  the  evidence 
that  he  abandoned  the  difficulty  and  left  the  place  in  good  faith,  and 
started  uptown,  and  the  deceased  followed  him,  and  acted  in  such  a 
manner  as  to  give  the  defendant  good  cause  to  believe,  and  he  did 
'believe,  that  the  deceased  was  about  to  do  him  some  great  bodily 
harm,  he  had  the  right  to  shoot  and  kill  the  deceased,  if  necessary 
to  protect  his  person  from  such  apprehended  danger,  and  you  should 
find  the  defendant  not  guilty. 

(x)  The  court  instructs  you  that  although  you  may  find  and 
believe  from  the  evidence  that  the  defendant  was  in  the  wrong  in 
the  first  instance  in  going  to  the  house  of  E.  R.  and  quarreling  with 
the  deceased,  yet  if  you  find  and  believe  from  the  evidence  that  he 
in  good  faith  withdrew  from  the  difficulty,  and  started  uptown, 
intending  to  abandon  the  quarrel,  and  the  said  H.  H.  followed  him, 
then,  if  the  killing  of  the  said  H.  H.  became  necessai-y  to  save  him- 
self from  death  or  great  bodily  haim,  he  will  be  justified,  and  you 
should  find  him  not  guilty. 

(y)  The  court  instructs  you  that,  to  entitle  a  defendant  charged 
with  mui'der  to  an  acquittal  on  the  ground  of  self-defense,  he  need 
not  establish  his  defense  by  a  jDreponderance  of  evidence.  It  is 
sufficient  if  the  evidence  is  such  as  to  create  in  the  minds  of  the 
jury  a  reasonable  doubt  of  his  guilt. 

(z)  The  jury  are  instructed  th^t  the  defendant  is  a  competent 
witness  in  his  own  behalf,  and  they  should  not  disregard  his  evidence 
because  he  is  the  defendant  and  stands  charged  with  a  crime,  but 
they  should  fairly  and  impartially  consider  and  weigh  his  testimony 
by  the  same  rule  as  that  of  other  witnesses  in  the  ease.'** 

§  2984.  Homicide — Various  Elements — Series,  (a)  If  you  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  at  any  time  prior 
to  the  filing  of  the  indictment  herein,  which  was  on  the  1st  day  of 
March,  1901,  the  defendant,  M.,  in  Clay  county,  Missouri,  willfully, 
deliberately,  premeditatedly  and  with  malice  aforethought,  shot  and 
wounded  C,  at  the  county  of  Clay  aforesaid,  who  died  in  consequence 
of  such  shooting  and  wounding,  then  it  will  be  your  duty  to  find  the 
defendant  guilty  of  murder  in  the  first  degree. 

(b)  If  you  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant,  in  Clay  county,  Missouri,  at  any  time  prior  to 
the  filing  of  the  indictment  herein,  willfully,  premeditatedly  and  of 

44_State     v.    Ashcraft,     170     Mo.  party,  they  put  this  case  very  fair- 

409,  70  S.  W.  898  (903).  ly  to  the  jury,  and  if  any  error  was 

Of  this  series   the   court  said:  committed  in  giving  them  the  error 

"As  to  the  instructions  given  by  was  iu  defendant's  favor." 
the  court  at  the  instance  of  either 


1884  FORMS  OF  INSTRUCTIONS.  [§  2984. 

his  malice  aforethought,  but  not  deliberately,  shot  and  wounded  C, 
and  that  within  a  year  and  a  day  thereafter,  and  before  the  filing  of 
the  indictment  aforesaid,  the  said  C,  at  the  county  of  Clay  aforesaid, 
died  in  consequence  of  such  shooting  and  wounding,  then  it  will  be 
your  duty  to  find  the  defendant  guilty  of  murder  in  the  second  degree. 

(c)  As  used  in  these  instructions,  the  term  "willfully"  means 
that  the  act  must  be  done  intentionally,  and  not  accidentally.  In  the 
absence  of  qualifying  facts  or  circumstances,  the  law  presumes  that 
a  person  intends  the  ordinary  and  jDrobable  results  of  his  act  and 
conduct.  "Deliberately"  means  done  in  a  cool  state  of  the  blood.  It 
does  not  require  that  the  act  should  be  brooded  over  or  reflected 
upon  for  a  week,  a  day,  or  an  hour,  but  it  means  an  intent  to  kill, 
executed  by  defendant  in  a  cold  state  of  blood,  in  the  furtherance  of 
a  formed  design,  to  gratify  a  feeling  of  revenge,  or  to  accomplish 
some  other  unlawful  purpose,  and  not  under  the  influence  of  a  violent 
passion  suddenly  aroused  by  a  lawful  or  some  just  cause  of  provoca- 
tion. "Premeditatedly"  means  thought  of  beforehand  for  any  length 
of  time,  however  short.  "Malice"  does  not  mean  spite,  ill  will,  or 
dislike,  as  it  is  ordinarily  understood,  but  it  means  that  condition  of 
the  mind  which  prompts  one  person  to  take  the  life  of  another  with- 
out just  cause  or  provocation,  and  it  signifies  a  state  of  disposition 
which  shows  a  heart  regardless  of  social  duty,  and  fatally  bent  on 
mischief.    "Malice  aforethought"  means  malice  and  premeditation. 

(d)  The  jury  are  'instructed  that  while  the  law  requires  that  the 
killing,  in  order  to  constitute  murder  in  the  first  degree,  shall  be  will- 
ful, premeditated  and  deliberate,  still  it  does  not  require  that  the  will- 
ful intent,  pi-emeditation  or  deliberation  shall  exist  for  any  prescribed 
length  of  time  before  the  crime  is  committed ;  it  is  sufficient  that  • 
there  was  a  determination  and  design  to  kill  distinctly  formed  in  the 
mind  at  any  moment  before  or  at  the  time  the  shot  was  fired;  and 
in  this  case,  if  the  jury  believe  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant  shot  and  killed  the  deceased,  as  charged, 
and  that  at  the  time  or  before  the  shot  was  fired  the  defendant  had 
foi-med  in  his  mind  a  willful,  premeditated  and  deliberate  design 
or  purpose  to  take  the  life  of  the  deceased,  and  that  the  shot  was 
fired  in  furtherance  of  that  design  or  purpose,  and  without  any 
justifiable  cause  or  legal  excuse  therefor,  as  explained  in  these  in- 
structions, then  the  jury  should  find  the  defendant  guilty  of  murder 
in  the  first  degree. 

(e)  You  are  instructed  that  he  who  willfully  (that  is,  intention- 
ally) uses  upon  another,  at  some  vital  part,  a  deadly  weapon,  must, 
in  the  absence  of  qualifying  facts,  be  presumed  to  know  that  the 
effect  is  likely  to  produce  death,  and,  knowing  this,  must  be  presumed 
to  intend  death,  which  is  the  probable  consequence  of  such  an  act; 
and,  if  such  deadly  weapon  is  used  without  just  cause  or  provocation, 
he  must  be  presumed  to  do  it  wickedly  and  from  a  bad  heart. 

(f)  Upon  the  question  of  self-defense,  the  court  instructs  you  that 
if,  at  the  time  defendant  shot  C,  he  (the  defendant)  had  reasonable 


§  2984.]  CRIMINAL— HOMICIDE.  1885 

cause  to  apprehend  a  design  on  the  part  of  C.  to  take  his  life  or 
■to  do  him  some  great  personal  injury,  and  that  there  was  reasonable 
cause  for  him  to  apprehend  immediate  danger  of  such  design  being 
accomplished,  and  that,  to  avert  such  apprehended  danger,  he  shot, 
and  that  at  the  time  he  shot  he  had  reasonable  cause  to  believe  and 
did  believe  that  it  was  necessary  for  him  to  shoot  and  kill  to  protect 
himself  from  such  apjDrehended  danger,  you  will  acquit  on  the  ground 
of  self-defense.  It  is  not  necessary  that  the  danger  should  have 
been  impending  and  about  to  fall.  All  that  is  necessaiy  is  that 
defendant  should  have  so  believed.  He  must  have  had  reasonable 
cause  to  so  believe.  Whether  or  not  he  had  reasonable  cause  is  for 
you  to  determine,  under  all  the  facts  and  circumstances  given  in 
evidence.  If  you  shall  believe  from  the  evidence  that  defendant  did 
not  have  reasonable  cause  to  so  believe,  you  cannot  acquit  him  on 
the  ground  of  self-defense,  although  you  may  believe  that  the  defend- 
ant really  thought  he  was  in  danger. 

(g)  If  the  jury  find  from  the  evidence  that  the  defendant  killed 
C.  without  deliberation,  as  defined  in  these  instructions,  but  under  a 
violent  passion,  suddenly  aroused  by  abusive  words  alone  spoken  by 
said  C.  to  him,  and  not  under  the  circumstances  as  would  make  the 
killing  justifiable  upon  the  ground  of  self-defense,  as  defined  in  other 
instructions,  then  such  killing  would  not  be  murder  in  the  first  degree, 
(because  done  in  the  heat  of  passion  aroused  by  just  cause  or  provoca- 
tion; but  in  such  ease  the  defendant  would,  if  the  killing  w^as  done 
intentionally  and  of  malice  aforethought,  be  guilty  of  murder  in  the 
second  degree. 

(h)  Even  though  you  may  believe  that  said  C.  was  assaulting  or 
in  the  act  of  assaulting  the  defendant,  and  using  offensive  words  or 
threats  towards  him,  and  that  defendant,  under  the  influence  of  vio- 
lent passion  suddenly  aroused  by  words,  acts  and  conduct  of  said  C, 
drew  his  revolver,  and  without  premeditation  and  malice,  as  defined 
in  these  instructions,  shot  deceased,  from  the  effects  of  which  he  died 
within  a  year  and  a  day  thereafter,  yet  if  the  alleged  shooting  was 
not  justified  upon  the  ground  of  self-defense,  as  explained  in  other 
instructions,  such  fact,  if  any,  Avill  not  warrant  you  in  acquitting 
the  defendant  altogether,  but  in  that  event  he  should  be  convicted  of 
manslaughter  in  the  fourth  degree. 

(i)  Even  though  you  may  find  from  the  evidence  that  the  de- 
ceased, prior  to  the  shooting,  made  threats  against  the  defendant,  yet 
if  you  believe  from  the  evidence  that  C,  at  the  time  of  the  shooting, 
was  not  attempting  to  cany  the  threats  into  execution,  and  was 
making  no  hostile  demonstration  towards  the  defendant,  then  such 
prior  threats  will  not  justify,  excuse  or  palliate  the  shooting  of  de- 
ceased by  defendant. 

(j)  Before  the  defendant  can  be  convicted  of  any  offense  under  the 
indictment,  the  juiy  must  believe  from  the  evidence  that  the  defend- 
ant is  guilty  beyond  a  reasonable  doubt.  A  reasonable  doubt,  how- 
ever, must  be  a  substantial  doubt,  arising  out  of  a  due  consideration 


1886  FORMS  OF  INSTRUCTIONS.  [§  2984. 

of  all  the  testimony,  and  not  a  mere  possibility  of  defendant's  inno- 
cence. 

(k)  The  defendant  is  a  competent  witness  in  this  case,  and  you 
should  consider  his  testimony  in  arriving  at  your  verdict,  but,  in 
determining  what  weight  and  credibility  you  will  give  to  his  testimony 
in  making  up  your  verdict,  you  may  take  into  consideration,  as  affect- 
ing his  credibility,  his  interest  in  the  result  of  the  case,  and  that  he  is 
the  accused  party  on  trial,  testifying  in  his  own  behalf. 

(1)  The  jury  are  the  sole  judges  of  the  weight  of  the  evidence  and 
the  credibility  of  the  witnesses.  If  the  jury  believe  that  any  witness 
has  willfully  sworn  falsely  to  any  material  matter  in  the  case,  they 
are  at  liberty  to  disregard  all  the  testimony  of  such  witness. 

(m)  The  jury  are  instructed  that  the  indictment  in  this  case  is  of 
itself  a  mere  formal  accusation  or  charge  against  the  defendant,  and 
is  not  of  itself  any  evidence  of  the  guilt  of  defendant,  and  no  juror 
should  permit  himself  to  be  to  any  extent  influenced  against  the  de- 
fendant because  or  on  account  of  the  indictment  in  this  case. 

(n)  The  court  instructs  the  jury  that  the  defendant  is  presumed 
to  be  innocent,  and  this  presumption  attends  and  protects  him  at 
every  stage  of  the  case  until  it  is  overcome  by  testimony  which  proves 
his  guilt  beyond  a  reasonable  doubt;  and  it  is  not  enough,  in  a  crim- 
inal case,  to  justify  a  verdict  of  guilty,  that  there  may  be  strong 
suspicion  or  even  strong  probability  of  the  guilt  of  defendant,  but 
the  law  requires  proof  so  clear  and  satisfactory  as  to  leave  no  reason- 
able doubt  of  defendant's  guilt. 

(o)  Upon  the  law  of  self-defense,  the  court  instructs  the  jury  that 
when  a  person  has  reasonable  grounds  to  apprehend  that  some  one  is 
about  to  do  him  a  great  bodily  harm,  and  there  is  reasonable  ground 
for  believing  the  danger  imminent  that  such  design  will  be  accom- 
plished, he  may  safely  act  upon  appearances,  and  even  kill  the  assail- 
ant, if  that  be  necessary,  to  avoid  the  apprehended  danger;  and  the 
killing  will  be  justifiable,  although  it  may  afterwards  turn  out  that 
the  appearances  were  false,  and  that  there  was  in  fact  neither  design 
to  do  him  serious  injury,  nor  danger  that  it  would  be  done. 

(p)  Upon  the  law  of  self-defense,  the  court  further  instructs  the 
jury  that,  in  passing  upon  the  question  whether  the  defendant  had 
reasonable  grounds  for  believing  that  there  was  imminent  danger  that 
the  deceased  was  about  to  kill  him  or  do  him  some  great  bodily  harm, 
the  juiy  should  detennine  the  question  from  the  standpoint  of  the 
defendant  at  the  time  he  acted,  and  under  his  surroundings  at  the 
particular  instant  of  time;  and  the  jury  may  also,  in  passing  upon 
that  question,  take  into  consideration  the  threats,  if  any,  made  by 
deceased  against  the  defendant. 

(q)  The  court  instructs  the  jury  that,  under  the  law  of  this  state, 
a  person  who  has  not  himself  wrongfully  provoked  the  assault  is 
under  no  oblin'ation  to  retreat,  but  may,  when  wrongfully  assailed, 
stand  his  ground,  and  if  at  the  lime  it  reasonably  appears  to  be  neces- 
sary to  protect  himself  from  death  or  great  personal  injury,  may 


§  2984.]  CRIMINAL—HOMICIDE.  1887 

lawfully  kill  the  assailant.  If  C.  made  an  assault  and  attack  upon 
the  defendant,  and  the  defendant  had  reasonable  grounds  to  believe 
that  he  was  in  danger  of  being  killed,  or  of  receiving  great  bodily 
harm  from  said  C,  he  had  a  right  to  take  such  steps  as  to  him,  under 
the  circumstances,  reasonably  seemed  necessary,  in  order  to  save  his 
own  life  or  to  save  himself  from  great  bodily  harm,  even  to  the  taking 
of  the  life  of  the  said  C. 

(r)  Upon  the  law  of  self-defense,  the  jury  are  instructed  that  if 
the  defendant,  at  the  time  he  shot  the  deceased,  had  reasonable  cause 
to  apprehend,  and  did  apprehend,  that  the  deceased  was  about  either 
to  kill  him  or  to  do  him  some  great  bodily  harm,  and  that  the  danger 
of  his  doing  either  was  imminent,  and  that  the  defendant  shot  to 
avert  such  apprehended  danger,  then  such  shooting  was  justifiable, 
and  you  should  acquit  on  the  ground  of  self-defense.  And  in  this 
connection,  the  juiy  are  instructed  that  it  is  not  necessarj^,  in  order 
to  acquit  on  the  ground  of  self-defense,  that  the  danger  should,  as  a 
matter  of  fact,  have  been  real  or  actually  impending;  all  that  is 
necessary  is  that  the  defendant  had  reasonable  cause  to  believe  that 
the  danger  was  real  and  about  to  fall  upon  him;  and  if  the  defendant 
acted  in  a  moment  of  apparently  impending  danger  from  an  assault 
by  the  deceased,  it  was  not  necessary  for  him  to  nicely  measure  the 
proper  quantity  of  force  necessary  to  repel  the  assault.  And  the 
question  for  you  to  detennine  is  not  what  you  think  it  was  necessary 
for  the  defendant  to  have  done  or  not  done  at  the  time  he  shot  de- 
ceased, but  the  question  is  what  the  defendant  might  have  reasonably 
believed  was  necessary  for  him  to  do  under  all  the  circumstances. 

(s)  The  court  instructs  the  juiy  that  if  they  believe  from  the  evi- 
dence that  the  deceased  prior  to  the  shooting,  made  threats  against 
the  defendant,  they  should  take  such  threats  into  consideration  in 
determining  who  was  the  aggressor  at  the  time  of  the  shooting,  and 
whether,  in  connection  with  the  conduct  of  the  deceased  at  the  time 
of  the  shooting,  they  afforded  the  defendant  a  reasonable  apprehen- 
sion of  danger.  Such  prior  threats,  however,  will  not  justify,  palliate 
or  excuse  the  shooting  of  the  deceased  by  the  defendant  unless  j-ou 
believe  from  the  evidence  that  C,  at  the  time  of  the  shooting,  was 
attempting  to  carry  the  threats  into  execution  by  assaulting  or  at- 
tempting to  assault  the  defendant,  or  by  making  some  hostile  or 
apparently  hostile  demonstration  towards  the  defendant. 

(t)  The  state  has  introduced  in  evidence  a  statement  claimed  to 
have  been  made  by  C.  at  a  time  when  he  was  suffering  from  the 
wound  inflicted  by  the  defendant,  and  at  a  time  when  the  said  C.  had 
given  up  all  hope  of  living,  and  was  then  under  the  belief  that  death 
was  imminent  and  near,  and  if  you  believe  from  the  evidence  that  C. 
made  said  statement;  that  at  the  time  of  making  the  same  his  mind 
was  clear,  and  that  he  knew  at  the  time  what  he  was  doing,  and 
with  such  knowledge  made  it,  and  that  at  the  time  he  made  it  he  was 
suffering  from  a  fatal  wound  inflicted  by  defendant  upon  him,  and 
which  wound  afterwards  caused  his  death;  and  that  at  the  time  of 


1888  FORMS  OP  INSTRUCTIONS.  [§  2985. 

making  such  statement  he  had  given  up  all  hopes  of  life,  and  then 
believed  that  death  was  impending  and  near, — then  it  is  your  duty 
to  consider  it  as  the  dying  declaration  of  said  C,  and  you  are  to  give 
such  dying  declaration  such  weight  as  you  may  think  it  justly  en- 
titled to  upon  a  consideration  of  it  along  with  all  other  facts  and  cir- 
cumstances disclosed  by  the  evidence  in  the  case.  You  should  consider, 
however,  that  such  statement  was  not  made  in  the  presense  of  de- 
fendant, that  the  declarant  was  not  subject  to  the  tests  of  cross- 
examination,  that  the  jury  had  no  opportunity  to  observe  the  manner 
of  the  declarant,  and  that  he  was  not  subject  to  prosecution  for 
perjury  if  said  statement,  or  any  part  of  it,  was  untrue. 

(u)  The  jury  are  the  sole  judges  of  the  weight  of  the  evidence 
and  of  the  credibility  of  the  witnesses;  and,  if  the  jury  believe  that 
any  witness  has  sworn  falsely  as  to  any  material  fact  in  the  case, 
the  juiy  may,  in  their  discretion,  reject  all  or  any  part  of  the  testi- 
m.ony  of  such  witness.*^ 

MURDER  IN  FIRST  DEGREE. 

§  2985.    Murder  in  the  First  Degree — What  Constitutes,     (a)     If 

you  shall  believe  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  defendant,  in  the  month  of  May,  1904,  at  V.  county,  Mo.,  with  a 
pistol,  shot  and  killed  W.,  and  that  such  shooting  and  killing  were 
done  willfully,  deliberately,  premeditatedly,  and  of  malice  afore- 
thought, you  should  find  the  defendant  guilty  of  murder  in  the  first 
degree.  Unless  you  do  so  believe,  you  should  not  find  him  guilty  of 
murder  in  the  first  degree.*^ 

(b)  The  court  instructs  the  juiy  that  if  you  believe  from  the  evi- 
dence in  this  case  that  the  defendant,  at  the  county  of  St.  F.,  state 
of  Missouri,  at  any  time  prior  to  the  16th  day  of  November,  1903, 
willfully,  deliberately,  premeditatedly,  and  with  malice  aforethought, 
shot  with  a  pistol  and  by  such  shooting  wounded  h.,  and  that  within 
a  year  and  a  day  thereafter  and  before  the  16th  day  of  November, 
1903,  said  L.,  at  the  county  of  St.  F.  aforesaid,  died  in  consequence 
of  such  shooting  and  wounding,  you  will  find  the  defendant  guilty  of 
murder  in  the  first  degree.*'^ 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  all  the 
evidence,  beyond  a  reasonable  doubt,  that  the  accused.  A.,  before  the 
finding  of  the  indictment  in  this  case,  did,  in  Simpson  county,  Ken- 
tucky, unlawfully,  willfully  and  maliciously,  feloniously  and  with 
malice  aforethought,  kill  H.  by  shooting  and  wounding  the  said  H. 
upon  his  body  and  person  with  a  gun,  a  deadly  weapon,  loaded  with 
a  leaden  ball  or  balls,  or  other  hard  substance,  and  of  the  effect  of 

4.5 — Above    series    of    instructions  S.   W.  674.     For  an  almost  similar 

approved  in  State  v.  McMullin,  170  instruction    see    State    v.    May,   172 

Mo.  608,   71   S.  W.  221   (224,  5,  6).  Mo.   630,   72   S.   W.   918   (920). 

For   another   series   see    State   v.         47 — State    v.    McCarver,    194    Mo. 

Bond,  191  Mo.  BS.'i,  90  S.  W.  830  (831).  717,  92  S.  W.  684. 

46— State  v.  Todd,  194  Mo.  377,  92 


§  2985.]  MURDER  IN  FIRST  DEGREE.  1889 

which  shooting  and  wounding  the  said  H.  did  die  within  one  year 
thereafter,  they  shall  find  the  accused  guilty,  and  fix  his  punishment 
at  death,  or  confinement  in  the  state  penitentiary  for  life,  in  the  dis- 
cretion of  the  juiy.''* 

(d)  If  the  jury  believe  and  find  from  the  evidence  in  this  cause 
that  the  defendant.  P.,  in  the  county  of  S.,  and  state  of  Mo.,  on  or 
about  the  26th  day  of  November,  1901,  did  feloniously,  willfully,  de- 
liberately, premeditatedly  and  of  his  malice  aforethought  make  an 
assault  upon  W.  with  a  certain  loaded  gun,  and  then  and  there  with 
said  gun  feloniously,  willfully,  deliberately,  premeditatedly  and  of 
his  malice  aforethought  did  kill  said  W.  by  shooting  him  upon  the 
head  and  body,  and  thereby  inflicting  upon  him  a  moi'tal  wound,  of 
which  said  wound  he  immediately  died,  at  said  county  of  S.,  during 
said  month  of  November,  1901,  and  was  thus  killed  by  the  shooting 
aforesaid,  as  charged  in  the  information,  then  you  will  find  the 
defendant  guilty  of  murder  in  the  first  degree,  and  so  state  in  your 
verdict.*^ 

(e)  To  justify  you  in  finding  a  verdict  of  guilty  of  murder  in  the 
first  degree,  jhju  shall  be  satisfied  from  the  evidence,  beyond  a  rea^- 
sonable  doubt,  of  the  following  material  facts,  among  others:  Fii'st, 
that  L.  G.  is  dead;  second,  that  the  prisoner  at  the  bar  caused  the 
death  of  said  L.  G.  at  the  time  and  place  alleged  in  the  indictment, 
and  in  some  way  and  manner,  and  by  some  means,  instruments,  and 
deadly  weapons  unknown,  unlawfully,  and  fi'om  a  premeditated  de- 
sign to  effect  the  death  of  her,  the  said  L.  G.^" 

(f )  In  order  to  convict  the  defendant  of  murder  in  the  first  degree, 
you  must  believe  and  find  from  the  evidence  that  defendant  not  only 
struck  the  deceased,  A.  K.,  with  a  deadly  weapon  upon  a  vital  part, 
intentionally,  but  that  he  struck  the  blow  intending  to  kill  him.  In 
this  connection,  however,  you  are  instructed  that,  in  the  absence  of 
qualifying  facts  and  circumstances,  a  person  is  presumed  to  intend 
the  natural,  ordinarj^,  and  probable  results  of  his  acts.  "Wherefore, 
if  you  believe  from  the  evidence  that  defendant  intentionally  struck 
deceased,  A.  K.,  on  the  head,  a  vital  part,  with  a  deadly  weapon, 
from  which  death  resulted,  you  will  find  that  he  intended  to  kill. 
And  you  will,  in  that  event,  also  find  that  malice  was  the  concomi- 
tant of  the  act.^^ 

(g)  In  the  case  at  bar,  before  the  prisoner  can  be  convicted  of 
murder  in  the  first  degree,  the  jury  must  be  satisfied  beyond  a  rea- 

48 — Alderson    v.     Commonwealth,  curing     an     abortion.     The     word 

25  Ky.  Law  32,  74  S.  W.  679  (681)  "satisfied"    might    be    found    fault 

49 — State   v.   Privitt,  175   Mo.   207,  with  as  imposing  too  heavy  a  bur- 

75  S.  W.  457  (459).  den    of    proof    on    the    state,    and 

50 — Part  of  a  charge  which  was  there    is    no    express    statement    in 

held    "entirely   correct"    as   applied  this     paragraph     that     the     killing 

to     second      count     of     indictment  must  have  been  done  "with  malice 

charging    murder    by     means    un-  aforethought." 

known.     Gantling  v.   State,  40  Fla.  51 — Approved   as   one   of  a  series 

237.   23  So.  857  (S59),   affirming  con-  in  State  v.  Kinder,  184   Mo.  276,  83 

viction  of  murder  in  first  degree  for  S.   W.   964   (966). 
killing   a   woman   at   or   after   pro- 

119 


1890  FORMS  OP  INSTRUCTIONS.  [§  2986. 

sonable  doubt  from  the  evidence  that  the  prisoner  killed  the  de- 
ceased in  pursuance  o^  a  fixed  purpose,  with  premeditation,  formed 
in  a  cool  state  of  the  blood.^- 

§2986.  Murder— First  Degree — What  Constitutes — Duration  of 
Deliberation,  (a)  To  constitute  murder  in  the  first  degree,  there 
must  have  been  an  unlawful  killing  done,  purposely  and  with  de- 
liberate and  premeditated  malice.  If  the  person  has  actually  formed 
the  puipose  maliciously  to  kill,  and  had  deliberated  and  premedi- 
tated upon  it  before  he  performs  the  act,  and  then  performs  it,  he  is 
guilty  of  murder  in  the  first  degree,  however  short  the  time  may 
have  been  between  the  purpose  and  its  execution.  It  is  not  time 
that  constitutes  the  distinctive  difference  between  murder  in  the  first 
degree  and  murder  in  the  second  degTee.  An  unlawful  killing  with 
malice,  deliberation,  and  premeditation  constitutes  the  crime  of  mur- 
der in  the  first  degree.  It  matters  not  how  short  the  time,  if  the 
party  has  turned  it  over  in  his  mind  and  weighed  and  deliberated 
upon  it.^^ 

(b)  If  you  find  beyond  a  reasonable  doubt,  going  outside  of  the 
matter  of  self-defense,  that  J.  premeditatedly,  deliberately,  and  will- 
fully prepared  for  the  use  of  the  scissors  blade,  and  used  it  in  pur- 
suance of  that  design,  the  degree  of  his  criminality  is  murder  in 
the  first  degree.^'* 

(c)  The  court  charges  the  jury  that  if  they  find  from  the  evi- 
dence in  this  ease,  beyond  all  reasonable  doubt  that  the  defendant 
in  "W.  county,  Ala.,  and  before  the  finding  of  this  indictment,  pur- 
posed (purposely)  killed  the  deceased  M.,  after  reflection,  with  a 
wickedness  or  depravity  of  heart  towards  said  deceased,  and  the 
killing  was  determined  on  beforehand,  even  a  moment  before  the 
fatal  shooting  was  done,  then  the  defendant  is  guilty  of  murder 
in  the  first  degree. 

(d)  The   court   charges   the   juiy   that   if   they   believe   beyond   a 

52— State  v.  Hunt,  34  N.  C.  6S4,  47  ing  instructions  to  select  detached 

S.  E.  49  (50).  portions  tiiereof  and  consider  tliem 

53— Reed  v.  State,  —  Neb.  — ,  106  as  independent  of  tlie  wliole  of  the 

N.  W.  648.  charge   to   the   jury.       Tlie     correct 

"This  instruction  is  vigorously  rule  of  construction,  and  the  one 
assailed  by  counsel  for  the  ac-  universally  followed  by  this  court, 
•  cused,  who  claims  that  it  con-  is  that  all  that  is  said  in  the  en- 
tains  an  incorrect  definition  of  tire  charge  upon  any  one  question 
murder  in  the  first  degree.  At  first  shall  be  construed  together;  and, 
blush  it  would  seem  that  the  point  if,  when  so  construed,  it  is  not  in- 
w^as  well  taken;  but  after  a  careful  consistent  as  a  whole,  and  states 
reading  of  the  whole  thereof,  in  the  law  correctly,  no  valid  assign - 
connection  with  the  other  parts  of  ment  of  error  can  be  predicated 
the  court's  charge  to  the  jury,  we  thereon.  St.  Louis  v.  State,  8  Neb. 
are  constrained  to  hold  the  instruc-  405,  1  N.  W.  371;  Parrish  v.  State, 
tion  good.  Counsel,  in  order  to  es-  14  Neb.  60,  15  N.  W.  357;  Murphy  v. 
tablish  his  contention,  segregates  a  State.  15  Neb.  383,  19  N.  W.  489; 
part  of  the  paragraph  complained  Carleton  v.  State,  43  Neb.  373,  61 
of,  and,  reading  it    without    refer-  N.  W.  699." 

enre  to  the  rest  of  the  instruction,  54— State  v.  Jones,  71  N.  J.  L.  543, 

claims   that   it   is   erroneous.     It   is  60  Atl.   396   (398). 

not  the  correct  method  of  constru-  "The  criticism  upon  this  part  of 


§  2986.] 


MURDER  IN  FIRST  DEGREE. 


1891 


reasonable  doubt  from  the  evidence  in  the  case  that  the  defendant 
in  W.  county,  Ala.,  and  before  the  finding  of  this  indictment,  pur- 
posely killed  M.  by  shooting  him  with  a  pistol,  with  a  wickedness  or 
depravity  of  heart  towards  said  deceased,  and  the  killing  was  de- 
termined on  beforehand,  and  after  reflection  (for  however  short  a 
time  before  the  shooting  was  done,  is  immaterial)  then  the  defendant 
is  guilty  of  murder  in  the  first  degree.^^ 

(e)  The  court  charges  the  jury  that  if  the  defendant  in  T. 
county,  and  before  the  finding  of  this  indictment,  purposely  killed 
the  deceased,  W.  L.,  after  reflection,  with  a  wickedness  or  depravity 
of  heart  towards  said  deceased,  and  the  killing  was  determined  on 
beforehand,  even  a  moment  before  the  fatal  blow  was  struck,  tlJfe 
defendant  is  guilty  of  murder  in  the  first  degree.^^ 


the  charge  is  that  it  requires  the 
jury  to  convict  of  murder  in  the 
first  degree,  even  though  the  in- 
tent to  take  the  life  was  not  pres- 
ent. An  examination  of  this  in- 
struction shows  the  presence  of  an 
ellipsis.  'In  pursuance  of  that  de- 
sign' plainly  refers  to  something 
antecedent.  An  examination  of  the 
charge  shows  that  "this  particular 
instruction  is  immediately  preceded 
by  a  statement  that,  to  constitute 
murder  in  the  first  degree,  there 
must  be  a  settled,  deliberate,  and 
premeditated  intent  to  Ivill,  fol- 
lowed by  the  execution  of  that  in- 
tent. Reading  the  criticized  ex- 
cerpt in  the  light  of  what  im- 
mediately preceded  it,  the  instruc- 
tion was  that  if  the  defendant  pre- 
meditatedly,  deliberately,  and  will- 
fully prepared  for  the  use  of  the 
scissors  blade  and  used  it  in  pur- 
suance of  that  design  (i.  e.  the  de- 
sign to  kill  the  deceased),  the  de- 
gree of  his  criminality  was  m.urder 
in  the  first  degree.  That  such  is 
the  legal  rule  prevailing  in  this 
jurisdiction  is  not  controverted  by 
the  defense." 

55— Stewart  v.   State,  137  Ala.   33, 
34   So.    818    (820).  ' 

"Charge  1  requested  by  the  state 
as  it  appears  in  the  record,  reads 
'that  if  the  jury  find  from  the  evi- 
dence in  this  case,  beyond  all  reas- 
onable doubt,  that  the  defendant  in 
W.  county,  Ala.,  and  before  the 
finding  of  this  indictment,  pur- 
posed killing  the  deceased,'  etc. 
The  word  'purposed'  is  plainly  a 
self-corrective,  clerical  mistake, 
for  the  word  'purposely,'  and  we 
will  so  treat  it,  Lang  v.  State,  84 
Ala.  4,  4  So.  193,  5  Am.  St. 
324.  Thus  construed,  the  charge, 
and  the  one  following,  numbered  2, 
were  free  from  error,  as  we  have 


frequently  held.  Lang  v.  State, 
supra;  Wilkins  v.  State,  98  Ala.  1, 
13  So.  312." 

56— Clark  v.  State,  105  Ala.  91,  17 
So.  37  (38). 

"This  charge  has  been  several 
times  held  by  this  court  to  be  a 
proper  one.  Watkins  v.  State,  89 
Ala.  82,  8  So.  134;  Hammill  v. 
State,  90  Ala.  577,  8  So.  3S0;  Lang  v. 
State,  84  Ala.  1,  4  So.  193,  5  Am.  St. 
324.  It  asserts  a  correct  legal  prop- 
osition and  states  facts  on  which 
guilt  depends,  hypothesized  as  ab- 
solutely true,  and  beyond  all 
reasonable  doubt.  The  defendant 
objected  to  it  on  the  ground,  among 
others,  that  it  did  not  contain  the 
instruction,  that  the  jury  must  be- 
lieve the  facts  hypothesized  beyond 
reasonable  doubt.  But  there  was 
no  necessity  for  instructing  the 
jury  that  they  must  believe  these 
facts  beyond  reasonable  doubt,  for 
the  charge  had  already  hypothesized 
them  as  absolute  verities.  This 
chai-ge  is  distinguishable  from  the 
one  in  Pierson's  Case,  99  Ala.  148, 
13  So.  550,  and  other  like  charges, 
where  we  held  that  when  the 
court  charges  'if  the  jury  believe 
from  the  evidence'  certain  facts 
hj-pothctically  stated  omitting  the 
expression  'beyond  reasonable 
doubt'  or  other  equivalent  words, 
it  is  reversible  error.  In  the  lat- 
ter class  of  charges  on  the  suffi- 
ciency of  the  evidence  the  trial 
courts  giving  them  failed  to  cau- 
tion the  juries,  after  telling  them 
if  they  believed  certain  facts,  that 
they  must  believe  them  bej-ond 
reasonable  doubt,  whereas,  in  the 
charge  we  now  review,  the  court 
predicated  guilt,  as  we  have  before 
stated,  upon  the  absolute  truth  of 
the  hypothesized  facts  in  the 
charge.     As   stated     therein     they 


i" 


1892  FORMS  OF  INSTRUCTIONS.  [§  2986. 

(f)  "Deliberate"  and  "premeditated"  as  those  words  are  used 
in  the  statute,  mean  only  this:  that  slayer  must  intend  before  the 
blow  is  delivered,  though  it  be  only  an  instant  of  time  before,  that 
he  will  strike  at  the  time  he  does  strike,  and  that  death  will  be  the 
result  of  the  blow,  or  in  other  words,  if  the  slayer  had  any  time  to 
think,  before  the  act,  however  short  such  time  may  have  been,  even 
a  single  moment,  and  did  think,  and  he  struck  the  blow  as  a  result 
of  an  intention  to  kill,  produced  by  this  even  momentary  operation 
of  the  mind,  and  death  ensued,  that  would  be  a  deliberate  and  pre- 
meditated killing  within  the  meaning  of  the  statute  defining  murder 
in  the  first  degree.^'' 

(g)  To  constitute  a  murder  in  the  first  degree,  the  killing  must 
have  been  willfully,  deliberately,  and  with  premeditation;  that  is, 
intentionally,  sanely,  and  with  prior  deliberation,  and  without  legal 
excuse  or  justification.  "Willfully"  as  used  in  the  information  and 
these  instructions,  means  "intentionally";  that  is,  not  accidentally. 
"Deliberately"  means  an  intent  to  kill,  executed  by  the  slayer  in 
a  cool  state  of  the  blood,  in  furtherance  of  a  former  design,  to 
gratify  a  feeling  of  revenge  or  accomplish  some  other  unlawful  pur- 
pose, and  not  under  the  influence  of  a  violent  passion,  aroused  by 
real  or  supposed  grievances,  amounting  to  a  temporaiy  dethrone- 
ment of  reason.  "Premeditated  design  to  kill"  means  a  previously 
formed  intention  to  kill.  But  while  the  law  requires,  in  order  to  con- 
stitute murder  in  the  first  degree,  that  the  killing  should  be  willful, 
deliberate  and  premeditated,  still  it  does  not  require  that  the  willful 
intent,  premeditation  or  deliberation  shall  exist  for  any  particular 
length  of  time  before  the  crime  is  committed.  It  is  not  necessary 
that  the  killing  should  have  been  brooded  over  or  reflected  upon  for 
a  week,  a  day  or  an  hour.  It  is  sufficient  if  there  was  a  design 
and  a  determination  to  kill,  distinctly  fonned  in  the  slayer's  mind 
at  any  moment  before  or  at  the  time  the  shot  was  fired  which  caused 
the  death  of  the  person  killed.     There  may  be  no  appreciable  space 

must  have  been  true  and  believed  done,  it  was  willful;  and,  if  done 
to  be  true  beyond  all  cavil  or  by  shooting-  with  a  gun,  with  a 
doubt,  reasonable  or  otherwise,  be-  wickedness  or  depravity  of  heart 
fore  defendant  could  have  been  towards  deceased,  it  was  mali- 
found  g-uilty.  The  charge  was  not  cious;  and,  if  determined  on,  no 
therefore  amenable  to  the  objec-  matter  for  what  space  of  time,  it 
tion  interposed  to  it, — that  it  ig-  must  have  been  premeditated  and 
nored  the  question  of  reasonable  deliberate.  Premeditation  and  de- 
doubt."  liberation   are  necessarily  involved 

57 — Kilgore  v.   State,   124  Ala.  24,  where  the   thing  done   is   predeter- 

27   So.   4   (5).  mined." 

The  court  said  that  this  instruc-  See  also  Robinson  v.  State,  108 
tion  "given  at  the  request  of  the  Ala.  14,  18  So.  732  (734),  citing  Rob- 
state  embraces  every  constituent  erts  v.  State,  68  Ala.  156;  Holley  v. 
element  of  murder  iii  the  first  de-  State,  75  Ala.  15;  Cleveland  v, 
gree  as  defined  by  section  4854  of  State,  86  Ala.  1,  5  So.  426;  Hunt 
the  Code.  This  charge  is  substan-  v.  State,  135  Ala.  1,  33  So.  329 
tially  the  same  as  the  charge  (330);  Stevens  v.  State.  138  Ala. 
passed  on  in  the  cases  of  Miller  71,  35  So.  122  (124);  Sherrill  v.  State, 
V.  State,  107  Ala.  40,  19  So.  37,  and  138  Ala.  3,  35  So.  129  (131);  Jarvis  v. 
Wilkins  v.  State,  98  Ala.  1,  13  So.  State,  138  Ala.  17,  34  So.  1025  (1030). 
312.     If   the   killing   was   purposely 


§  2986.] 


MURDER  IN  FIRST  DEGREE. 


1893 


of  time  between  the  intent  to  kill  and  the  act  of  killing,  and  if  suf- 
ficient deliberation  was  had  to  form  a  design  or  purpose  to  take  life, 
and  to  put  that  design  or  purpose  into  execution  by  destroying  life' 
then  there  was,  in  law,  sufficient  deliberation  to  constitute  murder 
in  the  first  degree,  no  matter  whether  the  design  to  take  life  had 
been  for  a  long  time  contemplated  by  the  slayer  or  whether  the 
design  to  kill  was  formed  by  him  at  the  instant  of  the  fatal  shot. 
It  is  enough  that  the  intent  to  kill  preceded  the  fatal  act,  although 
the  act  followed  instantly.^* 

(h)  The  court  charges  the  jury  that  if  the  defendant,  in  Faj'ette 
county,  and  before  the  finding  of  this  indictment,  purposely  killed 
the  deceased,  W.  F.,  by  shooting  him  with  a  gun  with  a  wickedness 
or  depravity  of  heart  towards  the  deceased,  and  the  killing  Avas 
determined  even  a  moment  before  the  shooting  was  done,  the  defend- 
ant is  guilty  of  murder  in  the  first  degree.^a 


58— Perugi  v.   State,  104  Wis.  230, 
80  N.  W.  593  (595),  76  Am.   St.  865. 

The  court  said:  "We  cannot  re- 
sist the  conclusion  that  every  kill- 
ing-, not  justifiable,  done  with  that 
degree  of  deliberation  and  with  an 
intent  or  design  sufficiently  fixed 
and  settled  in  the  mind  as  to  come 
within  the  rule  of  'premeditated  de- 
sign' laid  down  in  the  statute  and 
interpreted  by  the  decisions  of  this 
court,  is  murder  in  the  first  de- 
gree; and  any  expression  in  the 
Terrill  case  (Terrill  v.  State,  95 
Wis.  276,  70  N.  W.  356)  or  the 
Sullivan  case  (Sullivan  v.  State, 
100  Wis.  283,  75  N.  W.  956)  to  the 
contrary  ought  not  to  be  adhered 
to.  The  intentional  killing  that 
may  exist  consistent  with  man- 
slaughter in  the  second  degree 
springs  from  momentary  impulse, 
when  the  mind  is  unbalanced,  and 
there  is  no  opportunity  for  con- 
sideration or  deliberation.  Another 
difficulty  with  the  Terrill  case  is 
that  this  court  seems  to  have 
failed  to  appreciate  the  force,  scope 
and  effect  of  the  language  used 
by  the  trial  judge.  The  instruc- 
tion was:  'If  you  are  convinced 
by  the  evidence,  beyond  a  reason- 
able doubt,  that  when  he  shot  and 
killed  A.  B.  he  did  so  pursuant 
to  an  intent,  then  distinctly  formed 
in  his  mind,  to  kill  A.  B.,  you  can- 
not lawfully  find  the  defendant 
guilty  of  manslaughter  in  the 
second  degree  for  the  defendant  in 
such  case,  if  he  killed  A.  B.  from 
premeditated  design  to  kill  him, 
is  guilty  of  murder  in  the  first  de- 
gree.' In  the  Hogan  case  it  was 
said  that.  'P'-eviously  formed  in- 
tent to  kill'  and  'premeditated  de- 


sign to  effect  death'  are  synony- 
mous terms'.  And  again:  'We 
take  the  premeditated  design  of 
murder  in  the  first  degree  to  be 
simply  an  intent  to  kill.  'Design' 
means  'intent'  and  both  words 
essentially  imply  'premeditation.' 
Very  similar  expressions  have  been 
used  in  other  jurisdictions.  Intent 
means  'that  which  is  intended;  pur- 
pose; aim;  design;  intention.' 
Cent.  Diet.  The  word  'distinctly' 
is  used  as  synonymous  with 
'clearly,'  'explicitly,'  'definitely,' 
'precisely,'  'unmistakably.'  So. 
when  the  trial  judge  used  the 
words  'intent  then  distinctly  formed 
in  his  mind,'  and  followed  it  with 
the  words  'premeditated  design', 
is  there  any  possibility  that  the 
jury  could  have  mistaken  his 
meaning?  'Premeditate'  is  to  think 
of  in  advance;  to  determine  upon 
beforehand;  to  intend;  to  design. 
And.  Law  Diet.  The  jury  are 
presumed  to  know  the  usual  and 
ordinary  meaning  of  words,  and, 
in  view  of  the  definitions  given, 
there  seems  no  escape  from  the 
conclusion  that  they  understood 
the  words  'intent  distinctly 
formed'  to  be  the  equivalent  of 
'premeditated  design'.  It  is  but 
proper  to  say  that  Mr.  Justice 
Marshal)  filed  dissenting  opinion  in 
both  the  Terrill  and  Sullivan  cases, 
and  that  the  views  we  have 
adopted  are  in  harmony  with  the 
principles  therein  advocated  by 
him." 

See   also   Cook   v.    State,   46   Fla. 
20,    35    So.    665    (670). 

59— Ragsdale    v.    State,    134    Ala. 
24,    32    So.    674    (675). 


1894  FORMS  OF  INSTRUCTIONS.  [§  2987. 

(i)  The  court  charges  the  jury  that  if  they  find  from  the  evi- 
dence in  this  case,  beyond  all  reasonable  doubt,  that  the  defendant, 
in  Dallas  county,  Alabama,  and  before  the  finding  of  this  indictment, 
purposely  killed  the  deceased,  B.  L.,  alias  W.  L.,  after  reflection,  with 
a  wickedness  or  depravity  of  heart  towards  deceased,  and  the  kill- 
ing was  determined  on  beforehand,  even  a  moment  before  the  fatal 
shooting  was  done,  then  the  defendant  is  guilty  of  murder  in  the 
first  degree.*'*' 

§  2987.  Murder  in  First  and  Second  Degree  Distinguished,  (a) 
So,  when  you  come  to  measure  it  up,  the  question  is  whether  the 
degree  of  guilt  here  rises  above  second  degree,  because  it  is  clear 
that  it  is  at  least  second  degree.  There  is  no  presumption  at  the 
start  that  it  is  higher  than  that,  unless,  in  this  case,  from  the  circum- 
stances, the  use  of  a  deadly  weapon  at  a  vital  part,  with  the  pre- 
sumption  that  the  party  using  it  knew  the  consequences  of  his  act, 
that  he  acted  willfully,  deliberately,  and  premeditatedly.  If  the  evi- 
dence all  shows  willful,  deliberate,  and  premeditated  killing  under 
those  circumstances,  with  the  intent  to  take  life,  then  your  verdict 
should  be  murder  of  the  fii'st  degree.  Otherwise,  if  there  is  a  rea- 
sonable doubt  as  to  that  grade,  it  should  be  murder  in  the  second 
degree.*'^ 

(b)  The  court  instructs  the  jury  that  murder  in  the  second 
degree  has  all  the  elements  of  murder  in  the  first  degree,  except 
that  of  deliberation.     If  you  find  from  the  evidence  in  this  case  that 

the  defendant  at  the  county  of  C.  and  state  of  Mo.,  on  the day 

of  ,  1905,  willfully,  premeditatedly,  and  of  his  malice  afore- 
thought (but  without  deliberation,  as  defined  in  these  instnictions) 
struck  and  killed  S.  J.  with  a  large  stone,  or  a  piece  of  iron,  or  any 
instrument  or  weapon  likely  to  produce  death  or  great  bodily  harm, 
as  charged  in  the  information,  and  that  such  stone,  piece  of  iron, 
or  other  instrument  or  weapon  was  a  dangerous  and  deadly  weapon, 
then  you  should  find  the  defendant  guilty  of  murder  in  the  second 
degree.  ^- 

(c)  To  constitute  murder  in  the  first  degree  there  must  have  been 
an  unlawful  killing  done,  purposely  and  with  deliberate  and  pre- 
meditated malice.  If  a  person  has  actually  formed  the  purpose 
maliciously  to  kill,  and  has  deliberated  and  premeditated  upon  it 
before  he  performs  the  act,  and  then  performs  it,  he  is  guilty  of 
murder  in  the  first  degree,  however  short  the  time  may  have  been 
■between  the  purpose  and  its  execution.  It  is  not  time  that  consti- 
tutes the  distinctive  difference  between  murder  in  the  first  degree 
and  murder  in  the  second  degree.     An  unlawful  killing,  with  malice, 

60— Bondurant   v.    State,   125   Ala.  v.  State,  10  Ala.  40,  19  So.  37.     Cit-' 

31.  27  So.  775  (777).  inff  also  Martin  v.  State,  77  Ala.  1. 

The  court  said  that  this  instruc-  61 — Commonwealth  v.  Combs,  216 

lion   given   at    the    request    of    the  Pa.   St.  SI,  64  Atl.  S73. 

state  is  a  substantial  copy  of  one  62 — State  v.   Darling,  199  Mo.  168, 

approved    in    Wilkins   v.    State,    98  97   S.    W.   592. 
Ala.    1,    13    So.    312,    and    in    Miller 


§2987.] 


MURDER  IN  FIRST  DEGREE. 


1895 


deliberation  and  premeditation,  constitutes  the  crime  of  murder  in 
the  first  degree.  It  matters  not  how  short  the  time,  it'  the  party  has 
turned  it  over  in  his  mind,  and  weighed  and  deliberated  upon  it. 

(d)  The  jury  are  instructed  that  while  the  law  requires,  in  order 
to  constitute  murder  of  the  first  degree,  that  the  killing  shall  be 
willful,  deliberate  and  premeditated,  still  it  does  not  require  that 
the  willful  intent,  premeditation  or  deliberation  shall  exist  for  any 
length  of  time  before  the  crime  is  committed.  It  is  sufficient  if  there 
was  a  design  and  determination  to  kill  distinctly  formed  in  the  mind 
at  any  moment  before  or  at  the  time  the  blow  was  struck,  and  in  this 
case,  if  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt  that  the  defendant  feloniously  stx'uck  and  killed  the  deceased 
as  charged  in  the  information,  and  that  before  or  at  the  same  time 
the  blow  was  strack  the  defendant  had  fonned  in  his  mind  a  willful, 
deliberate  and  premeditated  design  or  purpose  to  take  the  life  of 
the  deceased,  and  that  the  blow  was  sti-uck  in  furtherance  of  that 
design  or  purpose,  and  without  any  justifiable  cause  or  legal  excuse 
therefor,  as  explained  in  these  instructions,  the  jury  should  find  the 
defendant  guilty  of  murder  in  the  first  degree.*^^ 

(e)  Malice  denotes  a  state  of  mind  from  which  acts  are  done  re- 
gardless of  the  rights  of  others.  This  [the  second]  degree  of  mur- 
der is  like  murder  in  the  first  degree,  except  that  to  constitute  mur- 
der in   the   second   degree   there  must  be   no   deliberation.     If  there 


63— Savary  v.  State,  62  Neb.  166, 
87    N.    W.    34    (35). 

Of  these  two  the  court  said: 
"The  instructions  are  substantially 
the  same  as  those  given  in  Carlton 
V.  State,  43  Neb.  373,  61  N.  W. 
699,  which  were  approved  in  an 
opinion  of  the  court  by  Irvine,  C. 
In  the  first  it  is  said  it  is  true 
that  'it  is  not  time  that  consti- 
tutes the  distinction  between 
murder  in  the  first  and  second  de- 
grees.' It  is  earnestly  insisted  that 
time  is  required  for  premedita- 
tion and  deliberation.  While  this 
is  true,  the  time  required  may  be 
of  the  shortest  possible  duration. 
The  time  may  be  so  short  that 
it  is  instantaneous,  and  the  design 
or  purpose  to  kill  may  be  formed 
upon  premeditation  and  delibera- 
tion at  any  moment  before  the 
homicide  is  committed;  and  this  is 
the  substance  of  the  instructions 
complained  of.  Whether  the  de- 
fendant had  sufficient  time  to  pre- 
meditate and  deliberate,  and 
whether  in  fact  he  did  so,  was 
a  question  for  the  jury,  as  triors 
of  fact,  under  proper  instructions 
from  the  court.  From  an  examinr?- 
tion  of  both  instructions,  it  cannot 
be  said  that  the  purpose  to  kill 
could    be    formed,    reflected    upon, 


and  turned  over  in  the  mind,  and 
the  act  committted,  at  one  and  the 
same  time.  To  constitute  the 
crime  of  murder  in  the  first  de- 
gree, there  must  be  a  refiection, 
a  turning  over  in  the  mind,  a 
weighing  and  consideration  of  the 
act,  and  the  purpose  formed  to  do 
it  before  its  actual  commission. 
.  .  .  The  correctness  of  the  in- 
struction as  a  legal  proposition 
cannot  be  questioned.  In  the 
second  the  jury  are  told  that  if 
before  or  at  the  time  the  blow 
was  struck  the  defendant  had 
formed  in  his  mind  a  willful,  de- 
liberate and  premeditated  design 
or  purpose  to  take  the  life  of  the 
deceased,  and  that  the  blow  was 
struck  in  furtherance  of  that  de- 
sign, without  any  justifiable  cause 
or  legal  excuse,  his  guilt  of  the 
highest  degree  of  the  crime  charged 
would  be  established.  It  can 
hardly  be  argued  by  any  logical 
process  of  reasoning  that  under 
this  instruction  a  verdict  of  guilty 
of  murder  in  the  first  degree  would 
be  justified  upon  the  theory  that 
the  premeditation  and  deliberation 
required  to  be  shown  and  the  act 
of  killing  may  take  place  simul- 
taneously." 


1896  FORMS  OF  INSTRUCTIONS.  [§  2987. 

be  deliberation,  it  would  be  murder  in  the  first  degree.  If,  therefore, 
you  find  from  the  evidence  beyond  a  reasonable  doubt  that  the  de- 
fendant, G.  D.,  killed  the  deceased,  C.  S.,  purposely  and  maliciously, 
but  without  premeditation,  and  you  further  find  that  he  killed  the 
deceased  without  such  provocation  as  was  apparently  sufficient  to 
create  in  him  an  irresistible  passion,  and  such  killing  was  not  in 
lawful  self-defense,  you  will  find  the  defendant  guilty  of  murder  in 
the  second  degree.  If  the  defendant  intentionally  killed  the  de- 
ceased with  a  deadly  weapon  and  without  such  provocation  as  was 
apparently  sufBeient  to  excite  in  him  an  irresistible  passion,  and 
such  killing  was  not  in  lawful  defense,  then  such  killing,  if 
malicious,  is  murder;  and,  if  such  killing  was  deliberate  and  pre- 
meditated, it  was  murder  in  the  first  degree. *** 

(f )  If  a  person  forms  in  his  mind  a  purpose,  design  or  intention 
to  unlawfully  kill  a  human  being  with  malice  but  without  premedi- 
tation, and  he  does  so  kill  a  human  being,  then  the  offense  comes 
within  our  statute  defining  murder  in  the  second  degree;  but  if  the 
element  of  premeditation  is  also  present  before  the  fatal  blow  is 
struck,  then  it  is  murder  in  the  first  degree.*^^ 

(g)  The  court  instructs  the  jury  that  the  indictment  in  this  case 
was  filed  on  the  5th  day  of  March,  1901,  and  charges  the  defendant 
with  murder  in  the  first  degree.  Under  the  evidence  adduced,  how- 
ever, it  will  be  necessary  for  you  to  determine,  in  the  event  you 
find  the  defendant  guilty  of  any  offense,  whether  he  should  be  con- 
victed of  the  specific  offense  charged  in  the  indictment,  or  for  mur- 
der in  the  second  degree.  Murder  in  the  first  degree  is  the  killing  of 
a  human  being  willfully,  deliberately,  premeditatedly,  and  with 
malice  aforethought.  Murder  in  the  second  degree  has  all  the  ele- 
ments of  murder  in  the  first  degree  except  that  of  deliberation. 
''Willfully,"  as  used  in  these  instructions,  means  intentionally;  that 
is,  not  accidentally.  Therefore,  if  the  defendant  intended  to  kill, 
such  killing  is  willful.  In  the  absence  of  qualifying  facts  and  cir- 
cumstances, the  law  presumes  that  a  person  intends  the  ordinary  and 
probable  result  of  his  acts.  If  you  believe  from  the  evidence  beyond 
a  reasonable  doubt  that  the  defendant  with  a  pistol  shot  J.  in  a  vital 
part  and  killed  him,  you  will  find  that  the  defendant  intended  to 
kill,  unless  the  facts  and  circumstances  given  in  evidence  show  to 
the  contrary.  '* Deliberately"  means  in  a  cool  state  of  the  blood; 
that  is,  not  in  a  heated  state  of  the  blood,  caused  by  a  lawful  prov- 
ocation. It  does  not  mean  brooded  over,  considered,  or  reflected 
upon  for  a  week,  a  day  or  an  hour;  but  it  means  an  intent  to  kill, 

64 — Downing  v.  State,  11  Wyo.  86,  to   the   case.     .     .     It   is   not   only 

70   Pac.   833   (835).  impossible  to  rehearse  in  each  in- 

"The   objections   to   this   instruc-  struction    every    principle    of    law 

tion  are  answered  by  the  language  involved,   but  it  would  only  create 

used     by    this    court    in    Ross    v.  confusion  and  obscurity  to  attempt 

State,    8    Wyo.    351,    57    Pac.    924.  it." 

It    is   impossible    to    state   in    each  65 — Archie  v.  State,  64  Ind.  56. 
instruction   all   the   law   applicable 


§2988.]  MURDER  IN  FIRST  DEGREE.  1897 

executed  by  a  party  not  under  the  influence  of  violent  passion  sud- 
denly aroused  by  some  lawful  provocation,  but  in  the  furtherance  of 
a  formed  design,  to  gratify  a  feeling  of  revenge,  or  to  accomplish 
some  other  unlawful  purix)se.  ''Premeditatedly"  means  thought  of 
beforehand  for  any  length  of  time,  however  short.  ''Malice"  as 
used  in  these  instructions,  does  not  mean  mere  spite,  ill  will  or  dis- 
like, as  it  is  ordinarily  understood;  but  it  means  that  condition  of 
the  mind  w'hich  prompts  one  person  to  take  the  life  of  another  with- 
out just  cause  or  justification,  and  it  signifies  a  state  of  disposi- 
tion which  shows  a  heart  regardless  of  social  duty  and  fatally  bent 
on  mischief.  "Malice  aforethought"  means  that  the  act  was  done 
with  malice   and  premeditation.*^^ 

§  2988.  Whether  Murder  or  Manslaughter.  If  the  juiy  believe 
from  the  evidence  beyond  a  reasonable  doubt,  that  the  defendant, 
T.  S.,  in  F.  county,  Ky.,  and  before  the  28th  day  of  March,  1905, 
willfully  shot  and  killed  L.  with  a  gun  or  pistol,  or  both,  loaded  with 
powder  and  leaden  balls,  or  other  hard  substances,  and  that  said 
shooting  was  not  necessarj',  and  did  not,  at  the  time,  reasonably 
appear  to  the  defendant  to  be  necessaiy  to  save  the  defendant  from 
death,  or  from  some  serious  bodily  hann  at  the  hands  of  said  L.,  the 
jury  should  find  the  defendant  guiltj- — gniilty  of  murder  if  said 
shooting  and  killing,  if  there  was  such,  was  done  by  the  defendant 
with  malice  aforethought;  guilty  of  voluntary  manslaughter  if  said 
shooting,  if  there  was  such,  was  done  by  the  defendant  in  sudden 
affray,  or  in  sudden  heat  and  passdon,  and  without  previous  malice. ^^ 

66 — Introduction  to  the  charge  in  trial.      We    are    inclined    to    think 

State   v.    May,    172    Mo.    630,    72   S.  that,  owing-  to  the  peculiar  nature 

W.  918  (920).  of  the  facts  set  up  by  the  way  of 

67— Stout    v.    Commonwealth,    29  defense,  the  failure  to  use  the  or- 

Ky.  Law  R.  627,  94  S.  W.  15.  dinarily   necessary   words    was   not 

"In  the  case  of  Kaelin  v.   Com-  prejudicial,  but  the  omission  should 

monwealth,    84    Ky.    354,    1    S.    W.  be    supplied    in    the    future.'      In 

594,    it    was    held    that    an    indict-  Brooks  v.  Commonwealth,  28  S.  W. 

ment   for   murder   was    fatally   de-  148,    16    Ky.    Law   R.    356:     'It   does 

fective     if     it     omitted     the     word  not    follow,    necessarily    from    the 

'feloniously'    from    the    description  omission  of  this  word  (feloniously) 

of    the    offense    charged,    and    this  in    the    instruction    complained    of, 

case  has  been  followed  consistently  that   the   error   was   prejudicial   to 

since.     But  it  has  never  been  held  the  accused.     *     *     *     A  homicide 

that     the     word      'feloniously'      is  cannot  legally  be  called  a  murder 

necessary   in   an   instruction   given  unless   the   act   of   killing   be   done 

in    a    case    involving    the    trial    of  feloniously  and  with  malice  afore- 

a   felony   charge.     It   may  be  con-  thought;    but    if    an    assasin    from 

ceded,     however,     that     after     the  ambush  shoots  his  victim  for  pur- 

Kalein    case    the    court    proceeded  poses   of  robbery,   it  would  be  the 

very   cautiously   with   reference   to  height    of   legal    folly   to    say    that 

the    necessity    of    the     word    'felo-  the  substantial  rights  of  the  mur- 

niously'    in    instructions    in    felony  derer   are   prejudiced    by   a    defec- 

cases,  as  is  shown  by  these  utter-  tive  definition  of  the  words  'malice 

ances:    In  Omer  v.  Commonwealth,  aforethought,'    or    the    mere    omis- 

25   S.    W.    594.    15   Ky.    Law   R.    694:  sion    from    an    instruction    to    the 

'We  perceive  no  other   serious  ob-  jury    of    the    'words    of   art'    (felo- 

jection     to     the     instructions,     al-  niously)  technically  required  in  law 

though  the  failure  to  use  the  word  to    designate    a    murder.'      But    in 

"feloniously"    in   the   first    instruc-  Bunnell    v.    Commonwealth.    30    S. 

tion  should  be  cured  upon  another  W.    604,    17    Ky.    Law    R.    106,    this 


1898  FORMS  OF  INSTRUCTIONS.  [§2989. 

§  2989.  Murder  in  First  and  Second  Degree  and  Manslaughter  De- 
fined and  Distinguished — Elements  of — Michigan,  (a)  The  couit 
instructs  the  jury  that  murder  is  defined  as  where  a  person  of  sound 
memoiy  and  discretion,  willfully  and  unlawfully  and  unreasonably, 
kills  any  creature  in  being,  against  the  peace  of  the  state,  with 
malice  aforethought,  express  or  implied.  Under  the  statutes  of  this 
state,  all  murders  which  shall  be  perpetrated  by  means  of  poison  or 
lying  in  wait,  or  any  other  means  of  unlawful,  deliberate  and  pre- 
meditated killing,  or  which  shall  be  committed  in  the  pei-petration 
of  any  arson,  rape,  robbery  or  burglary,  shall  be  deemed  murder  in 
the  first  degree.  All  other  murders  shall  be  deemed  murder  in  the 
second  degee.  If  one,  without  cause,  inflicts  a  wrong  upon  another, 
we  call  him  *' wicked  and  malicious."  So,  when  one,  without  any 
legal  provocation,  justification  or  excuse,  intentionally  kills  another, 
he  is  called  a  ''murderer."  The  law  implies  from  such  unprovoked, 
unjustifiable  or  inexcusable  killing  the  existence  of  that  wicked  dis- 
position which  the  law  terms  "malice  aforethought."  Thus  if  the 
respondent  intentionally  killed  D.  without  provocation,  justification 
or  excuse,  your  verdict  should  be  "Guilty  of  murder."  The  inten- 
tion may  be  inferred  from  the  use  of  the  deadly  weapon  in  such  a 
manner  that  the  death  of  the  person  assaulted  would  be  the  in- 
evitable consequence.  If  you  come  to  the  conclusion  that  the  re- 
spondent is  guilty  of  murder,  it  will  be  your  duty  to  determine 
whether  he  is  guilty  of  murder  in  the  first  or  second  degree.  Our 
statute  provides,  as  I  have  stated,  that  all  murders  which  shall  be 
perpetrated  by  means  of  poison  or  lying  in  wait,  or  any  other  kind 
of  unlawful  or  pi^emeditated  murder,  shall  be  murder  in  the  first 
degree.  To  convict  the  respondent  of  murder  in  the  first  degree, 
you  must  be  satisfied  that  he  intended  to  kill  D.,  and  that  the  killing 
was  willful,  deliberate  and  premeditated.  It  is  not  necessary  that 
any  particular  time  should  have  elapsed  between  the  forming  of  the 
purpose  and  the  initention  to  kill,  and  the  killing.  If  the  respondent 
had,  previous  to  the  shooting  of  D.,  detennined  to  kill  him,  and,  to 
carry  out  his  intention,  willfully  and  deliberately  killed  him,  he 
would  be  guilty  of  murder  in  the  first  degree.  If  the  killing  was 
done  under  a  sudden  impulse,  then  respondent  would  be  guilty  of 
murder  in  the  second  degree.  If  you  are  not  satisfied  beyond  a  rea- 
sonable doubt  that  the  killing  was  murder  in  the  first  degree,  your 
verdict  should  be  "guilty  of  murder  in  the  second  degree,"  if  you 
find  him  guilty  of  murder  at  all.  If  a  man  kill  another  suddenly 
and  without  provocation,  the  law  implies  malice,  and  it  is  murder. 
If  the  provocation  was  such  as  must  have  greatly  provoked  him,  the 
killing  would  be  manslaughter  only.    The  instrument  with  which  the 

answer  was  made  to  the  objection  The  contrary  has  been  announced 

now  under  consideration:    'It  is  in-  in    the    recent    case    of    Broolcs    v. 

sisted,     however,     that     the     word  Commonwealth,    28    S.    W.    148,    16 

"ffioniously"  should  have  been  used  Ky.    Law    R.    356,    and    the    prin- 

In   the   instruction   on   the    subject  ciples    there    laid    down    are    coa- 

of      murder      and      manslaughter,  elusive  of  this  question'." 


§  2989.]  MURDER  IN  FIRST  DEGREE.  1899 

killing  was  done  must  be  taken  into  consideration.  If  inflicted  with. 
a  deadly  weapon,  the  provocation  must  be  great,  to  make  it  man- 
slaughter. The  amount  of  resentment  must  bear  a  reasonable  pro- 
portion to  the  provocation  to  reduce  the  offense  to  manslaughter.  To 
make  it  manslaughter,  it  is  also  necessary  that  the  killing  be  done 
immediately  upon  the  happening  of  the  provocation.  If  sufficient 
time  elapses  for  passion  to  subside  and  reason  to  interpose,  the  kill- 
ing is  deliberate,  and  the  crime  murder,  no  matter  how  great  the 
provocation.  Under  the  information  in  this  case,  the  respondent 
may  be  convicted  of  murder  in  the  first  degree,  of  murder  in  the 
second  degree,  or  manslaughter,  or  acquitted  upon  the  grounds  that 
the  killing  was  justifiable,  depending  upon  your  view  of  the  testi- 
piony.^^ 

(b)  In  order  for  you  to  find  murder  in  the  first  degree,  you  must 
find  from  all  the  evidence,  beyond  a  reasonable  doubt,  a  deliberate 
intention  to  take  the  life  of  the  deceased,  T.  While  the  law  re- 
quires, in  order  to  constitute  murder  in  the  first  degree,  that  the  kill- 
ing shall  be  willful,  deliberate  and  premeditated,  still  it  does  not 
require  that  the  willful  intent,  premeditation  and  deliberation  shall 
exist  for  any  particular  length  of  time  before  the  crime  is  com- 
mitted. It  is  sufficient  if  there  was  a  malicious  design  and  deter- 
mination to  kill,  distinctly  and  delibei-ately  fonned  in  the  mind  at 
any  time  before  and  continuing  at  the  time  the  blow  was  struck.  If 
a  person  has  actually  formed  a  purpose  maliciously  and  willfully  to 
kill,  and  has  deliberated  and  premeditated  upon  it  before  he  per- 
forms the  act,  and  then  perfonns  it,  he  is  gaiilty  of  murder  in  the 
first  degree,  however  short  the  time  may  have  been  between  the  pur- 
pose and  its  execution.  It  is  not  time  that  constitutes  the  distinctive 
difference  between  murder  of  the  first  and  second  degree.  An  unlaw- 
ful killing  with  malice  aforethought,  willfully,  with  premeditation 
and  deliberation,  constitute  the  crime  of  murder  in  the  first  degree; 
but  the  term  "deliberate"  is  not  applicable  to  any  act  done  on  a 
sudden  impulse.  You  cannot  find  the  resjwndent  guilty  of  murder  in 
the  first  degi-ee  unless  you  find  from  all  the  evidence  beyond  a  rea- 
sonable doubt  that  he  did  on  the  10th  day  of  Augaist,  ,  kill  T., 

and  that  such  killing  was  with  malice  prepense  or  a foi'e thought, 
and  also  find  beyond  a  reasonable  doubt  that  such  killing  was  will- 
ful, deliberate  and  with  a  design  to  take  the  life  of  said  deceased. 
In  order  for  you  to  convict  the  respondent  of  murder  in  the  first 
degree,  the  specific  intent,  as  well  as  all  other  elements  of  the  offense 
which  I  have  enumerated  must  be  afiflnnatively  proved  beyond  a  rea- 
sonable doubt ;  that  W.  did  shoot  and  kill  the  said  T.  at  the  time  and 
place  specified,  and  that  such  killing  was  not  excusable  or  justifiable 
under  the  instructions  which  I  have  already  given  you,  that  such 
killing  was  with  malice  prepense  or  aforethought ;  and  if  you  fail 
to  find  beyond  a  reasonable  doubt  that  such  crime  was  perpetrated 

68— Fully   approved   in  People  v.     Hull,    86    Mich.    449,    49    N.    W.   288 

(290). 


1900  FORMS  OF  INSTRUCTIONS.  [§  2990. 

willfully,  deliberately  and  premeditatedly — your  verdict  will  be 
*' murder  in  the  second  degree."  If  you  find  from  the  evidence 
beyond  a  reasonable  doubt  that  the  respondent  did  kill  the  said  T. 
at  the  time  and  place  specified,  and  you  further  find  that  the  act  of 
killing,  even  if  you  find  that  it  was  intentional,  was  committed  under 
the  influence  of  passion,  or  in  the  heat  of  blood,  produced  by  ade- 
quate or  reasonable  provocation,  and  before  a  reasonable  time  had 
elapsed  for  the  blood  to  cool  and  reason  to  resume  its  habitual  con- 
trol, and  was  "the  result  of  temporaiy  excitement,  by  which  the  con- 
trol of  the  reason  was  disturbed,  rather  than  any  wickedness  of 
heart  or  ci'uelty  or  recklessness  of  disposition,  then  your  verdict 
will  be  "guilty  of  manslaughter.'"'^ 

§  2990.  Murder  in  First  Degree — Idaho  Statute — Nebraska,  (a) 
In  this  case  it  is  not  claimed  by  the  prosecution  that  the  homicide 
charge  was  committed  in  the  perpetration  or  attempt  to  perpetrate 
any  other  felony,  but  it  is  claimed  that  it  is  murder  in  the  first 
degree,  as  being  unlawful,  malicious,  willful,  deliberate  and  pre- 
meditated. In  thi%  etass  of  cases  the  Legislature  leaves  the  jury  to 
determine  from  all  the  evidence  before  them  the  degree  of  the  crime, 
but  prescribes  for  the  government  of  their  deliberations  the  same  test, 
which  is,  is  the  killing  willful,  deliberate  and  premeditated?'^^ 

(b)  You  are  instnieted  that  under  our  statute,  to  constitute  mur- 
der in  the  first  degree,  the  jury  must  be  satisfied  beyond  a  reason- 
able doubt,  from  the  evidence,  that  the  defendant,  without  any 
justifiable  cause  or  excuse,  killed  the  deceased  in  manner  and  form 
as  charged  in  the  indictment ;  and  they  must  also  be  satisfied  beyond 
a  reasonable  doubt,  from  the  evidence,  that  he  killed  the  deceased 
purposely,  and  of  deliberate  and  premeditated  malice.  And  you  are 
instructed  that  by  premeditation  and  deliberation  is  meant  to  think 
of,  to  resolve  in  the  mind  beforehand,  to  contrive,  to  design  pre- 
viously, to  weigh  in  the  mind,  to  consider  and  examine  the  reasons 
for  and  against,  to  consider  maturely,  to  reflect  upon.  The  defend- 
ant, in  order  to  be  guilty  of  this  degree  of  crime,  must  have  first 
formed  the  purpose  in  his  mind  to  kill  the  deceased,  and  having  that 
purpose,  he  must  have  deliberated  upon  it.  He  must  have  considered 
the  consequences  of  his  act,  and  then,  with  full  knowledge  of  the 
consequences  of  the  act  about  to  be  done,  he  purposely,  and  mali- 
ciously executed  that  purpose  by  slaying  the  deceased.  By  malice 
is  meant  [a  wicked  and  mischievous  purpose  which  characterizes  the 
perpetration  of  a  wrongful  or  injurious  act  intentionally  committed 
without  lawful  excuse.]'^ 

69 — People  v.  Wright,  89  Mich.  70,  objectionable     sentence     has     been 

50    N.    W.    792    (797).  omitted  and  the  definition  of  malice 

70— State    v.    Shuff,    9    Idaho   115,  inserted   as   given   by  the  Supreme 

72   Pac.   664   (667),  13  Am.   Cr.   Rep.  Court,    as   shown    in    the   following 

443.  extrnct   of   the   opinion: 

71— Carr  v.   State,   23  Neb.  749,  37  "The    definition     of    malice    con- 

N.  W.  630  (632).  tained   in   the   latter  clause  of  this 

In    the    form    given    above    the  instruction    is,    we    think,     hardly 


§  2991.] 


MURDER  IN  FIRST  DEGREE. 


1901 


§  2991.  Order  in  Which  Jury  May  Consider  the  Issues — New  York 
Code.  If  the  killing  is  not  intentional,  but  done  through  careless- 
ness, or  in  the  heat  of  passion,  or  while  engaged  in  the  commission 
of  a  misdemeanor,  when  the  killing  was  not  intentional,  then  it  is 
manslaughter.  It  is  murder  in  the  first  degree  if  the  killing  is  done 
intentionally  with  deliberation  and  premeditation.  It  is  murder  in 
the  second  degree  if  done  intentionally,  but  without  deliberation  and 
premeditation.  The  charge  in  this  case  is  that  of  murder  in  the 
first  degree.  And  it  becomes  the  duty  of  the  jurjTnen  to  first  con- 
sider and  determine  whether  or  not  the  piisoner  is  guilty  of  the 
greater  crime;  that  is,  murder  in  the  first  degree.  For  it  is  only 
after  you  become  satisfied  that  he  is  not  guilty  of  murder  in  the 
first  degree  that  you  have  the  right  to  consider  the  lesser  degi-ees; 


sufficient.  It  is  a  copy  of  the  first 
paragraph  of  the  definition  of 
malice  given  by  Bouvier  in  his  dic- 
tionary. The  paragraph  referred 
to  in  the  definition  is  as  follows: 
'The  doing  of  a  wrongful  act  in- 
tentionally, without  just  cause  or 
excuse.  4  Barn.  &  C.  255;  9  Mete. 
104.'  'The  wicked,  mischievous 
purpose  which  characterizes  the 
perpetration  of  an  injurious  act 
without  lawful  excuse.  4  Barn. 
&  C.  255;  9  Mete.  104.'  The  first 
case  cited  by  the  author  is  Brom- 
age  V.  Prosser,  an  action  of 
slander,  decided  in  1825,  and  which 
we  need  not  here  notice.  The  case 
cited  in  9  Mete,  is  that  of  Com. 
V.  York.  Chief  Justice  Shaw,  in 
writing  the  opinion,  says:  'Malice 
in  the  definition  of  murder  is  im- 
puted to  an  act  done  willfully,  malo 
animo;  an  act  wrong  in  itself  and 
injurious  to  another,  and  for  which 
there  is  no  apparent  justification 
or  excuse.  .  .  .  The  natural  or 
necessary  conclusion  and  inference 
from  such  an  act  willfully  done 
wuhout  apparent  excuse  are  that 
it  was  done  vialo  animo  in  furth- 
erance of  the  wrongful  injurious 
purpose,  previously,  though  per- 
haps suddenly  formed,  and  is, 
therefore,  a  homicide  with  malice 
aforethought,  which  is  the  true 
definition  of  murder.  In  Territory 
v.  Egan,  3  Dak.  119,  13  N.  W.  568, 
malice  is  defined  to  be  'that  state 
of  mind  or  act  where  one  will- 
fully does  that  which  he  knows 
will  injure  another  person  or  prop- 
erty.' In  Whart.  Law  Diet.,  malice 
is  defined  to  be  a  'formed  design 
of  doing  mischief  to  another;  tech- 
nically, vialitia  pracopita.  or 
malice  prepense  or  aforethought.' 
.  .  .  In  Harris  v.  State,  8  Tex. 
App.  109,  it  is  defined  to  be  'a  con- 


dition of  the  mind  which  shows  a 
heart    regardless    of    social    duty, 
and   fatally   bent  on   mischief,   the 
existence  of  which  is  inferred  from 
acts  committed   or  words   spoken.' 
By   the   foregoing   and   other   cita- 
tions which   we  might   make,   it   is 
apparent  that  malice,  as  applied  to 
the  case  at  bar,  should  be  defined 
as  a  wicked  and  mischievous  pur- 
pose which  characterizes   the   per- 
petration  of   a   wrongful   or   injur- 
ious   act    intentionally    committed 
without    lawful    excuse.      It    is    a 
mental    condition    on    the    part    of 
the  actor,  supposed  to  exist  at  the 
time  of  the  commission  of  the  of- 
fense, and  is  imputed  to  'doing  of 
an     unlawful      act,      intentionally, 
without  just  cause  or  excuse.'    The 
district    court    was    perhaps    fully 
justified  in  adopting  the  definition 
given,    for    the    same    language    is 
used   in   defining  malice   in   Milton 
v.   State,  6  Neb.  143,  and  therefore 
what  is  here  said  can   in  no  sense 
be  said  to  be  a  criticism  upon  the 
action  of  the  trial  court.     But,  for 
the   reasons   given,   we   believe  the 
rule    stated    in    Milton   v.    State    is 
imperfect,   and   should   not   be   fol- 
lowed.    It    is    not   given   with    the 
u!5ual    care    and    precision    of    the 
writer  of  that  opinion,  for  the  rea- 
son, doubtless,   that  it  was  not  an 
essential   element   in    the   case,    the 
testimony  failing  to  show  delibera- 
tion and  premeditation,  and  on  ac- 
count   of    which    a    new    trial    was 
given.       The     legal     definition     of 
malice   given    by    Webster   is    'any 
wicked  or  mischievous  intention  of 
the    mind;    a    depraved    inclination 
to  mischief;  intention  to  do  an  act 
which    is    wrongful,    without    just 
cause   or  excuse;    a   wanton    disre- 
gard   of    the    rights    or    safety    of 
others;  willfulness.'  " 


1902  FORMS  OF  INSTRUCTIONS.  [§  2992. 

or  rather,  in  case  you  are  not  satisfied  beyond  a  reasonable  doubt 
of  the  guilt  in  the  greater  degree,  then  you  have  the  right  to  con- 
sider the  lesser  degrees.  So  that  you  are  to  determine,  in  the  first 
place,  as  to  whether  the  killing  was  intentional,  and  was  it  with 
deliberation  and  premeditation.  In  other  words,  did  the  accused  pre- 
meditate, think  over,  resolve  in  his  mind,  form  a  conclusion  to  do 
the  act,  and  did  he  deliberate  upon  that?^^ 

§  2992.  Deceased  Assaulting  Defendant — Defendant  Killing  De- 
ceased After  Cooling  Time.  You  are  instinicted  that,  although  you 
may  believe  from  the  evidence  that  some  time  prior  to  the  killing, 
the  deceased  assaulted  the  defendant,  and  knocked  him  down  with  a 
rifle  and  punched  him  with  a  rifle  and  kicked  him,  yet  if  you  further 
believe  that  after  said  assault  the  deceased  and  the  defendant 
walked  together  for  some  distance,  and  sufficient  time  had  elapsed 
for  defendant's  passion  to  subside,  and  that  while  they  were  so  walk- 
ing together  the  deceased  passed  the  defendant,  and  the  defendant 
deliberately  drew  a  pistol  and  shot  deceased  and  killed  him,  with 
malice  aforethought,  and  with  the  intent  in  his  mind,  at  the  time,  to 
take  the  life  of  the  deceased,  while  deceased  was  riding  from  him 
and  making  no  demonstrations,  this  would  be  murder  in  the  first  de- 
g^ee,  and  you  should  so  find.''^ 

§  2993.  Seeking  Quarrel  with  Deceased  with  Expectation  of  Shoot- 
ing Him.  If  the  juiy  believe,  from  the  evidence,  that  the  defendant 
sought  a  quarrel  with  the  deceased  and  first  struck  him  a  violent  blow 
with  his  fist,  in  the  expectation  that  the  deceased  would  resent  the 
blow,  and  in  his  turn  attack  the  defendant,  so  that  he  might  have  a 
chance  to  shoot  or  stab  the  deceased,  and  thereby  take  his  life,  and 
further,  that  in  accordance  with  such  expectation  the  said  deceased 
did  thereupon  attack  the  defendant  with  his  fists,  and  the  defendant 
then  shot  the  deceased,  as  charged  in  the  indictment,  such  killing 
would  be  murder  in  the  first  degree.'^* 

72— People  v.   Wilson,    109   N.   Y.  "To     convict    the    defendant    of 

540,    16    N.    E.    540    (544).  murder  in   the  first   degree,   under 

The  court  said:  "The  defendant  it,  it  was  necessary  for  the  jury  to 
was  charged  in  the  indictment  with  find  that  a  sufficient  length  of  time 
murder  in  the  first  degree,  and  to  had  elapsed  for  his  passion  to  sub- 
that  charge  he  pleaded,  and  for  side — cooling  time — and  that  there- 
that  charge  he  was  put  on  trial,  after  he  deliberately  drew  a  pistol 
and  all  the  evidence  was  directed  and  shot  deceased  and  killed  him 
to  the  issue  joined  upon  that  — deliberation — with  malice  afore- 
charge.  It  was  the  duty  of  the  thought,  and  with  the  intent  in  his 
jury  first  to  determine  whether  mind  at  the  time — at  the  time  of 
he  was  guilty  of  that  charge  or  the  deliberate  shooting — to  take  the 
not.  That  was  the  primary  sub-  life  of  the  deceased — premedita^ 
ject  to  be  investigated,  and  it  was  lion — in  other  words,  must  find  de- 
only  after  they  found  him  not  liberation,  malice  aforethought, 
guilty  upon  that  charge  that  they  and  premeditation.  Construed  in 
were  authorized,  under  section  444  connection  with  the  other  instruc- 
of  the  Code  of  Criminal  Procedure,  tions,  the  instruction  objected  to  is 
to  find  him  guilty  of  any  inferior  substnntially  correct." 
degree  of  homicide."  74 — State     v.     Christian,     66     Mo. 

73— Duckworth    v.    State.    80   Ark.  138. 
360  (362),   97   S.   W.   280   (281). 


§  2994.]  MURDER  IN  FIRST  DEGREE.  1903 

§  2994.  Deceased  Making  First  Hostile  Demonstration — Direct 
Evidence  Not  Necessary,  (a)  The  court  charges  the  jury  that  if 
they  believe  from  the  evidence  in  this  case  beyond  a  reasonable  doubt, 
that  the  defendant  lay  in  wait,  with  the  formed  design  to  take  the  life 
of  deceased,  then  notwithstanding  they  may  further  believe  that  the 
deceased  made  the  first  hostile  demonstration,  defendant  would  be 
guilty  of  murder  in  the  first  degree.''^ 

(b)  The  court  instructs  you  that  while  it  devolves  upon  the  state 
to  prove  willfulness,  deliberation,  premeditation  and  malice  afore- 
thought, all  of  which  are  necessary  to  constitute  murder  in  the  firet 
degree,  yet  this  need  not  be  proved  by  direct  evidence,  but  may  be  de- 
duced from  all  the  facts  and  circumstances  attending  the  killing; 
and  if  you  can  satisfactorily  and  reasonably  infer  their  existence  from 
all  the  evidence  you  will  be  warranted  in  finding  the  defendant  guilty 
of  murder  in  the  first  degree. '^^ 

§  2995.  Murder  by  Poison — Essential  Facts  to  Be  Proven,  (a)  It 
is  essential  to  the  conviction  of  the  defendant  that  the  following  facts 
must  be  proved  beyond  a  reasonable  doubt,  to-wit:  (1)  The  death 
of  A.  B.,  named  in  the  indictment;  (2)  that  his  death  was  caused  by, 
or  was  mediately  or  immediately  accelerated  by,  poison  by  arsenic; 
(3)  that  the  poison  thus  causing  or  accelerating  the  death  of  A.  B. 
was  feloniously  administered  by  the  defendant  to  him,  or  that  the  de- 
fendant feloniously  participated  in  such  administration  thereof,  or 
feloniously  caused  the  same  to  be  administered  to  him;  (4)  that  the 
offense  was  committed  in  Huntington  county  in  the  state  of  In- 
dian a.'^'^ 

(b)  When  murder — ^that  is,  killing  a  human  being  with  malice 
aforethought  is  perpetrated  by  means  of  poison,  the  law  implies,  be- 
cause of  the  nature  of  the  act,  that  it  was  done  intentionally,  willful- 
ly, deliberately,  premeditatedly  and  with  malice  aforethought,  and 
therefore  declares  it  to  be  murder  in  the  first  degi'ee.  Such  being  the 
law  you  are  not  called  upon  to  consider  as  to  murder  in  the  second 
degree  nor  manslaughter.  Your  verdict  must  be  guilty  of  murder  in 
the  first  degree  or  not  guilty.'^^ 

(c)  The  court  instructs  the  jury  that  whoever  kills  a  human  being 
with  malice  aforethought  is  guilty  of  murder;  that  all  murder  which 
is  perpetrated  by  poison,  lying  in  wait  or  any  other  kind  of  willful,  de- 
liberate and  premeditated  killing,  is  murder  in  the  first  degree.^'' 

75 — Gafford   v.   State,  125   Ala.   1,  to    go,    which    could    have    Injured 

28  So.  406  (407).  the  appellant.     In   the   next   place, 

76 — State   v.    Privitt,   175   Mo.   207,  there  is  no  evidence  which  required 

75   S.    W.    457   (458).  the     additional     definition     insisted 

77— Epps    v.    State,    102   Ind.    539,  upon.     The  last  sickness  of  A.   B., 

1    N.    E.   491    (499).  immediately    following-    his    symp- 

"It  is  objected  that  this  instruc-  toms    of   arsenical    poisoning,    was 

tion  did  not  also  tell  the  jury  that  of  less  than  a  week's  duration." 

death  must  have  resulted  within  a  78— State    v.    Burns,    124    la.    207, 

year    and    a   day    after    the    poison  99   N.   W.   721   (722). 

was     administered.       In     the     first  79— Longley  v.    Commowealth,  99 

place,    we    see    nothing    in    the    in-  Va.   807,    37  S.  E.   339   (340). 
struction,    so    far   as   it    purported 


1904  FORMS  OF  INSTRUCTIONS.  [§  2996. 

(d)  If  you  have  a  reasonable  doubt  as  to  whether  defendant 
poisoned  his  wife  with  strychnine,  with  intent  to  kill  her,  as  charged 
in  the  indictment,  and  if  you  have  such  doubt  as  to  whether  defend- 
ant, with  intent  to  kill  her,  placed  strychnine  poison  where  he  knew 
or  believed  deceased  might  take  it,  or  if  you  have  such  doubt  as  to 
whether  deceased  committed  suicide,  or  died  from  other  causes  than 
poison  administered  by  defendant  with  intent  to  kill  her,  you  will 
acquit  defendant.®*' 

§  2996,  Deceased  Having  Had  Illicit  Intercourse  with  Defendant's 
Wife,  (a)  If  the  jui-y  believe  from  the  evidence  beyond  all  reason- 
able doubt  that  the  deceased,  several  months  prior  to  the  killing,  did 
have  sexual  intercourse  with  the  defendant's  wife,  with  or  without 
force,  and  that  the  defendant,  in  B.  county,  Alabama,  and  before  the 
finding  of  this  indictment,  killed  the  deceased  by  decoying  him  to 
his  (defendant's)  house,  and  by  lying  in  wait  for  him,  on  account  of 
such  illicit  intercourse  between  deceased  and  defendant's  wife,  then 
defendant  is  guilty  of  murder  in  the  first  degree,  and  it  is  the  sworn 
duty  of  the  jury  to  so  find  their  verdict.®^ 

(b)  The  jury  will  observe,  from  all  the  instructions  given  them, 
those  upon  the  part  of  the  state  as  well  as  defendant,  that  under  the 
law  the  defendant  had  no  right  to  kill  W.  because  of  his  knowledge 
or  suspicion  of  deceased  and  defendant's  wife  having  previously  had 
illicit  intercourse.  And  in  this  case,  if  the  defendant,  after  having 
susjiected  or  known  for  daj^,  weeks,  or  even  months  of  the  intimacy 
of  his  wife  and  W.,  by  reason  thereof,  and  after  having  formed  a 
conscious  design  and  purpose  to  kill  said  W.,  did  kill  said  W.,  the  so 
killing  of  said  W.  was  and  is  under  the  law  murder  in  the  first  de- 
gree, and  the  jury  should  so  find.''- 

§  2997.  Murder  in  the  First  Degree — Definition  of — ^Murder  Com- 
mitted in  Perpetration  of  Robbery,  (a)  The  court  instructs  you 
that  every  person  with  sound  memory  and  discretion  who  shall  un- 
lawfully kill  any  reasonable  creature  in  being  in  this  state,  with 
malice  aforethought,  either  expressed  or  implied,  shall  be  deemed 
guilty  of  murder.  All  murder  committed  in  the  perpetration  of  rob- 
bery is  murder  in  the  first  degree.  All  murder  of  the  firet  degree  is  of 
the  second  degree.®^ 

80 — Morrison    v.     State,    40    Tex.  definition  of  malice  or  malice  afore- 

Cr.   App.  473,   51  S.  W.  358   (365).  thought.        While      ordinarily      the 

81 — Approved      in      Williams      v.  court    should    define    these    terms, 

State,  130  Ala.  107,  30  So.  484  (486).  and   in   a  case   of  this  gravity   the 

82 — State  v.   Privitt,   175   Mo.   207,  judge    cannot    be    too    careful,    yet 

75  S.  W.  457  (460).  we    believe    in    the    court's    charge 

83 — Jones    v.    State,    —    Tex.    Cr.  applying  the  law  to  the  facts,  there 

App.  — ,  96  S.  W.  930  (931).  was  a  sufficient  definition  of  malice 

"This  scharge  is  objected  to  be-  aforethought,  which  cured  this  de- 
cause,  in  the  remainder  of  the  feet.  The  charge  in  question  re- 
charge, murder  in  the  first  degree  quired  the  homicide  to  have  been 
is  nowhere  completely  defined,  nor  committed  'unlawfully,  and  with  a 
is  mnlice  or  malice  aforethought  mind  which  shows  a  heart  regard- 
anywhere  defined.  In  connection  less  of  social  duty  and  fatally  bent 
with  the  charge  there  is  no  stated  on  mischief,  the  existence  of  which 


§  2998.]  MURDER  IN  FIRST  DEGREE.  1905 

(b)  If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  the  time  of  the  alleged  killing  the  defendants  had  en- 
tered the  house  of  the  deceased,  for  the  jDurpose  of  stealing  and 
carrying  away  any  article  of  personal  property  thei-ein,  and  that,  in 
the  prosecution  of  that  purpose,  or  in  his  efforts  to  escape  from  the 
house  with  such  property,  the  defendant  struck  the  deceased  and 
thereby  caused  his  death,  then  such  killing  would  be  murder  and  not 
manslaughter,  and  it  would  be  wholly  immaterial  whether  such  killing 
was  intentional  or  not.** 

(e)  If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  said  J.  was  killed  by  the  defendant,  and  also,  that  at 
the  time  the  defendant  was  engaged  in  an  attempt  to  rob  the  de- 
ceased, then  the  defendant  is  guilty  of  murder  in  the  first  degree, 
although  he  may  have  had  no  intention  to  take  the  life  of  the  said  J.*^ 

(d)  If  you  believe,  from  the  evidence,  beyond  a  reasonabe  doubt, 
that  at  the  time  of  the  alleged  killing  the  defendant  had  entered  the 
saloon  of  the  said  X.  for  the  purpose  of  feloniously  and  violently 
taking  the  money  or  personal  pi'operty  of  said  X.  from  his  person  by 
force,  intimidation  or  by  putting  said  deceased,  X.,  in  fear,  and  thatj 
in  the  prosecution  of  that  purpose  the  defendant  shot  the  deceased^. 
and  thereby  caused  his  death,  then  such  killing  under  such  circumf 
stances  would  be  murder  in  the  first  degree.  In  other  words,  if  froni' 
the  evidence  the  juiy  believe  beyond  a  reasonable  doubt  that  the 
defendant  killed  the  said  X.,  and  also  at  the  time  of  the  killing  that 
the  defendant  was  engaged  in  an  attempt  to  pei-petrate  a  robbei-y 
upon  the  person  of  the  said  deceased,  then  the  defendant  would  be 
guilty  of  murder  in  the  first  degree.*** 

§  2998.  Murder — Attempt  to  Escape.  The  court  instructs  the 
jury  that  if  they  believe  and  find  from  the  evidence,  beyond  a  reason- 
able doubt,  that  on  the  day  of  November,  1905,  the  defendants 

and  another  person  named  B.  were  confined  as  prisoners  in  the  Mis- 
souri State  Penitentiary,  in  C.  county.  Mo.,  and  while  so  confined 
agreed  with  each  other  to  make  or  attempt  to  make  an  escape  from 
prison,  and  in  so  doing  and  while  acting  in  concert  with  each  other 
and  in  the  furtherance  of  a  common  design  to  make  such  escape, 
either  one  of  the  foiir  persons  so  attempting  to  escape  did,  in  the 
presence  of  the  other  three,  willfully,  feloniously,  deliberately,  pre- 
meditatedly,  and  of  malice  aforethought  kill  J.  in  the  county  afore- 

may   be    inferred   from   acts   com-  State,  42  Tex.  Cr.  App.  477,  61  S.  W. 

mitted  or  words  spoken  and  in  the  929." 

perpetration   of   robberv,   and   with  84 — Bissott   v.   State,   53   Ind.    40S. 

malice  aforethought,'  etc.   This  em-  85— Monihan  v.   State,  7  Ind.  126. 

braces    one    of    the    definitions    of  86— Rhea    v.    State,    63    Neb.    461. 

malice  aforethought,  and  under  the  88   N.    W.    789   (798). 

facts    and    circumstances    of    this  The  court  said:    "The  instruction 

'-ase      we    believe    was    sufficient,  complained  of,  we  hold,  states  the 

Martinez    v.    State,    30    Tex.    App.  law  correctly,   and  that  error  can- 

1''9      16     S      W.     767,     28     Am.     St.  not   be   successfully   predicated   on 

895-   Hedrick  v.   State,   40  Tex.   Cr.  its  being  given  to  the  jury." 
App.    532,    51    S.    W.    252;    Rupe    v. 
120 


1906  FORMS  OF  INSTRUCTIONS.  [§  2999. 

said,  while  he  was  in  the  peace  of  the  state  and  in  the  discharge  of 
his  duties  as  a  guard  at  such  penitentiary,  by  shooting  him  upon  the 
neck  or  head  with  a  pistol,  and  thereby  inflicting  upon  him  a  mortal 
wound  of  which  he  then  and  there  instantly  died,  then  they  will  find 
all  three  of  the  defendants,  H.  V.,  G.  R.,  and  E.  R.  guilty  of  murder 
in  the  first  degree,  and  so  state  in  their  verdict.^'^ 

§  2999.  Killing  While  Attempting  to  Commit  Rape.  The  crime 
charged  in  the  second  count  is  thus  defined:  ''If  any  person  in  the 
perpetration  or  attempt  to  perpetrate  any  rape,  kill  another,  every 
person  so  offending  shall  be  deemed  guilty  of  murder  in  the  first  de- 
gree."  Under  the  law,  to  warrant  a  conviction  of  defendant  of  the 
crime  charged  in  the  second  count  of  the  information  the  state  is  not 
required  to  prove  that  the  act  of  killing  was  done  purposely,  and  of 
deliberate  and  premeditated  malice.  The  facts  necessary  to  be  es- 
tablished by  the  state  by  evidence  beyond  a  reasonable  doubt,  to  war- 
rant a  conviction  of  the  crime  charged  in  the  second  count,  are  that 
the  defendant,  in  perpetrating  or  attempting  to  perpetrate  a  rape 
upon  the  said  G.,  did  choke,  suffocate,  or  strangle  her,  the  said  G., 
and  of  which  choking,  suffocation,  or  strangling  by  defendant,  she, 
the  said  G.,  then  and  there  died.     .     .     .^^ 

§  3000.  ratally  Wounded  by  Striking  with  Billiard  Cues.  The 
court  instructs  the  jury,  if  they  shall  find  and  believe  from  the  evi- 
dence beyond  a  reasonable  doubt  that  the  defendant,  R.  S.,  on  or 
about  the  24th  day  of  March,  1900,  at  the  county  of  Lawrence  and 
state  of  Missouri,  did  willfully,  feloniously,  deliberately,  premedi- 
tatedly  and  with  malice  aforethought  strike  and  wound  W.  with  bil- 
liard cues,  and  if  the  jury  further  believe,  from  the  evidence  that 
within  a  year  and  a  day  thereafter,  to  wit,  on  or  about  the  26th  day 
of  March,  1900,  the  said  W.,  at  the  county  of  Lawrence  and  state  of 
Missouri,  died  in  consequence  of  said  wounding  and  striking  with  the 

87 — State  v.  Vaughan,  200  Mo.  1,  quences    if    he    goes    further    than 

98   S.   W.   2.  intended  when  he  began.'     See  also 

88— Morgan  v.  State,  51  Neb.  672,  State  v.   Gray,  19  Nev.   212,  8  Pac. 

71  N.   W.   788  (793).  456;  People  v.   Mooney,  2  Idaho  24, 

"Stephen,  J.  in  Reg.  v.  Serne,  2  Pac.  876;  People  v.  Greenwall, 
16  Cox  Cr.  Cas.  311,  after  holding  115  N.  Y.  520,  22  N.  E.  180;  Moyni- 
death  resulting  from  a  known  dan-  han  v.  State,  70  Ind.  126,  36  Am. 
gerous  act,  done  in  the  commission  Rep.  178;  Robertson  v.  Com.  (Va.), 
of  a  felony,  to  be  murder,  makes  20  S.  E.  362;  Reddick  v.  Com. 
use  of  the  following  illustration:  (Ky.),  33  S.  W.  416;  Graves  v. 
•Suppose  that  a  man,  intending  to  State,  45  N.  J.  Law  203;  People  v. 
commit  a  rape  upon  a  woman,  but  Nichol,  34  Cal.  211.  The  authori- 
without  the  least  wish  to  kill  her,  ties  here  cited  serve  to  demon- 
squeezed  her  by  the  throat  to  over-  strate  the  fallacy  of  the  argument 
power  her,  and  in  so  doing  killed  employed  in  Robbins  v.  State,  8 
her;  that  would  be  murder.  .  .  Ohio  St.  131,  as  respects  the  gram- 
That  kind  of  a  crime  does  not  matical  construction  of  the  statute. 
differ  in  any  serious  degree  from  as  well  as  the  policy  and  purpose 
one  committed  by  using  a  deadly  thereof,  and  our  examination  of 
weapon,  such  as  a  bludgeon,  a  pis-  the  subject  has  suggested  no  suffl- 
tol  or  a  knife.  If  a  man  once  begins  cient  reason  for  adhering  to  a  con- 
altacking  the  human  body  in  such  struction  alike  exceptional  and  ob- 
way,     he    must    take    the    conse-  viously   unsound." 


§  3001.]  MURDER  IN  FIRST  DEGREE.  1907 

billiard  cues  aforesaid,  the  juiy  will  find  the  defendant  guilty  of 
murder  in  the  first  degree,  as  charged  in  the  indietment.^'^ 

§  3001.  Deadly  Weapon — Killing  with  a  Large  Stone  or  Piece  of 
Iron,  (a)  The  court  instructs  that  if  the  jury  find  from  the  evi- 
dence in  this  case,  beyond  a  reasonable  doubt,  that  at  the  county  of  C. 
and  state  of  Missouri,  at  any  time  prior  to  the  filing  of  the  informa- 
tion herein,  the  defendant  E.  D.,  with  a  large  stone,  or  a  piece  of 
iron,  or  any  weapon  or  instrument  likely  to  produce  death  or  great 
bodily  hai-m,  as  charged  in  the  information,  and  that  such  stone, 
piece  of  iron,  or  other  instrument  or  weapon  was  a  dangerous  and 
deadly  weapon,  did  willfully,  deliberately,  premeditatedly,  and  of  his 
malice  aforethought  strike,  beat,  bruise,  and  wound  S.  J.,  thereby 
inflicting  upon  the  head  of  him,  the  said  S.  J.,  one  or  more  mortal 

wounds,  from  which  the  said  S.  J.,  on  the  — th  day  of ,  1905,  at 

the  eountj'  of  C.  and  state  of  Missouri,  died,  then  you  will  find  the 
defendant  guilty  of  murder  in  the  first  degree.^" 

(b)  The  jury  are  instructed  that  he  w'ho  willfully,  that  is,  in- 
tentionally, uses  upon  another  at  some  vital  point  a  deadly  weapon, 
must,  in  the  absence  of  qualifying  facts,  be  presumed  to  know  that 
the  effect  is  likely  to  produce  death,  and  knowing  this,  must  be  pre- 
sumed to  intend  death,  which  is  the  probable  consequence  of  such  an 
act,  and  if  such  deadlj'  weapon  is  used  without  just  cause  or  provo- 
cation he  must  be  presumed  to  do  it  wickedly  and  from  a  bad  heart, 
and  if  the  jurj"  believe  from  the  evidence  that  the  defendant  shot 
and  killed  L.,  as  charged,  and  that  at  the  time  or  before  the  shot  was 
fired,  the  defendant  had  formed  in  his  mind  the  willful,  premeditated, 
and  deliberate  design  or  purpose  to  take  the  life  of  the  deceased,  and 
that  the  shot  was  fired  in  furtherance  of  that  design  or  pui-pose  and 
without  any  justifiable  cause  or  legal  excuse  therefor  as  explained  in 
these  instructions,  then  the  jury  should  find  the  defendant  guilty  of 
murder  in  the  first   degree.^^ 

89 — State    v.    Smith,    164    Mo.    587,  out   deliberation,    is   murder  in   the 

65    S.    W.    270.  second  degree.     The  same  rule  was 

90 — State  v.  Darling,  199  Mo.  168,  announced    in    the    Fairlamb    case. 

97  S.  VJ.   592.  The    instruction    under    considera- 

91 — State    V.    McCarver,    194    Mo.  tion,  in  defining  murder  in  the  first 

217,    92    S.    W.    684.  degree,  tells  the  jury  that  in  order 

"We  are  unable  to  appreciate  the  to    convict    defendant    of    that    of- 

criticism   upon   this   instruction,   to  fcnse,  they  must  first  believe  that 

the  effect  that  it  instructs  the  jury  the    killing    was    with    deliberation 

that    the    intentional    killing    of    a  and  premeditation.     It  says  'if  the 

human   being  with  a   deadly  wea-  jury  believe  from  the  evidence  that 

pen,   without  any   lawful   provoca-  the   defendant   shot   and    killed   H. 

tion,     must     be     presumed     to     be  L.,    as    charged,    and    that    at    the 

murder    in    the    first    degree.      The  time  or  before  the  shot  was  fired, 

instruction    does   not   so   state:   nor  the    defendant    had    formed    in    his 

does  the  case  of  State  v.   Silk,   145  mind     the     willful,     premeditated, 

Mo.    240,    44    S.    W.    764,    46    S.    W.  and  deliberate  design  or  purpose  to 

959,   or  State  v.   Fairlamb,  121  Mo.  take  the  life  of  the  deceased,  and 

137!  25  S.  "W.   895,   so  hold.     On  the  that    the    shot    was    fired    in   furth- 

contrary,    it   is   said    in    Silk's   case  erance  of   that   design   or  purpose, 

that  a  homicide  committed  by  the  and   without   any   justifiable  cause 

use  of  a  deadly  weapon,  and  with-  or    legal    excuse    therefor,    as    ex- 


1908  F0RM9  OF  INSTRUCTIONS.  [§  3002. 

(c)  He  who  willfully — that  is,  intentionally,  uses  upon  another  at 
some  vital  part  a  deadly  weapon,  as  a  loaded  fireaim,  must,  in  the  ab- 
sence of  qualifying  facts,  be  presumed  to  know  that  the  effect  is 
likely  to  be  death,  and  knowing  this  must  be  presumed  to  intend 
death,  which  is  the  probable  and  ordinary  consequences  of  such  an 
act;  and  if  such  deadly  weapon  is  used  without  just  cause  or  provo- 
cation, he  must  be  presumed  to  do  it  wickedly,  or  from  a  bad  heart. 
If,  therefore,  the  jury  believe  that  defendant  took  the  life  of  J.  R.  M. 
by  shooting  him  in  a  vital  part,  with  a  revolver  loaded  with  gun- 
powder and  leaden  bullets,  with  a  manifest  desig-n  to  use  such  weapon 
upon  him,  and  with  sufficient  time  to  deliberate  and  fully  form  the 
conscious  purjDose  to  kill,  and  without  sufficient  reason  or  cause  or 
extenuation,  then  such  killing  is  murder  in  the  first  degree;  and  while 
it  devolves  upon  the  state  to  prove  willfulness,  deliberation,  premedi- 
tation and  malice  aforethought  (all  of  which  are  necessary  to  con- 
stitute murder  in  the  first  degree)  yet  these  need  not  be  proved  by 
direct  evidence,  but  may  be  deduced  from  all  the  facts  and  circum- 
stances attending  the  killing;  and  if  the  jury  can  satisfactorily  and 
reasonably  infer  their  existence  from  all  the  evidence,  they  will  be 
warranted  in  finding  the  defendant  guilty  of  murder  in  the  first  de- 
gree.^^ 

§  3002.  Murder  in  First  Degree — Metal  Knucks  or  Means  Un- 
known— Stabbing  with  Knife,  (a)  If  the  defendant  in  this  county 
before  the  finding  of  this  indictment,  purposely  killed  deceased  by 
striking  him  with  metal  knucks,  by  cutting  him  wnth  a  knife,  or  by 
throwing  him  overboard,  or  by  means  unknown  to  the  grand  jury, 
after  reflection,  with  a  wickedness  or  depravity  of  heart  towards  the 
deceased,  and  the  killing  was  detennined  on  beforehand,  even  a  mo- 
ment before  the  fatal  blow  was  struck,  the  defendant  is  guilty  of 
murder  in  the  first  degree.^^ 

(b)  If  you  believe,  beyond  a  reasonable  doubt,  from  all  the  evi- 
dence in  this  ease,  that  defendant  in  this  county  before  the  finding  of 
this  indictment,  purposely  killed  the  deceased,  by  stabbing  or  cutting 
him  with  a  knife,  after  reflection,  with  a  wickedness  or  depravity  of 
heart  towards  said  deceased,  and  the  killing  was  determined  on  be- 
forehand, even  a  moment  before  the  fatal  blow  was  made,  the  de- 
fendant is  guilty  of  murder  in  the  first  degree.^'' 

plained  in  these  instructions,  then  Held  that  this  "substantially 
the  jury  should  find  the  defendant  hypothesizes  the  characteristics  of 
guilty  of  murder  in  the  first  de-  murder  in  the  first  degree  as  de- 
gree.' The  instruction  is  in  line  fined  by  the  statute.  2  Code 
with  all  the  authorities  as  to  what  §3725.  It  requires  in  order  to  con- 
it  takes  to  constitute  murder  in  the  stitute  that  degree  of  murder,  that 
first  degree,  and  is  free  from  ob-  the  homicide  be  purposely  com- 
joction."  mitted,  after  reflection  with  malice 

92— State  v.   May,   172  Mo.  630,  72  and  that  it  was  determined  on  be- 

S.   W.   918   (920).  forehand.    These  are  the  equivalent 

93— Hunt   V.   State,   135  Ala.   1,   33  of     the     willfulness,      deliberation. 

So.  329  (330).  malice     and     premeditation    which 

94— Boulden  v.   State,  102  Ala.  78,  the  statute  requires." 
15   So.    341    (344). 


§  3003.]  MURDER  IN  SECOND  DEGREE.  1909 

§  3003.    Murder  in  the  First  Degree— rorm  of  Verdict,     (a)     The 

court  instructs  the  juiy  that  under  the  evidence  in  this  case  you  will 
find  the  defendants  guilt}^  of  murder  in  the  first  degree  or  acquit 
them;  and  you  are  further  instructed  that,  if  you  find  the  defendants 
guilty  of  murder  in  the  first  degree,  you  will  simply  say  so  in  your 
verdict,  as  you  have  nothing  whatever  to  do  with  the  punishment.  If 
you  find  the  defendants  not  guilty,  you  will  return  a  verdict  to  that 
effect.95 

(b)  If  you  find  the  defendant  guilty  of  murder  in  the  first  de- 
gree, you  will  simjjly  so  state  in  your  verdict,  as  you  are  charged 
with  no  responsibility  with  respect  to  the  punishment  for  murder  in 
the  first  degree.  If  you  find  the  defendant  guilty  of  murder  in  the 
second  degi'ee,  you  will  state  in  your  verdict  and  assess  his  punish- 
ment at  imprisonment  in  the  state  penitentiaiy  for  any  teiTU  not  less 
than  ten  years. ^"^ 

(c)  The  defendant  in  this  case  stands  charged  by  information 
with  murder  in  the  first  degree ;  that  is  to  say,  the  defendant,  P., 
stands  charged  with  having  feloniously,  willfully,  premeditatedly, 
deliberately  and  of  his  malice  aforethought  shot  and  killed  W.,  at  the 
county  of  Sullivan,  on  the  26th  day  of  November,  1901,  and  under 
the  evidence  in  this  case  you  will  either  convict  the  defendant  of 
murder  in  the  first  degree,  and  so  state  in  your  verdict,  or  you  will 
acquit  him.^^ 

(d)  A  person  on  trial  charged  with  murder  in  the  first  degree,  if 
the  evidence  justifies  it,  may  be  convicted  of  murder  in  the  first  de- 
gree, or  he  may  be  acquitted  of  murder  in  the  first  degree ;  and,  if  the 
evidence  justifies  it,  such  person  may  be  found  guilty  of  murder  in 
the  second  or  third  degree,  or  of  manslaughter;  or,  in  the  absence  of 
evidence  to  convict  of  either  of  said  offenses,  such  person  may  be 
acquitted  of  all  crime  whatever  by  a  general  verdict  of  not  guilty; 
and  where  such  trial  is  had  (that  is,  for  murder),  as  in  the  case  at 
bar,  if  the  jury  find  the  accused  guilty,  then,  in  their  verdict,  they 
should  state  the  degree.^^ 

MURDER  IN  SECOND  DEGREE. 

§  3004.  Murder  in  the  Second  Degree — Elements  of.  (a)  If  you 
believe  from  the  evidence  that  the  defendant  in  the  county  of  St.  F., 

state  of  Missouri,  at  any  time  prior  to  the  —  of ,  19 — ,  willfully, 

premeditatedly,  and  of  his  malice  aforethought,  but  not  deliberately, 
shot  and  wounded  L.,  and  that  within  a  year  and  a  day  thereafter 

and  before  the  —  of ,  19 — ,  the  said  L.,  at  the  county  of  St.  F., 

aforesaid,  died  in  consequence  of  said  shooting  and  wounding,  then  it 

95— State  v.  Vaughan,   200  Mo.  1,  97— State  v.   Privitt,   175   Mo.   207, 

98    S.    W.    2;    State    v.    Gatlin,    170  75    S.    W.    457    (458). 

Mo.  354,  70  S.  W.  885  (888).  9^— McCoy   v.    State,    40    Fla.    494, 

96— State    v.     May,    172    Mo.    630,  24  So.   485   (487). 
77  S.   W.  918  (920). 


1910 


FORMS  OF  INSTRUCTIONS. 


[§  3005. 


\v::i  be  your  duty  to  find  the  defendant  guilty  of  murder  in  the  second 
degree. ^^ 

(b)     If  you  shall  believe  from  the  evidence,  beyond  a  reasonable 

doubt,  that  the  defendant,  in  the  month  of  ,  19—,  at  V.  county, 

Missouri,  with  a  pistol,  shot  and  killed  W.,  and  that  such  shooting 
and  killing  were  done  willfully,  premeditatedly,  and  of  malice  afore- 
t,hought,  but  without  deliberation,  you  should  find  the  defendant 
guilty  of  murder  in  the  second  degree.  Unless  you  do  so  believe, 
you  should  not  find  him  guilty  of  murder  in  the  second  degree-^*^" 

§  3005.    Murder  in  Second  Degree  Defined — Shooting  with  Revolv- 
ing Pistol  Loaded  with  Gunpowder  and  Leaden  Balls,     (a)     If  you 

find  from  the  evidence  beyond  a  reasonable  doubt  that  at  the  county 
of  Carroll,  in  the  state  of  Missouri,  at  any  time  before  the  finding 
of  the  indictment  herein,  the  defendant  did  unlawfully,  premeditated- 
ly and  of  his  malice  aforethought,  but  without  deliberation,  as  de- 
fined in  these  instructions,  kill  X.,  by  shooting  him  with  a  revolving 
pistol,  then  and  there  loaded  with  gunpowder  and  leaden  balls,  you 
will  find  the  defendant  guilty  of  murder  in  the  second  degree,  and 
assess  his  punishment  at  imprisonment  in  the  penitentiary  for  a  term 


99 — State  v.  McCarver,  194  Mo. 
717,  92  S.  W.  684;  Smith  v.  State,  — 
Tex.  Cr.  App.  — ,  89  S.  W.  817;  State 
V.  Minor.  193  Mo.  597,  92  S.  W.  466; 
State  v.  Smith,  164  Mo.  567,  65  S.  W. 
270;  State  v.  May,  172  Mo.  630,  72 
S.  W.  918  (920). 

State  v.  Kinder,  184  Mo.  276, 
83  S.  W.  964  (966).  In  this  case  the 
blow  was  "with  a  large  club,  the 
same  being  a  dangerous  weapon, 
inflicting  upon  him  a  mortal 
wound,"  etc. 

100— State  V.  Todd,  194  Mo.  377, 
92  S.  W.  674. 

"This  instruction  is  claimed  to  be 
erroneous  upon  the  ground  that 
there  was  no  testimony  upon  which 
to  base  it.  .  .  .  We  think  it  clear 
from  the  evidence  that  the  jury 
might  have  found  the  defendant 
guilty  of  murder  in  either  degree, 
and  under  such  circumstances  said 
instruction  was  proper.  State  v. 
McMullin,  170  Mo.  608,  71  S.  W.  221; 
State  V.  Frazier,  137  Mo.  317,  38 
S.   W.   913. 

"Another  objection  urged  against 
said  instruction  is  that  it  does  not 
indicate  to  the  jury  what  facts 
were  necessary  for  it  to  find  in 
order  to  authorize  a  conviction  of 
murder  in  the  second  degree,  they 
must  believe  from  the  evidence  be- 
yond a  reasonable  doubt,  that  de- 
fendant, with  a  pistol,  shot  and 
killed  W.,  and  that  such  shooting 
find  killing  were  done  willfully,  pre- 
meditately,    and    of    malice    afore- 


thought, but  without  deliberation 
(these  terms  being  defined  in  an- 
other instruction)  and  thus  pre- 
sented to  the  jury  all  the  questions 
necessary  for  them-  to  pass  upon 
in  order  to  a  determination  of  the 
guilt  or  innocence  of  defendant  of 
murder  in  the  second  degree.  In 
speaking  of  a  similar  instruction 
in  State  v.  Bauerle,  145  Mo.  1,  46 
S.  W.  609,  Gantt,  J.,  said:  'The 
court  gave  the  following  instruc- 
tion: "The  court  instructs  the 
jury  that  if  you  believe  and  find 
from  the  evidence  in  this  cause,  be- 
yond a  reasonable  doubt,  that  the 
defendant,  at  the  county  of  L.  and 
state  of  Mo.,  on  or  about  the  26th 
day  of  April,  1896,  willfully,  pre- 
meditately,  and  of  his  malice  afore- 
thought, shot  and  killed  one  B., 
but  without  delibei-ation,  you  will 
find  the  defendant  guilty  of  mur- 
der in  the  second  degree,  and  will 
assess  his  punishment  at  imprison- 
ment in  the  penitentiary  for  a  term 
of  not  less  than  10  years."  It  had 
already  defined  the  meaning  of  de- 
liberation, premeditation,  and  mal- 
ice aforethought.  Defendant  insists 
that  this  instruction  is  misleading 
and  should  not  have  been  given.  It 
is  sufTicient  to  say  that  this  in- 
struction has  been  approved  a 
scor-e  of  times  by  this  court,  and  is 
the  settled  law  of  this  slate.'  State 
V.  Moxley,  115  Mo.  644,  22  S.  W. 
575,  same  as  102  Mo.  374,  14  S.  W. 
969,   15   S.    W.    556." 


§  3006.]  MURDER  IN  SECOND  DEGREE.  1911 

of  not  less  than  ten  (10)  years.  Murder  in  the  second  degree  is  the 
wrongful  killing  of  a  human  being  with  malice  aforethought,  but 
without  deliberation.  It  is  when  the  intent  to  kill  is,  in  a  heat  of 
passion,  executed  the  instant  it  is  conceived,  or  before  there  has  been 
time  for  the  passion  to  subside.  We  do  not  use  the  phrase  ''heat  of 
passion"  in  its  technical  sense,  but  as  a  condition  of  mind  contra- 
distinguished from  a  cool  state  of  the  blood. ^ 

(b)  The  court  charges  the  jury  that  if  the  defendant,  in  Greene 
county,  and  before  the  finding  of  this  indictment,  purposely  killed 
the  deceased  S.  W.  by  shooting  him  with  a  gun,  with  a  wickedness  or 
depravity  of  heart  towards  the  deceased,  and  the  killing  was  de- 
termined on  beforehand  and  after  reflection  (for  however  short  a 
time  before  the  fatal  shooting  was  done  is  immaterial),  the  defend- 
ant is  guilty  of  murder.^ 

§  3006.  Murder — Distinction  between  First  and  Second  Degree, 
(a)  If  the  killing  was  unjustifiable,  and  with  malice  aforethought, 
and  was  also  willful,  deliberate  and  premeditated  it  would  be  murder 
in  the  first  degree;  but  if  it  was  with  malice  aforethought,  and  not 
willful  and  deliberate  and  premeditated,  it  would  be  murder  in  the 
second  degree.^ 

(b)  From  these  definitions  the  jury  will  see  that  any  unlawful 
killing  of  a  human  being,  with  malice  aforethought,  is  murder;  but 
if  nothing  further  characterizes  the  offense  it  is  murder  of  the  second 
degree.  To  constitute  the  higher  offense  there  must  be  superadded,  to 
the  general  definition  above  given,  willfulness,  deliberation  and  pre- 
meditation. By  willfulness  is  meant  that  it  was  of  purpose,  with  the 
intent  that,  by  the  given  act,  the  life  of  the  party  should  be  taken. 
It  must  be  deliberate  and  premeditated.  By  this  it  is  not  meant  that 
the  killing  must  have  been  conceived  or  intended  for  any  particular 
length  of  time.  It  is  sufficient  if  it  was  done  with  reflection  and  con- 
ceived beforehand.  And  in  this  view,  as  I  have  said  before,  the  de- 
liberate purpose  to  kill  and  the  killing  may  follow  each  other  as 
rapidly  as  successive  impulses  or  thoughts  of  the  mind.    It  is  enough 

1 — State  v.  Marsh,  171  Mo.  523,  71  'premeditation';    so    that    not    only 

S.  W.  1003  (1004).  do  the  terms  used  in  the  challenged 

Quoting  from   State  v.  Curtis,  70  instruction   bring-  it  strictly  within 

Mo.   594,   the  court   said:    "  'Where  the  foregoing  quotation  from  State 

there  is  a  willful  killing  with  mal-  v.  Curtis,  supra,  but  the  definition 

ice      aforethought — that      is      with  of    those    terms    as    given    by    the 

malice  and   premeditation,   but  not  court  does  so  also." 

with    deliberation,     or    in    a    cool  Citing  also   State  v.   "Wieners,   66 

state   of   the   blood,— the   offense   is  Mo.   13. 

murder  in  the  second  degree.'   Now,  2 — Harkness  v.  State,  129  Ala.  71, 

in  the  instruction  under  comment,  30  So.  73  (74). 

both     the     terms     'premeditatedly'  Held  a  correct  statement  of  "the 

'and  of    this    malice    aforethought*  effect  of  malice  in  making  a  homi- 

are    used.        'Premeditatedly'     was  cide  at  least  murder  in  the  second 

defined   in   instruction   No.   1   given  degree,   in  which  offense   premedi- 

in  behalf  of  the  state  as  'thought  tation    is    not    a    necessary    ingre- 

of    beforehand    for    any    length    of  dient." 

time,    however   short."    and    'malice  3— State    v.    Hunter,    118    la.    686, 

aforethought'   as  meaning  that  the  92  N.   W.   872   (875). 
killing  was  done  with  'malice'  and 


1912  FORMS  OF  INSTRUCTIONS.  [§3007. 

that  the  party  deliberate  before  the  act — premeditate — the  purpose  to 
slay  before  he  gave  the  fatal  blow.  But  while  the  purpose,  the  intent 
and  its  execution  may  follow  thus  rapidly  upon  each  other,  it  is 
proper  for  the  jury  to  take  into  consideration  the  shortness  of  such 
interval  in  considering  whether  such  sudden  and  speedy  execution 
may  not  be  attributed  to  sudden  passion  and  anger,  rather  than  to 
deliberation  and  premeditation,  which  must  characterize  the  higher 
offense.  From  what  I  have  said  you  will  see  that  the  distinction  be- 
tween the  two  grades  of  offense  is  that,  in  murder  of  the  first  degree 
(unless  it  is  committed  in  the  perpetration  or  attempt  to  pei-petrate 
arson,  rape,  robbery,  burglary  or  mayhem),  the  killing  must  be  de- 
liberate and  premeditated,  whilst  in  murder  of  the  second  degree  the 
killing  is  not  deliberate  or  premeditated.  In  the  one  case  there  is  de- 
liberate, premeditated,  preconceived  design,  though  it  may  have  been 
formed  in  the  mind  immediately  before  the  mortal  blow  was  given, 
to  take  life.  In  the  other  case  there  is  no  deliberation,  premeditation 
or  preconceived  design  to  kill.  In  both,  however,  the  killing  must 
have  been  unlawful  and  accompanied  with  malice.* 

§  3007.  Murder  in  Second  Degree — Elements  to  Consider — Cali- 
fornia Statute.  It  will  be  proper  therefore  for  you  in  determining 
the  questions  as  to  whether  or  not  the  defendant  in  this  case  is  guilty 
of  murder  of  the  second  degree  to  consider  the  following  proposi- 
tions: Is  L.  P.,  the  person  refen^ed  to  by  that  name  in  the  informa- 
tion in  this  case,  dead?  If  she  be  dead,  did  she  die  as  the  result  of 
an  act  committed  by  some  other  person?  If  so,  did  she  die  within  a 
year  and  a  day  from  the  time  of  the  commission  of  such  act?  If 
she  did  so  die,  was  such  act  committed  by  the  defendant  in  this  ease? 
If  said  defendant  did  commit  such  act,  did  she  commit  it  willfully? 
If  she  did  willfully  commit  such  act,  and  it  was  unlawful,  was  it 
felonious  ¥' 

§  3008.  Murder  in  Second  Degree — North  Carolina.  If  the  jury 
shall  find  that  it  was  the  intention  of  the  prisoner  to  do  serious  bodily 
harm  to  the  deceased,  and  death  ensued  in  consequence  of  injuries 
inflicted  with  such  intention,  then  the  prisoner  would  be  guilty  of 
murder  in   the   second   degree.*^ 

§  3009.  Murder  in  Second  Degree— Killing  Must  Be  Malicious- 
Reasonable  Doubt — Alabama,  (a)  Unless  from  all  the  evidence  in 
this  case  the  jury  can,  each,  say  as  a  juror  sworn  and  impaneled  to 
try  the  case  according  to  the  evidence,  beyond  all  reasonable  doubt, 
that  the  defendant  killed  P.  H.  with  malice  towards  him,  then  the 
jury  cannot  and  should  not  find  the  defendant  guilty  of  murder  in 
the  second  degree. 

(b)  Unless  the  jury  are  satisfied  from  the  evidence  beyond  all 
reasonable  doubt  that  the  defendant  fired  the  fatal  shot  maliciously, 

4— State  V.  Shuff,  9  Idaho  115,  72  6— Approved,    supplemented   with 

Pac.   664   (668).  othor  instructions.     State  v.   Hunt, 

5— People    v.    Balkwell,    143    Cal.  34  N.   C.  684,  47  S.  E.  49  (50). 
259,  76  Pac.  1017  (1019). 


§3010.]  MURDER  IN  SECOND  DEGREE.  1913 

the  juiy  cannot  convict  the  defendant  of  murder  in  the  second  de- 
gree.' 

(e)  The  court  charges  the  juiy  that  before  they  can  convict  the 
defendant  of  murder  in  the  second  degree,  they  must  be  satisfied  from 
the  evidence  be3'ond  all  reasonable  doubt  that  the  defendant  unlaw- 
fully cut  or  stabbed  W.  L.  E.,  and  that  he  did  the  cutting  or  stabbing 
willfully  or  maliciously.^ 

(d)  Murder  in  the  second  degree  is  the  unlawful  and  malicious 
killing  of  a  human  being.  The  distinction  between  the  two  degrees 
of  murder  is  the  absence  in  murder  in  the  second  degree  of  that  de- 
liberation and  premeditation  required  in  murder  of  the  first  degree.^ 

(e)  Murder  in  the  second  degree  is  the  unlawful  killing  of  a 
human  being  with  malice  aforethought,  but  without  deliberation  and 
premeditation. 1° 

§  3010.  Malice  Necessary  in  Murder  in  Second  Degree,  but  Will 
Be  Implied — Texas.  The  next  lower  gi'ade  of  culpable  homicide  than 
murder  in  the  first  degree  is  murder  of  the  second  degree.  Malice 
is  also  a  necessaiy  ingredient  of  the  offense  of  murder  in  the  second 
degree.  The  distinguishing  feature,  however,  so  far  as  the  element 
of  malice  is  concerned,  is  that,  in  murder  in  the  first  degi'ee,  malice 
must  be  proved  to  the  satisfaction  of  the  jury,  beyond  a  reasonable 
doubt,  as  an  existing  fact,  while,  in  murder  in  the  second  degree, 
malice  will  be  implied  from  the  fact  of  an  unlawful  killing.^^ 

§  3011.  Need  Not  Be  Previously  Planned  or  Deliberated  Upon,  but 
Must  Be  a  Coldblooded  and  Malicious  Act — Wyoming.  Murder  in  the 
second  degree  is  the  committing  of  the  act  deliberatelj'^  and  in  cold 
blood  and  not  suddenly  in  the  heat  of  passion,  or  upon  provocation. 
In  the  case  of  murder  in  the  second  degi'ee,  while  it  is  not  necessary 
that  the  act  should  have  been  previously  planned,  or  deliberated  up- 
on, still  it  must  be  a  coldblooded  and  malicious  act.  If  the  circum- 
stances do  not  show  it  to  be  such,  or  if  thei'e  exists  in  the  minds  of 
the  jury  any  reasonable  doubt  that  such  was  the  character  of  the 
killing,  there  cannot  be  any  verdict  of  murder  in  any  degree.^ - 

§  3012.  Murder  in  the  Second  Degree — Killing  Before  Cooling 
Time  Had  Elapsed,  (a)  If  you  believe  from  the  evidence  that 
the  mind  of  the  defendant  was  not  cool,  calm,  and  sedate,  and  while 
in  this  condition  he  formed  the  determination  to  kill,  and  before  cool- 

7 — Maugher  v.  State,  116  Ala.  463,  yond    that    nece.osarily   involved   in 

23  Sn.  26  (27).  the    existence    of    malice.      Such    is 

8 — Sullivan  v.  State,  102  Ala.  135,  the  meaning-  of  the  instruction." 

15  So.  264  (265),  48  Am.  St.  22.  11— Smith    v.    State,    45    Tex.    Cr. 

9— Johnson   v.    State,   133   Ala.   38,  App.  552,  78  S.  W.  694  (695). 

31  So.   951   (952).  "Then    follows    the    definition    of 

10 — McQueen  v.  State,  103  Ala.  12,  'implied   malice,'   which   is   correct; 

15  Fo.  824  (826).  the  court  having-  previously  de- 
Citing  Ala.  Code  Sec.  3725,  Ward  fried   'malice'   in   its  general   sense. 

v.  Ftate,  96  Ala.  100,  11  So.  217.  fis  well  as  'express  malice.'    We  do 

"No    deliberation    or    premedita-  not  believe  there  is  any  error,  and 

tion     is     required     to    characterize  th^   criticism   is   hypercritical." 

murder   in   the    second   degree   be-  12— Downing  v.  State,  11  Wyo.  86, 

70  Pac.   833   (S35). 


1914  FORMS   OF  INSTRUCTIONS.  [§  3013. 

ing  time  had  elapsed  carried  into  execution  that  design,  the  offense 
would  not  be  greater  than  murder  in  the  second  degree.i^^ 

(b)  If  you  believe  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant,  with  a  deadly  weapon  or  instrument  reasonably 
calculated  and  likely  to  produce  death  by  the  mode  and  manner  of 
its  use  in  a  sudden  transport  of  passion,  aroused  without  an  adequate 
cause,  or  while  his  mind  was  not  in  a  cool,  deliberate,  or  sedate  con- 
dition, and  not  in  defense  of  himself  against  an  unlawful  attack, 
reasonably  producing  a  rational  fear  or  expectation  of  death  or  se- 
rious bodily  injury,  with  intent  to  kill,  did  shoot  and  thereby  kill  R., 
as  charged  in  the  indictment,  you  will  find  him  guilty  of  murder  in 
the  second  degi'ee,  etc. 

(c)  If  you  believe  from  the  evidence,  or  have  a  reasonable  doubt 
of  the  same,  that  the  deceased,  R.,  on  the  day  of  the  killing  and  prior 
thereto,  caused  and  forced  the  defendant  to  get  down  on  his  bended 
knees  and  apologize  to  him  (R.),  and  that  the  said  R.  cursed  and 
abused  the  defendant  and  offered  insults  to  defendant's  mother,  and 
insults  to  the  negro  race,  and  that  this  conduct  on  the  part  of  said 
R.  aroused  in  the  mind  of  the  defendant  either  anger,  rage,  or  terror, 
and  in  that  condition  of  mind  the  defendant  formed  the  intent  to 
kill  deceased,  and  that  sufficient  time  had  not  elapsed  at  the  time  of 
the  killing  (if  any)  to  allow  the  mind  of  the  defendant  to  become  cool 
and  capable  of  calm  reflection,  you  cannot  find  the  defendant  guilty 
of  any  higher  grade  of  homicide  than  murder  in  the  second  degree 
and  you  will  so  find.^* 

§  3013.  In  Violent  Passion  from  Oflfensive  Language  Used.  If  you 
believe  from  the  evidence  that  at  the  time  of  the  striking  of  J.  the 
defendant  was  in  a  violent  passion,  suddenly  aroused  in  consequence 
of  opprobious  epithets  applied  to  him  or  because  of  offensive, 
insulting,     or     degrading     language     addressed     to     him     by     the 

l^ Manning-  v.  State,  —  Tex.  Cr.  and    it    could    be    shown    that    the 

^pp    9g  s.  w.  251.  charg-e  as  between  this  offense  and 

"It  is'  contended,  in  connection  manslaughter  was  liable  to  confuse 
with  this  charge,  that  the  defense  the  jury,  appellant  might  com- 
of  adequate  cause  should  have  plain.  Another  objection  urged  to 
been  given.  Taking  into  consider-  said  charge  is  that  the  court  told 
ation  the  '  subsequent  charge  of  the  jury  that  the  offense  under  the 
the  court  on  manslaughter,  the  circumstances  was  murder  in  the 
jury  were  not  liable  to  confuse  the  second  degree  in  the  latter  por- 
defense  of  murder  in  the  second  tion  of  said  charge.  We  do  not 
degree  with  manslaughter.  More-  understand  the  charge  to  convey 
over  not  having  found  appellant  this  idea.  The  jury  were  informed 
guilty  of  murder  in  the  second  that  the  offense  under  the  circum- 
degree  we  fail  to  see  how  it  could  stances  stated  could  not  be  greater 
have  injuriously  affected  appel-  than  murder  in  the  second  degree, 
lant-  there  being  no  contention  that  They  would  not  construe  that  this 
the  mind  of  the  jury  might  be  con-  charge,  in  connection  with  the  sub- 
fused  between  murder  in  the  sec-  sequent  charges  on  manslaughter, 
ond  degree  and  murder  in  the  first  which  measured  appellant's  rights 
degree  but  merely  between  mur-  as  to  both  of  said  offenses,  relieved 
der  in 'the  second  degree  and  man-  the  case  of  any  possible  confusion 
slaughtor.  It  might  be  that  if  the  between  the  two  offenses." 
jury  had  found  appellant  guilty  14— Maunmg  v.  State,  supra. 
of    murder    In    the    second   degree, 


§3014.]  MURDER  IN  SECOND  DEGREE.  1915 

deceased,  and  that,  while  under  said  violent  passion,  he  did  strike  and 
kill  the  said  J.,  then  such  killing  was  done  without  deliberation,  and 
the  defendant  is  guilty  of  no  higher  offense  than  murder  in  the  second 
degree,  and  you  should  so  find,  unless  you  further  believe  from  the 
evidence  that  the  defendant  was  justified  in  taking  the  life  of  said 
J.  on  the  grounds  of  self-defense,  as  defined  in  other  instructions.^^ 

§  3014.  Heat  of  Passion — Determined  with  Reference  to  Ordinary 
Men.  The  heat  of  passion  in  this  definition  means  something  more 
than  mere  anger  or  irritation.  It  means  that  at  the  time  of  the  act 
the  reason  is  disturbed  or  obscured  by  passion  to  an  extent  which 
might  render  ordinaiy  men,  of  fair  average  disposition,  liable  to  act 
rashly,  or  without  due  deliberation  or  reflection,  and  from  passion 
rather  than  judgment.^® 

§  3015.  Under  Such  Passion  as  to  Deprive  Defendant  of  the  Power 
to  Form  Intent  to  Kill.  If  you  believe  from  the  evidence  beyond  a 
reasonable  doubt,  that  defendant  did  shoot  and  kill  said  S.  W.,  not 
by  mistake,  but  intentionally,  but  that  at  the  time  of  doing  so  he 
was  laboring  under  such  a  passion  as  deprived  him  of  the  jwwer,  at 
the  time  he  formed  that  intent  to  kill  her,  to  do  so  with  a  considerate 
and  deliberate  mind,  then  he  would  be  guilty  of  murder  in  the  second 
degree.^''' 

§  3016.  Sudden  Transport  of  Passion — ^Without  Adequate  Cause — 
Deadly  Weapon — Leather  Belt  Maybe.  If  the  juiy  believe  beyond  a 
reasonable  doubt  that  defendant  A.  L.,  as  charged  in  the  indictment, 
with  malice  aforethought  with  a  leather  belt,  being  a  deadly  weapon, 
or  weapon  well  calculated  and  likely  to  produce  death  by  the  manner 
in  which  it  was  used,  in  a  sudden  transport  of  passion,  aroused  with- 
out adequate  eause,  with  intent  to  kill,  did  strike  with  the  leather 
belt,  and  thereby  kill  M.  L.  as  charged  in  the  indictment,  you  will 
find  him  guilty  of  murder  in  the  second  degree.^* 

§  3017.  Mutual  Combat — Deadly  Weapon  Suddenly  Snatched  Up. 
If  it  appears  from  the  evidence  in  this  case  that  the  defendant  and 
the  deceased  entered  into  a  mutual  combat,  and  at  the  commence- 
ment of  the  fight  attacked  each  other  on  equal  tenns,  and  on  a  sud- 
den, without  previous  intention  to  kill  the  deceased,  the  defendant,  in 
the  course  of  the  fight,  and  in  the  heat  of  passion,  snatched  up  a 
deadly  weapon,  and  killed  the  deceased,  it  is  only  manslaughter; 
but  if  you  believe  from  the  testimony  beyond  all  reasonable  doubt 
that  the  defendant,  in  the  course  of  the  fight,  snatched  up  the  deadly 

15— State  V.  Darling,  199  Mo.  168,  his  own  heat  of  passion,  but  upon 

97  S.   W.  592.  the    heat    of    passion    of    'ordinary 

16 — Rj-an    v.    State,    115   Wis.    488,  men    of    fair    average    disposition.' 

92  N.   W.   271    (275).     Citing  Reg  v.  *    *    *    We    must    hold    there    was 

Welsh,  11  Cox  Cr.  Cases  336;  State  no   error   in  giving  the   instruction 

V.    Ellis,    74   IMo.    207,    41    Am.    Dec.  thus   complained    of." 

321;  1  McClain  Cr.  Law,  §337.  17— "This      charge      is      correct." 

The    court    said:       "The    precise  White  v.    State,   44   Tex.    346,   72   S. 

objection    to    this    portion    of    the  W.   173  (174).  63  L.   R.  A.  660. 

charge    is    that    it    does    not    make  18 — Lee    v.     State,      44    Tex.      Cr. 

the  guilt  of  the  accused  turn  upon  App.   460,   72   S.   W.   195   (196),   61   L. 

R.  A.  904. 


1916  FORMS  OF  INSTRUCTIONS.  [§  3018. 

weapons,  and  purposely,  and  of  his  deliberate  and  premeditated 
malice,  killed  the  deceased,  then  he  would  be  guilty  of  murder  in  the 
first  degree;  or  if  from  the  evidence  you  are  satisfied  beyond  a  reason- 
able doubt  that  in  the  course  of  the  fight  the  defendant  snatched  up 
the  deadly  weapon,  and  purposely  and  maliciously,  but  without  de- 
liberation and  premeditation,  killed  the  deceased,  then  he  would  be 
guilty  of  murder  in  the  second  degree. ^^ 

§  3018.  Criminal  Intimacy  of  Deceased  With  Defendant's  Sister 
No  Defense.  Although  the  jury  may  believe  from  the  evidence  that 
the  deceased  and  T.  H.  (defendant's  sister)  were  criminally  inti- 
mate, this  would  not,  in  law,  justify  or  excuse  the  defendant  in  lying 
in  wait  to  shoot  and  kill  deceased,  if  you  believe  from  the  evidence 
that  he  did  so  lie  in  wait.  So  if  the  jury  believe  from  the  evidence 
that  the  defendant  followed  the  deceased,  and  shot  him  from  am- 
bush, feloniously,  premeditatedly  and  with  malice  aforethought,  as 
the  terms  are  in  these  instructions  defined,  then  the  criminal  re- 
lation between  said  deceased  and  T.  H.,  if  it  did  exist,  and  if  it 
were  known  to  defendant,  does  not  reduce  the  killing  below  murder  in 
the  second  degree,  and  affords  no  justification  or  mitigation  for  the 
shooting,  if  done  under  such  circumstances. -° 

§  3019.  Killing  Child  by  Beating  Its  Mother,  (a)  If  a  woman 
be  quick  with  child,  and,  by  a  potion  or  otherwise,  killeth  it  in  her 
womb,  or  if  a  man  beat  her,  whereby  the  child  dieth  in  her  body,  and 
she  is  delivered  of  a  dead  child,  this  is  a  great  misprision,  but  no 
murder;  but  if  the  child  be  born  alive,  and  dieth  of  the  potion  or 
battery,  this  is  murder.  This  is  the  doctrine  of  the  common  law, 
and  would,  under  our  statute,  be  murder  in  the  second  degree.  No 
malice  need  be  shown  in  a  ease  of  this  character,  beyond  that  in- 
ferred from  the  act  stated;  yet  it  is  essential  that  the  defendant 
should  know  that  the  woman  was  quick  with  child,  and  intentionally 
inflict  the  battery. 

(b)  If,  from  the  evidence,  you  should  believe,  beyond  a  reason- 
able doubt,  that  the  defendant,  G.  C,  in  Geneva  county,  Alabama, 
within  the  time  covered  by  the  indictment,  intentionally  beat  his  wife, 
B.  C,  while  she  was  quick  with  child,  knowing  that  she  was  quick 
with  child,  and  that  she  afterwards  gave  birth  to  the  child;  that  it 
was  born  alive,  and  afterwards  died  in  consequence  of  the  injuries  re- 
ceived while  in  its  mother's  womb  by  the  beating  intentionally  in- 
flicted upon  its  mother  by  the  defendant, — he,  the  defendant,  would 
be  guilty  of  murder  in  the  second  degree,  and  it  would  be  your  duty 
in  that  event  to  return  a  verdict  accordingly.-^ 

§  3020.  Murder  in  Second  Degree  Presumed — Burden  of  Proof. 
(a)      The  court  instructs  you   that  where   a  homicide  is  proved  be- 

19 — State  V.  Vance,  29  Wash.  435,  was   given   by   the   court.     "It   was 

70  Pac.   34  (47).  well    warrantod     by    The    evidence, 

20— State  v.  Hicks,  178  Mo.  433,  77  and   very   favorable  to   defendant." 

S.  W.  539  (540).  21— Clarke  v.  State,  117  Ala.  1,  23 

The    court    saw    "no    substantial  So.  671  (672),  67  Am.  St.  157. 
objection"  to  this  instruction,  which 


§  3021.]  MURDER  IN  SECOND  DEGREE.  1917 

yond  a  reasonable  doubt,  the  iDresumption  is  that  it  is  murder  in  the 
second  degree.  If  the  state  would  elevate  it  to  murder  in  the  first 
degree,  it  must  establish  the  characteristics  of  that  crime,  and  if  the 
prisoner  would  reduce  it  to  manslaughter  the  burden  is  on  him.-- 

(b)  The  court  instructs  you  that  all  murders  are  presumed  in 
law  to  be  murder  in  the  second  degree,  and  in  order  to  elevate  the 
offense  to  murder  in  the  first  degree  the  burden  of  proof  is  on  the 
commonwealth,  and  in  order  to  reduce  the  offense  below  murder  in 
the  second  degree  the  burden  is  on  the  prisoner.^^ 

(c)  If  the  jury  believe  from  the  evidence  that  the  defendant,  in- 
tentionally killed  J.  by  shooting  him  in  the  head  with  a  pistol,  and 
that  such  pistol  was  a  deadly  weapon,  then  the  law  presumes  that 
such  killing  was  murder  in  the  second  degree,  in  the  absence  of  evi- 
dence to  the  contrary.^* 

(d)  The  jury  are  instructed,  that  if  the  killing  of  the  person  men- 
tioned in  the  indictment  is  satisfactorily  shown  by  the  evidence,  be- 
yond all  reasonable  doubt,  to  have  been  the  act  of  the  defendants,  or 
either  of  them,  then  the  law  pronounces  such  killing  murder,  un- 
less it  appears,  from  the  evidence,  that  circumstances  existed  excus- 
ing or  justifying  the  act,  or  mitigating  it,  so  as  to  make  it  man- 
slaughter, as  explained  in  these  instinictions.^^ 

(e)  The  jury  are  instructed,  that  the  mere  fact  of  an  unlawful 
killing,  if  proved,  raises  no  presumption  that  the  killing  was  murder 
in  the  first  degree,  and  unless  the  circumstances  show,  beyond  a 
reasonable  doubt,  that  some  degree  of  deliberation  took  place  be- 
fore the  killing  (or  in  the  attempt,  etc),  then  the  conviction  can 
only  be  for  murder  in  the  second  degree.-^ 

§  3021.  Murder  in  Second  Degree — Presumed  From  Killing  With 
Billiard  Cues.  If  the  jury  believe  from  the  evidence  that  the  de- 
fendant intentionally  struck-  and  mortally  wounded  W.   in  a  vital 

22— State  v.  Melvern,  32  Wash.  7,  23— Longley  v.  Commonwealth,  99 

72  Pac.  489  (496).  Va.  807,  37  S.  E.  339. 

"A   substantially  similar  instruc-  24 — State    v.     May,    172    Mo.    630, 

tion   was  considered  and   sustained  72  S.  W.  918  (920). 

by  this  court  in  State  v.  Payne,  10  25— Brown  v.   State,   4  Tex.  App. 

Wash.   545,  39  Pac.  157,  on  the  au-  275. 

thority  of  State  v.  Cain,  20  W.  Va.  26— Newton  v.  State,  6  Neb.  136. 
679  (709);  Hill  v.  Com.,  2  Grat.  595,  But  see  People  v.  Ochoa,  142  Cal. 
and  other  cases  cited  in  the  opinion,  268,  75  Pac.  847  (850),  where  the  fol- 
and  2  Thompson  on  Trials,  par.  lowing  instruction  was  approved: 
2208.  This  instruction  is  an  exact  Presumptively,  every  killing  is 
copy  of  the  form  of  an  instruc-  murder,  but  so  far  as  the  degree 
tion  given  by  Thompson  in  the  sec-  is  concerned  no  presumption  arises 
tion  of  his  work  on  trials  above  from  the  mere  fact  of  killing,  con- 
noted; and  the  learned  author,  in  sidered  separately  and  apart  from 
a  footnote  to  said  section,  says  the  circumstances  under  which  the 
that  'the  principle  embodied  in  the  killing  occurred.  The  question  is 
above  instruction  is  believed  to  be  one  of  fact,  to  be  determined  by 
universally   acknowledged.'  "  the  jury  from  the  evidence  in  the 

See   also    State    v.    Staley,   45   W.  case,  and  it  is  not  a  matter  of  legal 

Va.  792,  32  S.  E.  198  (199),  and  State  conclusion,  as  evidence  of  a   want 

V.  Cain,  20  W.  Va.  679  (709).  of  premeditation  is   not  within  the 

rule   which   excludes   it   as  an   ex- 
cuse. 


1918  FORMS  OF  INSTRUCTIONS.  [§  3022. 

part  with  billiard  cues,  and  that  said  billiard  cues  were  dangerous 
and  deadly  weapons,  the  law  presumes  that  the  killing  was  murder  in 
the  second  degree,  in  the  absence  of  proof  to  the  contrary,  and  it 
devolves  upon  the  defendant  to  adduce  evidence  to  meet  or  repel 
that  presumption,  unless  the  same  has  been  met  and  overcome  by  evi- 
dence introduced  by  the  state. -^ 

§  3022.  Murder  In  Second  Degree — Form  of  Verdict.  If  you  find 
the  defendants  guilty,  you  must  state  in  your  verdict  the  distinct 
degree  of  offense,  whether  of  murder  in  the  second  degree  or  of  man- 
slaughter, of  which  you  convict  them,  or  you  may  convict  one  of 
them  of  one  degree  and  the  other  of  a  lower  degree,  or  you  may  con- 
vict one  and  acquit  the  other.  Should  you  convict  both  defendants, 
the  form  of  your  verdict  should  be:  "We,  the  jury,  find  the  de- 
fendants, L.  C.  and  S.  C,  guilty  of  (here  state  the  oifense).  So  say  we 
all,"  and  let  one  of  your  number  sign  as  foreman.  If  you  convict 
them  of  different  degrees,  or  if  you  convict  one  and  acquit  the  other, 
your  verdict  should  so  state.^* 

MANSLAUGHTER. 

§  3023.  Manslaughter  Defined,  (a)  The  court  charges  the  jury 
for  the  state  that  manslaughter  is  the  killing  of  another  in  the  heat 
of  passion,  without  malice,  by  the  use  of  a  dangerous  weapon,  with- 
out authority  or  law,  and  not  in  necessity  self-defense;  and  the  court 
further  instructs  the  jury  for  the  state  that  if  the  jury  believe  from 
the  evidence  beyond  a  reasonable  doubt  that  E.  cursed  D.  for  a  son  of 
a  bitch,  and  that  D.,  while  still  under  the  heat  of  passion,  aroused  by 
such  insult,  secured  a  pistol,  and  shot  and  killed  E.,  not  in  malice, 
but  in  the  heat  of  passion,  and  not  in  his  necessaiy  self-defense,  then 
he  is  guilty  of  manslaughter,  and  the  jury  should  so  find.^^ 

27— State   v.    Smith,   164   Mo.    567,  29— Moore   v.   State,  86   Miss.   160, 

65  S.  W.  270.  38  So.  504. 

28 — demons   v.    State,    48   Fla.    9,  "It    Is    contended    that    this    in- 

37  So.  647  (649).  struction     is     erroneous,     as     being 

"It  is  contended  that  the  judge  upon  the  weight  of  the  evidence, 
nowhere  charged  the  jury  that  they  and  as  assuming  that  D.  was  under 
had  the  right  to  acquit  both  the  heat  of  passion  aroused  by  having 
defendants,  and  that  the  result  of  been  cursed  by  E.  for  a  son  of  a 
these  two  instructions  could  not  bitch.  We  thinli  the  objection  not 
fail  to  leave  the  impression  on  the  well  taken.  The  instruction,  fairly 
mind  of  the  jury  that  it  was  their  construed,  imports  that  the  jury 
duty  to  convict  one  of  the  defend-  must  believe  from  the  evidence  be- 
ants.  It  will  be  noted  that  these  yond  a  reasonable  doubt  not  only 
instructions  were  to  guide  the  jury  that  E.  cursed  D.  for  a  son  of  a 
in  making  up  their  verdict  if  they  bitch,  but  also  that  D.'s  passion 
found  the  defendants  or  eith^  of  was  aroused  by  such  insult,  and 
thorn  guilty.  It  does  not  seem  to  that  while  still  under  the  heat  of 
us  that  they  could  have  been  other-  that  passion  he  secured  the  pistol 
wise  understood.  Nor  is  the  asser-  and  shot  E.  In  one  of  the  numer- 
tion  correct  that  the  judge  nowhere  ous  briefs  for  the  appellant  it  is  in- 
charged  the  jury  that  they  had  the  sisted  that,  save  for  the  objec- 
right  to  acquit  both  the  defend-  tions  noted,  the  instruction  is  free 
ants."  from    objection,    as    being    an    in- 


§  3023.; 


CRIMINAL— MANSLAUGHTER. 


1919 


(b)  You  are  instructed  that  manslaughter  is  the  unlawful  killing 
of  a  human  being  without  malice  either  express  or  implied;  that 
manslaughter  must  be  voluntary  upon  a  sudden  heat  of  passion, 
caused  by  a  provocation  ai^jDarently  sufficient  to  make  the  passion 
irresistible;  and,  if  you  believe  from  the  evidence  in  this  case  that 
the  deceased  assaulted  him  with  a  rifle,  or  kicked  and  cursed  him  in 
such  a  manner  as  would  be  apparently  sufficient  to  arouse  in  the  de- 
fendant such  passion  in  him,  and  while  in  this  condition  and  before  a 
sufficient  length  of  time  had  elapsed  for  his  passion  to  cool,  he  shot 
and  killed  the  deceased  unlawfully  and  without  justification,  he  is 
not  guilty  either  of  murder  in  the  first  or  second  degree,  but  is 
guilty  of  voluntary  manslaughter  only,  and  by  your  verdict  you 
should  so  find.^*^ 

(c)  If  the  killing  be  purposely  and  unlawfully  done,  without  pre- 
meditation, and  without  malice,  express  or  implied,  but  voluntarily, 
upon  a  sudden  heat  and  under  a  sufficient  provocation,  the  crime  is 
manslaughter.^^ 

(d)  Manslaughter  is  taking  the  life  of  a  fellow  being  in  sudden 
heat  and  passion  superinduced  upon  a  sufficient  legal  provocation.^^ 


struction  strictly  applicable  by  its 
terms  to  the  crime  of  manslaugh- 
ter. In  another  brief  filed  for  ap- 
pellant it  is  insisted  that  the  in- 
struction is  incorrect,  because,  if 
appellant  shot  E.  under  circum- 
stances stated  in  the  instruction, 
he  was  guilty  of  murder.  It  is  not 
necessary  that  we  should  say 
which  of  these  conflicting  views  is 
correct.  In  either  view,  appellant 
was  not  prejudiced  in  his  defense 
by  this  instruction.  Self-defense 
was  the  sole  defense  relied  upon  by 
appellant.  This  defense  was  pre- 
sented to  the  jury  by  numerous  in- 
.structions  which  most  liberally, 
exhaustively,  and  persuasively  ex- 
pounded the  law  applicable  to  that 
subject.  The  jury  oould  by  no 
possibility  have  acted  in  ignorance 
as  to  appellant's  right  to  slay  his 
antagonist,  if  apparently  necessary 
so  to  do  in  order  to  save  himself 
from  impending  danger  to  life  or 
limb,  actual  or  apparent.  Their 
verdict  of  manslaughter  can  mean 
nothing  less  than  that  they  were 
satisfied  beyond  a  reasonable  doubt 
that  appellant  did  not  act  in 
justifiable  self-defense.  We  cannot 
!say  that  this  finding  of  fact  is  not 
correct,  and  it  shuts  us  up  to  the 
conolusion  that  appellant  was 
guilty  of  either  murder  or  man- 
slaughter. A  conviction  of  the 
lesser  of  these  two  crimes  will  not 
be  set  aside  because  had  upon  an 
Instruction,   which,  if  incorrect  at 


all,  is  incorrect  only  in  this:  that  it 
directed  a  verdict  of  manslaughter 
upon  facts  which  would  have  war- 
ranted a  conviction  of  murder." 

30— Duckworth  v.  State,  80  Ark. 
360,  97  S.   W.   280  (281). 

31— Henning  v.  State,  106  Ind.  386, 
6   N.   E.   803   (812),   55   Am.   Rep.   756. 

The  court  said:  "We  understand 
the  law  to  be  perfectly  well  settled 
that  an  unlawful  taking  of  human 
life,  when  done  purposely,  is  mur- 
der, unless  there  is  a  sufficient  pro- 
vocation. It  is  the  provocation  that 
reduces  the  crime  to  the  grade  of 
manslaughter.  The  provocation 
must  be  a  sufficient  one  to  engen- 
der passion,  for  without  provoca- 
tion the  crime  is  murder;  and  the 
provocation  must  be  a  sufficient 
one,  otherwise  the  passion  will  not 
mitigate  the  offense.  There  are 
many  cases  declaring  that  passion 
alone  is  not  enough,  but  that  there 
must  be  an  adequate  provocation, 
arousing  the  passion.  Boyle  v. 
State,  105  Ind.  469,  5  N.  E.  203,  55 
Am.  Rep.  218;  Murphy  v.  State,  31 
Ind.  511;  People  v.  Turley,  50  Cal. 
469;  2  Bish.  Crim.  Law,  pars.  701- 
704." 

32— State  v.  Foster,  66  S.  C.  469, 
45  S.  E.  1. 

The  court  said:  "The  definition 
of  manslaughter  given  by  the  court 
was  correct,  and  in  accordance 
with  numerous  cases  in  this  state, 
some  of  which  are:  State  v.  Fer- 
guson, 2  Hill  619,  27  Am.  Dec.  412; 


1920  FORMS  OF  INSTRUCTIONS.  [§  3024. 

(e)  If,  upon  consideration  of  the  law  and  the  evidence  before 
you,  you  should  conclude  that  the  defendant  is  not  guilty  of  murder, 
it  is  your  duty  next  to  consider  whether  or  not,  under  the  law  and 
the  evidence,  he  is  guilty  of  the  crime  of  manslaughter.  Man- 
slaughter is  the  unlawful  killing  of  a  human  being  without  malice, 
express  or  implied,  and  without  deliberation.  The  killer  of  a  human 
being  in  the  heat  of  passion  by  or  with  a  dangerous  weapon,  except 
where  the  killing  is  shown  by  the  evidence  to  be  either  justifiable  or 
excusable,  is  manslaughter.  If  you  believe  beyond  a  reasonable  doubt 
from  the  evidence  that  the  defendant,  within  the  Southern  district  of 

the  Indian  Terintory,  on  the of ,  by  means  of  firing  a  leaden 

(bullet  out  of  a  Colt's  45  caliber  revolving  pistol  into  the  head  and 
brain  of  W.,  thereby  killing  the  deceased;  that  said  killing  was  not 
justified  by  law,  or  in  necessary  or  apparently  necessaiy  self-defense, 
but  was  done  in  the  heat  of  passion,  and  that  said  killing  was  done 
without  malice  on  the  part  of  the  defendant, — the  crime  would  be 
manslaughter,  and  you  should  so  find  the  defendant  guilty.^^ 

§  3024,  Manslaughter  Defined — U.  S.  Courts.  Manslaughter'  is  the 
killing  of  a  man  unlawfully  and  willfully,  but  without  malice  afore- 
thought. Malice  aforethought,  as  I  have  defined  it  to  you,  must  be 
excluded  from  it;  that  is,  the  doing  of  a  wrongful  act  without  just 
cause  or  excuse  and  in  the  absence  of  mitigating  facts  in  such  a  way 
as  to  show  a  heart  void  of  social  duty  and  a  mind  fatally  bent  upon 
mischief  must  be  out  of  the  case.  If  that  is  driven  out  of  the  case, 
then  if  it  is  a  crime  at  all,  it  must  come  under  this  statute;  it  must 
come  under  this  definition  of  the  crime  of  manslaughter.  The  com- 
mon law,  which  I  will  read  to  you,  defines  it  in  the  same  way.  It 
tells  you  in  a  little  broader  terms  what  kind  of  conditions  it  springs 
out  of.     Speaking  of  voluntary  manslaughter,  it  says  it  is  the  willful 

State  v.  Smith,  10  Rich.  (S.  C.)  341;  tentional  homicide,  and  mitigates 
State  V.  Davis,  50  S.  C.  405,  27  S.  E.  the  crime  from  murder  to  man- 
905,  62  Am.  St.  837.  There  was  no  slaughter,  which  latter  is  distin- 
dispute  in  this  case  that  the  de-  guished  from  murder  by  the  ab- 
fendant  voluntarily  killed  the  de-  sence  of  malice.  The  example 
ceased.  His  plea  was  that  he  killed  stated  by  appellant's  counsel  in  the 
in  self-defense.  So  the  court  was  exception,  by  way  of  illustrating 
dealing  with  a  case  of  voluntary  his  view,  viz.:  'Where  a  man  kills 
homicide.  The  definition  of  man-  his  assailant,  honestly  thinking 
slaughter  in  the  statute,  as  the  'un-  his  own  life  to  be  in  danger,  but 
lawful  killing  of  another  without  the  jury  find  from  the  evidence 
malice,  express  or  implied,'  covers  that  the  circumstances  surround- 
not  only  voluntary  but  involuntary  ing  the  transaction  were  not  suf- 
homicide,  as  for  example,  homi-  ficient  to  justify  a  man  of  ordi- 
cide  by  negligence.  But  the  case  nary  prudence,  firmness  and  cour- 
in  hand  does  not  necessarily  re-  age  in  coming  to  that  conclusion' — 
quire  the  broader  definition  of  the  merely  states  a  case  in  which  the 
statute  to  be  given,  and  was  fully  plea  of  self-defense  could  not  be 
met  by  the  approved  definition  of  sustained,  and  in  which  the  jury 
voluntary  manslaughter,  as  based  would  still  have  to  decide  whether 
upon  the  common  law.  Under  the  the  killing  was  murder,  as  done  in 
theory  of  the  law  'sudden  heat  malice,  or  manslaughter,  as  done 
and  passion  upon  sufficient  legal  in  passion  engendered  by  legal 
provocation'     rebuts     the     implica-  provocation." 

tion  of  malice  arising  from  an  in-         33— Williams  v.  U.  S.,  4  Ind.  Ter. 

269,  69  S.  W.  871. 


§3025.]  CRIMINAL— MANSLAUGHTER.  1921 

and  unlawful  killing  of  another  on  sudden  quarrel  or  in  the  heat  of 
passion.  Let  us  see  what  is  meant  by  this  definition.  The  party 
who  is  killed,  at  the  time  of  the  killing,  must  offer  some  provocation 
to  produce  a  certain  condition  of  mind.  Now,  what  is  the  character 
of  that  provocation  that  can  be  recognized  by  the  law  as  being  suf- 
ficient to  reduce  the  grade  of  the  crime  from  murder  to  manslaughter? 
He  cannot  px-oduce  it  by  mere  words,  because  mere  words  alone  do 
not  excuse  even  a  simple  assault.  Any  words  offered  at  the  time 
do  not  reduce  the  grade  of  the  killing  from  murder  to  man- 
slaughter.    He  must  be  doing  some  a«t — that  is,  the  deceased,  , 

in  this  case,  the  party  killed — which  at  the  time  is  of  a  character 
that  would  so  inflame  the  mind  of  the  party  who  does  the  killing  as 
that  the  law  contemplates  he  does  not  act  deliberately,  but  his  mind 
is  in  a  state  of  passion;  in  a  heat  of  passion  where  he  is  incapable 
of  deliberating.^* 

§  3025.  Manslaughter  Defined — Sudden  Conflict  Arising  From 
Quarrel.  The  court  instructs  the  jury  that  the  true  nature  of  man- 
slaughter is  that  it  is  a  homicide  mitigated  out  of  tenderness  to  the 
frailty  of  human  nature.  Every  man  when  assailed  with  violence  of 
great  rudeness,  is  inspired  with  a  sudden  impulse  of  anger,  which 
puts  him  upon  resistance  before  time  for  cool  reflection.  If,  during 
that  period,  he  attacks  his  assailant  with  a  weapon  likely  to  endanger 
life,  and  death  ensues,  it  is  regarded  as  done  through  heat  of  blood 
and  violence  of  anger,  and  not  through  malice.  The  same  rule  ap- 
plies to  a  homicide  in  mutual  combat,  which  is  attributed  to  sudden 
and  violent  anger  occasioned  by  the  combat,  and  not  to  malice. 
Where  two  meet,  not  intending  to  quarrel,  and  angry  words  sud- 
denly arise,  and  a  conflict  springs  up,  in  which  blows  are  given  on 
both  sides,  it  is  a  mutual  combat,  without  much  regard  to  who  is  the 
assailant;  and  if  no  unfair  advantage  be  taken  in  the  outset,  and  an 
occasion  is  not  sought  for  the  purpose  of  gratifying  malice,  and  one 
seizes  a  weapon  and  strikes  a  deadly  blow,  it  is  regarded  as  homi- 
cide in  the  heat  of  blood,  and  under  our  statute  is  manslaughter  in 
the  first  degree. ^^ 

34 — Allen    v.    United    States,    164  Counsel    for   plaintiff   in   error   ad- 

U.  S.  492  (496),  17  S.  Ct.  154.  mits     that     the    above    instruction 

"There  is  no  error  in  this  instruc-  properly  states  the  law  where  ap- 
tion.  It  is  well  settled  by  the  au-  pllcable  to  the  facts.  If  counsel 
thorities  that  words  however  ag-  desired  an  instruction  describing 
gravating  are  not  sufficient  to  re-  the  character  of  the  violence  of 
duce  the  crime  from  murder  to  the  blows,  and  defining  what  ad- 
manslaughter."  Affirming  convic-  vantages  would  be  unfair  in  the 
tion  of  murder  in  U.  S.  C.  C.  W.  outset,  if  nothing  but  words  were 
Dist.   Ark.  used,     and     the    other    matters    of 

35— Robinson      v.      Territory,      16  which   they  complain,    they   should 

Okla.  241,  85  Pac.  451  (456,  45S).  have   requested   instructions  cover- 

"An     instruction     identical     with  ing  those  matters.     The  trial  court 

this    instruction    was   given    in    the  could    not   be    expected   and    is   not 

case    of    Commonwealth    v.    Web-  required     to    instruct    upon    every 

ster,   5   Cush.   58   Mass.   295,   52   Am.  possible    question,     and     it    is    not 

Dec.     711,     and     approved     by     the  error  to  omit  to  instruct  upon  some 

Supreme   Court  of    Massachusetts,  particular     branch     of     the     case 

121 


1922  FORMS  OF  INSTRUCTIONS.  [§  3026. 

§  3026.  Manslaughter — Facts  Amounting  to.  (a)  The  court  in- 
structs the  juiy  that  if  you  believe  from  the  evidence,  beyond  a 
reasonable  doubt  that  the  defendant  killed  the  deceased  in  the  heat 
of  passion,  without  malice,  by  the  use  of  a  deadly  weapon,  without 
authority  of  law,  and  not  in  necessary  self-defense  such  killing  was 
manslaughter  and  the  jury  should  so  iind.^* 

(b)  If  the  defendant  killed  W.  J.  as  charged  in  the  indictment, 
but  at  the  time  of  the  killing  the  defendant  was  not  actuated  by 
express  malice,  but  was  under  the  influence  of  a  rash,  sudden,  and 
hasty  impulse,  or  under  the  influence  of  sudden  anger,  rage,  resent- 
ment, or  terror,  then  unless  such  state  of  mind  was  produced  by  some 
adequate  cause,  as  hereinbefore  defined,  the  offense  was  murder  of  the 
second  degree,  unless  the  killing  was  done  under  circumstances  which 
under  the  law  justify  or  excuse  it;  but  if  such  adequate  cause  did 
exist,  and  produced  such  sudden  anger,  rage,  resentment,  or  terror 
such  as  rendered  the  mind  of  defendant  incapable  of  cool  reflection, 
then  the  offense  is  manslaughter,  if  not  justified  or  excused  by  law. 

(c)  If  you  believe  from  the  evidence  that  defendant,  J.  S.,  in  T. 

County,  Texas,  on  or  about  the  of  ,  ,  did  unlawfully 

kill  W.  J.,  as  charged  in  the  indictment,  but  at  the  time  of  the  kill- 
ing he  (the  said  defendant)  was  by  some  adequate  cause  moved 
to  such  a  degree  of  anger,  rage,  sudden  resentment,  or  terror  as  to 
render  him  incapable  of  cool  reflection,  and  that  in  such  a  state  of 
mind,  and  not  in  his  lawful  self-defense,  he  killed  the  same  W.  J., 
then  you  will  find  defendant  guilty  of  manslaughter,  etc.^^ 

(d)  If  you  should  believe  from  the  evidence  that  the  defendant, 
H.  B.,  entered  into  the  difficulty  with  the  deceased,  W.  C,  voluntarily, 
or  that  he  brought  it  on,  but  that  he  entered  into  the  difficulty  with 
no  design  to  kill  the  deceased,  or  to  do  him  great  bodily  injury,  and 
at  the  time  of  entering  into  such  difficulty  he  was  under  the  in- 
fluence of  violent  passion  aroused  by  the  conduct  of  the  deceased,  and 
that  while  in  such  passion  he  killed  the  deceased,  but  without  a  pre- 
meditated design,  and  that  such  killing  was  under  such  circumstances 
as  did  not  justify  him  upon  the  grounds  of  self-defense,  or  if  you 
have  a  reasonable  doubt  as  to  whether  or  not  the  defendant  was  act- 
ing from  a  premeditated  design  to  effect  the  death  of  the  de- 
ceased, or  under  the  heat  of  violent  passion,  then,  in  such  event,  you 
should  acquit  the  defendant,  H.  B.,  of  the  offense  of  murder  and  will 
find  him  guilty  of  manslaughter.^* 

§  3027.    Voluntary     Manslaughter — What     Constitutes,     (a)       In 

cases  of  voluntary  manslaughter,  there  must  be  a  serious  and  highly 
provoking  injury  inflicted  upon  the  person  killing,  sufficient  to  ex- 
deemed  advisable  by  the  defendant  Tex.  Cr.  App.  543,  67  S.  W.  420 
upon  his  theory  of  the  case,  when      (422). 

the  defendant  has  not  asked  for  37 — Stell  v.  State,  —  Tex.  Cr. 
such    instruction."  App.  — ,  58  S.   W.  75   (76). 

36— Green  v.  State.  —  Miss.  — ,  37  38— Bassett  v.  State,  44  Fla.  2,  33 
So.    646    (647);    Morgan   v.    State,    43      So.  262  (264). 


§  3027.]  CRIMIxNAL— MANSLAUGHTER.  1923 

cite  an  irresistible  passion  in  a  reasonable  person,  or  an  attempt  by 
the  person  killed  to  commit  a  serious  personal  injury  on  the  person 
killing.  The  killing  must  be  the  result  of  the  sudden,  violent  im- 
pulse of  passion,  supposed  to  be  irresistible ;  for  if  there  should  ap- 
pear to  have  been  an  interval  between  the  assault  or  provocation 
given,  and  the  killing,  sufficient  for  the  voice  of  reason  and  humanity 
to  be  heard,  the  killing  shall  be  attributed  to  deliberate  revenge,  and 
punished  as  murder.^" 

(b)  If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  unlawfully  and  feloniously  struck  the  de- 
ceased a  blow  which  caused  his  death,  then  to  reduce  the  killing  from 
murder  to  manslaughter,  the  jury  must  believe,  from  the  evidence, 
that  the  provocation  for  the  blow  arose  at  the  time  the  blow  was 
given,  and  that  the  passion  was  not  the  result  of  a  fonner  provoca- 
tion; that  such  passion  w'as  either  anger,  rage,  sudden  resentment  or 
terror,  which  rendered  the  defendant  incapable  of  cool  reflection  up- 
on the  character  and  results  of  his  acts,  and  that  the  act  was  di- 
rectly caused  by  passion  arising  out  of  such  provocation.*" 

(c)  The  court  further  instructs  the  jury  that  if  you  believe  from 
the  evidence,  to  the  exclusion  of  a  reasonable  doubt,  that  in  the 
county  of  Daviess,  and  before  the  finding  of  the  indictment  here- 
in, the  defendant  did  unlawfully,  willfully  and  feloniously  kill  and 
slay  one  A.  B.  by  shooting  him  to  death  with  a  pistol  loaded  with 
powder  and  ball,  or  other  hard  substance,  of  which  shooting  and 
wounding  said  A.  B.  did  die  within  a  year  and  a  day  thereafter,  but 
you  further  believe  from  the  evidence,  to  the  exclusion  of  a  reason- 
able doubt,  that  said  shooting  was  not  done  maliciously  and  with 
malice  aforethought,  but  do  believe  beyond  a  reasonable  doubt,  that 
same  was  not  done  in  his  necessary  self-defense,  or  what  appeared  to 
him  at  the  time  to  be  his  necessary  self-defense,  but  was  done  in  a 
sudden  heat  and  passion,  or  sudden  affray,  and  under  such  provoca- 
tion as  was  reasonably  calculated  to  excite  an  ungovernable  passion, 
then  you  should  acquit  him  of  the  charge  in  the  indictment,  and  find 
him  guilty  of  voluntary  manslaughter.'*^ 

(d)  If  the  jury  believe  that  the  evidence  established  beyond  a 
reasonable  doubt  that  the  defendant  and  the  deceased  had  a  quarrel 

with  each  other  about  the  woman  ,  and  that  the  defendant  and 

deceased  had  pistols  in  their  hands  at  that  time,  and  that,  in  conse- 
quence of  the  controversy  about  the  woman,  there  arose  at  that  time 
great  heat  of  blood  between  the  parties,  and  the  mutual  combat  with 
intent  to  fight,  and  that  both,  being  in  a  sudden  heat  of  passion,  then 
and  thei'e  fought  with  their  pistols,  and  the  defendant,  being  quicker 
than  the  deceased,  fired  and  killed  the  deceased,  the  jury  would  be 
authorized  to  find  the  defendant  guilty  of  voluntary  manslaughter. •'^ 

39— Bruner  v.    State.   58   Ind.   159;  41— Connor  v.   Commonwealth,  26 

Nye  v.  People,  35  Mich.  16.  Ky.  L.  398,  81  S.  W.  259  (260). 

40— Bayett  v.    State,   2  Tex.   App.  42— Roark  v.  State,  105  Ga.  736,  32 

93;  Seals  v.   State,  59  Tenn.   459.  S.  E.  125  (127). 


1924  FORMS  OP  INSTRUCTIONS.  [§  3028. 

§  3028.  Manslaughter  in  the  First  Degree — Definition  of.  Man- 
slaughter in  the  first  degree  is  the  unlawful  and  intentional  killing 
of  a  human  being  without  malice  express  or  implied ;  and  man- 
slaughter committed  under  any  other  circumstances  is  manslaughter 
in  the  second  degree. ■*•* 

§  3029.  Manslaughter  in  Second  Degree.  Every  killing  of  one 
human  being  by  the  act,  procurement  or  culpable  negligence  of  an- 
other, which  the  statutes  of  this  state  has  not  declared  to  be  murder 
nor  manslaughter  in  the  first  degree,  nor  excusable  nor  justifiable 
homicide,  is  manslaughter  in  the  second  degree.  Manslaughter  in  the 
first  degree  and  manslaughter  in  the  second  degree  are  lesser  de- 
grees of  the  crime  charged  in  the  information,  and  should  you  find 
the  defendant  not  guilty  of  muider,  but  find  from  the  evidence  that 
he  is  guilty  of  such  lesser  degree  of  crime  as  above  described,  you 
should  determine  the  lesser  degree  of  crime  he  has  committed.** 

§  3030.  Manslaughter  in  Third  Degree — In  a  Heat  of  Passion  and 
without  a  Design  to  Kill — Missouri,  (a)  If  the  jury  believe  from 
the  evidence  that  the  defendant  killed  the  deceased  with  a  large  club 
about  four  feet  in  length,  and  four  inches  in  breadth,  and  two  inches 
thick,  and  that  the  same  was  a  dangerous  weapon,  in  a  heat  of  pas- 
sion and  without  a  design  to  kill  him,  you  will  find  him  guilty  of  man- 
slaughter in  the  third  degree,  unless  you  further  find  from  the  evi- 
dence such  killing  was  done  in  self-defense  as  explained  in  the  in- 
structions herein,  in  which  event  you  will  find  him  not  guilty.*^ 

(b)  The  court  further  instructs  the  jury  that  if  they  find  and  be- 
lieve from  the  evidence  that  at  D.  county,  Missoui'i,  on  November  20, 
,  within  three  years  prior  to  the  filing  of  this  indictment,  de- 
fendant, S.  L.,  intentionally  and  feloniously  struck  the  deceased,  J. 
M.,  on  the  head  with  a  pistol,  which  said  defendant  then  and  there 

held  in  his  hand,   and  that  said  M.   died  on  December  3,  ,  and 

prior  to  the  finding  of  this  indictment,  from  the  effect  of  such  blow, 
and  that  such  blow  was  struck  by  said  defendant  in  a  heat  of  pas- 

43 — People    v.     Morine,    138    Cal.  a  judgment  within  the  penalty  at- 

626,  72  Pae.  166  (167).  tachecl   to  a  crime  of  that  degree. 

44 — State  v.  Hubbard,  —  S.  D.  — ,  From     an     Iowa     case,     State     v. 

104  N.  W.  1120  (1121).  Clemens,    51    la.    274,    1    N.    W.    550, 

"As   the   mandate   of  the   statute  we   quote   as   follows:      'The   court 

is,  that  the  jury  must  find  the  de-  instructed   the  jury   that  under  the 

gree   and    the    court   must    instruct  indictment,   the   defendant   may   be 

as   to  all   matters   of  law   essential  found  guilty  of  murder  in  the  first 

to    an    intelligent    consideration    of  degree,    or    murder    in    the    second 

the  facts,  as  they  may  reasonably  degree,    or   not   guilty,   as   the   evi- 

appear  to   the   respective   members  dence    in    your   judgment    demands 

of  the  jury,  they  might  have  been  at    your    hands.'       The    jury    were 

misled  to  the  prejudice  of  the  ac-  fully  instructed  as  to  the  necessary 

cused   by  refusing   to  give   the  re-  elements    of    the   crime    of   murder 

quested     instruction.       Under     our  in  the  first  degree,   and   murder  in 

statute    it    is    indispensable    to    the  the  second  degree,  but  no  instruc- 

proper  trial  of  a  homicide  case  that  tion    was    given    as    to    wliat    con- 

Ihe  degree  of  crime  be  ascertained  stituted  the  crime  of  manslaughter, 

and   designated   by   the  jury.     The  This  we  think  was  erroneous." 
records    must    show    this    essential         45 — Approved   as  one  of  a   series, 

element    of    the    verdict,    in    order  State  v.   Kinder,  184  Mo.  276,   83  S. 

to   enable   the   court    to   pronounce  W.  964. 


§3031.]  CRIMINAL— MANSLAUGHTER.  1925 

sion,  without  a  design  to  effect  the  death  of  said  J.  M.,  and  that  said 
pistol  so  used  was  then  and  there  a  dangerous  weapon,  you  will  find 
the  defendant  guilty  of  manslaughter  in  the  third  degree,  unless  you 
find  that  such  killing,  if  done  by  defendant,  was  under  such  circum- 
stances as  to  be  justifiable  under  the  law  as  given  by  the  court. 
If  you  find  the  defendant  guilty  of  manslaughter  in  the  third  degree, 
as  above  defined,  you  will  assess  his  punishment  at  imprisonment  in 
the  penitentiary  not  exceeding  three  years,  or  imprisonment  in  the 
county  jail  not  less  than  six  months,  or  by  a  fine  not  less  than  five 
hundred  dollars,  or  both  a  fine  not  less  than  one  hundred  dollars  and 
imprisonment  in  the  county  jail  not  less  than  three  months.*'* 

§  3031.  Manslaughter  in  the  Fourth  Degree.  Manslaughter  is  the 
intentional  killing  of  a  human  being  in  a  heat  of  passion  on  a  reason- 
able provocation,  without  malice  and  without  premeditating,  as  these 
terms  are  herein  defined,  and  under  circumstances  that  will  not  be 
justifiable  or  excusable  homicide.  And  if  the  jury  find  and  believe 
that  the  defendant  in  a  sudden  passion,  on  a  reasonable  provocation, 
intentionally  struck  and  killed  the  deceased,  without  malice  or  pre- 
meditation, and  not  in  the  necessary  defense  of  his  person,  then  the 
jury  should  find  him  guilty  of  manslaughter  in  the  fourth  degree.*^ 

§  3032.  Murder  and  Voluntary  Manslaughter  Distinguished,  (a) 
If  the  jury  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
the  defendant,  W.,  in  B.  county,  Kentucky,  and  before  finding  of  the 
indictment,  did  kill  M.  by  shooting  him  with  a  pi-stol  loaded  with 
leaden  ball,  or  other  hard  substances,  when  it  was  not  necessaiy,  and 
did  not  reasonably  appear  to  defendant  to  be  necessary  to  protect 
himself,  C.  W.,  S.  W.,  or  E.  C.  from  danger,  real  or  apparent,  of 
death  or  great  bodily  harm  at  the  hands  of  M.,  or  those,  if  any,  act- 
ing in  concert  with  and  aiding  him,  they  should  find  the  defendant 
guilty — that  is,  guilty  of  murder — if  they  believe  from  the  evidence 
beyond  a  reasonable  doubt  that  said  killing  was  done  unlawfully, 
willfully,  feloniously,  and  with  malice  aforethought;  but  guilty  of 
voluntary  manslaughter  if  the  jury  believe  from  the  evidence  such 
killing  was  without  previous  malice,  and  should  further  believe  from 
the  evidence  beyond  a  reasonable  doubt  that  it  was  unlawfully,  will- 
fully, and  feloniously  done  in  a  sudden  affray,  or  in  sudden  heat  and 
passion,  upon  provocation  which  was  reasonably  calculated  to  excite 
defendant's  passion  beyond  the  power  of  control.  If  the  jury  find  the 
defendant  g"uilty  of  murder  they  will  fix  his  punishment  at  deatb 
or  confinement  in  the   penitentiary  for  life.     But  if   they  find  hia 

46— state  v.  Lane,  158  Mo.  572,  59  600;    State    v.    Dunn,    80    Mo.    689; 

S.  W.  965  (967).  State  v.   Watson,    95   Mo.   411.   8   S- 

The    court    said:      "That    the    in-  "W.  383.     But  the  court  was  clearly 

struction     correctly     defined     man-  justified  in   this  case  in  suhmittii"- 

slaughter  in  the  third  degree  can-  to  the  jury  whether  the  defp'idr^--' 

not  be  doubted.    *     *    *    This  court  intended    to   kill  deceased  whe-i   he 

has    repeatedly    ruled    that    where  struck    him." 

the  killing  is  intentional   or  willful  47 — Approved   as   one  o*'  a   series 

there    can    be    no    manslaughter    in  in   State  v.   Kinder,  184  Mo.  276    33 

the  third  degree.    State  v.  Edwards,  S.   W.   964. 
70  Mo.  480;   State  v.  Curtis,  70  Mo. 


1926  FORMS  OF  INSTRUCTIONS.  [§  3032. 

guilty  of  voluntary  manslaughter,  they  should  fix  his  punishment  at 
confinement  in  the  penitentiary  not  less  than  two  nor  more  than 
twenty-one  years,  in  their  discretion."'^ 

(b)  Felonious  homicide,  at  common  law,  is  of  two  kinds,  namely, 
murder  and  manslaughter,  the  difference  between  which  consists 
principally  in  this :  That  in  murder  there  is  the  ingredient  of  malice, 
whilst  in  manslaughter  there  is  none,  for  manslaughter,  when  volun- 
tary, arises  from  the  sudden  heat  of  the  passions,  but  murder  from 
the  wickedness  and  malignity  of  the  heart.  Therefore  manslaughter 
is  defined  to  be  the  unlawful  killing  of  another  without  malice,  either 
express  or  implied,  and  without  premeditation.'*" 

(c)  If  the  accused  unlawfully  struck  and  killed  McE.  under  cir- 
cumstances that  the  killing  was  not  justifiable  or  excusable  in  law, 
nor  murder  in  any  degree,  he  was  guilty  of  manslaughter.^'' 

(d)  The  unlawful  taking  of  human  life  is  either  murder  or  man- 
slaughter and  under  an  indictment  charging  a  party  with  murder  if 
the  evidence  is  sufficient  to  justify  either  of  such  verdicts,  you  can 
find  a  verdict  of  guilty  either  of  murder  or  manslaughter.  ''Murder" 
is  the  malicious  taking  of  human  life;  it  is  nothing  more  or  less  than 
the  evil,  wicked  intent  to  take  human  life.  This  evil,  wicked  intent 
to  take  human  life,  which  is  neeessaiy  to  constitute  the  crime  of  mur- 
der, can  be  either  expressed  or  implied.  It  may  be  expressed  by  the 
evil  expression  of  the  human  li^DS,  indicating  this  intent  on  the  part  of 
the  human  heart,  or  it  may  be  implied  where  the  killing 
takes  place  under  such  circumstances  as  indicate  that  it  must 
have  been  prompted  by  a  wicked,  evil,  depraved  heart,  devoid  of 
social  duty,  and  fatally  bent  on  mischief.  This  evil  intent  must  be  a 
premeditated  intent  to  take  human  life,  but.  whilst  it  is  necessary  for 
the  state  to  show  that  the  evil  intent  controlled  the  act  of  killing,  it 
is  not  necessary  for  the  state  to  show  that  that  evil,  malicious  intent 
existed  far  any  given  time  before  the  killing.  But  it  must  be  there ;  it 
must  prompt,  actuate  it,  must  spring  from  this  wicked  hear-t,  and 
must  prompt  the  action  of  killing,  at  the  time  of  the  killing.  And  as 
malice  is  a  question  of  intent,  it  is  of  the  utmost  importance  that  the 
jurors  should  calmly  and  dispassionately  consider  all  the  testimony 
bearing  upon  the  fatal  act,  in  order  to  discover  and  determine  what 
motive  prompted  the  act  of  killing  at  the  time.  Was  the  motive  this 
evil  intent  to  take  human  life?  If  so,  and  you  are  so  satisfied;  if  you 
are  satisfied  that  the  deceased  came  to  his  death  at  the  hands  of  the 
prisoner  at  the  bar  by  shooting  with  a  pistol,  a,nd  that  the  prisoner  at 
the  bar  was  at  the  time  of  the  shooting  actuated  and  prompted  by 
this  evil,  malicious  intent  to  take  human  life, — he  is  in  law  guilty  of 
murder,  and  your  verdict  should  so  find.  But  if  you  conclude  that  the 
state  has  failed  to  establish  his  guilt  of  murder  beyond  a  reasonable 

48_Watkins     v.     Commonwealth,  50— Gray  v.   State,   42  Fla.  174,  28 

29  Ky.  Law  1273,  97  S.  W.  740.  So.  53  (55). 

49— State  v.  Brinte,  —  Del.  — ,  58  See  also   State  v.   Hicks,  113  La. 

Atl.  258  (262).  779,  37  So.  753. 


§  3033.]  CRIMINAL— MANSLAUGHTER.  1927 

doubt,  then  you  are  to  go  a  step  further  and  under  this  indictment 
you  are  to  consider  and  detennine  whether  or  not  the  state  has  failed 
to  establish  his  griilt  of  manslaughter  beyond  a  reasonable  doubt. 
Now,  what  is  manslaughter?  Manslaughter  is  where  the  act  of  kill- 
ing is  not  prompted  by  this  evil,  wicked  intent  to  take  human  life,  as 
in  the  case  of  murder,  but  it  is  distinguished  from  murder  by  the  ab- 
sence of  malice.  It  is  where  the  killing  takes  place  under  the  impulse 
of  sudden  heat  and  passion,  aroused  by  a  lawful  provocation,  and  un- 
der circumstances,  that  the  law  will  not  excuse  the  act  of  killing.^^ 

(e)  The  jury  are  instnacted,  that  if  from  motives  of  hatred,  re- 
venge, jealousy,  or  for  any  wrong  or  injui-y,  real  or  imaginary,  a  sane 
person  kills  another,  the  killing  will  be  referred  to  malice,  and  must 
be  regarded  as  murder.  If,  however,  the  killing  is  the  result  of  a  sud- 
den, violent  impulse  of  passion,  caused  by  a  serious  or  highly  pro- 
voking injui-y  inflicted  upon  the  person  killing,  and  which  is  sufficient, 
in  the  minds  of  the  jury,  to  excite  an  irresistible  passion  in  a  reason- 
able person,  and  the  interval  of  time  between  the  provocation  and  the 
killing  is  not  sufficient  for  the  passions  to  cool  and  the  voice  of  reason 
and  humanity  to  be  heard,  then  the  killing  is  manslaughter,  and  not 
murder.  ^2 

(f)  If  a  homicide  is  committed  under  the  influence  of  passion, 
or  in  the  heat  of  the  blood,  produced  by  an  adequate  or  reasonable 
provocation,  and  before  a  reasonable  time  has  elapsed  for  the  blood 
to  cool,  and  reason  to  resume  its  habitual  control,  and  is  the  result  of 
the  temporary  excitement  by  which  the  control  of  reason  was  dis- 
turbed, the  offense  is  manslaughter  and  not  murder.^^ 

(g)  If  you  shall  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  defendant,  A.  W.,  in  this  county,  and  before  the  finding  of 
the  indictment  herein,  feloniously  shot  with  a  pistol,  and  killed, 
L.  M.,  not  in  the  necessary  or  apparently  neeessaiy  self-defense  of 
himself  of  A.  M.,  you  will  find  the  defendant  A.  W.  guilty,  guilty 
of  willful  murder  if  same  was  done  with  malice  aforethought;  guilty 
of  voluntary  manslaughter  if  same  was  done  in  sudden  heat  and 
pas'sion,   and  without  previous  malice.^* 

§  3033.  Manslaughter  Distinguished  From  Self-Defense.  Now, 
gentlemen,  these  are  the  three  conditions  which  I  give  you  in  the 
case.  I  have  told  you  that  if  it  is  true  that  this  defendant  went 
up  on  one  side  of  the  fence  and  when  there  struck  H.  in  the  mouth 
and  then  shot  him,  that  is  murder.  On  the  other  hand,  if  it  is 
true  that  H.  and  the  other  boys  attacked  him  with  sticks,  and  while 
that  attack  was  going  on  and  in  the  heat  of  that  affray,  and  the 
sticks  were  not  of  a  dangerous  or  deadly  character,  and  under  such 
circumstances  he  shot  and  killed  H.,  that  would  be  manslaughter; 

51— State  v.   Petsch,  43  S.   C.  132,  54— Of  a  series  that  included  the 

20  S.  E.  993  (994).  above,  the  court  said:     This  was  a 

52— Schnier    v.    People,    23    111.    1;  correct  statement  of  the  law.    Wil- 

Fisher  v.  People,  23  111.  283.  son  v.  Commonwealth,  24  Ky.  Law 

53_People   v.    Borgetto,    99   Mich.  185,  68  S.  W.  121  (122). 
336,  58  N.   W.  328  (329). 


1928  FORMS  OF  INSTRUCTIONS.  [§  3034. 

but  if  there  was  an  absence  of  that  condition,  then  there  is  no  man- 
slaughter in  it,  nor  could  there  be  any  self-defense  in  it.  There  could 
be  nothing  else  but  this  distinct  grade  of  crime  known  as  murder; 
because  self-defense,  as  I  have  before  defined  to  j^ou,  contemplates 
the  doing  of  something  upon  the  part  of  the  one  slain,  or  the  ones 
acting  with  him,  that  was  either  actually  and  really  so  apparently 
of  a  deadly  character,  or  which  threatened  great  violence  to  the 
person,  or  that  which  seemed  to  do  so.  If  they  assaulted  him  with 
these  stacks,  and  they  were  not  deadly  weapons,  and  they  were 
engaged  in  a  conflict,  and  in  that  conflict  the  defendant  shot  H., 
without  previous  preparation,  without  previous  deliberation,  without 
previous  selection  of  a  deadly  weapon,  without  a  contemplated  pur- 
pose to  use  that  deadly  weapon  in  a  dangerous  way,  then  that  would 
be  manslaughter,  and  it  could  not  be  self-defense,  because  the  in- 
jury received  would  not  be  of  that  deadly  character  or  that  dangerous 
nature  that  could  give  a  man  the  I'ight  to  slay  another  because  of 
threatened  deadly  injury  or  actual  great  bodily  injury  received. ^^ 

§  3034.  Under  Indictment  For  Murder  Verdict  May  Be  For  Man- 
slaughter, (a)  The  jury  are  instructed,  that  under  an  indictment 
for  murder,  a  party  accused  may  be  found  guilty  of  manslaughter. 
And  in  this  ease,  if  after  a  careful  and  dispassionate  consideration 
of  all  the  proof  and  circumstances  in  evidence  before  you,  you  have 
any  reasonable  doubt  as  to  whether  the  defendant  is  guilty  of 
murder,  then  you  should  consider  whether  he  is  guilty  of  man- 
slaughter; and  if  from  a  full  and  careful  consideration  of  all  the 
evidence  before  you,  you  believe,  beyond  a  reasonable  doubt,  that 
the  defendant  is  guilty  of  manslaughter,  you  should  so  find  by 
your  verdict  and  in  that  event  it  will  be  your  duty  to  fix,  by  your 
verdict,  the  term  for  which  he  shall  be  confined  in  the  penitentiary, 
which  may  be  for  any  length  of  time,  not  less  than  one  year,  and  it 
may  be  for  the  term  of  his  natural  life.^*^ 

(b)  Under  any  indictment  for  murder  of  the  first  degree,  the  jury 
may  find  the  accused  guilty  of  either  murder  of  the  first  or  second 
degree,  or  of  manslaughter,  according  as  the  law  and  the  evidence 
may  warrant;  but,  unless  they  shall  find  the  accused  guilty  of  one 
of  these  three  grades  of  homicide,  they  must  acquit  and  render  a 
general  verdict  of  not  guilty.^'' 

(c)  The  charge  of  murder  embraces  or  includes  the  charge  of 
manslaughter;  and  if  the  jury  believe  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  killed  the  deceased  without 
malice  and  in  the  heat  of  passion,  and  not  in  necessary  or  apparently 
necessary  self-defense  the  jury  should  find  the  defendant  guilty  of 
manslaughter.^^ 

55— Allen  v.  United  States,  157  57— State  v.  Brinte,  —  Del.  — ,  58 
U.  S.   675,(677),  15  S.   Ct.  720.  Atl.   258   (262). 

56— SchQier  v.  People,  23  111.   1.  58— Green  v.  State,  —  Miss.  — ,  37 

So.   646   (647). 


§3035.]  CRIMINAL— MANSLAUGHTER.  1929 

(d)  The  indictment  in  this  ease  charges  the  highest  degree  of 
felonious  homicide  known  to  the  law,  that  is,  murder  in  the  first 
degree,  and  under  this  indictment,  if  the  evidence  requires  it,  as 
explained  in  these  instructions,  the  juiy  may  find  the  defendant 
guilty  of  either  murder  in  the  first  or  second  degree,  or  of  volun- 
tary or  involuntary  manslaughter,  or  the  jury  may  find  the  defendant 
not  guilty.^^ 

(e)  If  the  evidence,  under  the  instruction  of  the  court  as  to  the 
law  of  the  case,  require  it,  you  may  find  the  defendant  guilty  of 
murder  in  the  first  or  in  the  second  degree,  or  you  may  find  him  guilty 
of  manslaughter,  or  you  may  find  him  not  guilty.  If  all  the  alle- 
gations in  the  indictment  have  been  proved  to  your  satisfaction, 
beyond  a  reasonable  doubt,  you  should  find  the  defendant  guilty  of 
murder  in  the  first  degree.  If  all  the  allegations  of  the  indictment 
have  been  proved  beyond  a  reasonable  doubt,  except  the  allegation 
of  deliberate  or  permeditated  killing,  you  should  find  the  defendant 
guilty  of  murder  in  the  second  degree;  and  if  you  find,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  did  un- 
lawfully kill  the  deceased,  upon  a  sudden  quarrel,  and  without  malice, 
or  unintentionally,  while  the  defendant  was  attempting  to  commit 
any  unlawful  act  not  amounting  to  felony,  then  the  offense  would  be 
manslaughter;  or  if  the  jury  have  any  reasonable  doubt,  arising  upon 
all  the  evidence  in  the  case,  as  to  the  defendant  being  guilty  of  one 
of  these  crimes,  they  should  simply  find  the  defendant  not  guilty.'^'' 

(f )  Under  the  laws  of  this  state  unlawful  homicide  may  be  either 
murder  in  the  first,  second  or  third  degree,  or  manslaughter;  and 
under  an  indictment  of  murder  in  the  first  degree,  as  in  this  case, 
the  defendant  may  be  convicted  of  any  one  of  the  offenses  of  which 
the  evidence  establishes  his  guilt  beyond  any  reasonable  doubt. ^'^ 

§  3035.  Murder  or  Voluntary  Manslaughter — Reasonable  Doubt 
As  to  Which,  to  Be  Resolved  In  Favor  of  Manslaughter — Where  there 
Are  Two  Motives  Ascribed,  Any  Doubt  Should  Be  Resolved  In  Favor 
of  Defendant,  (a)  If  the  jurj-  believe  from  the  evidence  beyond  a 
reasonable  doubt  that  the  defendant,  G.  W.,  has  been  proved  guilty 
of  murder  or  voluntary  manslaughter,  but  have  from  the  evidence 
a  reasonable  doubt  as  to  which  of  said  crimes,  if  either,  he  is  guilty 
of,  they  should,  in  that  event,  find  him  gniilty  of  voluntai-y  man- 
slaughter.®- 

(b)  I  charge  you  that  the  burden  is  on  the  state  to  establish  the 
guilt  of  the  defendant  bej-ond  a  reasonable  doubt,  and  if  you  have 
a  reasonable  doubt  as  to  what  motive  prompted  the  defendant  to  kill 
the  deceased,  that  is,  whether  in  so  killing  him,  the  mind  of  the 
defendant  was  aroused  to  such  a  degree  of  anger,  rage,  sudden  re- 
sentment or  teiTor  sufficient  to  render  it  incapable  of  cool  reflection 

59_Archey  v.   St.ate,  60  Ind.  56.  61— Graj'  v.  State,  42  Fla.  174.  28 

60— Binns    v.    State.    66    Ind.    428;      So.  53  (55). 
Adams  v    State,  29   Ohio  St.  462.  62— Watkins   v.  Commonwealth,  29 

Kv.  Law  1273.  97  S.  W.  740. 


1930  FORMS  OF  INSTRUCTIONS.  [§  3036. 

by  reason  of  having  been  informed  of  insults  to  his  wife,  or  that  he 
so  killed  the  deceased  from  some  other  motive  or  cause,  then  you  will 
resolve  this  doubt  in  favor  of  this  defendant,  and  find  him  guilty  of 
manslaughter.**^ 

§  3036.  Homicide — Degree  of — Several  Defendants.  If  the  jury 
believe  from  the  evidence  beyond  a  reasonable  doubt  that  M.  was 
unlawfully,  willfully,  feloniously,  and  with  malice  aforethought,  or 
in  sudden  affray,  or  sudden  heat  and  passion,  shot  and  killed  by 
C.  W.,  S.  W.,  or  E.  C,  when  it  was  not  necessary,  and  did  not 
reasonably  appear  to  the  one  doing  the  killing  to  be  necessary,  to 
protect  himself,  G.  W.,  or  the  other  persons  associated  with  him  at 
the  time,  from  danger,  real  or  apparent,  of  death  or  great  bodily 
harm  at  the  hands  of  M.,  or  those  acting  in  concert  with  him,  and 
shall  further  believe  from  the  evidence  beyond  a  reasonable  doubt 
that  the  defendant,  G.  W.,  was  present  at  the  time,  and  did  unlaw- 
fully, willfully  and  feloniously  aid,  abet,  advise,  counsel,  or  en- 
courage the  said  C.  W.,  S.  W.,  or  E.  C,  or  the  one  of  them  who  did 
the  said  killing,  they  should  find  the  defendant,  G.  W.,  guilty,  that  is, 
guilty  of  murder,  if  they  believe  from  the  evidence  beyond  a  reason- 
able doubt  that  said  aiding,  abetting,  advising,  consulting,  or  encour- 
aging, if  he  did  same,  was  done  with  malice  aforethought,  but  guilty 
of  voluntary  manslaughter  if  they  believe  from  the  evidence  such 
aiding,  abetting,  advising,  consulting,  or  encouraging,  if  any  was 
done,  without  previous  malice,  and  shall  further  believe  from  the 
evidence  beyond  a  reasonable  doubt  that  it  was  done  in  sudden  affray, 
or  in  sudden  heat  and  passion,  upon  provocation  which  was  reason- 
ably calculated  to  excite  his  passion  beyond  the  power  of  con- 
trol.o* 

§  3037.  Under  the  Immediate  Influence  of  Sudden  Passion — ^Provo- 
cation Must  Arise  At  the  Time  of  the  Killing — Passion  and  Adequate 
Cause  Defined,  (a)  Manslaughter  is  voluntary  homicide  committed 
under  the  immediate  influence  of  sudden  passion,  arising  from 
an  adequate  cause,  but  neither  justified  nor  excused  by  law. 
By  the  expression,  "under  the  immediate  influence  of  sudden  pas- 
sion," is  meant  that  the  provocation  must  arise  at  the  time  of  the 
killing,  and  that  the  passion  is  not  the  result  of  former  provocation, 
and  the  act  must  be  directly  caused  by  the  passion  arising  out  of  the 
provocation,  if  any,  at  the  time  of  the  killing.  It  is  not  enough  that 
the  mind  is  merely  agitated  by  passion  arising  from  other  provoca- 

63 — Ray    v.    State,    —    Tex.    Cr.  as  the  record  Is  concerned;  and  we 

A  pp.  — ,  85  S.   W.  1151  (1152).  are     of     the     opinion     that     these 

"We  believe  these  charges  suf-  charges  sufficiently  informed  the 
flciently  presented  this  issue  to  jury  that,  where  there  are  two 
the  jury.  There  were  two  motives  causes  or  reasons  for  the  killing, 
ascribed  to  appellant — one  by  the  the  jury  should  give  the  benefit  of 
state,  on  account  of  the  former  the  doubt  to  the  accused,  and  con- 
grudges  and  trouble;  and  the  sec-  vict  of  the  lesser  offense.  We  be- 
ond  claimed  by  himself,  by  reason  lieve  there  is  no  such  error  in  this 
of  the  Insulting  conduct  toward  his  record  as  requires  a  reversal." 
wife.  There  were  no  other  motives  64 — Watkins  v.  Commonwealth, 
or   reasons   for   the   killing,   so   far  29  Ky.   L.  1273,  97  S.  W.  740. 


§3038.]  CRIMINAL— MANSLAUGHTER.  1931 

tion,  or  a  provocation  given  by  some  person  other  than  the  party 
killed. 

(b)  The  passion  intended  is  any  of  the  emotions  of  the  mind 
known  as  anger,  rage,  sudden  resentment,  or  terror,  rendering  the 
mind  incapable  of  cool  reflection. 

(c)  By  the  expression  "adequate  cause"  is  meant  such  as  com- 
monly produces  a  degree  of  anger,  rage,  sudden  resentment,  or  terror 
in  a  person  of  ordinary  temper  sufficient  to  render  the  mind  incapable 
of  cool  reflection.  Any  condition  or  circumstance  which  is  capable 
of  creating,  and  does  create,  sudden  passion,  as  anger,  rage,  re- 
sentment, or  terror,  rendering  the  mind  incapable  of  cool  reflection, 
whether  accompanied  by  bodily  pain  or  not,  is  adequate  cause. 

(d)  In  order  to  reduce  a  voluntary  homicide  to  the  grade  of  man- 
slaughter, it  is  necessary  not  only  that  adequate  cause  existed  to 
produce  the  condition  of  mind  known  as  aiiger,  rage,  sudden  resent- 
ment, or  terror,  such  as  to  render  it  incapable  of  cool  reflection,  but 
also  that  such  state  of  mind  did  actually  exist  at  the  time  of  the  com- 
mission of  the  offense,  and  that  it  was  produced  by  such  adequate 
cause. "^^ 

§  3038.  In  the  Heat  of  Overwhelming  Passion,  Superinduced  By 
Sudden  and  Sufficient  Provocation — Sudden  and  Uncontrollable  Pas- 
sion, (a)  But  should  3'ou  not  so  find,  and  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  the  defendant,  at  the  time  and  place 
and  by  the  means  and  in  the  manner  set  forth  in  the  indictment, 
slew  the  deceased  unlawfully  in  the  heat  of  overwhelming  passion, 
superinduced  by  sudden  and  sufficient  provocation  on  the  part  of  the 
deceased,  to  throw  a  reasonable  and  cautious  man  into  a  sudden  and 
unconti'ollable  passion,  and  that  the  defendant  then  and  there  in- 
stantly fired  upon  and  slew  the  deceased,  then  you  may  find  the  de- 
fendant not  guilty  of  manslaughter.^® 

(b)     If  you  believe  from  the  evidence  bej'ond  a  reasonable  doubt 

that  in  the  county  of  ,  with  the  weapon  and  before  the  date 

aforesaid,  the  defendant,  in  sudden  heat  and  passiion,  created  by  such 
provocation  as  is  ordinarily  calculated  to  excite  the  passions  beyond 
control,  and  which  did  then  and  there  excite  the  passions  of  defendant 
beyond  control,  and  without  previous  malice,  willfully  shot  B.  M., 
from  which  shooting  said  B.  M.  then  and  there  presently  died,  you 
should  find  defendant  guilty  of  voluntary  manslaughter,  and  fix  his 
punishment  at  confinement  in  the  penitentiary  for  not  less  than  two 
(2)  nor  more  than  twenty-one  (21)  years.'^^ 

65 — Stell    V.    State,    —    Tex.    Cr.  sion  'in  sudden  heat  and  passion,' 

App.  — .   58   S.  W.  75  (76).  and  therefore  the  use  of  the  former 

66— Kirby  v.  State,  44  Fla.  81,  32  was    supererogatory    and    prejudi- 

So.   S37.  cial.     Admitting-,    for   the   purposes 

67_Metcalfe    v.     Commonwealth,  of  this  case,   that  the  two  expres- 

27  Ky.  L.  704,  86  S.  W.  534  (535).  sions  'in  sudden  heat  and  passion' 

"This  instruction  is  criticised  be-  and  'without  previous  malice'  are 
cau.=e  it  contains  the  expression  so  antag-onistic  that  the  existence 
'without  previous  malice,'  it  being  of  one  excludes  the  other  as  mo- 
said  that  the  absence  of  malice  is  tive  for  crime,  the  use  of  the  one 
necessarily  included  in  the  expres-  after  the  other   was  only  surplus- 


1932  FORMS  OF  INSTRUCTIONS.  [§  3039. 

§  3039.  Provocation  and  Passion  Must  Concur.  To  extenuate  an 
unlawful  killing,  and  reduce  it  to  nianslaug'bter,  two  facts  must 
concur:  There  must  be  at  the  time  of  the  killing  both  passion  and 
provocation.  Pi'ovocation  without  passion  will  not  extenuate,  nor 
will  passion  merely  without  provocation  reduce  the  unlawful  kill- 
ing from  murder  to  manslaughter.*'^ 

§  3040.  Slight  or  Trivial  Provocation  Not  Sufficient — Provocation 
Defined.  The  court  instructs  the  jury  that  the  law  does  not  per- 
mit the  taking  of  human  life  in  rage  or  passion  occasioned  by  in- 
adequate provocation — that  is,  by  slight  or  trivial  provocation — but 
it  must  be  such  as  would,  in  the  mind  of  an  average  man,  be  calcu- 
lated naturally  to  arouse  such  rage  and  passion  as  would  render  the 
mind  uncontrollable  in  its  impulses  to  take  life.*'^ 

§  3041.  Manslaughter — Malice  and  Intent  Not  Essential.  In  de- 
termining whether  a  person  is  guilty  of  manslaughter,  it  is  not  neces- 
sary to  show  that  he  intended  to  kill  the  person  or  that  he  had  any 
malice;  it  is  sufficient  if  it  is  shown  that  he  did  some  unlawful  act  to 
the  person,  such  as  striking  him  a  blow,  and  death  resulted  from 
that  blow,  without  regard  to  malice,  and  without  regard  to  in- 
tent."^" 

§  3042.  Manslaughter— Sheriff  Killing  One  Who  Attempts  to  Re- 
lease Prisoner.  If  the  jury  believe  from  the  evidence  that  defendant 
was  a  deputy  sheriff,  and  while  engaged  in  the  lawful  discharge  of 
his  duties,  had  arrested  one  J.  W.  for  a  violation  of  the  law,  and  the 
said  J.  W.  was  resisting  said  arrest,  and  that  thereupon  deceased 
eame  up  in  a  hostile  manner  and  made  an  assault  upon  defendant, 
and  struck  him  several  blows  on  the  head  with  a  stick,  not  a  deadly 
weapon,  and  defendant  became  excited  and  aroused  by  passion  to 
such  an  extent  that  he  was  incapable  of  cool  reflection,  and  under 
such  state  of  mind  he  shot  and  killed  deceased,  he  would  be  guilty 
of  manslaughter.'^^ 

§  3043.  Manslaughter — Killing  In  Attempt  to  Procure  Abortion. 
The  killing  of  another  in  an  act  not  of  itself  dangerous  to  life,  but 
which  results  in  death,  contrary  to  the  Avill  and  design  of  the  doer, 

age,  and  not  prejudicial  to  the  sub-  the   killing-.      Held   that,    therefore, 

stantial  rights  of  the  accused.    But  an  instruction   on   the   theory   that 

we  think  the  use  of  both  was  prop-  he  was  enraged  beyond  the  control 

er  to   make  clear  to   the  minds   of  of  his  reason  could  not  be  given, 
the  jury   that,   to  reduce  homicide         69 — Hicklin  v.  Territory,  —  Ariz, 

from      murder      to      manslaughter,  — ,  80  Pac.  340  (343). 
there  must  not  exist  'malice  afore-         "In   the   ahstract,   that  is  a  cor- 

thought.'     Frequently  tautology  is  rect    declaration    of   the    law,    and, 

useful   when   clearness   of  meaning  while      its      incorporation      in      the 

rather    than    logical    refinement    is  definition  of  the  provocation  neces- 

desired."  sary  to  reduce  homicide  from  mur- 

6g — Williams  v.  U.  S.,  4  Ind.  Ter.  der  to  manslaughter  might  be  crit- 

269,   69    S.    W.   871.     An   instruction  icised,  the  court  did  not  stop  here, 

as    to    sudden    passion    must    rest  but  went  further,  and  charged  the 

upon  evidence.  jury   fnllv  on  this  subject." 

Tn    Commonwealth    v.    Mr>r}owan,         7<^ — T^ponle  t    McArron,  121   Mich 

189   Pa.   641,   42   Atl.    365,   69  Am.    St.  1,   79   N.   'W.   944   (958). 
836.  the  defendant  testified  that  he         71— Williams  v.  State,  41  Tex.  Cr 

was    perfectly   cool   at  the    time   of  App.  365,  54  S.  W.  759  (760). 


§3044.]  CRIMINALr— MANSLAUGHTER.  1933 

when  eommitted  in  procuring  or  attempting  to  procure  an  abortion, 
is   voluntary'   manslaughter.'^ 

§  3044.  Manslaughter — Knowledge  of  Intimacy  of  Deceased  With 
Defendant's  Wife,  (a)  By  the  expression  "adequate  cause"  is 
meant  such  as  would  commonly  produce  a  degree  of  anger,  rage, 
sudden  resentment  or  terror  in  a  person  of  ordinary  temper  suffi- 
cient to  render  it  incapable  of  cool  reflection.  The  following  are 
deemed  adequate  causes:  (1)  Adultery  of  the  person  killed  with  the 
wife  of  the  person  guilty  of  the  homicide,  provided  the  killing  oc- 
curred as  soon  as  the  facts  of  an  illicit  connection  is  discovered; 
(2)  insulting  words  or  conduct  of  the  person  killed  towards  the 
wife  of  the  party  gTiilty  of  the  homicide,  provided  the  killing  takes 
place  immediately  upon  the  happening  of  the  insulting  conduct;  (3) 
any  condition  or  circumstance  which  is  capable  of  creating,  and 
which  does  create,  in  the  mind  of  the  person  guilty  of  the  homicide 
such  a  degree  of  anger,  rage,  sudden  resentment  or  terror  as  to  render 
it  incapable  of  cool  reflection,  is  adequate  cause. 

(b)  Now,  if  5'ou  believe  from  the  evidence  in  this  case  that  de- 
fendant had  heard  of  the  adulteiy  of  A.  B.  with  his  wife,  and  that 
as  soon  as  the  fact  of  the  illicit  connection  was  discovered  he  shot 
and  killed  the  said  A.  B.,  in  etc.,  about  etc.,  and  you  further  find 
that  at  the  time  of  the  killing  there  was  aroused  in  the  mind  of 
defendant  such  a  de'gree  of  anger,  rage,  sudden  resentment  or  terror 
which  rendered  it  incapable  of  cool  reflection,  then  you  will  find 
defendant  guilty  of  manslaughter.  Or  if  you  find  from  the  evidence 
that  defendant  saw  deceased  use  insulting  conduct  towards  his  wife, 
and  that  he  immediately  upon  the  happening  of  the  insulting  con- 
duct shot  with  a  gun  and  killed  deceased  at  time  and  place  men- 
tioned in  the  indictment.  Or  if  he  had  been  infonned  of  insulting 
conduct  of  deceased  towards  his  (defendant's)  wife,  and  that  as 
soon  thereafter  as  defendant  met  deceased  he  shot  with  a  gun  and 
killed  said  deceased  at  time  and  place  in  indictment  charged;  and 
if  you  further  find  that  at  the  time  of  the  killing  his  mind  was 
aroused  to  such  a  degree  of  anger,  rage,  sudden  resentment  or  terror 
as  to  render  it  incapable  of  cool  reflection — then  you  will  find  de- 
fendant guilty  of  manslaughter.  Or,  if  you  believe  from  the  evi- 
dence that  from  any  condition  or  circumstance  which  Avas  capable 
of  creating  in  the  mind  of  a  pei-son  of  ordinary  temper  such  a  degree 
of  anger,  rage,  sudden  resentment  or  terror  as  to  render  it  incapable 
of  cool  reflection,  and  if  you  further  believe  that  such  condition  or 
circumstance,  whatever  it  may  have  been,  did  arouse  in  the  mind  of 
the  defendant  such  a  degree  of  anger,  rage,  sudden  resentment  or 
terror  as  to  render  it  incapable  of  cool  reflection,  and  that  while 
in  such  state  of  mind  he  shot  and  killed  A.  B.,  at  time  and  place 

79_riark    V     Commonwealth,    23  such    killingr    was    held    murder    in 

Kv    L    10''9    ill   Ky.  443,   63  S.   W.  the  first  decree,  and  conviction  and 

740  (746)     But  see  Gantlins  v.  State,  death  sentence  affirmed. 
40  Fla.  237,   23   So.   857   (859),  where 


1934  FORMS  OF  INSTRUCTIONS.  [§  3045. 

in  indictment  alleged,  then  you  will  find  him  guilty  of  manslaughter. 
By  the  term  *'meet,"  as  used  in  the  foregoing  charge,  signifies  that 
the  parties  were  brought  into  such  proximity  as  would  enable  de- 
fendant to  act  in  the  premises,  whether  armed  or  unarmed.''^ 

§  3045.  Manslaughter — Negligence  Causing  Boiler  Explosion.  The 
fact  of  the  explosion,  and  even  the  possibility  of  guarding  against 
it,  do  not  necessarily  make  out  a  case  of  culpable  negligence.  Very 
few  acts  in  life  are  done  with  such  care  to  prevent  accidents,  as 
would  have  been  possible.  The  law  only  requires  of  any  one  that 
degree  of  care  and  prudence  which  persons  who  are  reasonably  care- 
ful ordinarily  observe.  To  require  more  would  be  to  put  every  one 
under  restraints  in  the  management  of  his  business  and  in  his  deal- 
ings with  others,  which  would  be  more  hurtful  in  the  embarrass- 
ments they  would  cause  than  beneficial  in  the  protection  they  would 
give  against  injuries.  Whether  the  absence  of  the  defendant  from 
the  boiler  room  at  the  time  of  the  explosion  was  negligence  depends 
upon  circumstances.  If  we  find  that  the  defendant,  from  his  past 
experience,  from  his  knowledge  of  the  boiler,  and  the  flow  of  oil, 
and  of  the  burner,  had  reason  to  believe,  and  in  fact  did  believe, 
that  it  was  consistent  with  safety  to  be  absent  from  the  boiler,  as 
he  was  at  the  time  of  the  explosion,  then  he  was  not,  in  law,  guilty 
of  criminal  negligence  by  reason  of  such  absence.''* 

§  3046.  Form  of  Verdict.  If  you  find  the.  defendant  guilty  of 
willful  murder,  you  will  fix  his  punishment  at  death  or  confinement 
in  the  state  penitentiary  for  life,  in  your  discretion.  If  you  find  him 
guilty  of  voluntary  manslaughter,  you  will  fix  his  punishment  at  con- 
finement in  the  state  penitentiaiy  for  not  less  than  two  and  not  more 
than  twenty-one  years,  in  your  discretion.  If  you  find  him  not  guilty, 
you  will  say  so,  and  no  more.'^^ 

73_Brown   v.    State,    45   Tex.   Cr.  the   particular  questions   raised   in 

App.  139,  75  S.  W.  33.  these  requests.    Tiie  requests  should 

"We     think,     when     these    para-  have    been    given.      It    cannot    be 

graphs     are     considered     together,  that    an    act    done    in    good    faith, 

there  is  no  such  error  apparent  as  based    upon    what    experience    has 

would   be  calculated   to  injure  the  shown  to  be  safe,  is  criminally  neg- 

rights   of  appellant."  ligent.      Schroeder    v.    Car    Co.,    56 

74_People  v.  Thompson,  122  Mich.  Mich.  132,  22  N.  W.  220;  Cheboygan 

411    81  N.  W.  344  (352).  Lumber   Co.   v.   Delta   Transp.   Co., 

"The  judge  did  not  give  these  re-  100  Mich.  16,  58  N.  W.  661;  Whalen 

quests   but   gave   a  general   charge  v.    Railroad    Co.,    114    Mich.    512,   72 

as  to  what  would  be  culpable  neg-  N.  W.  232." 

ligence    which,  in  the  main,  was  a         75— Wilson   v.    Commonwealth,   24 

correct   statement  of  the   law,   but  Ky.  L.  185,  68  S.  W.  121  (122). 
it   did   not   instruct   the  jury  upon 


CHAPTER  xcvrn. 


CRIMINAL— HOMICIDE— ELEMENTS  OF. 


See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


INTENT. 

§  3047.  Presumption  that  one  in- 
tends the  natural,  ordi- 
nary and  usual  conse- 
quences of  his  voluntary 
acts. 

§  3048.  Unlawful  act— P  resumed 
that  the  act  was  done  ad- 
visedly— Deliberate  intent 
to  kill  —  Malice  afore- 
thought. 

§  3049.  The  question  of  intent  is  for 
the  jury — Weapons  used. 

§  3050.  Right  of  jury  to  infer  intent 
from  the  defendant's  acts. 

§  3051.  Facts  showing  killing  to 
have  been  willful  and  mali- 
cious. 

§  3052.  Instrument  used  to  be  taken 
into  consideration  in  judg- 
ing the  intent. 

§  3053.  Blow  with  the  fist— Pre- 
sumption as  to  intent. 

§  3054.  Time  when  the  intent  to 
take  life  was  formed  is 
not  material. 

§  3055.  Concealment  of  the  body  not 
conclusive  proof  of  intent. 

§  3056.  Distinction     between     intent 
and    premeditated    design. 

5  3057.  Administering  poison  —  Ne- 
cessary intent  to  constitute 
murder. 

5  3058.  "Willfully,"  "deliberately," 
"premeditatedly,"  and 

"malice   aforethought"    de- 
fined. 

MALICE. 

§  3059.  Malice  defined. 

§  3060.  Malice  presumed  from  fact 
of  killing— Death  by  vio- 
lence. 

§  3061.  May  be  implied  from  the 
facts — Express  malice  em- 
braces implied  malice  and 
may  be  proved  even  if  not 
charged. 

§  3062.  Malice — Includes  every  un- 
lawful and  unjustifiable 
motive. 

§  3063.  Malice— Without  justification 
or   excuse. 

1935 


§  3064.  Malice — An  essential  ingre- 
dient of  murder — Absence 
of,  reduces  crime  to  man- 
slaughter. 

§  3065.  Malice — How    proven. 

§  3066.  Malice  may  be  proved  by 
prior  threats  or  seeking  an 
opportunity  to  perpetrate 
the  act. 

DEADLY   WEAPON. 

§  3067.  Deadly  weapon  defined. 

§  3068.  Whether  certain  instruments 
are  deadly  weapons,  ques- 
tion of  fact  —  Metallic 
knucks — Gas  pipe. 

§  3069.  Deadly  weapon  —  Presump- 
tion from  killing  with — 
Provocation. 

§  3070.  Using  deadly  weapon — Pre- 
sumed   to   intend    death. 

§  3071.  Previously  formed  design  to 
use    deadly    weapon. 

§  3072.  Deadly  weapon — Malice  pre- 
sumed from  use  of — May 
be  rebutted. 

§  3073.  Malice  not  a  necessary  in- 
ference from  killing  with 
deadly  weapon. 

§  3074.  Circumstances  from  which 
to  determine  whether  or 
not  blow  caused  the  death. 

§  3075.  Mere  possession  of  deadly 
weapon  by  deceased  no  de- 
fense. 

MOTIVE. 

§  3076.  Failure  to  prove  motive. 

§  3077.  Motive  to  defendant— How 
determined   by  jury. 

5  3078.  Motive — State  not  required 
to   prove,    to   convict. 

§  3079.  Reconciliation  in  good  faith 
lived  up  to — Previous  trou- 
bles not  considered  as  af- 
fording a  motive. 

PKEMEDITATION. 

Meaning  of  "Premeditate." 
Same  subject — Need  not  take 
any  particular  time. 

3082.  Premeditated    design— Mutu- 

al   combat. 

3083.  Premeditation   distinguishing 


§  3080. 
§  3081. 


1936 


FORMS  OF  INSTRUCTIONS. 


[§  3047. 


characteristic  of  murder  in 
the   first  degree. 

§  3084.  Meaning-  of  "Sedate  and  de- 
liberate mind"  —  Texas 
statute. 

§  3085.  No  presumption  of  premedi- 
tated design. 

TKOVOCATION. 

§  3086.  Provocation — Mere  words  not 
sufficient. 

§  30S7.  Provocation — Insulting  words 
to  defendant's  wife — Other 
relatives. 

§  3088.  Provocation  —  Mere  threats 
not   sufficient. 

§  3089.  Violent  passion  caused  by 
insulting  language  may  re- 
duce grade  of  homicide. 

§  3090.  Provocation  —  If  sufficient. 
Manslaughter. 

§  3091.  Slap  with  hand  not  sufficient 
provocation,    when. 


§  3092. 
§  3093, 
§  3094. 
§  3095. 
§  3096. 

§  3097. 

§  3098. 

§  3099. 
§  3100, 


Provocation— Past  conduct 
of  deceased  as  evidence  of. 

Provocation — Jury  to  deter- 
mine adequacy. 

Provocation  —  Standard  for 
determining   sufficiency. 

Provocation — Heat  of  blood 
— Cooling   time. 

Cooling  time — Facts  held  to 
constitute  —  Question  of 
law. 

DYING    DECLARATIONS. 

Dying  declaration — Why  it  is 
admissible — Weight  of  for 
jury. 

Dying  declarations — Weight 
of  for  jury— What  may  be 
taken   into   consideration. 

Dying  declarations,  founda- 
tion   for. 

Dying  declaration  to  be  re- 
ceived  with   caution. 


INTENT. 


§  3047.  Presumption  that  One  Intends  the  Natural,  Ordinary  and 
Usual  Consequences  of  His  Voluntary  Acts,  (a)  The  law  presumes 
that  every  sane  person  contemphTtes  and  intends  the  natural,  ox'di- 
nary  and  usual  consequences  of  his  own  voluntary  acts,  unless  the 
contrary  appears,  from  the  evidence;  and  if  a  man  is  shown  by  the 
evidence,  beyond  a  reasonable  doubt,  to  have  killed  another  by  any 
act,  the  natural  and  ordinary  consequences  of  which  would  be  to  pro- 
duce death,  then  it  will  be  presumed  that  the  death  of  the  deceased 
was  designed  by  the  slayer,  unless  the  facts  and  circumstances  of  the 
killing  or  the  evidence  creates  a  reasonable  doubt  whether  the  killing 
was  done  purposely.^ 

(b)  The  court  instructs  the  jury  that  it  is  a  well-settled  rule  of 
law  that  a  sane  man,  a  voluntary  agent,  acting  upon  motives,  must  be 
presumed  to  contemplate  and  intend  the  necessary,  natural,  and 
probable  consequences  of  his  own  act.  If,  therefore,  one  voluntarily 
or  willfully  and  deliberately  does  an  act  which  has  a  direct  tendency 
to  destroy  another's  life  or  destroy  and  injure  his  property,  the  nat- 
ural and  necessary  conclusion  from  the  act  is  that  he  intends  so  to 
destroy  such  life  or  destroy  or  injure  such  property.- 

§  3048.  Unlawful  Act — Presumed  that  the  Act  Was  Done  Advised- 
ly— Deliberate  Intent  to  Kill — Malice  Aforethought,  (a)  When  a 
man  commits  an  unlawful  act,  unaccompanied  by  circumstances  justi- 
fying its  commission,  it  is  a  presumption  of  law  that  he  is  acting  ad- 
visedly, and  with  the  intention  to  produce  the  consequences  which 
have  ensued.^ 

(b)  How  can  you  find  a  deliberate  intent  to  kill?  Do  you  have 
to  see  whether  or  not  the  man  had  that  intent  or  not  in  his  mind  a 

l_Archer  v.   State.  64  Ind.  56.  3— Hayne  v.   State,  99  Ga.   212,  25 

2_Approved  as  one  of  a  series  in     S.    E.    307   (311). 
Keady    v.    People,    32    Colo.    57,    74 
Pac.   892   (894). 


§  3049.]  CRIMINAL— HOMICIDE— INTENT.  1937 

year  or  month  or  day  or  an  hour?  Not  at  all,  for  in  this  age  of  im- 
proved weapons,  when  a  man  can  discharge  a  gun  in  the  twinkling 
of  an  eye,  if  you  see  a  man  draw  one  of  these  weapons,  and  fire  it, 
and  the  man  toward  whom  he  presents  it  falls  dead,  you  have  a 
deliberate  intent  to  kill,  as  manifested  by  the  way  he  did  that  act. 
You  have  the  existence  of  a  deliberate  intent,  though  it  may  spring 
up  on  the  spur  of  the  moment,  as  it  were,  spring  up  contemporaneous 
with  the  doing  of  it — evidence  by  shooting  of  the  man,  if  the  act  was 
one  he  could  not  do  under  the  law  and  then  claim  it  was  man- 
slaughter, or  an  act  that  he  could  not  do  in  self-defense  from  the 
fact  that  it  was  done  without  just  cause  or  excuse,  or  in  the  absence 
of  mitigating  facts,  and  that  is  precisely  this  characteristic  of  mui*- 
der,  known  as  malice  aforethought.  It  does  not,  as  I  have  already 
told  you,  neeessarilj'  import  any  special  malevolence  towards  the 
individual  slain,  but  also  includes  the  ease  of  a  generally  depraved, 
wicked  and  malicious  spirit,  a  heart  regardless  of  social  duty,  and  a 
mind  deliberately  bent  on  mischief.  It  imports  premeditation.  Malice, 
says  the  law,  is  an  intent  of  the  mind  and  heart.'* 

§  3049.  The  Question  of  Intent  Is  for  the  Jury — Weapons  Used./ 
In  all  cases  of  homicide,  the  law  requires  as  an  element  of  guilt  aa 
intent  to  kill;  and  if,  in  this  case  you  find  that  defendant  did  noti 
when  he  struck  H.  (if  you  find  he  did  strike  him)  intend  to  kill  him, 
then  you  should  acquit  him  of  all  grades  of  homicide,  and  inquire 
only  as  to  whether  he  is  guilty  of  an  aggravated  assault.^ 

§  3050.     Right  of  Jury  to  Infer  Intent  from  the  Defendant's  Acts. 

4_Anen   v.  United   States,  164  U.  the  evidence    that    the    manner  in 

S.   492   (495),   17   S.    Ct.   154.  which      it      was      used      made      it 

5 — In  Danforth  v.  State,  44  Tex.  evident  that  defendant  intended  to 
Cr.  App.  105,  69  S.  W.  159  (162),  kill,  before  the  jury  would  be  war- 
it  was  held  error  to  refuse  this  in-  ranted  in  finding  defendant  guilty 
struction.  The  court  said:  "The  of  homicide.  In  passing  upon  a 
question  here  presented  was  before  similar  question.  Judge  Hurt,  in 
us  in  Honeywell  v.  State,  40  Texas  Fitch  v.  State,  37  Tex.  Cr.  App. 
Cr.  App.  199,  49  S.  W.  586.  We  500,  36  S.  W.  584,  said:  'Where 
there  held  that  under  article  717,  the  homicide  was  not  com- 
Pen.  Code,  which  provides:  'The  mitted  in  the  perpetration  of  a  fel- 
instrument  or  means  by  which  a  ony,  and  the  circumstances  do  not 
homicide  is  committed  are  to  be  show  a  cruel  or  evil  disposition  on 
taken  into  consideration  in  judging  the  part  of  defendant,  the  intent 
of  the  intent  of  the  party  offend-  to  kill  cannot,  as  a  matter  of  law, 
Ing;  if  the  instrument  be  one  not  be  inferred  from  a  killing  with  a 
likely  to  produce  death,  it  is  not  stick  four  feet  long  and  two  inches 
to  be  presumed  that  death  was  de-  in  diameter.'  And  for  other  au- 
signed,  unless  from  the  manner  in  thorities  on  the  same  question  see 
which  it  was  used  such  intention  Shaw  v.  State,  34  Tex.  Cr.  App. 
evidently  appears,'  it  becomes  a  435,  31  S.  W.  361;  Griffin  v.  Slate, 
question  of  fact  for  the  jury  to  40  Tex.  Cr.  App.  312,  50  S.  W.  366. 
determine  as  to  whether  or  not  76  Am.  St.  718;  Johnson  v.  State, 
snid  intent  exists.  In  other  words,  42  Tex.  Cr.  App.  377,  60  S.  W.  48; 
where  the  instrument  is  one  not  Martinez  v.  State,  35  Tex.  Cr.  App. 
likely  to  produce  death,  then  it  386,  33  S.  W.  970;  Bell  v.  State.  17 
becomes  a  controverted  question  of  Tex.  App.  552;  Dones  v.  Stnte.  8 
criminal  intent  that  should  be  sub-  Tex.  App.  112;  Nichols  v.  State, 
mitted  by  a  proper  charge  to  the  24  Tex.  App.  137,  5  S.  W.  661;  Boyd 
jury;     and    it    must    appear    from  v.  State,  28  Tex.  App.  137,  12  S.  W. 


737. 


122 


1938  FORMS  OF  INSTRUCTIONS.  [§  3051. 

The  law  says  we  have  no  power  to  ascertain  the  certain  condition  of 
a  man's  mind.  The  best  we  can  do  is  to  infer  it  more  or  less  satis- 
factorily from  his  acts.  A  person  is  presumed  to  intend  what  he 
does.  A  man  who  performs  an  act  which  it  is  known  will  produce 
a  particular  result  is,  from  our  common  exj^erience,  presumed  to  have 
anticipated  that  result  and  to  have  intended  it.  Therefore  we  have 
a  right  to  say,  and  the  law  says,  that  when  a  homicide  is  committed 
by  weapons  indicating  design  that  it  is  not  necessai-y  to  prove  that 
such  design  existed  for  any  definite  period  before  the  fatal  blow  was 
struck.  From  the  very  fact  of  a  blow  being  struck,  from  the  very  fact 
that  a  fatal  bullet  was  fired,  we  have  the  right  to  infer  as  a  presump- 
tion of  fact  that  the  blow  was  intended  prior  to  the  striking,  although 
at  a  period  of  time  appreciably  distant.*^ 

§  3051.    Facts  Showing  Killing  to  Have  Been  Willful  and  Malicious. 

(a)  If  you  believe  the  story  as  narrated  by  the  two  Erne  boys,  who 
testified  as  witnesses,  is  true — that  is,  that  the  defendant  went  up  to 
the  fence  with  his  pistol;  that  he  went  through  the  wire  fence,  and 
went  into  the  wheat  field  where  H.  was,  and  met  him,  first  halloed 
at  him,  placed  his  pistol  upon  the  fence,  and  stopped  the  boys,  and 
then  went  through  the  wire  fence  and  went  out  to  where  he  was, 
and  struck  him  first  in  the  mouth  with  his  left  fist,  and  at  the  same 
time  undertook  to  fire  upon  him,  and  that  that  firing  was  prevented 
by  the  action  of  H.  in  taking  hold  of  the  pistol,  and  it  went  off  into 
the  ground,  and  then  he  fired  at  him  and  struck  him  in  the  side,  and 
then  he  fired  at  him  and  struck  him  in  the  back,  you  have  a  state  of 
facts  which  would  authorize  you  to  say  that  the  killing  was  done 
willfully;  and,  not  only  that,  because  that  state  of  case,  if  that  be 
true,  would  show  the  doing  of  a  wrongful  act,  an  illegal  act,  without 
just  cause  or  excuse,  and  in  the  absence  of  mitigating  facts  to  reduce 
the  grade  of  the  crime. '^ 

(b)  If  you  find  from  the  evidence  beyond  a  reasonable  doubt  that 
the  defendant,  H.,  had  inflicted  upon  X.,  the  deceased,  a  mortal 
wound  by  shooting  said  X.  with  a  pistol,  and  the  said  X.,  iromediate- 
ly  after  the  infliction  of  the  injury,  staggered,  retreated,  or  traveled 
away  from  the  defendant,  and  ceased  to  make  any  demonstration 
towards  defendant,  or  to  make  any  effort  to  inflict  injuiy  upon  the 
defendant,  and  immediately  thereafter,  but  after  defendant  had 
become  separated  from  said  X.  a  distance  of  from  twenty  to  forty 
feet,  the  said  defendant  arose  in  his  buggy,  and  deliberately  dis- 
charged a  second  shot  at  or  in  the  direction  of  said  X.,  whether  the 
second  shot  did  or  did  not  strike  the  person  of  said  X.,  you  may 
consider  the  circumstances  of  the  firing  of  said  second  shot,  along 
Avith  all  the  other  circumstances  of  the  case  so  proven,  as  tending 
to  show  malice  in  the  mind  of  the  defendant.^ 

6— Allen  v.  United   States,  164  U.        8— Harris    v.    State,    155   Ind.    265. 

S.    492    (496),    17    S.    Ct.    154.  58   N.    E.    75    (77). 

7— Allen   v.   United   States,  164  U.        The    court    said:     "The    evidence, 

S.   492   (494),   17  S.   Ct.   154.  it  is  true,   discloses  that  the   first 


§3052.]  CRIMINAL— HOMICIDE— INTENT.  1939 

§  3052.  Instrument  Used  to  Be  Taken  into  Consideration  in  Judg- 
ing the  Intent,  (a)  The  instruments  or  means  by  which  the  homicide 
is  committed  are  to  be  taken  into  consideration  in  judging  the  intent 
of  the  party  offending.  If  the  instrument  be  one  not  likely  to  pro- 
duce death  it  is  not  to  be  presumed  that  death  was  designed,  unless 
from  the  manner  it  was  used  such  intention  evidently  appears.^ 

(b)  You  are  charged  that,  unless  you  believe  beyond  a  reasonable 
doubt  that  the  instrument  used  in  inflicting  wounds  upon  deceased 
was  a  deadly  weapon,  you  cannot  convict  defendant  of  any  degree  of 
homicide,  unless  you  further  believe  from  the  evidence  beyond  a  rea- 
sonable doubt  that,  from  the  manner  and  mode  of  its  use,  if  any,  an 
intention  to  kill  evidently  ajDpears;  and,  unless  you  so  believe  beyond 
a  reasonable  doubt,  you  will  acquit  the  defendant  of  any  grade  of 
homicide. ^° 

§  3053.  Blow  with  the  Fist — Presumption  as  to  Intent.  A  mere 
blow  with  the  fist  may  produce  death,  but  very  rarely,  and  would 
scarcely  fix  the  intent  of  such  consequence.  It  may  however  be  given 
with  such  violence,  and  under  such  circumstances  that  the  necessary 
intent  may  be  inferred. ^^ 

§  3054.  Time  When  the  Intent  to  Take  Life  Was  Formed  Is  Not 
Material.  The  court  instructs  the  juiy  that  if  you  believe  from  the 
evidence  beyond  a  reasonable  doubt  that  the  defendant,  in  connec- 
tion with  W.  T.,  and  A.  T.,  willfully,  deliberately,  and  maliciously, 
and  after  premeditation  and  deliberation,  killed  J.  F.,  the  defendant 
would  be  guilty  of  murder,  and  the  time  when  the  intent  to  take  life 
was  formed  was  not  material.  All  that  is  necessary  in  order  to  sus- 
tain a  conviction  of  murder  in  the  first  degree  is  that  it  be  shown 
from  the  facts  and  circumstances,  beyond  a  reasonable  doubt,  the 
design  and  intent  to  take  the  life  of  the  deceased  was  formed  in  their 
minds  as  the  result  of  premeditation  by  defendant  before  the  act  of 
killing.i2 

shot  was  the  fatal  one.     It  is  also  State,  45  Tex.   Cr.   App.   560,   78  S. 

shown     that    after    appellant     had  W.    930    (932);     Spivey    v.    State,    45 

fired  it,  and  after  the  deceased,   in  Tex.    Cr.    App.    496,    77    S.    W.    444 

the  very  agony  of  death,  had  stag-  (445). 

gered    away    from    appellant    to    a  10— Early    v.    State,    —    Tex.    Cr. 

distance  of  some  20  or  40  feet,  and  App.  — ,   97  S.   W.   82. 

was  apparently  in  the  act  of  fall-  In  comment  the  court  said:    "As 

ing-    appellant  stood  up  in  his  bug-  we    view    the    evidence,    it    shows 

gy  and  deliberately  fired  the  second  that    the    knife    was    a    very    large 

shot  at  him.     The  charge  present-  spring-baclc    affair,    the    blade     of 

ed    against    appellant,    and    which  which    was    something    over    three 

was    in   issue   upon   the   trial,   was  inches  long.     If  this  be  true,   then 

that  of  malicious  murder.   The  bur-  the  charge  was  highly  beneficial  to 

den    of    proving    malice    was    upon  appellant.      But    if    the    knife    was 

the   state,    and   it  had   the   right   to  smaller    than     the    one    suggested, 

have  the  jury   consider   all   of  the  then  the  issue  w^ould  be  in  the  case, 

circumstances    bearing    unon     this  and    the    charge    would    be    highly 

feature   of   the   case,    regardless    of  proper.     In  no  event  could  it  have 

the    fact    as    to    whether   such    cir-  injured  appellant." 

oumstances     happened     before     or  11— Winter  v.  State,  123  Ala.  1,  26 

after  the  homicide."  So.  949  (9.i0). 

9— Barbee    v.    State,    —   Tex.    Cr.  12— Vasser    v.    State.    75   Ark.    373- 

App    —    97   S.    W.    1058;     Perrin    v.  87  S.  W.  635  (636). 


1940 


FORMS  OP  INSTRUCTIONS. 


[§  3055. 


§  3055.  Concealment  of  the  Body  Not  Conclusive  Proof  of  Intent. 
The  court  instructs  you  that  concealment  of  the  body  after  the  act, 
where  there  was  no  previous  preparation,  is  not  conclusive  proof  of 
intent. ^^ 

§  3056.  Distinction  Between  Intent  and  Premeditated  Design. 
There  may,  in  contemplation  of  law,  be  an  intention  to  kill  a  human 
being  which  may  not  amount  to  a  premeditated  design  to  kill.  Shoot- 
ing a  man  intentionally  and  killing  him  is  not  necessarily  the  same 
as  doing  so  with  a  premeditated  design  to  kill  him.  There  may  be 
an  intention  to  kill  without  its  having  been  premeditated.  In  order 
to  convict  the  defendant,  M.  C.  C,  of  murder  in  the  first  degree,  you 
must  be  satisfied  from  the  evidence  beyond  a  reasonable  doubt,  that 
the  defendant  M.  C.  C.  not  only  had  an  intention  to  kill  the  de^ 
ceased,  but  that  he  actually  had  a  premeditated  design  to  kill  him.^* 

§  3057.  Administering  Poison — Necessary  Intent  to  Constitute 
Murder.  But  if  you  find  that  the  defendant,  unlawfully  with  bad 
intention,  caused  poison  to  be  taken  by  M.,  you  should  find  the  de- 
fendant guilty  of  murder  in  the  first  degree;  but,  if  you  fail  to  so 
find,  your  verdict  should  be  not  guilty.^^ 


13— State  V.  Thomas,  50  La.  Ann. 
148,    23    So.    250    (251). 

The  instruction  requested  by  the 
defendant  was  as  follows: 

Concealment  after  the  act,  where 
there  was  no  previous  preparation, 
is  not  necessary  evidence  of  intent. 

Held  error  to  refuse  this  or  an 
equivalent  instruction.  The  court 
said  that  the  word  evidence  is 
often  used  as  equivalent  to  proof. 
"Evidence  of  concealment  is  ad- 
missible, as  it  goes  to  show  crimi- 
nal intent,  and  as  such  it  should 
be  weighed,  but  it  is  proper  on  re- 
quest, to  instruct  the  jury  that  it 
does  not  nece.ssarily  constitute 
proof.  It  admits  of  no  question 
that  concealment  after  the  fact  is 
not  proof  conclusive  of  intent  to 
commit  murder.  For  instance,  in 
a  case  of  manslaughter,  the  slayer 
may  seek  to  conceal  the  body  of 
his  victim  without  its  being  an  evi- 
dence of  the  previous  intent  to 
murder.  We  are  of  the  opinion, 
under  the  circumstances,  the  jury 
should  have  been  instructed,  in 
view  of  the  terms  of  the  original 
charge,  that  concealment  after  the 
deed  was  not  conclusive  proof  of 
intent." 

14_Cook  v.  State,  46  Fla.  20,  35 
So.    665    (669). 

This-  instruction  is  "sub.stantially 
the  law  as  laid  down  in  Garner  v. 
State.  28  Fla.  113,  9  So.  835,  29  Am. 
St.  2.32,  and  should  have  been 
given." 


15— State  V.  Thomas,  —  la.  — ,  109 
N.  W.   900  (902). 

"An  objection  made  to  this 
charge  is  that  a  homicide  commit- 
ted by  the  unlawful  administration 
of  poison  with  bad  intention  is  not 
necessarily  murder,  but  that  it 
may  be  manslaughter,  depending 
upon  the  nature  of  the  intent  with 
which  the  poison  was  administered. 
The  question  is  not  as  to  the  de- 
gree of  murder,  for  it  is  provided 
in  Code  4728,  that:  'All  murder 
which  is  perpetrated  by  means  of 
poison  *  *  *  is  murder  in  the 
first  degree.'  But  the  question  is 
whether  the  crime  might  not  be 
manslaughter.  The  abstract  in- 
quiry to  which  our  attention  is 
thus  directed  is  this:  May  there 
be  a  homicide  committed  by  the 
unlawful  administration  of  poison 
under  such  circuiustances  as  to 
render  the  perpetrator  thereof 
guilty  of  a  crime  which  does  not 
constitute  the  crime  of  murder? 
Or,  in  other  words,  does  the  fact 
of  the  unlawful  and  wrongful  ad- 
ministration of  poison,  causing 
death,  in  itself  show  that  malice 
aforethought  which  characterizes 
murder  as  distinct  from  man- 
slaughter? There  can  be  but  one 
an!--wer  to  this  question  under  the 
decisrons  of  this  court,  and  it  is 
not  necessary  to  go  further  in  dis- 
cussing the  question  for  the  present 
case.  In  State  v.  Robinson,  126  Ta. 
70,  101  N.  W,  634,  it  was  held  that 


§3058.] 


CRIMINAI^HOMICIDE— MALICE. 


1941 


§3058.  "WiUfuUy,"  "Deliberately,"  "Premeditatedly"  and 
"Malice  Aforethought"  Defined.  The  court  instructs  the  jury  that 
the  term  "willfully,"  as  used  in  the  instructions,  means  intention- 
ally; that  is,  not  accidentally.  "Deliberately"  means  in  a  cool  state 
of  the  blood,  not  in  a  sudden  passion  engendered  by  a  lawful  or  some 
just  cause  or  provocation.  "Premeditatedly"  means  thought  of 
beforehand  for  any  length  of  time,  however  short.  "Malice,"  in 
common  acceptation,  means  ill  will  against  a  person;  but  in  its  legal 
sense  it  means  a  wrongful  act  done  intentionally,  without  just  cause 
or  excuse.  "Malice  aforethought"  means  that  the  act  was  done  with 
malice  and  premeditation.^^ 

MALICE. 


§  3059.    Malice  Defined,     (a)     By  malice  is  meant  not  only  anger, 
hate  and  revenge,  but  any  other  unlawful  and  unjustifiable  motive. ^^ 


an  indictment  for  murder  by  means 
of  a  felonious  administration  of 
poison  need  uot  specifically  allege 
an  intent  to  kill.  In  State  v.  Wells, 
61  la.  629,  17  N.  W.  90,  47  Am.  Rep. 
822,  it  was  held  that  it  was  suf- 
ficient to  charge  that  the  poison 
was  unlawfully  administered,  and 
not  given  with  a  good  intention, 
and  the  court  says:  'The  adminis- 
tration of  the  poison  unlawfully 
with  a  bad  motive  or  intent,  un- 
der the  statute  constitutes  murder, 
if  death  ensues.  *  *  *  It  is  im- 
material whether  or  not  there  is  a 
specific  intent  to  kill.  It  is  funda- 
mental that  every  one  is  presumed 
to  intend  the  necessary  conse- 
quences of  an  act  deliberately  done 
by  him.'  The  result  of  our  cases 
as  we  understand  them,  is  to  hold 
that  the  administration  of  poison 
unlawfully  and  with  bad  intent 
constitutes  malice  aforethought 
without  specific  intent  to  kill,  just 
as  a  felonious  act  of  inflicting  a 
grievous  bodily  injury  supplies  tlio 
malice  aforethought  necessary  to 
constitute  murder,  although  there 
is  no  specific  intent  to  kill  proven 
in  connection  with  the  infliction  cf 
such  injury.  Malice  aforethought 
does  not  necessarily  reauire  for  its 
existence  an  intent  to  take  life. 
Death  resulting  from  the  attempt 
to  commit  any  felony,  even  though 
its  tendency  in  itself  is  not  to 
cause  death,  will  supply  the  mal- 
ice aforethought  necessary  to  con- 
stitute murder.  1  Mcl.ain's  Crimi- 
nal Law^  322,  325,  326.  Thus,  in 
Ptate  V.  Moore,  25  la.  128,  95  Am. 
Deo.  776,  it  was  hold  that  death 
caused  in  the  unlawful  attempt  to 
procure  an  abortion  necessarily 
constituted   murder  irrespective   of 


whether  there  was  any  intent  to 
take  life,  or  whether  the  crime  of 
abortion  was  a  felony.  And  it  is 
said  'that  malice  may  be  implied 
from  unlawful  acts  dangerous  to 
life  committed  without  lawful 
justification.'  Certainly  the  un- 
lawful administration  of  poison  is 
an  act  also  dangerous  to  life,  and 
we  do  not  see  why  it  does  not 
necessarily  amount  in  law  to  the 
malice  aforethought  which  will 
characterize  death  resulting  there- 
from as  murder.  The  general  con- 
clusion that  any  criminal  homi- 
cide caused  by  the  wrongful  ad- 
ministration of  poison  is  murder  in 
the  first  degree  is  supported  by 
numerous  cases  decided  by  this 
court.  See  State  v.  Bertoch,  112 
Iowa  195,  83  N.  W.  967;  State  v. 
Burns,  124  la.  207,  99  N.  W.  721; 
State  V.  Van  Tassel,  103  la.  6,  72 
N.  W.  497.  There  was  no  error  in 
the   instruction   given." 

16 — Appro\-ed  as  one  of  a  series  in 
State  V.  Kinder,  184  Mo.  276,  83  S. 
W.  964. 

Nearly  similar  instructions  were 
approved  in  State  v.  Gatlin,  170 
Mo.  354,  70  S.  W.  885  (888)  and 
State  V.  Privitt,  175  Mo.  207,  75  S. 
W.  457  (458). 

17— State  v.  Hunter,  118  la.  686, 
92  N.  W.  872  (874). 

"The  use  of  the  word  'anger'  is 
criticised.  Such  use  was  approved 
in  the  famous  case  of  Com.  v. 
Webster,  5  Cush.  (Mass.)  304,  52 
Am.  Dec.  711,  and  we  are  not  dis- 
posed to  quarrel  with  the  definition 
there  given,  although  there  may  be 
cases  where  it  would  be  improper 
to  use  the  word.  Not  so  here,  how- 
ever." 


1942  FORMS  OF  INSTRUCTIONS.  [§  3059. 

(b)  Malice,  in  its  legal  sense,  differs  from  the  meaning  which  it 
bears  in  common  speech.  In  common  acceptation  it  signifies  ill  will, 
hatred  or  revenge  towards  a  particular  individual.  Such  a  condition 
of  mind  would,  of  course,  constitute  malice  in  the  eye  of  the  law,  but 
such  is  not  necessarily  its  legal  sense.  Malice,  in  its  legal  sense, 
denotes  that  condition  of  mind  which  is  manifested  by  the  intention- 
ally doing  of  a  wrongful  act  without  just  cause  or  excuse.  It  means 
any  willful  or  corrupt  intention  of  the  mind.^^ 

(c)  ''Malice"  in  the  law  and  as  used  in  the  statutes  defining  mur- 
der has  a  technical  meaning,  including  not  only  anger,  hatred  and 
revenge,  but  every  other  unlawful  and  unjustifiable  motive.  It  is  not 
confined  to  ill  will  towards  one  or  more  individual  persons,  but  is 
used  and  intended  to  denote  an  action  growing  from  any  wicked  or 
corrupt  motive, — a  thing  done  with  bad  or  malicious  intent;  where 
the  fact  has  been  attended  by  such  circumstances  as  carry  in  them 
the  plain  indication  of  a  heart  regardless  of  social  duty,  and  fatally 
bent  on  mischief;  and  therefore  malice  is  implied  from  any  deliber- 
ate and  cruel  act  against  another,  however  sudden.^^* 

(d)  Malice,  within  the  meaning  of  the  law,  includes  not  only 
anger,  hatred,  and  revenge,  but  every  other  unlawful  and  unjustifi- 
able motive;  that  the  tenn  ** malice"  has  in  law  a  twofold  significa- 
tion. There  is  what  is  known  as  ''malice  in  fact"  and  "malice  in 
law,"  or  "implied  malice,"  in  the  legal  sense.  Malice  sigTiifies  a 
wrongful  act  intentionally  done  without  justification  or  legal  excuse. 

18 — Housh   v.    State,   43   Neb.   163,  law  correctly.     The   part  more  es- 

61  N.  W.  571  (572).  pecially    criticised    by    counsel    for 

"The   above   definition   of  malice,  appellant  is  the  latter  part,  where- 

it  is  argued,  is  incomplete,  but  we  in   it  is   stated   that   'malice  is  im- 

regard    it    as    substantially    within  plied  from  the  deliberate  and  cruel 

the  definition  in  Harris  v.  State,  8  act   against   another,  however  sud- 

Tex.   App.    90,    and   which   was   ap-  den.'  It  is  contended  that  this  part 

proved  in  Carr  v.  State,  23  Neb.  749,  of  the  charge  invades  the  province 

37  N.  W.  630.     It  is  certainly  not  in  of   the   jury.     This     error,     in     our 

conflict    with   the   authorities   cited  judgment,    cannot    be    successfully 

by    Reese,    J.,    in    the    last    named  imputed    to    the    instruction.      The 

case,    and    possesses    merits    which  court    thereby    merely    advises    the 

cannot,    unfortunately,    be    claimed  jury  that  malice,  as  a  legal  infer- 

for    every    instruction     which     we  ence,  may  be  deduced  from  the  per- 

have  had  occasion  to  examine,  viz.,  petration     of   any     deliberate     and 

brevity  and  perspicuity."  cruel  act  by  one  person  against  an- 

19 — Harris  v.    State,   155   Tnd.   265,  other.     It  is  certainly  evident  that 

58  N.  E.  75  (77).  such    an    inference    may   be    drawn 

"Substantially  the  same  as  an  in-  from  an  act  or  deed  so  committed, 

struction  given  upon   that  question  and  this  statement   to  the  jury   by 

in  the  celebrated  trial  of  John  W.  the  court,  in  regard  to  such  a  legal 

Webster  upon  the  charge  of  the  mur-  proposition,    cannot   be   said    to    be 

der  of  Dr.  Parkman.     See  Com.   v.  an     invasion    upon     any     of     their 

Webster,   5  Cush.   295,   52  Am.   Dec.  rights.       Of     course,  the     inference 

711.     The   definition    of   'malice'    as  arising    from    such    an    established 

therein  given  was  referred  to  with  fact  or  facts  is  not  conclusive,  but 

approval  and  adopted  by  this  court  may  be  rebutted  by  countervailing 

in  Coghill  v.  State,  37  Ind.  Ill;  and  evidence,   and   in   this  light,   in   the 

was  again  approved  in  McDermott  absience    of    anything    to    the    con- 

V.   State,   89  Ind.  187.     The  instruc-  trary,  we  must  presume  the  charge 

tion   in   question,   considered   as   an  was  understood  by  the  jury." 
entirety,   in  our  opinion  states  the 


§3060.]  CRIMINAI^— HOMICIDE— MALICE.  1943 

Express  malice  is  that  deliberate  intention  of  taking  away  unlawfully 
the  life  of  a  fellow  creature  which  is  manifested  by  external  eir- 
eumstances  capable  of  proof.  Malice  may  be  found  when  no  con- 
siderable provocation  appears,  and  when  all  the  circumstances  of  the 
assault  show  an  abandoned  and  malignant  heai't.  Malice  is  not  con- 
fined to  ill  will  toward  an  individual,  but  it  is  intended  to  denote  an 
action  flowing  from  any  wicked  and  coiTupt  motive.  A  thing  done 
with  a  wicked  mind,  and  attended  with  such  circumstances  as  plainly 
indicate  a  heart  regardless  of  social  duty,  and  fully  bent  on  mischief, 
indicates  malice  within  the  meaning  of  the  law;  hence  malice  may 
be  found  from  any  deliberate  and  cool  act  against  another,  however 
sudden,  which  shows  an  abandoned  and  malignant  heart. ^^^ 

§  3060.  Malice  Presumed  from  Fact  of  Killing— Death  by  Vio- 
lence, (a)  In  evei-y  charge  of  murder,  the  fact  of  killing  being  first 
proven,  all  the  circumstances  of  action,  necessity,  or  infirmity,  are  to 
be  satisfactorily  proven  by  the  prisoner,  unless  they  arise  out  of 
the  evidence  produced  against  him;  for  the  law  presumeth  the  fact 
to  have  been  founded  in  malice,  until  the  contraiy  appear.  The  mat- 
ters tending  to  justifj',  excuse,  or  alleviate  must  appear  in  evidence 
"i  before  he  can  avail  himself  of  them,-^ 

1  (b)  "When  the  state  proves  a  homicide  by  violence,  and  nothing 
more  appears,  the  law  calls  that  murder.  It  fixes  the  crime  as  mur- 
der, with  malice  attached  to  it,  and  it  then  becomes  incumbent  upon 
the  person  killing  to  show  that  the  homicide  is  either  manslaughter 
or  justifiable. 2- 

§  3061.  May  be  Implied  from  the  Facts — Express  Malice  Em- 
braces Implied  Malice  and  May  be  Proved  even  if  not  Charged,  (a) 
Implied  malice  is  constructive  malice,  and  not  a  fact  to  be  proved 
specifically.  It  is  inference  or  conclusion  founded  up>on  the  facts 
and  circumstances  of  the  case  as  they  are  ascertained  to  exist,  thus: 
When  the  pi'oof  shows  an  unlawful  killing,  and  no  evidence  has  been 
adduced  establishing  the  existence  of  express  malice  on  the  one  hand, 
or  which  tends  to  establish  any  justification,  excuse,  or  mitigation  on 
the  other,  the  law  implies  malice,  and  the  murder  is  of  the  second 
degree.  But  in  this  connection  you  are  charged  that  where  an  indict- 
ment charges  murder  or  implied  malice  alone,  and  the  evidence  estab- 
lishes or  tends  to  establish  express  malice  as  a  fact,  it  is  not  to  be 
understood  that  such  proof  would,  on  the  one  hand,  be  incompetent, 
nor,  on  the  other,  that  it  would  create  a  variance  from  the  allegation 
in  the  indictment;  but  such  evidence,  notwithstanding  it  shows  ex- 
press malice,  would  in  such  case  be  sufficient  to  warrant  a  conviction 
for  murder  in  the  second  degree,  since  express  malice  comprises  and 
embraces  implied  malice,  just  as  murder  of  the  first  degree  embraces 
murder  of  the  second  degree.-' 

20— Downing  v.  State,  11  Wyo.  86,  22— Hinkle  v.  State,  94  Ga.  595,  21 

70   Pac.   833    (834);    Blume   v.    State,  S  .E.  595  (601). 

154  Ind    343,  56  N.  E.  771  (774).  23— Wilson    v.    State,   —  Tex.    Cr. 

21— Brown    v.    State,    62   N.    J.    L.  App.  — ,  90  S.  W.  312  (315). 
«66,   42  Atl.    811    (823). 


1944  FORMS  OF  INSTRUCTIONS.  [§  3061. 

(b)  Murder  is  defined  by  tlie  law  to  be  ttie  unlawful  killing  of 
a  human  being  then  and  there  in  the  peace  of  the  United  States, 
with  malice  aforethought  either  express  or  implied.  Express  malice 
is  that  deliberate  intention  of  the  mind  unlawfully  to  take  away  the 
life  of  a  human  being,  which  is  manifested  by  external  circumstances 
capable  of  proof.  Malice,  in  general  terms,  may  be  defined  to  be  the 
doing  of  a  wrongful  act  intentionally,  without  just  cause  or  excuse.  As 
employed  in  the  foregoing  definition  of  murder,  the  term  *' malice'* 
includes  in  its  meaning  all  those  states  of  the  mind  under  which  the 
killing  of  a  human  being  takes  place  without  any  cause  which  will  in 
law  justify,  excuse  or  extenuate  the  homicide.  ''Malice,"  as  used  in 
this  incident,  does  not  mean  mere  spite,  ill  will,  or  dislike,  as  it  is 
ordinarily  understood,  but  it  means  that  condition  of  the  mind  which 
prompts  one  person  to  take  the  life  of  another  without  just  cause  or 
legal  justification.  There  need  be  no  appreciable  space  of  time  be- 
tween the  formation  of  the  intention  to  kill  and  the  killing.  They 
may  be  as  instantaneous  as  successive  thoughts.  It  is  only  necessary 
that  the  act  of  killing  be  preceded  by  the  concurrence  of  the  will, 
deliberation  and  premeditation  on  the  part  of  the  slayer.  Malice  in- 
cludes not  only  anger,  hatred  and  revenge  but  every  other  unlawful 
and  unjustifiable  motive.  It  is  not  confined  to  ill  will  towards  an 
individual,  but  is  intended  to  denote  an  action  ai'ising  fi-om  any 
wicked  and  corrupt  motive.  Malice  may  be  inferred  when  any  un- 
lawful act  is  done  with  a  wicked  mind,  when  the  fact  is  attended  by 
such  circumstances  as  evince  a  plain  indication  of  a  heart,  regardless 
of  social  duty  and  fatally  bent  on  mischief.  Hence  malice  maj'  be 
imiolied  from  any  deliberate  and  unlawful  act  of  one  person  against 
another,  however  sudden,  if  the  unlawful  act  be  of  such  a  character 
as  to  show  an  abandoned  and  malignant  disposition.  Malice,  in  con- 
nection with  the  crime  of  killing,  is  but  another  name  for  a  condition 
of  a  man's  heart  and  mind;  and,  as  no  one  can  look  into  the  heart  of 
another,  and  thus  learn  its  condition,  the  only  way  to  decide  upon 
this  condition  at  the  time  of  the  killing  is  to  infer  it  from  the  sur- 
rounding facts.  The  presence  or  absence  of  this  mental  condition 
marks  a  boundary  which  separates  the  two  crimes  of  murder  and 
manslaughter.  Malice  shall  be  implied  when  no  considerable  provoca- 
tion appears,  and  where  all  the  circumstances  manifest  an  abandoned 
and  wicked  disposition. 2* 

(c)  Every  person,  with  a  sound  memory  and  discretion,  who  shall 
unlawfully  kill  any  reasonable  creature  in  being  within  this  state, 
with  malice  aforethought,  either  expressed  or  implied,  shall  be  deemed 
guilty  of  murder.  All  murder  committed  with  express  malice  is 
murder  of  the  first  degree.  ''Malice  aforethought"  is  a  term  used 
in  law  to  designate  the  wicked  and  mischievous  intent  with  which  a 
man  willfully  does  a  wrongful  act,  and  it  is  to  be  inferred  from  acts 
committed  or  words  spoken.     Express  malice  exists  where  a  murder 

24^Williams  v.  U.  S.,  4  Ind.  Ter.  269,  69  S.  W.  871. 


3062. 


CRIMINALf— HOMICIDE— MALICE. 


1945 


is  committed  with  sedate,  deliberate  mind  on  the  part  of  the  mur- 
derer, and  in  pursuance  of  a  formed  design  to  kill  the  person  killed. 
The  mind  of  the  murderer  need  not  be  entirely  free  from  excitement 
in  order  to  bring  it  within  the  meaning  of  the  term  "sedate  and 
deliberate";  for,  if  it  be  in  such  condition  as  to  admit  of  reflection 
upon  the  character  of  the  act,  then  it  is  sedate  and  deliberate,  within 
the  meaning  of  the  law.-^ 

§  3062.  Malice — Includes  Every  Unlawful  and  Unjustifiable  Mo- 
tive. The  court  instructs  the  jury  that  malice  includes  not  only 
anger,  hatred  and  revenge,  but  every  other  unlawful  and  unjustifiable 
motive.  Malice  is  not  confined  to  ill  will  towards  an  individual,  but 
is  intended  to  denote  an  action  flowing  from  any  wicked  and  corrupt 
motive — a  thing  done  with  a  wicked  mind — where  the  fact  has  been 
attended  with  such  circumstances  as  evince  plain  indications  of  a 
heart  regardless  of  social  duty  and  fatally  bent  on  mischief;  hence 
malice  is  implied  from  any  deliberate  or  cruel  act  against  another, 
which  shows  an  abandoned  or  malignant  heart.-*^ 

§  3063.  Malice — Without  Justification  or  Excuse,  (a)  In  this 
case,  if  defendant  intentionally  and  vvrongfuUy  killed  the  deceased, 
without  any  justification  or  excuse,  then  he  killed  him  with  malice, 
and  that  would  constitute  murder.-'^ 


25— Cain  v.  State,  42  Tex.  Cr. 
App.    210,    59    S.    W.    275    (276). 

Approving-  this  and  quoting-  from 
Harris  v.  State,  8  Tex.  App.  90, 
109,    the    court    said: 

"About  as  clear,  comprehensive 
and  correct  definition  as  the  au- 
thorities afford  is  that  'malice  is 
the  condition  of  the  miud  which 
shows  a  heart  regardless  of  social 
duty  and  fatally  bent  on  mischief, 
the  existence  of  which  is  inferred 
from  acts  committed  or  words 
spoken.'  "  This  has  been  recog- 
nized as  a  correct  definition  by 
courts  of  last  resort,  and  one  which 
announces  a  true  rule  by  which  to 
measure  malice  under  our  statute 
of  murder.  Another  equally  cor- 
rect rule  is  thus  stated:  'Malice,  in 
its  legal  sense,  means  the  inten- 
tional doing  of  a  wrongful  act 
towards  another  without  legal 
.iustification  or  excuse.'  Each  form 
has  been  employed  in  charges,  and 
sometimes  both  have  been  em- 
bodied. It  is  wholly  immaterial 
which  is  used,  as  they  have  been 
held  to  con•^?ey  substantially  the 
p^me  idea.  For  a  discussion  of 
this  matter  see  M-^'-t'nA/.  v.  State, 
30  Tex.  Anp.  129.  16  S.  W.  767,  28 
at".  St.  895,  and  authorities  there 
coT'q'pd." 

?6_McCoy  V.  People,  175  111.  224 
(229>.    51   N.    E.   777. 

"The  objection  is  made  that  the 


words  'every  other  unlawful  and 
unjustifiable  motive'  broadened  the 
instruction  to  include  every  motive, 
whether  growing  out  of  the  evi- 
dence of  the  case  on  trial  or  not. 
We  do  not  think  the  instruction  is 
subject  to  the  criticism.  It  is  a 
literal  copy  of  one  given  in  Jack- 
son V.   People,  18   111.   269." 

27— State  v.  McDaniel,  68  S.  C. 
304,  47  S.  E.  (387),  102  Am.   St.  661. 

The  court  said:  "In  the  sentence 
just  preceding  the  one  excepted  to, 
the  court  said:  'In  its  general 
signification,  'malice'  means  the 
doing  of  a  wrongful  act  intention- 
ally, without  justification  or  ex- 
cuse.' This  is  substantially  the 
famous  definition  of  'malice'  by 
Bayley,  J.,  in  Bromage  v.  Proser, 
10  E.  C.  L.  321:  'Malice,'  in  com- 
mon acceptation,  means  ill  will 
against  a  person,  but  in  its  legal 
sense  it  means  a  wrongful  act  done 
intentionally  without  just  cause  or 
excuse.'  In  State  v.  Doig,  2  Rich. 
Law.  182.  our  court  said:  'In  law 
'malice'  is  a  term  of  art.  import- 
ing wickedness,  and  excluding-  a 
just  cause  or  excuse."  There  can 
be  no  doubt,  under  the  decisions 
in  tMs  state,  that  malice  is  pre- 
.^umed  from  an  intentioml  killing, 
in  the  absence  of  facts  and  circum- 
stances in  evidence  tending  to  show- 
want  of  malice.  State  v.  Hopkins, 
15  S.  C.  153;  State  v.  Ariel,  38  S.  C. 


1946  FORMS  OF  INSTRUCTIONS.  [3  8064. 

(b)  The  phrase  '^ malice  aforethought"  means  a  predetermination 
to  do  the  act  of  killing  without  legal  excuse,  and  it  is  immaterial  how 
suddenly  or  recently  before  the  killing  such  determination  was 
formed.-* 

(c)  ''Malice/'  as  the  word  is  used  in  courts  of  law,  signifies  a 
wrongful  act  done  intentionally,  without  legal  justification  or  excuse. 
The  word,  as  commonly  used  in  everyday  affairs  of  life,  has,  I  be- 
lieve, the  meaning  of  personal  hatred  or  ill  will.  This  is  something 
more  than  its  meaning  here.  In  this  case  it  signifies  the  formed  de- 
sign on  the  part  of  the  defendant  to  take  the  life  of  the  deceased 
unlawfully,  not  in  self-defense,  and  without  such  provocation  allowed 
by  the  law  to  be  such  as  would  repel  the  imputation  of  malice.  In 
other  words,  malice  is  criminal  intention.-'' 

§  3064.  Malice — An  Essential  Ingredient  of  Murder — Absence  of, 
Reduces  Crime  to  Manslaughter,  (a)  The  distinguishing  feature 
between  murder  and  manslaughter  is  the  ingredient  of  malice.  Malice 
aforethought  is  as  essential  an  ingredient  of  murder  as  the  act  of 
killing.  In  the  absence  of  malice,  such  killing  is  manslaughter,  unless 
you  should  find  from  the  evidence  that  such  killing  was  done  in  neces- 
sary self-defense.^*^ 

(b)  Malice,  as  the  word  is  used  in  defining  criminal  offenses,  de- 
notes a  criminal  act  done  intentionally  and  without  just  cause  or 
excuse.     The   intention  is   an  inference   of   law   resulting  from  the 

221  16  S  B.  779;  State  v.  Jones,  29  whatever  attaching-.  It  would 
S  C  20l'  7  S  E  296;  State  v.  Alex-  therefore  be  wrong  to  hold  that  the 
ander  3o' S  C  7-i,  8  S.  E.  440,  14  Am.  word  'excuse'  was  Intended  by  the 
St  879  But  the'  court  in  this  case  court  or  understood  by  the  jury 
left  it  to  the  jury  to  decide  whether  to  be  used  in  the  absence  of  some- 
the  killing  was  intentional,  and  thing  which  renders  one  wholly 
whether  malice  was  any  justifica-  excusable  or  justifiable,  but,  on  the 
tion  or  excuse,  and  in  that  event  contrary,  it  should  be  held  to  in- 
malice  existed  and  the  killing  elude  also  any  legal  extenuation  of 
would  be  murder  An  intentional  the  offense  charged.  The  diction- 
homicide  without  any  excuse,  is  aries  gives  as  one  definition  of  'ex- 
certainly'  murder.  The  language  cuse,'  'a  plea  offered  in  extenua- 
'without  any  justification  or  ex-  tion  of  a  fault  or  neglect.'  Bou- 
cuse'  not  only  excludes  justifiable  vier's  Law  Dictionary  says:  Thi3 
and  excusable  homicide,'  but  homi-  word  presents  two  ideas,  differing 
cide  extenuated  to  manslaughter  essentially  from  each  other.  In  one 
because  done  in  sudden  heat  and  case  an  excuse  may  be  made  m  or- 
passion  upon  sufficient  legal  prove-  der  to  show  that  the  party  accused 
cation  It  must  not  be  supposed  is  not  guilty;  in  another,  by  show- 
that  the  word  'excuse'  is  only  ap-  ing  that,  though  guilty,  he  is  less 
Dlicable  to  excusable  homicide,  as  so  than  he  appears  to  be.  In  the 
homicide  in  self-defense.  In  the  case  of  State  v.  Mason,  54  S.  C. 
earlv  stages  of  the  common  law  240,  32  S.  E.  357,  the  court  sustained 
there  was  ground  for  distinction  a  charge  to  the  effect  that  malice 
between  justifiable  and  excusable  is  implicated  from  an  intentional 
homicide,  when  the  accused  was  killing,  without  justification  or  ex- 
not  entitled  to  an  acquittal  in  case  cuse." 

of     excusable     homicide,     but     upon  2S-Clark    v      Commonwealth.     23 

special   verdict  was  entitled   to  par-  Ky    L    \029,    111   Ky.    443,    63    S.   W. 

don;  but  now  the  distinction  is  of  ^^^J^i-/:  ,,  „  ^f^f^  iift  aip  i'^i 
no   practical   importance,   as   in  both  29— btoball  v.  State,  116  Ala.   454, 

cases   the   accused    is   entitled    to    an  23   So.   lb... 

acduittal,    and    there    is    no    penalty  ^i^Vs  pIc    427'  (429)!^    ' 


§  3065.1  CRIMINAI^— HOMICIDE— MALICE.  1947 

doing  of  the  act,  except  in  rare  instances,  where  the  intention  is  ex- 
pressly declared  by  the  wrongdoer,  and  except  where  the  circum- 
stances rebut  the  presumption  of  its  existence.  Malice  is  presumed 
where  one  person  deliberately  injures  another.  It  is  the  deliberation 
with  which  the  act  is  performed  that  gives  it  a  malicious  character. 
It  is  the  opposite  of  an  act  performed  under  sudden  or  uncontrollable 
passion,  which  prevents  the  deliberation  of  cool  reflection  in  fonning 
a  purpose.  Hence,  if  in  this  case  you  should  find  that  the  act  charged 
is  not,  when  committed,  accompanied  by  wa-ong  intent  and  cool  reflec- 
tion, but  was,  on  the  contrary,  the  result  of  sudden  and  uncontrollable 
passion,  produced  by  adequate  cause  or  provocation,  then  the  defend- 
ant would  be  guilty  of  no  higher  degree  than  manslaughter.^^ 

§  3065.  Malice — How  Proven.  Malice  may  be  established  by 
proof  of  cool,  calm,  and  circumsi>ect  deportment  and  bearing  of  the 
party  when  the  act  of  killing  is  done,  immediately  preceding  and 
subsequent  thereto;  his  apparent  freedom  from  passion  or  excite- 
ment; the  absence  of  any  obvious  or  known  cause  to  disturb  his  mind 
or  arouse  his  passion.^^ 

§  3066.  Malice  May  be  Proved  by  Prior  Threats  or  Seeking  an 
Opportunity  to  Perpetrate  the  Act.  (a)  Malice  may  be  proved  by 
direct  evidence,  such  as  prior  threats,  or  seeking  an  opportunity  to 
perpetrate  the  act.  This  is  called  express  malice,  and  proof  of  such 
malice  in  this  case  would  be^  evidence  of  premeditation,  and  would 
make  the  case  murder  in  the  first  degree,  if  otherwise  made  out 
beyond  a  reasonable  doubt.  Malice  may  also  be  implied  from  the  act 
of  killing;  as  if  the  killing  is  done  purposely,  and  without  justifica- 
tion, legal  excuse,  or  reasonable  provocation.  And  if  the  act  is  per- 
petrated with  a  deadly  weapon  so  used  as  to  be  likely  to  produce 
death,  the  purpose  to  kill  may  be  inferred  from  the  act.^^ 

(b)  Express  malice  is  that  deliberate  intention  unlawfully  to 
take  away  the  life  of  a  fellow  creature  which  is  manifested  by  ex- 
ternal circumstances  capable  of  proof,  such  as  previous  difficulties, 

31 state  V.  Vance,  29  "Wash.  435,  wise  made  out  beyond  a  reasonable 

70  Pac    34  (45)  doubt;'   but,   considered  in   connec- 

32— Howard  v    State,  —  Tex.  Or.  tion  with  the  other  parts  of  the  in- 

_A.pp    _    58  S    W    77  (78).  struction,  it  is  clear  that  the  state- 

33— Boyle   v     State,    105   Ind.    469,  ment  quoted  could  not  have  misled 

5  N    E    203  (207),  55  Am.   Rep.  218.  the  jury.  The  meaning  conveyed  is 

"The 'express  malice  of  which  the  that,   if  all   the   other  elements  of 

Instruction     speaks    is     that     evi-  murder    in    the    first    degree    were 

denced  by  threats,  and  the  efforts  proved  beyond  a  reasonable  doubt, 

to  secure  opportunities  to  slay  the  then  proof  of  previous  threats,  and 

deceased,  and  it  is  certainly  not  er-  efforts   to   kill,   would   make   out   a 

ror  to  charge  the  jury  that  the  ut-  case  of  murder  m  the  first  degree 

tering  of  threats,  and  the  effort  to  This    is    correct     as     an     abstract 

secure   an   opportunity   to   kill   the  proposition   of  law;   for,   if   all   the 

deceased    mav  be  regarded  as  evi-  other  ingredients  of  the  crime  were 

dence  of'  premeditation.     The  only  proved,  as  purpose,  malice,  and  the 

noint    wherein    the    instruction    is  like,   then   premeditation   would  be 

justlv  subject  to  criticism  is  in  that  established  by  such  express  malice 

It  tells  the  jury  that  such  express  as   the   court    referred    to;    namely 

malice  'would  make  the  case  mur-  previous  threats  and  effort.s  to  se- 

der  in   the   first   degree,   if  other-  cure  an  OEPortunity  to  kill. 


1948  FORMS  OF  INSTRUCTIONS.  [§3067. 

preparation   to   commit   the  offense,   threats.     Such   things   as   these 
indicate  what  the  law  calls  ''express  malice."^* 

(c)  Express  malice  exists  when  a  mui'der  is  committed  with 
sedate,  deliberate  mind,  and  in  pursuance  of  a  previously  foi"med  de- 
sign to  kill  the  person  killed.^'^ 

DEADLY    WEAPON. 

§  3067.  Deadly  Weapon  Defined,  (a)  A  weapon  with  which  death 
may  be  easily  and  readily  produced;  anything,  no  matter  what  it  is, 
whether  it  is  made  for  the  purpose  of  destroying  animal  life,  or 
whether  it  was  not  made  by  man  at  all,  or  whether  it  was  made  by 
him  for  some  other  purpose,  if  it  is  a  weapon,  or  if  it  is  a  thing  with 
which  death  can  be  easily  and  readily  produced,  the  law  recognizes  it 
as  a  deadly  weapon.^^ 

(b)  The  jury  are  informed  that  a  deadly  weapon  is  one  likely 
to  produce  death  or  great  bodily  injury,  as  a  knife,  an  ax,  or  a  club.^^ 

§  3068.  Whether  Certain  Instruments  Are  Deadly  Weapons,  Ques- 
tion of  Fact — Metallic  Knucks — Gas  Pipe,  (a)  The  court  instructs 
the  jury  that  metallic  knucks  are  not  deadly  weapons  as  a  matter 
of  law,  but  whether  they  are  deadly  weapons  or  not  must  be  deter- 
mined by  the  jury  from  all  the  facts  in  the  case.  The  mere  fact  that 
death  in  a  particular  ease  has  resulted  from  the  use  of  a  certain 
weapon  does  not  in  itself  prove  that  the  weapon  was  deadly,  and 
only  such  weapons  are  deadly  as  are  likely  to  produce  death,  or 
great  bodily  harm.^^ 

(b)  Whether  or  not  the  piece  of  gas  pipe  was  a  deadly  weapon, 
within  the  meaning  of  the  law,  is  a  question  of  fact  for  the  jury  to 
decide,  in  determining  which  they  will  take  into  consideration  the 
character  and  nature  of  the  instrument,  the  manner  in  which  it  was 
used,  if  they  believe  it  was  used,  and  the  probable  effect  of  such  use.^^ 

§  3069.  Deadly  Weapon — Presumption  from  Killing  With — Provo- 
cation,      (a)      The   court  further  instructs   the   jury  that   a   mortal 

34_Heniderson   v.    State,    120    Ga.  36— Acers    v.    United    States,    164 

504,     48     S.      E.     167     (168),     citing  U.   S.  3S8   (391),  17  S.   Ct.   91. 

Mitchum  v.  State,  11  Ga.  628;  Wil-  37— Clarey   v.    State,   61   Neb.    688, 

son  V.   State,  33  Ga.  217;  Brown  v.  85   N.   W.   897   (898). 

State,   51  Ga.   502.  The  court  said: 

The   court   said:  "It  is  urg-ed  that  this  instruction 

"The  previous  difficulty  between  was  prejudicial,  in  that  by  naming 

the   defendant    and     the    deceased,  a  knife  it  emphasized  that  instru- 

and  the  threat  against  the  deceased  ment  as  a   deadly  weapon.     It  did 

inspired    thereby,    were    indicia    of  no  such  thing.  The  court  designat- 

express  malice;  and   the  court  did  ed   a  knife,   an  ax,   and   a  club  as 

not     err    in    illustrating     what    is  deadly    weapons,    and    emphasized 

meant  by  the  term  'express  malice'  one    of  them   no    more    than    the 

by  stating  that  it  might  be  shown  others." 

by  proof    of    previous    difficulties,  38— demons   v.    State,    48   Fla.   9, 

threats,    and   things   of   that  char-  37    So.    647    (650),    citing    Young   v. 

acter."  State,  24  Fla.  147,   3  So.  881;   Bacon 

35— Stevens  v.    State,   42  Tex.    Cr.  v.  Green,  36  Fla.   325,  18  So.  870. 

App.  154,  59  S.  W.  545  (549).  39— State  v.   Drumm,  156  Mo.  216, 

56  S.  W.  1086  (1087). 


§3069.]        CRIMINAL— HOMICIDE— DEADLY  WEAPON. 


1949 


wound  given  with  a  deadly  weapon  in  the  previous  possession  of  the 
slayer,  without  any  provocation,  or  even  with  slight  provocation  is 
prima  facie  willful,  deliberate  and  premeditated  killing  and  throws 
upon  the  prisoner  the  necessity  of  showing  extenuating  circum- 
stances.^" 

(b)  The  court  instructs  the  jury  that  a  man  is  presumed  to  intend 
that  which  he  does,  or  which  is  the  immediate  or  necessary  conse- 
quence of  his  act.  And  if  the  prisoner,  with  a  deadly  weapon  in  his 
possession,  without  any  or  upon  very  slight  provocation,  gives  to 
another  a  mortal  wound,  the  prisoner  is  prima  facie  guilty  of  willful, 
deliberate,  and  premeditated  killing,  and  the  necessity  rests  upon  him 
of  showing  extenuating  circumstances;  and  unless  he  proves  such 
extenuating  circumstances,  or  the  circumstances  appear  from  the  case 
made  by  the  state,  he  is  guilty  of  murder  in  the  first  degree.'*^ 

(c)  "When  a  man  assaults  another  with,  or  uses  upon  another,  a 
deadly  weapon,  in  such  a  manner  that  the  natural,  ordinaiy  and  prob- 
able result  of  the  use  of  such  deadly  weapon  in  such  manner  would 
be  to  take  life,  the  law  presumes  that  such  person  so  assaulting  in- 
tended to  take  life.*^ 

(d)  When  the  killing  is  done  with  a  deadly  weapon,  or  a  weapon 
calculated  to  produce  death,  malice  may  be  legitimately  inferred,  in 
the  absence  of  proof  that  the  act  was  done  in  necessary  self-defense 
or  upon  sufficient  provocation  or  cause ;  and  the  presumption  in  such 
case  will  be  that  the  act  was  voluntarily  committed  with  malice 
aforethought.*^ 


40 — Langley  v.  Commonwealth,  99 
Va.   807.   37   S.    E.    339    (340). 

41— State  V.  Staley,  45  W.  Va.  792, 
32   S.    E.   198   (199). 

42— State  v.  Sullivan,  —  la.  — ,  50 
N.  W.  572. 

"Counsel  thinks  the  instruction 
is  not  applicable  to  the  case  for 
the  reason  that  defendant  used  the 
deadly  weapon.  This  is  the  very 
reason  the  instruction  is  appli- 
cable. It  was  important  for  the 
jury  to  determine  the  intent  with 
which  defendant  used  the  weapon 
to  aid  them  in  this  inquiry.  The 
instruction  was  properly  g-iven. 
The  facts  are  unlike  those  in  State 
V.  Benham,  23  la.  154  (163),  92  Am. 
Dec.   416,   cited   by  counsel." 

43— State  v.  Dull,  67  Kas.  793,  74 
Pac.  235   (236). 

"Was  the  leriving-  of  this  instruc- 
tion error?  Mr.  Bishop,  in  his  work 
on  Criminal  Law,  vol.  2,  par.  680, 
says:  'As  a  general  doctrine,  sub- 
ject, we  shall  see,  to  some  quali- 
fications, the  malice  of  murder  is 
conclusively  inferred  from  the  un- 
lawful use  of  a  deadly  weapon, 
resulting'  in  death.'  In  the  case  of 
Commonwealth    V.    York,    9    Mete. 


(Mass.)  93,  43  Am.  Dec.  373,  it  is 
held:  'The  rule  of  law  is,  when  the 
fact  of  killing  is  proved  tq  have 
been  committed  by  the  accused, 
and  nothing  further  is  shown,  the 
presumption  of  law  is  that  it  is 
malicious,  and  an  act  of  murder. 
It  follows,  therefore,  that  in  such 
cases  the  proof  of  matter  of  excuse 
or  extenuation  lies  on  the  accused; 
and  this  may  appear  either  from 
evidence  adduced  by  the  prosecu- 
tion or  evidence  offered  by  the  de- 
fendant.' In  the  case  of  State  v. 
Earnest,  56  Kan.  31.  42  Pac.  359, 
this  court  held:  'On  the  trial  of  a 
person  charged  with  murder  the 
jury  ought  not  to  be  instructed 
that,  the  killing  with  a  deadly 
weapon  being  admitted,  the  pre- 
sumption, therefore  is  that  such 
killing  was  with  malice,  and  that 
this  presumption  stands  until  it  is 
rebutted  by  evidence.  It  would  be 
better  to  instruct  them  that  malice 
may  be  inferred  from  the  fact  of 
killing  by  a  deadly  weapon,  and 
that  they  should  consider  this  cir- 
cumstance, in  connection  with  all 
the  other  evidence  in  the  case,  for 
the  purpose  of  determining  wheth- 


1950  FORMS  OF  INSTRUCTIONS.  [§  3070. 

§  3070.    Using  Deadly  Weapon — Presumed  to  Intend  Death,     (a) 

He  who  willfully — that  is,  intentionally — uses  upon  another  at  some 
vital  part  a  deadly  weapon,  such  as  a  loaded  gun,  must,  in  the  ab- 
sence of  qualifying  facts,  be  presumed  to  know  that  the  effect  is 
likely  to  be  death,  and,  knowing  this,  must  be  presumed  to  intend 
death,  which  is  the  probable  consequence  of  such  an  act.  He  who  so 
uses  such  deadly  weapon  without  just  cause  or  provocation  must  be 
presumed  to  do  it  wickedly  and  from  a  bad  heart.  If,  therefore,  you 
find  and  believe  from  the  evidence  in  this  cause  that  the  defendant 
took  the  life  of  W.  by  shooting  him  in  a  vital  part  with  a  gun,  with 
the  manifest  design  to  use  such  weapon  upon  him,  and  with  sufficient 
time  to  deliberate  and  fully  form  the  conscious  purpose  to  kill  him, 
and  without  sufficient  or  just  cause  or  provocation,  then  such  killing 
is  murder  in  the  first  degree.** 

(b)  If  an  act  be  perpetrated  with  a  deadly  weapon  so  used  as  to 
be  likely  to  produce  death,  the  purpose  to  kill  may  be  inferred  from 
the  act.*^ 

(c)  The  court  charges  you  that  it  is  a  presumption  of  law  that 
every  sane  person  intends  the  natural  and  reasonable  consequences 
of  his  own  free  voluntaiy  acts,  and  if  a  sane  person  unlawfully,  will- 
fully and  intentionally  strikes  another  person  with  a  deadly  weapon 
it  is  an  inference  of  law  that  he  intends  to  cause  great  bodily  harai 
or  death.*** 

§  3071.  Previously  Formed  Design  to  Use  Deadly  Weapon.  If  a 
party  enters  into  a  contest  dangerously  armed  and  fights  under  an 
undue  advantage,  even  though  mutual  blows  pass,  if  he  slays  his  ad- 
versary pursuant  to  a  previously  formed  design,  either  special  or 
general,  to  use  such  weapon  in  ease  of  an  emergency  in  which  his 
life  would  not  be  endangered,  or  he  would  not  be  in  danger  of  suffer- 
ing great  bodily  harm,  it  is  not  manslaughter,  but  it  is  murder.*'^ 

§  3072.  Deadly  Weapon — Malice  Presumed  from  Use  of — May  Be 
Rebutted,  (a)  The  court  charges  the  juiy  that  in  a  case  of  homicide 
the  law  presumes  malice  from  the  use  of  a  deadly  weapon,  and  casts 
on  the  defendant  the  onus  of  repelling  the  presumption  of  malice, 

er   the   act   was   malicious   or  not.'  45 — "There  was  no   error   in   giv- 

Prom  the  whole  charge  the  jury  are  ing    this    instruction."      Deilkes    v. 

advised    if    the    one    disputed    fact.  State,  141  Ind.  23,  40  N.  E.  120,  cit- 

the   act    of    killing,   is     first    found  ing  Newport  v.   State,  140  Ind.   299, 

against  the  accused  beyond  a  rea-  39  N.  E.  926;  Boyle  v.  State,  105  Ind. 

sonable  doubt,  the  proof  of  motive  476,   5   N.   E.   203,   55   Am.    Rep.    218; 

for    the    commission     of     the     deed  Murphy  v.  State,  31  Ind.  511. 

may  be  dispensed  with,  and  the  es-  46 — Clemons  v.  State,  48  Fla.  9,  37 

sential    ingredient    in    the    crime   of  So.   647   (649). 

murder,    malice,     may   be   inferred  "As   this   charge   is    taken    from 

from  the  use  of  a  deadly  weapon  Adams    v.    State,    28   Fla.    511,    552, 

as  the  instrument  employed  to  ac-  553,  10  So.  106,  where  it  is  anproved 

complish  the  deed.     This  we  think  and   is   applicable  to  the  evidence, 

proper,   and   the   claim  of  error  is  we  cannot  perceive  that  it  was  er- 

disallowcd."  roneous." 

44_State   v.    Privitt,   175   Mo.    207,  47— .larvis  v.  State,  138  Ala.  17,  34 

75  S.  W.  457  (459);  State  v.  Darling,  So.    1025    (1030);    State    v.    Mills,    116 

199  Mo.  168,  97  S.  W.  592.  N.  C.  992,  21  S.  E.  106  (107). 


§  3072.]       CRIMINAL-HOMICIDE-DEADLY  WEAPON.  1951 

unless  the  evidence  which  proves  the  killing  shows  also  that  it  was 
perpetrated  without  malice ;  and  whenever  malice  is  shown  and  is 
unrebutted  by  circumstances  of  the  killing,  or  by  other  facts  and  evi- 
dence, there  can  be  no  conviction  for  any  degree  of  homicide  less  than 
murder.*^ 

(b)  The  jury  are  further  instructed  that  when  the  killing  is  done 
with  a  deadly  weapon,  or  a  weapon  calculated  to  produce,  and 
actually  producing,  death,  malice  may  legitimately  be  inferred,  in  the 
absence  of  proof  that  the  act  was  done  in  necessary  self-defense,  or 
upon  sufficient  provocation  and  cause;  and  the  presumption  in  such 
case  will  be  that  the  act  was  voluntary,  and  committed  with  malice 
aforethought.*'* 

(c)  The  court  charges  the  jury  that  the  law  implies  malice  from 
the  use  of  a  deadly  weapon. 

(d)  The  court  charges  the  jury  that  the  law  presumes  that  a  man 
intends  the  natural  or  probable  results  of  his  act.^" 

(e)  Whenever  one  man  intentionally  kills  another  with  a  deadly 
weai^on,  the  law  presumes  that  it  was  maliciously  done, — that  it  was 
done  with  formed  design  to  take  life, — unless  the  evidence  which 
proves  the  killing  shows  the  excuse  or  extenuation.^^ 

(f)  In  a  case  of  homicide  arising  fi'om  the  intentional  use  of  a 
deadly  weapon,  the  law  presumes  malice  from  the  use  of  such  weapon, 
unless  the  evidence  in  the  case  rebuts  such  presumption;  and,  if  such 

48 — Stevens  v.  State,  138  Ala.  71,  assaulted  him  with  a  piece  of 
35  So.  122  (124);  Jarvis  v.  State,  138  plank.  As  soon  as  assaulted,  de- 
Ala.  17,  34  So.  1025  (1030);  Kilgore  fendant  picked  up  an  iron  poker 
V.  State,  124  Ala.  24,  27  So.  4  (5);  with  which  to  return  the  blow,  but 
Bondurant  v.  State,  125  Ala.  31,  27  he  was  arrested  in  that  intention, 
So.  775  (777);  Wilkins  v.  State,  98  by  a  bystander,  and  made  to  put 
Ala.  1,  13  So.  312;  Miller  v.  State,  the  weapon  down.  After  this,  de- 
107  Ala.  40,  19  So.  37;  Martin  v.  ceased  started  away  and  got  to  the 
State,  77  Ala.  1;  State  v.  Petsch,  43  front  door,  when  defendant  picked 
S.  C.  132,  20  S.  E.  993  (994);  Hark-  up  the  poker  and  following,  struck 
ness  V.  State,  129  Ala.  71,  30  So.  73  deceased  over  the  head  with  it, 
(74);  Clark  v.  State,  105  Ala.  91,  17  causing  his  death.  We  must  hold, 
So.  37  (3S);  Robinson  v.  State,  108  that  the  use  of  the  deadly  weapon 
Ala.  14,  18  So.  732  (734);  Cleveland  under  these  circumstances  was  not 
V.  State,  86  Ala.  1,  5  So.  426;  Holley  simply  the  result  of  passion  but 
V.  State,  75  Ala.  15;  Roberts  v.  also  revenge  or  malice.  It  was 
State,    68   Ala.    156.  therefore  unnecessary  for  the  court 

49 — Harris  v.  People,  32  Colo.  211,  in    giving     charge     1,     to     add,     the 

75   Pac.   427    (429).  qualifying    words,    'unless    the    evi- 

50 — Stillwell  v.  State,  107  Ala.  16,  dence   which    proves    the    killing   re- 

19   So.    322    (323),   citing  Hornsby   v.  buts   the  presumption  of  malice,'  as 

State,  94  Ala.  66,  10  So.  552;  Hadley  defendant's     counsel     insists     ought 

V.    State,    55    Ala.    37,    as    to   malice;  to  have  been  done." 

and    a3    to    cooling    time,    Felix    v.  51 — The   court   said: 

State,   18  Ala.   724;   Keiser  v.   Smith,  "There   was    no    error   in   the   oral 

71    Ala.    482,    46   Am.    Rep.    342;    Mc-  charge    of    the    court    of   which    the 

Nelll   v.    State,    102   Ala.    121,    15    So.  defendant  can  complain." 

3:2,  48  Am.  St.  17;  2  Bish.  Cr.  Law,  Bankhead  v.  State,  124  Ala.  14,  26 

§  713.  So.  979    (981),  citing  Miller  v.  State. 

The  court  in  comment  said:   "The  107   Ala.   45,   19   So.   37;   Sylvester   v. 

facts    of    this    case    show    that    de-  State.   72   Ala.    201;    Gibson   v.   State, 

fendant  struck  deceased  the  blow  89  Ala.  121,  8  So.  9S,  18  Am.  St.  96. 
that  killed  him,  after  deceased  had 


1952  FORMS  OF  INSTRUCTIONS.  [§  3073. 

presumption  is  not  rebutted  by  the  evidence  in  the  case,  then  you  are 
authorized  to  find  that  the  killing  was  with  malice. ^^ 

(g)  If  you  should  find  from  all  the  evidence  in  the  ease  beyond  a 
reasonable  doubt  that  the  defendant  did  shoot  and  kill  H.,  using  a 
deadly  weapon  in  such  manner  as  was  likely  to  and  did  produce 
death,  the  purpose  on  the  part  of  the  defendant  to  kill  may  be  in- 
ferred from  the  act  itself.  And  if  you  further  find  from  all  the 
evidence,  beyond  a  reasonable  doubt,  that  the  killing  was  done  pur- 
posely, without  sufficient  justification,  legal  excuse  or  reasonable 
provocation,  then  malice  may  also  be  inferred  from  such  act.^^ 

(h)  Malice  may  be  presumed  when  life  is  taken  with  a  deadly 
weapon,  unless  the  proof  or  the  circumstances  of  the  killing  rebuts 
the  idea  of  malice.^* 

§  3073.  Malice  not  a  Necessary  Inference  from  Killing  with  Deadly 
Weapon.  The  court  instructs  you  that  unless  you  find  that  the 
weapon  had  been  prepared  for  the  purpose,  its  use  was  not  neces- 
sarily evidence  of  malice. ^° 

§  3074.  Circumstances  from  Which  to  Determine  Whether  or  Not 
Blow  Caused  the  Death.  And  if  the  jury  further  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  struck  the 
deceased  on  the  head  with  such  a  stick,  that  the  violence  of  the  blow 
knocked  him  down  'and  produced  insensibility,  speechlessness  and 
other  s3rmptoms  of  a  fatal  character,  and  that,  suffering  great  agony, 

he  died  within  the  space  of  or  thereabouts,  after  the  blow  was 

given,  then  these  are  circumstances  which  the  jury  should  take  into 
consideration,  together  with  all  the  other  evidence  in  the  ease,  in 
determining  whether  or  not  the  blow  was  what  occasioned  the  death 
of  the  deceased. ^^ 

§  3075.  Mere  Possession  of  Deadly  Weapon  by  Deceased  no  De- 
fense. Although  you  may  believe  from  the  evidence  that  at  the  time 
of  the  killing  deceased  had  a  loaded  pistol  in  his  pocket,  still,  unless 
he  made  an  assault  upon  defendant  by  either  drawing  or  attempting 
to  draw  said  pistol  with  the  manifest  or  apparent  intention  of  shoot- 
ing him,  such  fact  did  not  justify  or  excuse  the  shooting  and  killing 
of  L.  by  defendant,  and  such  fact  cannot  avail  defendant  by  way  of 
self-defense.^'^ 

MOTIVE. 

§  3076.  Failure  to  Prove  Motive,  (a)  You  are  further  instructed 
that  it  is  not  indispensable  that  a  motive  be  shown  for  the  commis- 

52— Mitchell  v.  State,  129  Ala.  23,         53— Coolman  v.  State,  163  Ind.  503, 
30    So.    348    (353),    citing    G-ibson    v.      72   N.    E.    568    (570). 
State,  89  Ala.  121,  8  So.   98,  18  Am.         54— Winter  v.  State,  123  Ala.  1,  26 
St.   96;   Miller  v.  State,  107  Ala.  40,      So.   949  (950). 
19  So.   37.  55— State  v.   McCourry,  128   N.   C. 

The  court  sairl  this  "was  correct,     594,  38  S.  E.   883  (885). 
as   applied   to  the   evidence   in  the        56 — Davis    v.    People,    19     111.     74; 
case."  Keenaii  v.  Com.  44  Penn.  St.  55. 

57— William.^  v.  U.  S.,  4  Ind.  Ter. 
269,  69  S.   W.   871. 


§3076.]  CRIMINAL— HOMICIDE— MOTIVE.  1953 

sion  of  a  crime,  but  the  existence  or  nonexistence  of  such  motive  is  a 
question  of  fact,  which  must  be  determined  by  the  jury  from  a  con- 
sideration of  all  the  evidence  in  the  case,  and  as  a  circumstance  tend- 
ing to  show  the  guilt  or  innocence  of  the  aceused.^^ 

(b)  The  court  instructs  the  jury  that,  when  the  evidence  fails  to 
show  any  motive  to  make  t^n  assault  or  commit  a  crime,  this  is  a 
circumstance  in  favor  of  the  innocence  of  the  party  accused.  And  in 
this  case,  if  the  jury  find,  upon  a  careful  examination  of  all  the  evi- 
dence, that  it  fails  to  show  any  motive,  cause,  or  reason  on  the  part 
of  S.  to  assault  and  murder  the  defendant,  then  you  should  consider 
this  fact  in  determining  the  truth  or  falsity  of  the  claim  made  by  the 
defendant  that  his  wife  first  shot  him  and  then  killed  herself.^'' 

(c)  The  court  instructs  the  jury  that,  when  evidence  fails  to  show 
any  motive  to  commit  the  crime  charged  on  the  part  of  the  defend- 
ant, this  is  a  circumstance  in  favor  of  his  innocence;  and  in  this  case, 
if  the  jury  finds,  upon  a  careful  examination  of  all  the  evidence,  that 
it  fails  to  show  any  motive  on  the  part  of  the  defendants  to  commit 
the  crime  charged  against  them,  then  this  is  a  circumstance  which 
the  jury  ought  to  consider,  in  connection  with  all  the  evidence  in  the 
case,  in  making  up  their  verdict.  And,  in  order  to  ascertain  a  motive, 
the  jury  will  take  into  consideration  all  the  evidence  in  relation  with 
the  association,  relations  and  deportment  toward  each  other  and  the 
deceased,  together  with  all  the  other  evidence  in  the  case."" 

(d)  The  court  insti'ucts  the  jury  that  the  absence  of  all  evidence 
of  an  inducing  cause  or  motive  to  commit  the  offense  charged,  when 
the  fact  is  in  reasonable  doubt  as  to  who  committed  it,  affords  a 
strong  presumption   of  innocence.''^ 

(e)  In  case  of  homicide,  motive  may  be  important,  and  the  ab- 
sence of  motive  is  a  fact  and  circumstance  that  the  jury  may  con- 

58— Lillie    v.    State,    72    Neb.    228,  is  a  correct  expression  of  the  law 

100  N.  W.  316  (322).  when   applied   to   the   case   at   bar, 

59— Smith   v.    State,    61    Neb.    296,  either   as   an    abstract   or  concrete 

85    N.    W.    49    (51).  proposition,  and  is  as  favorable  to 

"It  is  admitted  by  counsel  for  the  defendant  as  to  the  state.  The 
defendant  that,  as  an  abstract  principle  contained  in  the  instruc- 
proposition  of  law,  the  instruction  tion  is  approved  in  Clough  v. 
is  without  error,  and  that  the  sub-  State,  7  Neb.  320.  Under  the  cir- 
ject  dealt  with  therein  may  be  cumstances  of  the  case  at  bar  the 
properly  argued  bv  counsel,  and  defendant  was  accused  of  the 
has  probative  force  worthy  of  con-  crime  of  killing  the  deceased,  his 
sideration  by  the  jury;  but  it  is  wife.  His  defense  was  that  the  de- 
contended  that  it  is  an  ai'gument  ceased  first  shot  him,  and  then 
from  the  bench,  giving  a  negative  took  her  own  life.  That  the  shoot- 
phase  undue  prominence  by  sing-  ing  was  done  by  the  one  or  the 
ling  out  the  one  feature  of  the  case,  other  with  felonious  mtent  is  es- 
and  imputing  to  it  special  signi-  tablished  by  the  evidence,  not  only 
ficance  and  force,  and  that  the  in-  to  a  moral  certainty,  but  to  a  de- 
struction practically  casts  upon  gree  amounting  almost  to  the  cer- 
the  defendant  the  burden  of  prov-  tainty  of  a  mathematical  demon- 
ing  a  motive  in  his  wife  to  commit  stration." 

the    crime.      That    part    of    the    in-  60— State    v.    Hendricks,    172    Mo. 

struction    relative    to    the    want    of  654,    73   S.    W^.    194    (197). 

motive   being   favorable   to   the  in-  61— Longley     v.      Commonwealth, 

nocence  of  a  party  accused  of  crime  99  Va.  807,  37  S.  E.  339  (341). 

123 


1954  FORMS  OK  INSTRUCTIONS.  [§  3077. 

sider  in  determining  the  guilt  or  innocence  of  the  accused.  It  is  a 
circumstance  that  you  may  consider;  and  if  you  believe  in  the  case 
that  any  motive  has  been  shown,  you  may  consider  that  fact  and  cir- 
cumstance in  determining  the  guilt  or  innocence  of  the  accused. "^^ 

(f )  The  court  charges  the  jury  that  if  the  state  has  failed  to  show 
any  motive  for  the  defendant  to  have  murdered  J.  E.,  and  if  the 
state  has  failed  to  so  convince  each  and  every  juror  by  the  evidence 
that  defendant  was  present  at  the  scene  of  the  homicide  and  not  at 
his  home,  and  to  do  this  to  that  degree  of  certainty,  that  they  would, 
each  of  them,  venture  to  act  upon  that  conviction  in  matters  of  the 
highest  concern  and  importance  to  his  own  interest,  then  the  jury 
must  find  the  defendant  not  guilty. 

(g)  If  the  state  has  failed  to  show  any  motive  for  defendant  to 
have  murdered  deceased,  and  if  the  defendant  has  shown  that  he  was 
at  home  when  the  deceased  was  shot,  then  the  jury  must  find  the  de- 
fendant not  guilty.®^ 

§  3077.  Motive  of  Defendant — How  Determined  by  Jury.  In  judg- 
ing as  to  what  motive  prompted  or  actuated  the  prisoner  at  the  bar, 
the  law  says  you  must  go  in  the  light  of  the  testimony  as  best  you 
can  back  to  the  scene  where  this  thing  occurred,  and  you  are  to  judge 
of  the  motive  which  prompted  him,  and  his  conduct  on  that  occasion, 
and  in  that  light  it  is  for  you  to  say  whether  or  not  he  fired  and  took 
the  life  of  the  deceased  in  the  exercise  of  the  right  of  self-'defen&e. 
If  he  did,  and  you  are  satisfied  that  he  has  made  out  his  plea,  then  it 
is  a  good  plea,  and  should  avail  him ;  if  he  has  failed  to  make  it  out, 
then  it  would  not  avail  him.*^* 

§  3078.  Motive — State  Not  Required  to  Prove,  to  Convict.  Proof 
of  a  motive  to  commit  the  crime  is  not  indispensable  nor  essential  to 
conviction.  While  a  motive  may  be  shown  as  a  circumstance  to  aid 
in  fixing  the  crime  on  the  defendant,  yet  the  state  is  not  required  to 
prove  a  motive  on  the  part  of  the  defendant  in  order  to  convict;  and 
the  jury  would  be  justified  in  inferring  a  motive  from  the  commission 
of  the  crime  itself,  if  the  commission  of  the  crime  by  the  defendant 
is  proved  beyond  every  reasonable  doubt,  as  required  by  law,  and  you 
find  that  the  defendant  at  the  time  of  the  commission  of  said  act  was 
sane,  and  there  were  no  extenuating  circumstances.^^ 

§  3079.  Reconciliation  in  Good  Faith  Lived  up  to — Previous 
Troubles  Not  Considered  as  Affording  a  Motive.  If  you  find  from  the 
evidence  that  on  the  day  after  Thanksgiving,  1899,  a  reconciliation 
and  adjustment  of  all  matters  of  differences  and  trouble  was  ef- 
fected between  the  defendant  and  her  husband,  X.;  and  you  further 
find  from  the  evidence  that  such  reconciliation  was  in  good  faith  en- 

62— Smith  v.   State,  94  Ga.  591,  22  tioned  by  the  decisions  of  the  court 

S.  E.  214  (216).  and  in  no  way  invaded  the  province 

63— Burton  v.   State,  107  Ala.  108,  of    the    jury."      Wheeler    v.    State, 

18  So.  284  (286).  1.58  Ind.  687.  63  N.  E.  975  (980).  citing 

64— State  v.    Petsch,   43  S.   C.  132,  Hinshaw  v.   State.  147  Ind.  334-364, 

20  S.  E.  993  (997).  47    N.    E.    57;    Blume   v.    State,    154 

65— "The    instruction    was    sane-  Ind.  343,  56  N.  E.  771. 


§  3080.]        CRIMINAL— HOMICIDE— PREMEDITATION.  1955 

tered  into  on  behalf  of  the  parties  thereto,  and  was  thereafter,  in- 
cluding the  night  on  which  X.  was  assaulted,  if  he  was  assaulted,  in 
like  good  faith  lived  up  to  and  observed  by  the  parties,  and  that  after 
such  reconciliation  and  adjustment  there  was  no  further  trouble  or 
quarrels  between  them,  including  the  night  on  which  X.  is  alleged  to 
have  been  assaulted,  then  whatever  trouble,  differences  or  quarrels 
you  may  find  from  the  evidence,  if  any,  had  existed  or  occurred  prior 
to  such  good-faith  reconciliation  and  adjustment,  if  any,  would  not, 
alone,  be  sufficient  to  show  malice. ^^ 

PREMEDITATION. 

§3080.  Meaning  of  "Premeditate."  (a)  If  an  intention  to  kill 
exists,  it  is  willful.  If  this  intention  be  accomplished  by  such  cir- 
cumstances as  evidence  a  mind  fully  conscious  of  its  purpose  and  de- 
sign, it  is  deliberate.  "Premeditate"  means  "to  think  of  in  advance, 
to  determine  upon  beforehand."  It  means  that  there  was  a  design  to 
kill  before  the  act  of  killing  took  place."' 

(b)  An  act  is  done  willfully  when  done  intentionally  and  on  pur- 
pose. By  premeditation  is  meant  thinking  out  beforehand ;  and  when 
one  thinks  over  doing  an  act,  and  then  determines  or  concludes  to  do 
it,  he  has  premeditated  the  act.  Malice,  in  the  ordinary  sense,  means 
ill  will  or  hatred  toward  another;  but  in  its  legal  sense  it  signifies  a 
wrong  act  done  without  just  cause  or  excuse.  Before  you  can  convict 
the  prisoner  of  murder  in  the  first  degree,  it  is  necessary  for  the  state 
to  show  fi'om  the  evidence  beyond  a  reasonable  doubt,  that  the 
prisoner,   prior   to   the   time   of   the   killing,   formed   the   purpose   or 

66— State  v.   Hossack,  116  la.  194,         "This    was    a    clear   and    explicit 

89  N.   W.   1077   (1080).  statement  that,   in  order  to  consti- 

Held  error  to  refuse  this  instruc-  tute    the    act    one    of    premeditated 

tion.    The  court  said:  and  deliberate  malice,  the  intent  to 

"It   is   said   in   the   way   of   criti-  perform  it  must  have  preceded  the 

cism    of    this     instruction     that     if  performance,    and    that    the    mind 

there  was  in  fact  a  good-faith  rec-  must    have    beforehand    considered 

onciliation,     lived     up     to     by     the  it  and    determined    upon    it.      The 

parties    thereafter,     then     previous  language  complained  of,  therefore, 

troubles  could  not  be  considered  as  could   only   mean    that    there    had 

affording    a    motive.      This    seems  been  formed  in  the  mind  an  intent 

true.     It  was  not  a  reconciliation  in  to  kill,  and  that  that  intent  existed, 

good  faith,  lived  up  to  in  sincerity,  so    formed,    at    the    time    the    blow 

if    old    animosities    were    still    har-  was    struck.     It    is    no    doubt    true 

bored.      If    in    November,    1S99,    all  that    the    terms    'deliberation'    and 

previous   differences     had     in     fact  'premeditation'    require    some    time 

been    forgiven    and'  forgotten,   and  for    reflection,    and    that    it    is    not 

this  state  of  affairs  continued  down  sufficient  that  the  intent  to  kill  be 

to  X.'s  death,   it  is   difficult  to   see  formed     simultaneously     with     the 

why     the     law     should     resurrect  striking  of  the  blow.     Simmerman 

troubles     the    parties    had    buried,  v.  State,  14  Neb.  568.  17  N.  W.  115; 

and  allow  them  any  weight  what-  ?Tilton  v.  State,  6  Neb.  136.     *    •    • 

ever.     McClain   Cr.   Law,   par.   419;  The   instruction   of  the  court  was. 

People   V.    Hyndman,    99   Cal.    1,    33  therefore,  correct."  The  court  cited 

Pac.  782;  Com.  v.  Holmes,  127  Mass.  State  v.  Turner.  Wright  (Ohio)   30. 

424,  34  Am.   Rep.  391."  from    which     state     the     Nebraska 

67— Carleton  v.  State,  43  Nf^b.  :^T3.  statute  was  taken. 
61  N.  W.  699  (712).     The  court  said: 


1956  FORMS  OF  INSTRUCTIONS.  [§3081. 

design  to  kill  the  deceased,  and  that  this  design  to  kill  was  formed 
with  deliberation  and  premeditation,  and  that  in  pursuance  of  said 
design  the  prisoner  killed  the  deceased.  It  would  not  be  necessai-y 
for  such  fixed  design  to  be  formed  any  definite  time  before  the  killing. 
If  it  was  formed  but  a  moment  before  the  killing,  it  would  be  suf- 
ficient; but,  if  formed  at  the  time  of  the  killing,  it  would  not  be  suf- 
ficient to  make  murder  in  the  first  degree,  for  it  is  essential,  to  con- 
stitute murder  in  the  first  degree,  that  the  fixed  purpose  or  design 
to  kill  should  have  been  formed  at  some  time  before  the  killing. ''^ 

(c)  The  word  ** purposely"  defines  itself.  It  simply  means  an  act 
done  with  the  purpose  or  intent  of  doing  that  act.  The  word  ''delib- 
erate" means  the  mental  state  or  condition  of  the  mind  in  consider- 
ing, weighing  and  deliberating  upon  the  motive  which  prompts  or  in- 
duces a  certain  act  or  line  of  action.  ''Premeditation"  is  the  mental 
operation  of  thinking  over  an  act  or  line  of  action  already  decided 
in  the  mind,  before  carrying  the  act  or  line  of  action  into  execution. 
"Malice"  is  not  confined  to  ill-will  towards  an  individual,  but  it  is 
also  intended  to  denote  an  action  flowing  from  any  wicked  and  cor- 
rupt motive.  A  thing  done  with  a  wicked  mind,  and  attended  with 
such  circumstances  as  plainly  indicate  a  heart  regardless  of  social 
duties  and  fully  bent  on  mischief,  indicates  malice,  within  the  mean- 
ing of  the  law.  Malice  may  be  either  expressed  or  implied.  Express 
malice  may  appear  from  all  the  evidence  and  circumstances  of  the 
alleged  killing.  Implied  malice  may  appear  where  there  is  no  just 
cause  or  excuse  of  the  alleged  killing.^^ 

§  3081.  Same  Subject — Need  Not  Take  Any  Particular  Time,  (a) 
"Deliberate"  and  "premeditated"  as  those  words  are  used  in  the 
statute,  mean  only  this :  that  the  slayer  must  intend,  before  the  blow 
is  delivered,  though  it  be  only  for  an  instant  of  time  before,  that  he 
will  strike  at  the  time  he  does  strike,  and  death  will  be  the  result  of 
the  blow;  or,  in  other  words,  if  the  slayer  had  any  time  to  think 
before  the  act — however  short  such  time  must  have  been — even  a 
single  moment — and  did  think,  and  he  struck  the  blow  as  the  result 
of  the  intention  to  kill  produced  by  this  even  momentary  operation  of 
the  mind,  and  death  ensued,  it  would  be  a  deliberate  and  premeditated 
killing  within  the  meaning  of  the  statute  defining  murder  in  the  first 
degree.''" 

(b)  To  constitute  murder  in  the  first  degree  there  must  have  been 
an  unlawful  killing  done,  purposely  and  with  premeditated  malice. 
If  a  person  has  actually  formed  the  purpose  maliciously  to  kill,  and 
has  deliberated  and  premeditated  upon  it  before  he  performs  the 
act,  and  then  perfonns  it,  he  is  guilty  of  murder  in  the  first  degree, 
however  short  the  time  may  have  been  between  the  purpose  and  its 
execution.  It  is  not  time  that  constitutes  the  distinctive  difference 
between  murder  in  the  fii"st  and  in  the  second  degree ;   an  unlawful 

68— State  v.  Spivey,  132  N.  C.  989,  70— Stevens  v.  State,  138  Ala.  71, 
4.']  S.  K.  476.  35  So.    122    (124). 

69— .State  v.   Lindgrind,  33  Wash. 
440,  74  Pac.  565  (566). 


§  3081.]        CRIMINAL— HOMICIDE— PREMEDITATION.  1957 

killing,  with  malice,  deliberation  and  premeditation  constitutes  the 
crime  of  murder  in  the  first  degree.  It  matters  not  how  short  the 
time,  if  the  party  has  turned  it  over  in  his  mind,  and  weighed  and 
deliberated  upon  it.'^ 

(c)  The  law  does  not  and  cannot  define  any  precise  time  for  the 
formation  of  any  such  design.  It  may  take  place  in  the  shortest 
interval,— even  the  moment  before  the  act,  as  well  as  the  month 
before.  The  difference  in  the  degrees  of  murder  does  not  result  from 
the  length  of  time  taken  to  form  the  design  or  the  speed  with  which 
it  was  executed. '^^ 

(d)  It  is  not  essential  that  the  willful  intent,  premeditation  and 
deliberation  shall  exist  in  the  mind  of  the  slayer  for  any  considerable 
length  of  time  before  the  actual  perpetration  of  the  crime.  It  is 
sufficient  if  there  was  a  fixed  design  or  detei-mination  to  maliciously 
kill  distinctly  framed  in  the  mind  of  such  slayer,  at  any  time  before 
the  fatal  injuiy  inflicted.  And  in  this  ease,  if  the  jury  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant  assaulted 
and  shot  the  deceased  at  the  time  and  place  and  in  the  manner 
charged  in  the  indictment,  and  that  either  at  some  time  before,  or 
in  the  moment  or  instant  of  time  immediately  before,  the  fatal  shot 
was  fired,  the  defendant  had  framed  in  his  mind  a  willful,  deliberate, 
and  premeditated  design  or  purpose,  of  his  malice  aforethought,  to 
take  the  life  of  the  said  deceased,  and  that  the  said  fatal  shot  was 
fired  by  the  said  defendant  in  furtherance  of  that  design  or  purpose, 
without  any  justifiable  cause  or  lawful  excuse  therefor,  then  it  may 
be  said  that  the  defendant  acted  with  deliberation  and  premeditation, 
and  you  should  find  him  guilty  of  murder  in  the  first  degree.  But  if 
you  fail  to  find  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
said  fatal  act  of  the  defendant  was  accompanied  with  some  degi-ee 
of  deliberation  and  premeditation,  or  that  it  was  the  result  of  a  fixed 
determination  on  the  part  of  the  defendant  to  kill  the  deceased,  you 
must  then  acquit  the  defendant  of  the  crime  of  murder  in  the  first 
degree.'^^ 

(e)  The  court  instructs  the  juiy  that  the  law  does  not  require 
that  the  premeditation  and  deliberation,  or  the  willful  intent  and 
purpose  shall  exist  for  any  length  of  time  before  the  crime  is  com- 
mitted.'^* 

71— Fahnestock   v.    State,   23   Ind.  an  instant,  the  crime  may  be  mur- 

231;    Miller   v.    State,     54    Ala.     155;  der  in   tlie   first  degree."     State   v. 

State  v.   Weiners,   66  Mo.   13;   State  Johnson,  8  la.  525,  530,  74  Am.  D(?c 

V.    Ahmoolc,    12   Nev.    369.  321;    State   v.   Brown,   41  Minn.   319, 

72— "This     is    the    generally     ac-  43  N.  W.  69;   Donnelly  v.   State,   26 

cepted    doctrine    on     the     subject."  N.  J.  L.  463,  509;  Koerner  v.  State, 

Howard  v.   State.  —  Tex.  Cr.  App.  98    Ind.    7;    State   v.    Dunn,   18    Mo 

— ,   58   S.   W.    77   (78).  419.  424;  State  v.  Jennings,  Id.   i^5, 

73— State    v.    McPhersion,    114    la.  443;    Herrin    v.    State,    33    Tex.    6^9 

492,  87  N.   W.   421   (422).     "It   is  well  645." 

settled."    said    the    rnurt.    "that,    if  74— Robinson   v.     State,     71     Neb. 

the  intent   to  take  life   is  exeruted  142,  98  N.  W.   694. 

after    delihera-ion    and    premedita-  "If  the  words  above  quoted  were 

tion,  though  but  for  a  moment  or  to   be   considered   alone,     it    would 


1958  FORMS  OF  INSTRUCTIONS.  [§3082, 

§  3082.  Premeditated  Design — Mutual  Comljat.  (a)  If  the  jury 
believe,  from  the  evidence,  that  at  the  time  of  the  alleged  killing  the 
defendant  and  the  deceased  met  together,  and  mutually  agreed  to 
engage  in  a  personal  combat,  and  did  engage  in  such  combat,  then, 
if  the  jury  further  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  deceased  was  unarmed,  and  that  the  defendant,  in 
anticipation  of  having  a  difficulty  with  deceased,  had  armed  himself 
with  a  deadly  weapon  without  the  knowledge  of  the  deceased,  with 
the  intention  of  using  the  same  some  time  during  the  contest,  and 
did  so  use  it,  and  thereby  killed  the  deceased,  then  such  killing  would 
be  murder  in  the  first  degree. 

(b)  If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  killing,  the  defendant  and  the  deceased  met,  and  upon  a  sud- 
den cause  of  quarrel  arising  between  them,  mutually  agreed  to  engage 
in  a  personal  combat,  and  did  so  engage  in  such  combat,  and  if  the 
jury  further  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  during  such  quarrel  the  defendant,  without  the  knowledge  of  the 
deceased,  made  use  of  a  deadly  weapon,  in  such  a  manner  as  would 
be  likely  to  cause  the  death  of  the  deceased,  and  did  so  cause  it,  then 
the  defendant  was  guilty  of  murder;  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  defendant  so  used  the  said  deadly 
weapon,  deliberately,  and  with  malice  aforethought,  and  with  intent 
to  take  the  life  of  deceased,  or  to  do  him  great  bodily  harm,  then 
such  killing  would  be  murder  in  the  first  degree. '^^ 

(e)  If  the  intention  upon  committing  a  homicide  was  to  take  life, 
the  killing  was  done  purposely.  If  the  killing  was  accompanied  by 
circumstances  showing  a  mind  fully  conscious  of  its  purposes,  and  if 
before  the  killing  sufficient  time  had  elapsed  to  enable  the  mind  to 
have  considered  the  matter,  and  to  have  formed  a  design  to  kill,  and 
said  design  had  been  formed,  the  killing  was  designed  and  premedi- 
tated.'^" 

§  3083.  Premeditation  Distinguishing  Characteristic  of  Murder  in 
the  First  Degree,  (a)  The  killing  in  this  case  was  neither  justifiable 
nor  excusable  within  the  meaning  of  our  law.  To  warrant  a  verdict 
of  "Guilty  as  charged  in  the  indictment,"  you  must,  therefore,  be 
satisfied  by  the  evidence  beyond  a  reasonable  doubt  that  the  defend- 

seem    that    the    exception    thereto  this  is  a  correct  statement   of  the 

was  well  taken,  but  when  they  are  law   there  can   be   no   doubt.      The 

considered   in  connection   with   the  principle   contained   therein   is  also 

other  parts  of  the  paragraph  com-  approved   in  the  case  of  Clough  v. 

plained  of,  it  appears  they  are  not  State,   7   Neb.     320.     We    therefore 

at  all  misleading.      The    substance  hold  that  the  court  did  not  err  in 

of  the  instruction  is  that  it  is  not  giving   the   instruction    complained 

necessary   for   the   state    to    prove  of." 

tha/t  the   premeditation   and   delib-  The  same  instructions  had  prev- 

eration    or    the    willful    intent    and  iously    been    given    in    Carleton    v. 

purpose  to  kill  existed  for  any  par-  State,  43  Neb.  373,  61  N.  W.  699.  and 

ticular   length    of   time    before    the  in  Savary  v.  State,  62  Neb.  171,  87 

homicide,   and  the  language  of  the  N.  W.   34. 

instruction    is    so    plain    that   there  75 — Stato  v.  Christian.  66  Mo.  13S. 

can  be  no  doubt  about  this.   That  76— State  v.  Vance,  29  Wash.  435, 

70  Pac.  34  (45). 


§3084.]        CRIMINAI^HOMICIDE— PREMEDITATION.  1959 

ant  killed  J.  A.,  and  that  such  act  was  perpetrated  with  a  premedi- 
tated design  to  effect  the  death  of  the  deceased.  It  is  the  premedi- 
tated design  which  is  the  distinguishing  characteristic  of  murder  in 
the  first  degree.''^ 

(b)  The  court  instructs  the  jury,  that  under  our  statute,  to  con- 
stitute murder  in  the  first  degree,  the  jury  must  be  satisfied,  beyond 
a  reasonable  doubt,  from  the  evidence,  not  only  that  the  defendant, 
without  any  justifiable  cause  or  legal  excuse,  as  explained  in  these 
instructions,  killed  the  deceased  in  manner  and  form  as  charged  in 
the  indictment,  but  they  must  further  believe,  from  the  evidence, 
beyond  any  reasonable  doubt,  that  at  the  time  the  defendant  struck 
the  fatal  blow  he  had  formed  in  his  mind  a  deliberate,  willful  and 
premeditated  purpose  to  kill  the  deceased,  and  that  he  struck  the 
blow  with  the  intention  of  effecting  that  purpose  (or  that  he  killed 
the  deceased  while  attempting  to  perpetrate  the  crime,  etc.).'^^ 

(c)  If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  shot  the  deceased,  and  thereby  caused  his 
death,  in  manner  and  fonn  as  charged  in  the  indictment,  then  no 
matter  what  the  provocation,  and  no  matter  what  the  other  surround- 
ing circumstances  may  have  been,  unless  the  act  of  shooting  Avas 
justifiable,  as  explained  in  these  instructions,  then  the  defendant 
is  guilty  of  murder  in  the  first  degi'ee ;  provided,  you  further  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant  did 
the  shooting  with  a  premeditated  design  to  kill  the  deceased.''^ 

§3084.  Meaning  of  "Sedate  and  Deliberate  Mind" — Texas  Stat- 
ute, (a)  If  you  believe  defendant,  S.  P.,  did,  with  express  malice 
aforethought,  with  a  sedate  and  deliberate  mind,  and  formed  design 
to  kill,  and  as  these  expressions  have  been  explained  to  you,  did,  with 
a  razor,  cut  the  throat  of  E.  S.,  not  in  defense  of  himself,  and 
thereby  killed  her,  .  .  .  you  will  find  him  guilty  of  murder  in 
the  first  degree.  The  expression  "sedate  and  deliberate  mind" 
means  simply  that  the  mind  is  sufficiently  composed  to  admit  of 
reflection  and  consideration  upon  the  design,  and  in  a  condition  to 
comprehend  the  nature  of  the  act  designed  and  its  probable  eon- 
sequences.  It  does  not  mean  that  the  mind  must  be  absolutely  un- 
ruffled. It  means  that  the  killing  must  not  result  from  a  mere  sud- 
den, rash,  and  immediate  design,  springing  from  an  inconsiderate 
impulse,  passion,  or  excitement  however  unjustified  or  unwarranted 
it  may  be.**' 

77— State    V,    Corrivau,    93    Minn,  for  the  court  to  give  this   charge. 

38,  100  N.  W.  638  (639).  I  do  not  believe  in  this  respect  the 

78 — Prinues  v.   State,  2  Tex.  App  Gaines   Case    is    correct.     The   law 

369;   State  v.    Melton,  67    Mo.    594;  has  been   held  otherwise  in   Texas 

Cox  v.  State,  5  Tex.  App.  493.  (see  Farrer's  Case.  42  Tex.  271;  and 

79— State  v.  Christian,  66  Mo.  138.  see  also.  Hall  v.  State,  33  Tex.  Cr. 

80— Spears  v.    State,   41   Tex.    Cr.  R.  191,  26  S.  W.  72,  and  Duebbe  v. 

App.  527,  56  S.  W.  347  (350).  State.  1  Tex.  App.  159),  and,  under 

"And   it  was  held  in  the   Gaines  my   view,     is     unquesrtionably     the 

Case  (Gaines  v.   State,  —  Tex.  Cr.  law.     But,    if   it   be   conceded    that 

App.  — ,  53  S.  W.  623)  it  was  error  the     question     is     not    sufficiently 


1960  FORMS  OP  INSTRUCTIONS.  [§  3085. 

(b)  But  if  the  design  is  formed  with  a  sedate,  deliberate  mind, 
the  fact  of  the  design  being  executed  while  the  slayer  is  under  the 
influence  of  rage,  passion,  or  other  character  of  excitement  will  not 
prevent  the  killing  being  attributable  to  the  preconceived,  express 
malice  of  the  slayer.^^ 

§  3085.  No  Presumption  of  Premeditated  Design.  The  law  pre- 
sumes a  sober  man  to  intend  what  he  does,  but  the  law  does  not 
presume  a  killing  Avith  a  premeditated  design.  This,  like  every 
other  element  of  mui'der  in  the  first  degree,  is  to  be  inferred,  by  the 
jury  from  the  facts  proved  beyond  a  reasonable  doubt.®- 

PROVOCATION. 

§  3086.  Provocation — Mere  Words  Not  SufiBcient.  (a)  The  jury 
are  instructed  that  no  provocation,  by  words  only,  addressed  to  the 
person  killing,  or  to  another  in  his  presence,  however  opprobrious, 
will  mitigate  an  intentional  killing  so  as  to  reduce  the  killing  to 
manslaughter;  and  although  the  jury  may  believe,  from  the  evi- 
dence, that  opprobrious  epithets  were  used  by  the  deceased  to  the 
defendant,  W.  M.,  in  defendant  B.  M. 's  presence,  yet,  if  the  jury 
further  believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  defendants  immediately  or  soon  thereafter  revenged  themselves 
by  the  use  of  a  dangerous  and  deadly  weapon  in  a  manner  likely  to 
cause  the  death  of  the  deceased,  and  did  thereby  cause  his  death  as 
charged,  then  the  defendants  are  guilty  of  murder,  and  the  jury 
ought  to  so  find,  unless  they  shall  further  believe,  from  the  evi- 
dence, that  said  killing  was  reduced  to  manslaughter,  or  was  justi- 
fiable, upon  other  grounds,  or  by  other  than  the  use  by  deceased  of 
such   opprobrious   language. ^^ 

(b)  You  are  instructed  that  mere  words,  however  iriitating,  are 
no  excuse  for  a  felonious  assault;  and  although  you  may  believe 
from  the  evidence  that  insulting  and  opprobrious  epithets  were  used 
by  the  deceased,  B.,  to  the  defendant,  W.,  yet,  if  said  defendant,  W., 
immediately  revenged  himself  by  using  a  revolver  and  shooting  and 

raised     by    the     motion     for     new  82— Cook  v.    State,   46   Pla.   20,   35 

trial,   tlien   I   desire   to  say,   in   any  So.    665    (669). 

event,    that   the   charge   is   correct,  "We  think  this  is  a  correct  prop- 

and    to    leave    the   Gaines    Case    in  osition   of   law     and     should     have 

the   condition   it    is,    without    cor-  been    given.      Garner   v.    State,    28 

recting  the  error,  would  lead  to  un-  Fla.  113,  text  157,  9  So.  835,  29  Am. 

necessary    complications    hereafter  St.   232." 

in  the  trial  courts.  The  Gaines  83— McCoy  v.  People,  175  111.  224 
Case  on  this  question  should  be  (231).  51  N.  E.  777,  affirming  con- 
overruled,  and  the  law  made  to  vlction  of  murder, 
harmonize  with  that  line  of  de-  "The  instruction  is  almost  a  lit- 
cisions  above  cited,  which  has  al-  eral  copy  of  the  instruction  given 
ways  been  considered  the  law  in  in  the  series  in  the  case  of  Jack- 
this  state."  son  v.  Peonle,  18  111.  269,  which  was 
81 — Howard  v.  State,  —  Tex.  Cr.  approved  by  this  court  without  the 
App.  — ,  58  S.  W.  77  (78).  "This  qualifier tinn  contained  in  the  forC' 
doctrine  is  announced  in  Farrer's  igoing  instruction." 
Case,   42   Tex.   265." 


§3087.]  CRIMINAL— HOMICIDE— PROVOCATION.  1961 

killing  the  said  B.,  then  the  defendant  is  guilty,  and  j^ou  should  so 
find  from  your  verdict.^* 

(e)  The  court  charges  the  jury  that  in  a  ease  of  homicide  no 
mere  words  used  by  the  deceased  towards  the  defendant,  however 
abusing  or  insulting,  will  reduce  the  degree  of  homicide  to  less  than 
murder.^^ 

(d)  Mere  words,  no  matter  how  insulting  or  abusive,  would  not 
be  sufficient  provocation,  unconnected  with  any  acts  or  other  circum- 
stances, calculated  to  excite  anger  or  passion  of  a  reasonable  man.*^ 

(e)  The  court  further  instructs  the  jury,  that  where  a  person 
strikes  another  with  a  deadly  weapon,  in  a  manner  calculated  or 
likely  to  produce  death,  no  words  of  reproach,  or  abuse,  or  gestures, 
however  irritating  or  provoking,  amount  to  considerable  provocation 
in  law,  so  as  to  reduce  the  crime  of  killing  from  murder  to  man- 
slaughter, in  ease  such  blow  results  in  death. ^'^ 

(f)  The  court  instructs  the  jury  that  words  spoken,  no  matter 
how  vile  or  opprobrious,  unaccompanied  by  other  demonstrations 
which  would  cause  a  reasonable  belief  in  the  mind  of  the  defendant 
that  the  deceased  was  about  to  do  him  some  great  personal  injury, 
would  not  jus<tify  the  defendant  in  shooting  the  deceased,  or  in  in- 
flicting on  the   deceased   any   personal  injury.^** 

§  3087.  Provocation — Insulting  Words  to  Defendant's  Wife — 
Other  Relatives,  (a)  If  you  believe  from  the  evidence  before  you 
that  defendant  shot  and  killed  M.  at  the  time  and  place  alleged  in 
the  indictment,  yet  if  you  should  further  believe  that  prior  to  the 
time  of  the  killing,  the  said  M.  had  used  insulting  words  or  conduct 
towards  defendant's  daughter  or  wife,  or  either  of  them,  and  that 
defendant  had  been  informed  or  knew  of  such  insulting  words  or 
conduct,  and  that  such  insulting  words  or  conduct  created  in  the 
mind  of  defendant  such  a  degree  of  anger,  rage,  sudden  resentment, 
or  terror  as  to  render  his  mind  incapable  of  cool  reflection,  and 
that  defendant  immediately,  or  upon  the  first  meeting  between  him 
and  said  M.,  after  learning  or  being  informed  of  such  insulting 
words  or  conduct,  shot  and  killed  the  said  M.,  then,  if  you  do  not 
find  defendant  justified  under  the  evidence  before  you  and  instruc- 

84— Willis    v.    State,    43    Neb.    102,  494;    State    v.    Starr,    38     Mo.     270; 

61  N.  "W.  254  (259).  Martin  v.  People,  30  Wis.  216. 

85— Wilson    v.    State,   140   Ala.    43,  86— Olds   v.    State,   44   Fla.   452,  33 

37   So.    93   (94).  So.    296   (298). 

"The    court    committed    no    error  87 — People  v.  Turley,  50  Cal.  469; 

in  giving  the  charge  requested   by  Bird   v.   State,   50  Ga.   585. 

the    state.     Compton   v.    State.    110  88 — Robinson     v.      Territory,      16 

Ala.   24,   37,   20   So.   119."     A  similar  Okla.   241,  85  Pac.  451  (456,  458). 

instruction   was  approved   in   Bon-  "Exception     was     taken     to     the 

durant  v.  State,  125  Ala.  31,  27  So.  above   instruction;   but   counsel    for 

775  (777),  citing  Ex.  parte  Sloane,  95  plaintiff  in   error  assign  no  reason 

Ala.  22,  11  So.  14;  Jones  v.  State,  96  why    such     Instruction     should     be 

Ala.  102,  11  So.  399;  Reese  v.  State,  held  to  be  erroneous,  and  we  know 

90  Ala.   624,   8  So.  818.  of    no    reason    that    could    be    suc- 

See    also    Ray   v.    State,     15     Ga.  cessfully  urged  to  that  end." 
223;  Rapp  v.  State,  14  B.  Mon.  (Ky.) 


1962  FORMS  OF  INSTRUCTIONS.  [§3088. 

tions  given,  he  would  not  be  guilty  of  any  higher  grade  of  offense 
than  manslaughter.^^ 

(b)  If  you  believe  from  the  evidence  that  the  defendant  had 
heard  that  deceased  had  used  insulting  words  toward  or  concerning 
defendant's  female  relations,  and  that  upon  meeting  deceased  de- 
fendant asked  him  about  it,  and  he  replied  as  above  mentioned,  but 
believe  that  neither  such  information  as  to  insulting  words,  nor  the 
reply  of  the  deceased,  nor  any  other  fact  or  circumstance,  produced 
at  that  time  the  degree  of  passion  herein  defined  as  being  necessary 
to  reduce  a  homicide  to  the  degree  of  manslaughter,  but  that  in 
the  absence  of  and  without  any  such  passions,  and  not  in  his  self- 
defense,  defendant  kicked  the  deceased,  with  the  intention  of  bring- 
ing on  a  difficulty,  for  the  purpose  of  killing  the  deceased  in  such 
a  difficulty,  or  inflicting  serious  bodily  harm  upon  him,  and 
that  during  such  difficulty  defendant,  in  pursuance  of  such  inten- 
tion, if  any,  did  shoot  and  kill  deceased,  then  the  homicide  would 
not  be  manslaughter,  but  would  be  murder;  and,  if  you  find  such 
was  the  case, — ^that  is,  that  such  was  the  state  of  facts,  and  such 
was  the  state  or  condition  of  defendant's  mind,  and  such  was  the 
intention  of  defendant  at  the  time  he  kicked  deceased, — then  the 
killing  would  not  be  manslaughter,  but  would  be  murder,  no  odds 
to  what  extremity  defendant  may  have  been  reduced  during  the 
progress  of  the  difficulty,  and  no  odds  what  passion  may  have  been 
aroused   during  the  difficulty.^" 

§  3088.  Provocation — Mere  Threats  Not  SuflBlcient.  (a)  The  court 
instructs  the  jury  that  the  fact  of  one  person  having  threatened 
to  take  the  life  of  another  or  to  inflict  upon  him  a  great  bodily 
injury  will  not  excuse  the  person  threatened  in  becoming  the  ag- 
gressor, and  with  deadly  weapon  assaulting  the  person  making  such 
threats,  and  that  although  the  jury  may  believe  from  the  evidence 
that  A.,  in  his  lifetime,  had  made  threats  to  take  the  life  of  the 
prisoner  or  to  so  inflict  upon  him  great  bodily  harm,  the  fact  of 
making  such  threats  towards  the  prisoner  will  not  justify  a  verdict 
of  acquittal,  unless  the  jury  further  find  that,  at  the  time  the  said 
A.  was  shot,  he  was  making  overt  acts  towards  the  prisoner,  in- 
dicative of  an  intention  to  carry  such  threats  into  immediate  execu- 
tion, and  that  by  reason  of  such  threats  and  overt  acts,  he  (the 
prisoner)  believed  that  it  was  necessary  then  and  there  to  shoot  with 
a  deadly  weapon  the  said  A.,  in  order  to  save  his  (the  prisoner's) 
life,  or  to  protect  him  from  great  bodily  harm.^^ 

(b)     A  person  charged  with  murder,  who  seeks  to  justify  himself 
on  the  ground  of  threats  against  his  own  life,  is  permitted  to  intro- 
duce evidence  of  such  threats  so  made,  but  the  same  should  not  be 
'  garded  as  affording  a  justification  for  the  killing  or  offense,  unless 

89— McComas  v.  State,  —  Tex.  Cr.  90— Fossett  v.   State.   41  Tex.   Cr. 

App.    — ,    81    S.    W.    1212,    affirming  App.   400,    55  S.   W.   497   (500). 

conviction  of  murder  in  second  de-  91— State  v.  Staley,  45  "W.  Va.  792, 

gree.  32  S.  E.  198  (199). 


§  3089.]  CRIMINAL—HOMICIDE— PROVOCATION.  1963 

it  is  shown  that  at  the  time  of  the  killing,  the  person  killed  by  some 
act  then  done  manifested  an  intention  to  execute  the  threats  so 
made  or  reasonably  appeared  to  defendant  to  be  doing  so.^- 

(c)  Mere  words  or  menaces,  no  matter  how  aggravating  or  abu- 
sive, or  profane  or  insulting,  do  not  of  themselves  constitute  a  prov- 
ocation for  the  commission  of  the  crime  of  murder  in  any  degree. ^^ 

§  3089.  Violent  Passion  Caused  by  Insulting  Language  May  Re- 
duce Grade  of  Homicide,  (a)  The  court  instructs  the  juiy  that  if 
you  believe  and  find  from  the  evidence  that  in  the  county  of  Cape 
Girardeau  and  state  of  Missouri,  at  any  time  before  the  filing  of 
the  indictment  herein,  defendant  struck  A.  K.  with  a  large  club, 
the  same  being  a  dangerous  weapon,  inflicting  upon  him  a  mortal 
wound,  from  which  said  mortal  wound  the  said  A.  K.  within  a  year 
thereafter,  at  the  county  of  Cape  Girardeau  and  state  of  Missouri, 
died,  and  that  the  defendant  inflicted  said  blow  while  he  was  in  a 
violent  passion  suddenly  aroused  by  insulting  or  by  abusive  lan- 
guage spoken  by  deceased  to  him,  then  such  killing  was  not  done 
with  deliberation;  but  although  the  defendant  may  have  struck  the 
blow  while  in  a  violent  passion  suddenly  aroused  by  insulting  or 
abusive  words  spoken  to  him  by  the  deceased,  yet  if  such  killing 
was  done  willfully,  premeditatedly,  and  of  his  malice  aforethought, 
as  explained  in  these  instructions,  defendant  is  guilty  of  murder  in 
the  second  degree.^* 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  defendant  struck  and  killed  A.  while  he  (the  de- 
fendant) was  in  a  violent  passion,  suddenly  aroused  by  opprobrious 
epithets  or  abusive  words  spoken  by  A,  to  defendant,  then  such 
striking  and  killing  was  not  done  with  deliberation,  and  was  not 
murder  in  the  first  degree;  but,  if  not  done  in  self-defense,  such  a 
killing  of  A.  by  defendant  in  a  passion  aroused  by  such  opprobrious 
epithets,  willfully,  premeditatedly  and  of  his  malice  aforethought, 
was  murder  in  the  second  degree.^^ 

92— Karr   v.    State,    106   Ala.   1,   7  They  more  naturally  and  properly 

So.   328  (329).  refer  to  words  and  verbal  threats." 

93— Lynch  v.  People,  33  Colo.  12S,  But    menaces    along    with    threats 

79    Pac.    1015.  have   often    justified    killingr   as    in 

"The     lexicographers     and     law-  self-defense, 

writers  regard  'menace'  as  synony-  94— Approved  as  one  of  a  series, 

mous  with  'threat'.  Webster;  Bou-  State  v.   Kinder,   184  Mo    276    83  S 

vier  p.    397;    Black,    767,    1   McClain  W.   964. 

on    Criminal    Law   §730;     Kerr    on  95 — State  v.  Gartrell,  171  Mo.  489, 

Homicide    §  171.     It     doubtless    has  71   S.   W.   1045   (1052). 

other  meanings.  We  are  of  opinion  "In  a  word,  the  circuit  court  held 

that    it    was    used    in    this    instruc-  that  mere  words,  however  opprob- 

tion  as  synonymous  with  'threat  by  rious   and   insulting,    would    not    be 

word  of  mouth.'     This  is  apparent  such  a  lawful  or  reasonable  provo- 

from  the  use  of  the  preceding  word  cation   as   would   reduce   the  homi- 

'mere'  and  the  immediately  follow-  cide  to  manslaughter  in  the  fourth 

in?  Tihrase   'no  matter  how  aggra-  degree,  but  only  reduces  the  grade 

vating  or  abusive  or  profane  or  in-  of   the   offense   to    murder    in     th« 

suiting.'    'Aggravating'  might  char-  second  degree.  Unquestionablv  this 

acterize  an  overt  act,  but  it  is  not  has   been   the   general   rule   in   this 

so   upual   to  speak  of  an  overt   act  state  for  many  years." 
as   'aibusive,   profane  or   insulting.' 


1964  FORMS  OF  INSTRUCTIONS.  [§3090. 

§  3090.  Provocation — If  Insufficient,  Manslaughter.  If  a  man 
takes  the  life  of  his  fellow  man  under  sudden  heat  and  passion,  upon 
insufficient  legal  provocation,  no  matter  how  terrible  the  provocation, 
a  juiy  is  not  acting  within  the  law,  but  is  acting  in  defiance  of  and 
against  the  law  if  it  acquits  that  man.  It  must  convict  such  a  man 
at  least  of  manslaughter  and  not  of  murder.^'' 

§  3091.  Slap  with  Hand  Not  Sufficient  Provocation,  When.  If 
you  believe  from  the  evidence  that  the  defendant  used  opprobrious 
words  to  the  deceased,  and  that  the  deceased  resented  them  by  slap- 
ping or  striking  the  defendant  with  his  hand,  I  charge  you  that  such 
blow  would  not  be  considered  as  such  considerable  provocation  as 
would  rebut  the  presumption  of  malice  on  the  part  of  the  defendant 
in  killing  the  deceased,  provided  you  shall  believe  that  the  striking 
was  not  disiDroportioned  to  the  insult  offered,  if  any.  As  to  whether 
the  words  were  opprobrious  as  used,  if  used,  and  as  to  whether, 
under  the  circumstances  as  testified  to  by  the  witnesses,  the  striking, 
if  any,  was  dispropoi'tioned  to  the  insult  offered,  if  any,  are  ques- 
tions for  your  consideration  solely.  If  without  adequate  provoca- 
tion a  person  strikes  another  with  a  deadly  weapon, — one  likely  to 
produce  death, — and  kills,  although  he  has  no  previous  malice 
against  the  party,  he  is  to  be  presumed  to  have  had  such  malice  at  the 
moment,  from  the  circumstances,  and  is  guilty  of  murder."'^ 

§  3092.  Provocation — Past  Conduct  of  Deceased  as  Evidence  of. 
While  it  is  true,  the  provocation  must  arise  at  the  time  of  the  com- 
mission of  the  offense,  and  the  passion  must  not  be  the  result  of  a 
former  provocation,  yet  in  passing  upon  the  sufficiency  of  a  provo- 
cation, and  on  the  effect  of  the  passion  upon  the  mind  of  the  de- 
fendant, the  past  conduct  of  the  deceased  towards  the  defendant, 
his  threats,  if  any,  and  bearing, — in  fact,  all  the  facts  and  circum- 
stances of  the  case — should  be  considered  by  the  jury.  An  act 
standing  alone  may  not  be  sufficient  provocation,  but  may  be  ample 
when  it  is  one  of  a  series  of  similar  acts.^^ 

§  3093.  Provocation — Jury  to  Determine  Adequacy  of.  It  is  your 
duty,  in  determining  the  adequacy  of  the  provocation,  if  any,  to 
consider  in  connection  therewith  all  the  facts  and  circumstances  in 
evidence  in  this  ease;  and  if  you  find  that  by  reason  thereof  the  de- 
fendant's mind  at  the  time  of  the  killing  was  incapable  of  cool  re- 
flection, and  that  said  facts  and  circumstances  were  sufficient  to 
produce  such  state  of  mind  in  a  person  of  ordinaiy  temper,  then  the 
proof  as  to  the  sufficiency  of  the  provocation  satisfies  the  require- 
ments of  the  law.  And  so,  in  this  case,  you  will  consider  all  the 
facts  and  circumstances  in  evidence,  in  deteiTuining  the  condition  of 
the  defendant's  mind  at  the  time  of  the  alleged  killing,  and  the 
adequacy  of  the  cause,  if  any,  producing  such  condition."'' 

96— State  v.  Byrd,  52  S.  C.  480,  30  99— Swanner  v.  State,  —  Tex.  Cr. 

S.    K.    482    (483V  '^m,           r,S  S.  W.  72  (74);   Chism  v. 

97— Hayne    v.    State,    99    Ga.    212,  Stute.  —  Tex.  Cr.  App.  — ,  78  S.  W. 

25   R.    E.    307    (308).  949  (950). 

98— State  v.  Scossoni,  48  La.  1464, 
21    So.    32   (34). 


§3094.]  CRIMINAL— HOMICIDE— PROVOCATION.  1965 

§  3094.     Provocation — Standard   for  Determining   Sufficiency.      In 

determining  whether  the  provocation  is  suthcient  to  reduce  homicide 
to  manslaughter,  ordinary  human  nature,  or  the  average  of  men 
recognized  as  men  of  fair  average  mind  and  disposition  should  be 
taken  as  the  standard,  unless  the  person  whose  guilt  is  in  question 
be  shown  to  have  some  particular  weakness  of  mind  or  infirmity  of 
temper,  not  arising  from  wickedness  of  heart  or  cnielty  of  disposi- 
tion.ioo 

§  3095.    Provocation— Heat    of   Blood— Cooling   Time,      (a)      The 

object  of  the  law  is  to  have  passion  controlled  and  subdued,  and  not 
permit  it  to  become  the  excuse  or  palliation  of  crime.  To  mitigate 
the  offense  to  manslaughter,  the  facts  must  show  that  the  act  was 
done  in  the  excitement  of  passion;  it  must  appear  that  the  killing 
resulted  from  passion  or  heat  of  blood  produced  by  a  reasonable 
provocation.  It  is  not  every  provocation  that  will  reduce  a  killing 
from  murder  to  manslaughter.  The  provocation  must  be  of  such  a 
character,  and  so  close  upon  the  act  of  killing,  that  for  the  moment 
the  prisoner  could  be  considered  as  not  master  of  his  own  under- 
standing. If  such  an  interval  of  time  elapsed  between  the  provoca- 
tion and  the  act  of  killing  as  is  reasonably  sufficient  for  reason  to 
resume  its  sway,  the  offense  is  not  mitigated  to  manslaughter.  I 
have  said  the  provocation  must  be  reasonable,  and  must  be  recent, 
and  the  act  of  killing  must  be  done  in  a  sudden  transport  of  passion. 
Whether  the  provocation  was  reasonable,  and  whether  sufficient  time 
elapsed  between  the  provocation  given  and  the  act  of  killing  for  the 
accused  to  subdue  or  control  his  passion,  are  questions  of  fact,  to  be 
determined  by  the  juiy  on  a  consideration  of  the  circumstances  of 
the  particular  case  before  them.^ 

(b)  The  provocation  sufficient  to  reduce  an  intentional  killing 
from  murder  to  that  of  manslaughter  must  arise  at  the  time  of  the 
commission  of  the  offense,  or  before  the  passion  of  the  slayer  had 
time  to  cool.  The  provocation  by  deceased  must  be  the  direct  and 
controlling  cause  of  the  passion,  and  it  must  be  such  as  naturally 
and  instantly  to  produce  in  the  minds  of  persons  ordinarily  con- 
stituted the  highest  degree  of  exasperation,  rage,  sudden  resent- 
ment, or  terror,  rendering  the  mind  incapable  of  cool  reflection. 
The  law  requires  two  things:  First,  there  should  be  provocation; 
and,  second,  the  blow  must  be  clearly  traced  to  the  passion  arising 
therefrom, — and  that  the  provocation  must  be  such  as  would  stir 
the  resentment  of  a  reasonable  man  [ordinaiy  man].- 

100— People  v.  Borgetto,  99  Mich,  being  in   the    substitution    of    the 

336,  58  N.  W.  328  (329).  words    an    'ordinary    man'    for    the 

1 — Brown  v.   State,  62  N.   J.  Law  words    a    'reasonable    man.'      Here. 

666,  42  Atl.   811   (827).  again,  we  think  that  the  departui-e 

2 — State    v.    Walker,    50    La.    420,  was  not  prejudicial  to  the  accused. 

23  So.  967  (969).  If  there  be  any  substantial  differ- 

The  court  said:  ence    between    a    'reasonable    man' 

"These     two     propositions     were  and   an    'ordinary   man,'    or  a    man 

given   by  the   district  court   to  the  of  ordinary  reason,   influenced  and 

jury,  the  only  deviation  therefrom  governed   in    his   conduct   by   such 


1966 


FORMS  OF  INSTRUCTIONS. 


[§  3096. 


§  3096.     Cooling  Time — Facts  Held  to  Constitute — Question  of  Law. 

(a)  The  court  charges  you  that  the  act  must  be  the  result  of  pas- 
sion, and  if  you  believe  from  the  evidence  that  the  deceased  had  con- 
nection with  (I  might  say  as  near  as  I  can  express  it,  the  relation- 
ship) the  niece-in-law  of  the  defendant,  and  he  was  informed  of  that 
fact,  and  he  had  time  to  think,  and  did  think,  and  that  his  mind 
was  in  a  cool  state,  then,  gentlemen  of  the  jury,  the  court  will  charge 
you  as  a  matter  of  law  that  there  would  be  cooling  time  absolutely, 
and  it  would  constitute  murder,  and  not  manslaughter.^ 

(b)  Applying  these  principles  to  the  ease  at  bar,  the  court 
charges  you  as  a  matter  of  law,  as  applied  to  the  facts  of  this  case, 
that  the  defendant  did  have  cooling  time,  and  that  if  he  was  sane 
at  the  time  of  the  homicide,  the  offense,  if  any  was  committed,  would 
not  be  manslaughter  but  murder.* 

DYING  DECLARATIONS. 

§  3097.  Dying  Declaration — Why  it  is  Admissible — Weight  of,  for 
Jury,  (a)  You  are  instructed  that  in  prosecutions  for  murder  or 
homicide  the  dying  statements  or  declarations  of  the  person  with 
whose  murder  the  accused  stands  charged,  when  material,  and  made 


passions  and  resentments  as  are 
found  in  the  'average'  man,  we 
think  the  standard  adopted  more 
liberal  than  the  one  contended  for. 
The  term  used  conveys  to  the 
everyday  juror  a  much  clearer  and 
better  idea  of  the  standard  of  man 
called  for  by  law  than  the  one 
which  it  is  desired  to  replace  it 
by." 

3— Jarvis  v.  State,  138  Ala.  17,  34 
So.  1025  (1030),  citing  Stillwell  v. 
State,  107  Ala.  21,  19  So.  322;  Mc- 
Neill v.  State,  102  Ala.  121,  15  So. 
352,  48  Am.  St.  312;  Felix  v.  State, 
18  Ala.  720,  and  declining  to  follow 
dictum  that  cooling  time  is  a  ques- 
tion of  fact  for  the  jury  in  Hooks 
v.   State,  99  Ala.  166,  13  So.  767. 

4— Ragland  v.  State,  125  Ala.  12, 
27   So.   983   (987). 

"What  constitutes  a  sufficiency 
of  cooling  time,  or  of  provocation, 
is  necessarily  a  question  of  law, 
and  not  of  fact,  the  court  being  re- 
quired to  decide  it  prelim'inarily  to 
the  admission  or  exclusion  of  evi- 
dence offered  in  mitigation,  anal- 
ogous to  the  rule  governing  in 
cases  of  homicide.  2  Bish.  Cr. 
Law,  pars.  712,  713,  and  authorities 
cited;  Felix  v.  State,  18  Ala.  720; 
Stillwell  V.  State,  107  Ala.  16,  19  So. 
322.  If  the  defendant  had  shot  the 
deceased  immediately  upon  hear- 
ing of  the  wrong  to  his  daughter, 
and   in   the     heat    of    passion    en- 


gendered by  the  fact  coming  to  his 
knowledge,  all  the  facts  would 
have  been  admissible  to  eliminate 
the  element  of  malice  from  the  act, 
by  referring  it  to  passion  which 
had  not  had  time  to  cool,  thus  re- 
ducing the  homicide  (under  the 
plea  of  not  guilty)  to  manslaught- 
er. Rogers  v.  State,  117  Ala.  14, 
22  So.  666;  Robinson  v.  State,  108 
Ala.  16,  18  So.  732;  McNeill  v.  State, 
102  Ala.  126,  15  So.  352,  48  Am.  St. 
Rep.  17;  Hooks  v.  State,  99  Ala.  166, 
13  So.  767.  In  the  last  cited  case, 
appears  the  expression  to  the  ef- 
fect, that  cooling  time  is  a  ques- 
tion of  fact  for  the  determination 
of  the  jury.  This  is  contrary  to 
the  generally  received  doctrine  on 
the  subject,  and  to  that  extent  that 
decision    must   be    disapproved." 

In  Olds  V.  State,  44  Fla.  452,  33 
So.  296  (298-300),  the  supreme  court 
said  that  the  giving  of  the  follow- 
ing charge  was  not  error,  in  fact, 
that  it  was  too  favorable  to  de- 
fendant: 

The  fact  that  the  defendant  may 
have  been  at  the  time  of  the  kill- 
ing under  the  influence  of  anger  or 
resentment  would  not  of  itself  be 
sufficient  to  preclude  the  idea  of 
premeditation  unless  the  degree  of 
feeling  was  such  as  to  cloud  his 
senses  or  to  impair  his  reason. 
And  not  even  then  would  it  be  suf- 
ficient if,   subsequently   to   forming 


§  3097. 


HOMICIDE— DYING  DECLARATIONS. 


1967 


under  the  sense  of  impending  death,  are  admissible  in  evidence. 
Such  declarations  are  made  when  the  party  making  them  is  at  the 
point  of  death,  and  when  every  hope  of  the  world  is  gone,  and  when 
eveiy  motive  for  falsehood  is  silenced,  and  the  mind  is  induced  by 
•the  most  powerful  considerations  to  speak  the  truth.  The  situation, 
in  law,  is  considered  as  creating  an  obligation  equal  to  that  which  is 
imposed  by  an  oath  administered  in  a  court  of  justice. 

(b)  You  are  instructed  that  the  declarations  of  X.  offered  in 
evidence  in  this  case  through  certain  witnesses  were  admitted  under 
such  rule  of  law.  But  the  truth  or  falsity  of  such  declarations  of 
X.,  and  the  degree  of  accuracy  or  inaccuracy  in  the  recital  thereof 
by  the  witnesses,  are  matters  for  you  to  weigh  under  the  same  tests 
as  apply  to  other  witnesses,  considering  all  of  the  circumstances  in 
evidence  surrounding  each  case  and  each  witness.^ 


the  design,  and  before  executing  it, 
sufficient  time  elapsed  for  an  or- 
dinarily reasonable  man  to  have 
regained  his  self  possession.  Nor 
would  such  anger  be  sufficient  to 
exclude  the  idea  of  premeditation 
if  there  was  not  such  provocation 
for  it  as  would  be  calculated  to  ex- 
cite such  anger  or  passion  as 
might  obscure  the  reason  of  an  or- 
dinarily reasonable  man  in  the 
same  situation  and  under  the  same 
circumstances. 

The  court  said: 

"What  design  is  meant?  If  it  be 
the  premeditated  design  to  kill,  re- 
ferred to  in  the  first  part  of  the 
charge,  then  time  to  regain  self- 
possession  would  play  no  part.  A 
killing  from  a  premeditated  design 
— that  is  with  the  formed  intention 
to  kill — with  full  consciousness  of 
the  mind's  purpose — would  be 
murder  in  the  first  degree  without 
reference  to  time  to  regain  self- 
possession,  for  the  reason  that  the 
party  would  be  already  sufficiently 
self-possessed  to  form  the  inten- 
tion to  kill.  If  the  jury  took  this 
view  of  the  charge,  it  could  not 
have  been  detrimental  to  the  ac- 
cused, because  it  gave  him  the 
benefit  of  the  additional  fact  to  be 
found  against  him,  entirely  imma- 
terial, that  sufficient  time  had  to 
elapse  after  forming  the  premedi- 
tated design  for  an  ordinarily  rea- 
son ble  man  to  have  regained  self- 
possession.  If  the  design  mentioned 
ha'^'  reference  to  a  purpose  to  kill 
under  the  impulse  of  anger  or  pas- 
sion produced  by  a  sufficient  provo- 
cation, then  the  rule  as  stated  as 
to  cooling  time  would  apply." 

The  following  Instruction  is  an 
extract    from   the   charge   in   State 


v.  Timberlake,  50  La.  An.  308,  23 
So.    276    (278): 

It  is  essential  that  the  excited 
and  angry  condition  of  the  party 
committing  the  act,  entitling  him 
to  a  milder  consideration  of  the 
law,  should  be  superinduced  by 
some  insult,  provocation  or  injury 
which  would  instantly  produce  in 
the  minds  of  ordinary  men,  situat- 
ed as  the  prisoner  was,  the  highest 
degree  of  exasperation.  •  *  •  The 
law  assigns  no  limits  within  which 
cooling  time  may  be  said  to  take 
place;  every  case  must  depend  up- 
on its  circumstances;  but  a  time 
within  which  an  ordinary  man  in 
like  circumstances  would  have 
cooled  may  be  said  to  be  a  reason- 
able time. 

The  court  in  comment  said: 

"Considering  the  charge  as  to 
manslaughter  as  a  whole,  it  must 
be  held  a  correct  exposition  of  the 
law.  The  selection  of  passages  here 
and  there  for  criticism  and  animad- 
version is  not  favored,  and  a  ver- 
dict will  not  be  disturbed  on  a 
merely  inaccurate  or  incomplete 
instruction,  as  embodied  in  the 
sentences  excepted  to,  when,  from 
the  entire  charge  on  that  branch 
of  the  law,  a  correct  view  and  ex- 
planation of  the  subject  is  given. 
To  justify  relief,  the  isolated  pas- 
sages brought  to  our  attention 
must  amount  to  a  positive  mis- 
statement of  the  law.  State  v.  Ar- 
dion,  49  La.  An.  1145.  22  So.  620,  62 
Am.  St.  Rep.  678;  State  v.  Fergu- 
son, 37  La.  An.  51;  State  v.  Porter, 
35  La.    An.   1159." 

5— Kastner  v.  State,  58  Neb.  767, 
79  N.   W.   713,    (715). 

"It  is  admitted,  in  the  brief  of 
counsel  for  defendant,  that  the  first 


1968  FORMS  OP  INSTRUCTIONS.  [§  3097. 

(c)  The  court  instructs  the  juiy  that  the  statement  read  to  you 
as  a  dying  declaration  of  E.  should  be  received  by  you  as  such  dec- 
claration;  but  because  it  is  a  dying  declaration  you  are  not  neces- 
sarily bound  to  believe  it,  but  you  will  give  it  that  weight  which  you 
think  it  ought  to  have,  when  considered  in  connection  with  all  the 
other  facts  and  circumstances  in  evidence.^ 

(d)  A  statement  by  one  who  has  been  shot,  respecting  who  it 
was  that  inflicted  the  wound,  is  admissible  as  a  dying  declaration  if 
made  at  a  time  w^hen  he  did  not  expect  to  survive  the  injuiy,  but  is 
of  no  more  weight  than  if  the  deceased  was  present  and  testified. 

(e)  If  you  believe  from  the  evidence  that  the  deceased,  after  he 
was  shot,  made  a  statement  as  to  who  shot  him,  and  under  what  cir- 
cumstances the  shot  was  fired,  and  that  at  the  time  he  made  such 
statement  he  believed  he  would  die  from  the  effects  of  said  shot,  and 
entertained  no  hope  of  recovery,  then  you  will  give  such  statements, 
if  proven,  as  much  weight  as  if  he  were  duly  sworn,  present  and 
testifying  in  the  case.'^ 

(f)  Whenever  a  party  has  been  injured, — shot,  for  instance, — 
and  he  is  in  extremis,  if  he  manifests  an  apprehension  of  impending 
death,  if  he  expresses  a  consciousness  that  he  will  soon  appear  at 
the  bar  of  his  Maker,  that  he  will  soon  die,  then  the  law  allows  that 
person  to  make  a  statement  of  the  circumstances  under  which  he 
received  his  wound,  and  that  is  known  in  law  as  a  ''d3dng  declara- 
tion." Why  is  that  allowed?  It  is  upon  the  presumption  in  law 
that  a  man  who  is  conscious  that  he  is  soon  to  face  his  God  is  under 
the  same  sanction  and  obligation  to  speak  the  truth  that  a  witness 
would  be  upon  the  stand  under  oath;  and  hence,  under  those  circum- 
stances, that  dying  declaration  is  competent  and  admissible  as  evi- 
dence, although  it  is  an  ex  parte  expression  on  the  part  of  the  dying 
man.  As  to  the  effect  of  it,  that  is  a  question  entirely  for  you.  I 
have  held  that  a  portion  of  this  paper  purporting  to  be  the  dying 
declaration  of  the  deceased  is  admissible;  it  is  for  you  to  say  what 
weight  you  will  attach  to  it.^ 

part  or  paragraph  of  this  instruc-  "It  will  be  noted   that  the  court 

tion    correctly    enunciates    the   law  was  careful  to   avoid  the  error   of 

relative  to   dying  declarations,   but  instructing     the     jury     that     such 

it    is    strenuously    urged    that    the  dying  declarations  should  have  the 

last  portion  of  the  instruction  is  er-  same  degree  of  credit  as  the  testi- 

roneous,  because  it  singled  out  the  mony  of  the  deceased  would  have 

testimony    concerning    the    subject  if  he  had  testified  under  oath  as  a 

covered  by  this  part  of  the  charge,  witness.     This     court    in     State    v. 

The  language  of  the  court  below  is  Vansant,  80  Mo.  67,  repudiated  the 

not  susceptible  of  such  interpreta-  instruction  given  in  Green  v.  State, 

tion  placed  thereon  by  counsel.  The  13   Mo.    382;    and    in   giving   its   in- 

testimony  of  no  witness  is  singled  struction    the    trial    court    followed 

out   or  given  undue  prominence  in  State  v.  McCanon,  51  Mo.  160;  and 

the  instruction,   but  the  jury  were  State  v.  Vansant,  supra."     But  see 

properly    advised    that     the     testi-  Allen   v.    State,    infra, 

mony  relative  to  dying  declarations  7— Allen  v.    State,   70  Ark.   337.   68 

was  to  be  weighed  under  the  same  S.  W.  28.     But  see  State  v.  Parker, 

rules    or   tests   applicable   to   other  supra, 

testimony  "  8— State  v.   Petsch,   43   S.    C.   132, 

6— State 'v.    Parker,    172    Mo.    191,  20  S.   E.   993   (996). 
72  S.  W.  650  (654). 


§3098.]  HOMICIDE— DYING  DECLARATIONS.  1969 

§  3098.  Dying  Declarations— Weight  of  for  Jury— What  May  Be 
Taken  into  Consideration.  The  court  instructs  the  jury  that  to  them 
alone  belong"s  the  function  of  determining  what  weight  shall  be  given 
to  the  dying  declarations  of  the  deceased,  if  any  wei'e  made  by  him. 
In  weighing  the  declarations,  the  jury  should  take  into  consideration 
the  facts  that  the  defendants  in  this  case  were  not  present  in  person 
or  by  attorney  when  the  statements  were  made,  and  that  there  was 
no  opportunity  for  cross-examination  of  the  deceased,  and  that  there 
was  no  opportunity  for  the  jury  to  observe  the  manner  of  the  de- 
ceased at  the  time  he  made  the  statement,  so  as  to  detect  malice  or 
feeling  or  revenge  or  other  improper  motive  that  may  have  influenced 
him,  and  that  the  deceased  "was  not  subject  to  prosecution  for  perjury 
if  he  made  false  statements.  And  if  the  jury  find  from  the  evidence 
that  the  deceased  had  at  other  times  made  statements  inconsistent 
with  his  dying  declarations,  these  contradictory  statements  should 
be  considered  by  the  jury  in  weighing  the  djnng-  declarations,  and 
especially  if  such  contradictoiy  statements  were  made  at  a  time  when 
his  blood  was  cool  or  his  mind  unaffected  by  passion  or  feelings  of 
revenge.^  ^ 

§  3039.     Dying    Declarations,    Foundation    for.      (a)      Dying   dee- 1. 
larations,  made  by  any  person  in  the  article  of  death,  who  is  con-f 
scious  of  his  condition,  as  to  the  cause  of  his  death  and  the  person ; 
who  killed  him,  are  admissible  in  evidence  in  a  prosecution  for  the 
homicide. 

(b)  It  is  now  for  you  to  determine,  first,  whether  the  evidence 
sufficiently  showed  that  he  was  conscious  of  his  approaching  death, 
and  that  his  death  was  really  approaching,  to  authorize  the  admis- 
sion of  said  declaration,  and,  if  not,  you  should  disregard  the  dying 
declaration  altogether;  but,  if  you  think  such  evidence  was  sufficient 
for  the  introduction  of  such  declaration  under  the  rules  as  I  have 
given  you,  you  should  then  consider  such  declaration  as  evidence  in 
the  ease,  together  with  the  other  evidence.^" 

§  3100.  Dying  Declaration  to  Be  Received  with  Caution.  Dying 
declarations  are  admissible  from  the  necessities  of  the  ease,  but 
they  should  be  received  with  caution,  for  the  reason  that  the  declar- 
ant has  not  been  administered  an  oath,  and  an  opportunity  for  cross- 
examination  has  not  been  afforded  the  defendant,  and  that  the  de- 
clarant might  be  influenced  against  the  defendant.  And  for  the 
further  reason  that  the  physical  condition  of  the  declarant  might  ren- 
der the  statement  more  or  less  reliable.  Circumstances  surrounding 
the  declaration  should  be  weighed  same  as  those  surrounding  other 
evidence.^^ 

9— State  V.  Hendricks,  172  Mo.  654.  11— State  v.  Mayo,  42  Wash,  540, 
73   S.    W.   194    (198).  85   Pac.   251    (255). 

10 — Anderson  v.  State,  117  Ga.  "This,  or  an.  instruction  of  sim- 
255  43  S.  E.  835  (836),  12  Am.  Cr.  ilar  import  should  have  been 
Rep    241.  given  State  v.  Eddon,  8  Wash.  292, 

36  Pac.  139." 

124 


CHAPTER  XCIX. 

CRIMINAL— HOMICIDE— SELF-DEFENSE. 

See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


ele- 


of. 


§  3101.  Self-defense— Essential 
ments. 

§  3102.  Self-defense  —  Doctrine 
stated. 

§  3103,  Self-defense— Law  of,  stated. 

§  3104.  Law  of  necessity — Reason- 
able cause  to  apprehend 
immediate  personal  injury. 

§  3105.  What  is  sufflcient  and  what 
is  insufficient  to  show  self- 
defense. 

§  3106.  Belief  of  danger  must  be 
reasonable. 

§  3107.  Acting  on  reasonable  belief 
of  great  bodily  harm. 

§  3108.  If  circumstances  are  insuf- 
ficient to  induce  a  reason- 
able and  well  grounded  be- 
lief of  danger,  defendant  is 
guilty  of  murder. 

§  3109.  Real  or  apparent  danger. 

S  3110.  Danger  may  not  be  real- 
May  act  upon  appearances. 

§  3111.  Defendant  may  safely  act 
on  appearances,  even 
where  they  turn  out  to  be 
false. 

§  3112.  Self-defense— Danger  must 
seem  actual,  present  and 
urgent. 

§  3113.  Apprehension  of  danger — 
Pei-son  must  act  upon  hon- 
est  belief. 

§  3114.  Defendant  need  not  believe 
death  of  assailant  neces- 
sary. 

§  3115.  Deceased,  acting  together 
with  other  persons,  as- 
saulting  defendant. 

§  3116.  Deceased  assaulting  defend- 
ant with  deadly  weapon. 

§  3117.  Deceased  attempting  or  pur- 
porting to  draw  weapon. 

§  3118.  Apparent  danger — Deceased 
shooting  first. 

S  3119.  Must  employ  all  reasonable 
means  to  avert  the  neces- 
sity of  killing. 

§  3120.  Resistance  must  be  in  pro- 
portion to  the  danger 
which  is  apprehended — 
Honestly  believed  he  was 
in  danger  of  life  or  great 


harm — Reasonable 


bodily 
doubt. 

§  3121.  No  more  force  to  be  used 
than  the  circumstances 
reasonably  indicate  to  be 
necessary. 

§  3122.  Judging  defendant  from  his 
standpoint. 

§  3123.  Possession  by  deceased  of 
deadly  weapon. 

S  3124.  Self-defense — Blow  need  not 
actually  have  been  struck 
— Attack  with  knife. 

§  3125.  Killing  in  revenge  after  re- 
pelling assault. 

§  3126.  Defendant  provoking  affray. 

§  3127.  Commencing  the  difflculty — 
Several  persons  on  each 
side. 

§  3128.  Defendant  seeking  interview 
with  deceased  with  malice 
and  hatred  in  his  heart  and 
inducing  deceased  to  as- 
sault him. 

§  3129.  Defendant  seeking  the  meet- 
ing to  provoke  difflculty — 
Circumstances  must  be 
such  as  to  render  killing 
unavoidable. 

§  3130.  Defendant  attacking  brother 

§  3131.  Self-defense— Defendant,  if 
at  fault,  cannot  plead. 

5  3132.  Plea  of  self-defense  barred 
by  defendant's  agreeing  to 
fight. 

§  3133.  Aggressor  cannot  plead  self- 
defense. 

§  3134.  When  aggressor,  abandon- 
ing conflict,  may  avail  of 
plea  of   self-defense. 

5  3135.  Aggressor  is  not  necessarily 
the  person  who  strikes  the 
first  blow  or  makes  the 
first  demonstration  to 
strike — Question  of  fact. 

§  3136.  State  must  prove  its  con- 
tention that  defendant  be- 
gan the  fight  beyond  a 
reasonable  doubt. 

§  3137,  Self-defense— Not  available 
to  one  who  kills  through 
mere  cowardice. 

1970 


§  3101.]  CRIMINAI^-HOMICIDE— SELF-DEFENSE. 


1971 


§  3138.  Self-defense— Not      available 
to     one     who     kills     from 
previously    formed    design. 
5  3139.  Insulting-  words  by  defendant 
would   not   deprive   him   of 
self-defense. 
§  3140.  Justification— That      defend- 
ant and  deceased  were  en- 
gaged in  unlawful  occupa- 
tion immaterial. 
§  3141.  Malice    in   the   slayer   imma- 
terial— When. 
§  3142.  What  the  jury  may  consider 
in  determining  whether  the 
blows  or  shots  were  given 
or  fired   in   self-defense. 
§  3143.  Quarrelsome     disposition     of 

deceased. 
§  3144.  Physical  power    of  deceased 

may  be  considered. 
§  3145.  Ill    will— Abuse- Threats. 
§  3146.  Threats,     without     effort     to 
carry   them     out,     will   not 
justify     killing — Overt     act 
necessary. 
§  3147.  Mere     fear     not     sufficient — 
Some   overt   act    required — 
W^hat  constitutes. 
S  3148.  Threats  with  acts  indicating 
an  intention  to  carry  them 
out. 
§  3149.  Previous  threats  may  be  con- 
sidered in  determining  who 
was      aggressor  —  Mutual 
threats. 
§  3150.  Threatening    language    used 
may  be  considered  as  evi- 
dence of  state  of  feeling  or 
who  was  the  aggressor. 
§  3151.  Prior  threats — Purporting  to 
draw     weapon — Reputation 
as  dangerous    and    violent 
man. 
§  3152.  Uncommunicated         threats, 

admissible  when. 
§  3153.  Previous  n.alice  or  threats 
by  defendant  do  not  bar 
plea  of  self-defense  — 
Threats  a  question  of  fact. 
§  3154.  Mere    threat    of    arrest    not 

sufficient   provocation. 
§  3155.  Threats— Defendant     entitled 
to   a    separate    instruction 
as  to. 
§  3156.  Prisoner       shooting       officer 

making  arrest. 
§  3157.  Self-defense,  available  where 
defendant   kills    an    officer 


in  ignorance    of    his   char- 
acter. 
§  3158.  Self-defense    against    rape. 
§  3159.  Resisting     lawful     expulsion 

from  another's  house. 
§  3160.  No  duty  of  retreat,  when. 
§  3161.  Duty  of  retreat,   when  there 
is  any  reasonable  safe  way 
of  escape. 
§  3162.  Duty  of  retreat— Without  in- 
creasing danger  to  life,  etc. 
§  3163.  Attack  with  a  pistol,  no  duty 

of  retreat. 
§  3164.  Drawing    of    a    gun,    by    de- 
ceased,       defendant        not 
bound  to  flee. 
§  3165.  One    attacked     in     his    own 

dwelling  need  not  retreat. 
§  3166.  Burden    of    proof    as    to    re- 
treat. 
§  3167.  Aiming    at    aggressor,    acci- 
dentally killing  another. 
I  3168.  Trespass  by  deceased. 
§  3169.  The   right   to  continue  firing 

until  safe. 
§  3170.  Defendant     not     obliged     to 

wait — May  act  promptly. 
§  3171.  Self-defense      —      Defendant 
must  warn  before  killing  if 
practicable. 
§  3172.  Excusable  homicide  Defined — 
State  must  prove  homicide 
a  crime. 
§  3173.  The     assault     on     defendant 
need    not    have    been    felo- 
nious— Interfering   in    com- 
bat. 
§  3174.  Whether  the  court  may  dis- 
parage   plea     of     self-de- 
fense. 
§  3175.  Self-defense    —    Burden      of 

proof. 
§  3176.  Self-defense       —       Evidence 

equally  balanced   acquits. 
§  3177.  Self-defense— Series      of     in- 
structions      approved       in 
Missouri. 
§  3178.  Self-defense — Includes  saving 

the  life  of  another. 
§  3179.  Right  to  protect  and  defend 
another — Defense  of  parent. 
§  3180.  Killing  in  defense  of  defend- 
ant's son. 
§  3181.  Defendant    may    kill    in    de- 
fense of  person  or  property. 
§  3182.  When     killing    justifiable    in 

defense  of  property. 
§  3183.  Defense  of  habitation. 


§  3101.      Self-Defense — Essential   Elements.       (a)       The    essential 

elements  of  self-defense  are  these :  First^  tlie  defendant  must  be  free 
from  fault;  that  is,  he  must  not  say  or  do  anything  for  the  purpose 
of  provoking-  a  difficulty,  nor  must  he  be  disregardful  of  the  conse- 
quences in  this  respect  of  any  wrongful  word  or  act.    Second    there 


1972  FORMS  OF  INSTRUCTIONS.  [§  3101. 

must  be  a  present  impending  peril  to  life,  or  of  great  bodily  harm, 
either  real  or  apparent,  as  to  create  the  bona  fide  belief  of  an  exist- 
ing necessity.  Third,  there  must  be  no  convenient  or  reasonable 
mode  of  escape  by  retreat  or  declining  the  combat.^ 

(b)  Before  the  jury  can  acquit  the  defendant  on  the  ground  of 
self-defense,  three  essential  elements  must  concur:  First,  the  de- 
fendant must  be  without  fault  in  bringing  on  the  difficulty,  and  must 
not  be  disregardful  of  the  consequences,  in  this  respect  or  any  other 
wrongful  word  or  act.  Second,  there  must  have  existed  at  the  time, 
either  really  or  so  apparently  as  to  lead  a  reasonable  mind  to  the 
belief  that  it  actually  existed,  a  present,  imperious,  impending  neces- 
sity to  shoot,  in  order  to  save  himself  from  great  bodily  harm. 
Third,  and  there  must  have  been  no  other  reasonable  mode  of  escape 
by  retreat,  or  by  avoiding  the  combat  with  safety.^ 

(c)  Self-defense,  in  proper  cases,  is  the  right  of  every  person.  It 
may  be  resorted  to  by  anyone  who  is  violently  assaulted  by  another 
in  such  a  manner  as  to  cause  the  person  so  assaulting  in  good  faith 
to  believe  that  he  is  in  immediate  danger  of  either  being  killed  or  of 
receiving  great  bodily  harm  from  the  assailant,  and  that  the  killing 
of  the  assailant  appears  to  be  the  only  means  of  escaping  death  or 
great  bodily  harm.  In  ordinary  cases  of  one  person  killing  another 
in  self-defense,  it  must  appear  that  the  danger  was  so  urgent  and 
threatening  that,  in  order  to  preserve  his  own  life,  or  to  prevent  his 
receiving  great  bodily  injury,  the  killing  of  the  other  was  necessary, 
or  apparently  necessary;  and  it  must  also  appear  that  the  person 
killed  was  the  assailant,  or  that  the  slayer  in  good  faith  endeavored 
to  decline  further  combat  before  the  mortal  blow  or  injury  was  given. 
A.  bare  fear  of  being  killed  or  of  receiving  great  bodily  harm  is  not 
uifficient  to  justify  a  killing.  It  must  appear  that  the  circumstance*? 
were  sufficient  to  excite  the  fear  of  a  reasonable  person  similarly 
lituated,  and  the  defendant  acting  in  good  faith,  and  viewing  the 
ituation  and  circumstances  from  his  standpoint,  and  that  the  party 
ailing  really  acted  under  the  influence  of  such  fear,  and  not  in  a 
^pirit  of  revenge.  The  law  of  self-defense  is  a  law  of  necessity,  pure 
and  simple.  It  is  not  an  offensive  law,  but  defensive  law.  Before 
ihe  defendant  would  be  justified  in  killing  the  deceased,  he  must  be 
in  danger,  or  apparently  in  danger,  as  viewed  from  his  standpoint, 
of  either  losing  his  life  or  of  receiving  great  bodily  harm  at  the 
hands  of  the  deceased  at  the  place  and  at  the  instant  when  the  fatal 
shot  which  took  the  life  of  deceased  was  fired. ^ 

l_Stevens  v.  State,  138  Ala.  71,  35  Millor  v.   State,   107  Ala.  40,   19   So. 

So.  122  (124).  37  (38).     See  also  Sherrill   v.    State, 

2— Kilgore  v.  State,  124  Ala.  24,  27  138  Ala.  3,  35  So.  129  (131);  Jackson 

So.   4  (5).  v.    State,    94    Ala.    86,    10    So.    509; 

The    same    instruction    with    the  Hornsby  v.  State,  94  Ala.  55.  10  So. 

additional    word    "reasonably"    pre-  522;   Wilkins  v.    State,   98  Ala.  1,  13 

ceding-    "without    fault    in    brinp:ing  So.   312. 

on  the  difficulty,"  was  approved  in  .3— Williams  v.  U.   S.,  4  Ind.   Ter. 

269,  69  S.  W.  871 


§  3102.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  1973 

(d)  Homicide  is  permitted  by  law  and  is  justifiable  -when  in- 
flicted for  the  purpose  of  preventing  the  offense  of  murder,  maiming, 
disfiguring,  or  other  serious  bodily  injury*,  when  the  killing  takes 
place  under  the  following  circumstances :  (1)  It  must  reasonably 
appear  by  the  acts,  of  the  person  killed,  that  it  was  the  purpose  and 
intent  of  such  person  to  commit  one  of  the  offenses  above  named; 
(2)  the  killing  must  take  place  while  the  person  killed  was  in  the  act 
of  committing  the  offense,  or  after  some  act  done  by  him  showing 
evidently  an  intent  to  commit  such  offense.  So,  upon  this  issue,  you 
are  charged  that  the  defendant  would  be  justifiable  in  killing  de- 
ceased, if  it  is  shown  to  have  been  done  to  prevent  the  deceased  from 
murdering,  maiming,  or  disfiguring  him,  or  if  it  is  shown  that  at  the 
veiy  time  of  the  killing,  the  deceased,  J.  S.,  had  made,  or  was  in  the 
act  of  making,  some  hostile  demonstration  towards  defendant,  such 
as  produced  in  his  mind  a  reasonable  fear  or  expectation  of  death  or 
of  some  serious  bodily  injury;  but  in  that  case,  to  justify  the  killing, 
it  must  reasonably  appear  from  the  acts,  or  words  coupled  with  the 
acts,  of  the  deceased,  that  he  intended  to  murder,  maim,  disfigure,  or 
inflict  some  serious  bodily  injury  upon  defendant,  and  the  killing 
must  have  taken  place  while  deceased  was  in  the  act  of  committing 
such  offense,  or  after  some  act  done  by  him  showing  evidently  an  in- 
tention to  commit  such  offense.  Therefore,  if  you  believe  from  the 
evidence  that  defendant  at  the  time  of  the  homicide  believed  that 
his  life  was  in  danger,  such  fear  being  produced  by  hostile  acts  on 
the  pai-t  of  deceased,  and  that  at  the  time  he  fired  the  fatal  shot  (if 
he  did  so)  it  reasonably  appeared  to  defendant,  from  all  the  circum- 
stances of  the  case,  viewed  from  defendant's  standpoint  alone,  that 
deceased  was  about  to  shoot  him  with  a  pistol,  then  defendant  would 
be  justifiable  in  killing  deceased;  and,  if  you  so  believe,  j-ou  will 
acquit  defendant,  though  it  may  appear  as  a  fact  that  defendant  was 
in  no  danger  at  the  time  of  the  homicide.* 

§  3102.  Self-Defense — Doctrine  of,  Stated,  (a)  If  a  person  as- 
saulted, being  himself  without  fault,  reasonably  apprehends  death 
or  great  bodih'  harm  unless  he  kills  his  assailant,  the  killing  is  ex- 
cusable; and  if  you  believo  that  defendant  was  assaulted  by  de- 
ceased in  such  a  manner  as  to  cause  him  to  believe,  and  he  did  be- 
lieve, that  he  was  in  imminent  danger  of  losing  his  life  or  suffering 
great  bodily  harm  at  the  hand  of  the  deceased  unless  he  killed  him, 
and,  while  so  believing,  he  killed  deceased,  he  is  entitled  to  an  ac- 
quittal.^ 

4— Matthews  v.  State,  42  Tex.  Cr.  77  Ind.  274;  1  Bish.  Cr.   Law,  §865; 

App.  31,  58  S.  W.  86  (88).  Runyan  v.  State.  57  Ind.  80,  26  Am. 

A  long  instruction  on  self-defense  Rep.  52,  2  Am.  Cr.  Rep.  318. 
was  approved  in  Bush  v.  State,  40         "The   objection   urged  to   this   in- 

Tex.  Cr.  App.  539,  51  S.  "W.  238.    See  struction  is  that  it  was  not  required 

also  Barkman  v.  State,  41  Tex.  Cr.  that  appellant  should  have  believed 

App.  105,  52  S.  W.  73.  it  necessary  to  kill  the  deceased  in 

5— Deilkes  v.  State,  141  Ind.  23,  40  order  to  excuse  him  from  so  doing. 

N.     E.     120.     citing     McDermott    v.  This  objection  to  the  instruction  is 

State,  89  Ind.  187;  Presser  v.  State,  not  well  taken.  *  *  *    The  instruc- 


1974  FORMS  OF  INSTRUCTIONS.  [§  3102. 

(b)  The  jury  are  instructed  that  the  right  of  self-defense  is  only 
given  in  emergencies  to  enable  persons  who  are  attacked,  and  to 
whom  it  may  reasonably  appear  that  their  lives  or  bodies  are  in 
danger  of  great  bodily  injury,  to  defend  themselves;  that  this  right 
is  based  upon  what  reasonable  persons,  having  due  regard  for  hu- 
man life,  would  do  under  similar  circumstances,  and  the  actions  of 
the  defendant  in  this  case  must  be  measured  by  this  rule.** 

(c)  If  a  person  kill  another  in  self-defense,  it  must  appear  that 
the  danger  was  so  urgent  and  pressent  that,  in  order  to  save  his  own 
life  or  prevent  his  receiving  great  bodily  harm,  the  killing  of  the 
other  was  absolutely  necessary;  and  it  must  appear  also  that  the  per- 
son killed  was  the  assailant,  or  that  the  slayer  had  really  and  in 
good  faith  endeavored  to  decline  any  further  struggle  before  the 
mortal  blow  was  given.''^ 

(d)  It  is  a  settled  principle  of  law  that  when  a  man  is  assailed 
by  another,  and  from  the  nature  of  the  attack  and  the  surrounding 
circumstances  as  they  appear  to  the  accused  at  the  time,  he  has 
reasonable  ground  to  believe  and  does  believe  that  the  assailant  in- 
tends presently  to  take  his  life,  or  to  do  some  great  bodily  injury, 
he  will  be  justified  in  killing  his  assailant,  provided  he  has  not  pre- 
viously brought  on  the  assault,  and  provided  that  the  circumstances 
are  such  that  the  extreme  measure  would  seem  to  the  comprehension 
of  a  reasonable  man  necessary  in  the  situation  to  prevent  the  threat- 
ened injury.* 

(e)  If  you  believe  from  the  evidence  that,  at  the  time  A.  W.  shot 
and  killed  L.  M.  (if  you  believe  from  the  evidence,  beyond  a  reason- 
able doubt,  he  did  do  so),  he  believed,  and  had  reasonable  grounds 
to  believe,  that  he  or  A.  M.  were  then  and  there  in  danger  of  death 
or  the  infliction  of  great  bodily  harm  at  the  hands  of  L.  M.,  or  those 
acting  in  concert  with  him,  and  that  it  was  necessary,  or  seemed  to 
the  defendant,  W.,  in  the  exercise  of  a  reasonable  judgment,  to  be 
necessary,  to  shoot  and  kill  L.  M.  in  order  to  protect  himself  or  A. 
M.  from  death  or  the  infliction  of  gTeat  bodily  harm  at  the  hands  of 
said  L.  M.,  or  those  acting  with  him,  then  you  will  find  the  defendant 
not  guilty,  on  the  grounds  of  self-defense  and  apparent  necessity.'-* 

(f)  The  jury  ax-e  instructed,  as  a  matter  of  law,  that  if  a  person 
believes,  and  has  reasonable  cause  to  believe,  that  another  has  sought 
him  out  for  the  purpose  of  killing  him,  or  of  doing  him  great  bodily 

tion  states  that  If  he  did  so  believe,  making-  it  incum'bent  on  him  to 
etc.,  the  killing  was  excusable.  This  show  that  he  had  in  g-Qod  faith  de- 
instruction  has  often  been  approved  clined  further  combat.  Because  of 
by  this  court."  error  in   that  instruction  judg-ment 

6 — Harris   v.   People,  32  Colo.  211,  of  conviction  of  inanslaughter  was 

75  Pac.  427  (429).  reversed. 

7— Ritter    v.    People,    130    111.    255  8— From  the  oral  charge  in  State 

(258),  22  N.  E.  605.  v.    Guidor,    113    La.    727,    37    So.    622 

In   connection  with   the  above  in-  (623),    see    also    Kirby    v.    State,    41 

struction  another  was  given  ampli-  Fla.  81,  32  So.  836  (837). 

fying  it  and  putting  the  defendant  9 — Wilson    v.    Commonwealth,    24 

In  the  attitude  of  an  assailant  and  Ky.  L.  185,  68  S.  W.  121  (122). 


§  3103.]  CRIMINAI^— HOMICIDE— SELF-DEFENSE.  1975 

harm,  and  that  he  is  prepared  therefor  with  deadly  weapons,  and 
the  latter  makes  demonstrations  manifesting  an  intention  to  com- 
mence an  attack,  then  the  person  so  threatened  is  not  required  to 
retreat,  but  he  has  the  right  to  stand  and  defend  himself,  and  pursue 
his  adversary  until  he  has  secured  himself  from  danger;  and  if,  in  so 
doing,  it  is  necessary,  or  upon  reasonable  grounds  it  appears  to  be 
necessary,  to  kill  his  antagonist,  the  killing  is  excusable  upon  the 
grounds  of  self-defense.^*^ 

(g)  The  court  instructs  the  jury  that  the  right  of  self-defense  is 
a  right  which  the  law  not  only  concedes,  but  guaranties,  to  all  men. 
The  defendant  may  therefore  have  killed  deceased  and  still  be  inno- 
cent of  any  offense  against  the  law.  If  at  the  time  he  struck  de- 
ceased he  had  reasonable  cause  to  apprehend  on  the  part  of  de- 
ceased a  design  to  do  him  great  personal  injury,  and  there  was 
reasonable  cause  for  him  to  apprehend  immediate  danger  of  such 
design  being  accomplished,  and  to  avert  such  apprehended  danger  he 
struck  deceased,  and  at  the  time  he  did  so  he  had  reasonable  cause 
to  believe,  and  did  believe,  it  necessary  for  him  to  use  the  piece  of 
rail  in  the  way  he  did  to  protect  himself  from  such  apjDrehended 
danger,  then  and  in  that  case  the  striking  was  not  felonious,  but 
was  justifiable,  and  you  ought  to  acquit  him  upon  the  ground  of 
necessaiy  self-defense.  It  is  not  necessary  to  this  defense  that  the 
danger  should  have  been  impending  and  immediately  about  to  fall ; 
all  that  is  necessaiy  is  that  defendant  had  reasonable  cause  to  be- 
lieve, and  did  believe,  these  facts.  But  before  you  acquit  on  the 
ground  of  self-defense,  you  ought  to  believe  that  defendant's  cause 
of  apprehension  was  reasonable.  Whether  the  facts  constituting 
such  reasonable  cause  have  been  established  by  the  evidence,  you  are 
to  determine,  and,  unless  the  facts  constituting  such  reasonable  cause 
have  been  established  by  the  evidence  in  the  cause,  you  cannot  acquit 
in  such  case  on  the  ground  of  self-defense,  even  though  you  may  be- 
lieve that  the  defendant  really  thought  he  was  in  danger.^^ 

§  3103.  Self-Defense — Law  of,  Stated,  (a)  If  you  believe  from 
all  the  circumstances  of  the  case  that  the  situation  was  such  as  to 
excite  the  fears  of  a  reasonable  man,  in  the  situation  of  the  defend- 
ant, that  a  felony  was  about  ito  be  committed  upon  him,  or  that  his 
life  was  in  danger,  from  the  act  of  the  decedent,  and  if  he  acted 
under  the  influence  of  those  fears,  and  not  in  a  spirit  of  revenge, 
and  took  the  life  of  the  decedent,  then  you  should  acquit  him,  gentle- 
men, notwithstanding  you  may  believe  that  he  was  not  in  danger  and 
that,  if  he  had  not  acted,  the  decedent  would  not  have  committed  a 
felony  upon  him.^^ 

(b)  If  the  jury  believe  from  the  evidence  the  defendant,  S.  I.,  at 
the  time  he  struck  the  deceased,  G.  C.   (if  he  did  strike  him),  had 

10— State  V.  Alley,  68  Mo.  124;  For-  11— State  v.  Kinder,  184  Mo.  276,  83 
tenberry  v.  State,  55  Miss.  403;  Er-     S.  W.  964. 

win  V.  State,  29  Ohio  St.  186.  12— Williams  v.  State,  120  Ga.  870, 

48  S.  E.  368  (370). 


1976  FORMS  OP  INSTRUCTIONS.  [§3103. 

reasonable  grounds  to  believe,  and  that  he  in  good  faith  believed, 
he  was  then  in  danger  of  losing  his  life,  or  of  suffering  great  bodily 
harm,  at  the  hands  of  the  defendant,  G.  C,  then  he  had  the  right  to 
use  such  force  as  appeared  to  him,  in  the  exercise  of  a  reasonable 
discretion,  to  be  necessary  to  protect  himself  from  such  danger;  and 
if  the  juiy  believe  from  the  evidence  the  defendant  used  no  more 
force  than  was  necessaiy,  or  no  more  force  than  appeared  to  him,  in 
the  exercise  of  a  reasonable  discretion,  to  be  necessary,  to  pi'otect 
himself  from  the  danger,  then  the  law  is  for  the  defendant,  and  the 
jury  should  acquit  him  on  the  ground  of  self-defense.^^ 

(c)  If  from  the  evidence  you  believe  that  defendant  killed  the 
said  B.,  and  further  believe  that,  at  the  time  of  so  doing,  deceased 
made  an  attack  on  him  which,  from  the  manner  and  character  of  it, 
and  the  relative  strength  of  the  parties,  and  defendant's  knowledge 
of  the  character  and  disposition  of  the  deceased,  caused  him  to  have 
reasonable  expectation  or  fear  of  death,  .  .  .  then  you  will 
acquit.^* 

(d)  The  court  instructs  the  jury  that  the  right  to  defend  one's 
self  against  danger  is  a  right  which  the  law  concedes  and  guaranties 
to  all  men.  Therefore  the  defendant  may  have  killed  deceased,  and 
be  innocent  of  any  offense  against  the  law.  If  at  the  time  he  shot 
and  killed  deceased  he  had  reasonable  cause  to  apprehend  on  the 
part  of  deceased  a  design  to  do  him  (the  defendant)  some  great 
personal  injury,  and  there  was  reasonable  cause  for  the  defendamt 
to  apprehend  immediate  danger  of  such  design  being  accomplished, 
and,  to  avert  such  apprehended  danger  to  himself,  defendant  shot 
deceased,  at  the  time  he  did  so  he  had  reasonable  cause  to  believe, 
and  did  believe,  it  necessary  for  him  to  shoot  deceased  to  protect 
himself  from  sucli  apprehended  dangei',  then  the  shooting  was  not 
felonious,  but  was  justifiable,  and  you  should  acquit  him.  It  is  not 
necessaiy  to  this  defense  that  the  danger  should  have  been  actual 
or  real,  or  that  danger  should  have  been  impending  and  immediately 
about  to  fall  on  the  defendant.  All  that  is  necessary  is  that  de- 
fendamt had  reasonable  cause  to  believe,  and  did  believe,  these  facts. 
But  before  you  acquit  on  the  ground  of  self-defense,  as  outlined 
above,  you  ought  to  believe  defendant's  cause  of  apprehension  was 
reasonable.  Whether  the  facts  constituting  such  reasonable  cause 
of  apprehension  have  been  established  by  the  evidence,  you  are  to 
determine;  and,  unless  the  facts  constituting  such  reasonable  cause 
have  been  established  by  the  evidence  in  the  cause,  you  cannot  acquit 
him  on  the  ground  of  self-defense,  even  though  you  may  believe  that 
defendant  really  thought  he  was  in  danger  of  great  bodily  harm  or 
of  losing  his  life.^'^ 

13— Ireland   v.   Commonwealth,   22  14— "This  charge  is  correct."  Mes- 

Ky.  L.  478,  57  S.  W.  616  (617);  Utter-  ser   v.    State,    43  Tex.    Cr.    App.    97, 

back  V.    Commonwealth,   22   Ky.  L.  63  S.  W.  643  (645). 

1011.  59  S.  W.  515  (516),  88  Am.   St.  15— State  v.  Moore,  156  Mo.  204,  56 

328.  S.  W.   883  (886). 


§3104.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  1977 

(e)  The  court  instructs  the  juiy  that  the  law  is,  if  a  person  is 
assaulted  in  such  a  way  as  to  induce  in  him  a  reasonable  belief  that 
he  is  in  actual  danger  of  losing  his  life,  or  of  suffering  great  bodily 
harm,  he  will  be  justified  in  defending  himself,  although  the  danger 
be  not  real,  but  only  apparent.  Such  a  person  will  not  be  held  re- 
sponsible criminally  if  he  acts  in  self-defense,  from  real  and  honest 
convictions  as  to  the  chai'acter  of  the  danger,  induced  by  reasonable 
evidence,  although  he  may  be  mistaken  as  to  the  extent  of  the  actual 
danger.  A  person  need  not  be  in  actual  imminent  peril  of  his  life  or 
of  great  bodily  harm  before  he  may  slay  his  assailant.  It  is  sufficient 
if,  in  good  faith,  he  has  a  reasonable  belief,  from  the  facts  as  they 
appear  to  him  at  the  time,  that  he  is  in  such  imminent  peril. ^"^ 

S  3104.  Law  of  Necessity — Reasonable  Cause  to  Apprehend  Imme- 
diate Personal  Injury,  (a)  The  court  instructs  the  jury  that  the 
law  of  self-defense  is  emphatically  the  law  of  necessity,  to  which  the 
party  may  have  recourse  under  certain  cii'cumstances  to  prevent  any 
reasonably  apprehended  great  injury  which  he  may  have  reasonable 
grounds  to  believe  is  about  to  fall  upon  him.  If  you  believe  that 
defendant  had  reasonable  cause  to  apprehend  a  design  on  part  of 
deceased  to  commit  a  felony  upon  defendant  or  to  do  him  some  great 
personal  injuiy,  and  that  there  was  reasonable  cause  to  apprehend 
immediate  danger  of  such  design  being  canied  out,  and  he  cut  de- 
ceased and  killed  him  to  prevent  the  aceomiDlishment  of  such  appre- 
hended design,  then  the  killing  is  justifiable,  upon  the  ground  of  self- 
defense,  and  you  should  acquit  him.^^ 

(b)  If  the  defendant  did  shoot  and  kill  S.  L.,  but,  at  the  time 
the  defendant  shot  said  L.  the  defendant  believed,  and  had  reasonable 
grounds  to  believe,  that  he  was  then  and  there  in  danger  of  death,  or 
of  suffering  some  serious  bodily  harm  at  the  hands  of  said  L.,  and  it 
was  necessary,  or  to  the  defendant  reasonably  appeared  to  be  neces- 
sary, to  shoot  said  L.  to  avert  the  danger,  or  what  appeared  to 
defendant  to  be  such  danger,  this  was  a  shooting  and  killing  in  self- 
defense.  And  if  the  defendant  did  shoot  and  kill  S.  L.,  j^et  the  jury- 
should  find  the  defendant  not  guilty  unless  the  juiy  believe  from  the 
evidence,  beyond  a  reasonable  doubt,  that  said  shooting  was  not  done 
in  self-defense.^* 

16 — State  V.  Tokum,  11  S.  D.  544,  struction  is  a  correct  statement  of 

,79  N.  W.  835  (837).  the     law     and     contains     no     error 

"This  instruction  is  as  favorable  which  would  justify  the  reversal  of 

to  the  accused  as  the  law  author-  the  judgment." 

izes,     and     covers     every     possible  IS — Stout    v.     Commonwealth,    29 

phase  of  the  defense  of  justifiable  Ky.  L.   627,  94  S.   W.  15. 

homicide."  In  comment  the  court  said:    "This 

17 — State  V.   Maupin,  196  Mo.  164,  does  not  make  his  rig-ht  of  self-de- 

93  S.  W.  379  (383).  fense  to  rest  alone  upon  the  appear- 

"The  objection  to  this  instruction  ance   of  danger,   thereby  excluding 

is  based   sole'y  upon   the  fact   that  the    right    of    self-defense    for    real, 

the  court  used  the  phrase  'that  the  although  not  apparent,  danger.    At 

law  of  self-defense  is  emphatically  best,   this   is   a   most   unusual   crit- 

the    law    of    necessity.'      Read    to-  icism.       Generally,     the     defendant 

gether,   it  is  apparent  that  the  in-  complains    that    the    instruction    of 


1978  FORMS  OF  INSTRUCTIONS.  [§  3104. 

(e)  If  you  shall  believe  from  the  evidence  that,  at  the  time  of  the 
shooting  the  defendant  had  reasonable  cause  to  apprehend,  and  did 
apprehend,  a  design  on  the  part  of  W.  to  take  his  life  or  do  him 
some  great  personal  injury,  and  that  there  was  reasonable  cause  for 
him  to  apprehend,  and  he  did  api^rehend,  immediate  danger  of  such 
design  being  accomplished,  and  that  he  shot  to  avert  such  appre- 
hended danger,  and  that,  at  the  time  of  the  shooting,  he  had  reason- 
able cause  to  believe,  and  did  believe,  it  was  necessary  for  him  to  do 
so  to  protect  himself  from  such  apprehended  danger,  then  he  had  a 
right  to  do  such  shooting;  and  you  should  acquit  him  on  the 
ground  of  self-defense.  It  is  not  necessary  that  the  defendant  should 
have  been  in  actual  or  real  danger,  nor  that  the  danger,  if  any,  should 
have  been  impending  and  about  to  fall.  If  he  had  reasonable  cause 
to  believe,  and  did  believe,  he  was  in  immediate  danger  of  being 
killed  or  receiving  some  great  personal  injury,  he  had  a  right  to  act 
upon  such  belief.  Whether  or  not  he  did  have  reasonable  cause  to 
so  believe,  and  whether  or  not  he  did  so  believe,  are  for  you  to 
determine  from  all  the  facts  and  circumstances  appearing  in 
evidence. ^^ 

(d)  If  the  defendant  had  any  reasonable  cause  to  believe,  from 
the  words,  acts,  and  conduct  of  the  deceased,  that  he  had  a  design  to 
do  him  some  great  personal  injui^y,  and  that  such  design  was  about  to 
be  accomplished,  then  defendant  had  a  right  to  act  on  appearances, 
and  to  cut  or  stab  deceased  (if  necessary)  to  prevent  the  accom- 
plishment of  such  design;  and  in  this  connection  the  jury  are  further 

the  court  excludes  the  rigrht  of  self-  he  did  it,  he  believed  and  had  rea- 

defense  for  apparent  danger,  and  it  sonable  grounds  to  believe  that  he 

is   not   usually  thought  that  juries  was  in  immediate  danger  of  death 

need    any    special    accentuation    of  or  great  bodily  harm  then  about  to 

real,   as   against   apparent,    danger,  be   inflicted   on   him,   or  which  rea- 

But,   undoubtedly,    it   is   true,    that  sonably  appeared  to  the  defendant 

there  may  be  actual  danger  without  about  to  be  inflicted  on  him  by  S., 

its    being    apparent,    although    this  they    will    flnd    the    defendant    not 

seldom  occurs.     An  examination  of  guilty,    upon   the    grounds    of   self- 

the  instruction  complained  of,  how-  defense    and     apparent    necessity.' 

ever,  shows  that  it  recognizes  both  The  self-defense  instruction  in   the 

real   and   apparent   danger,   and   in  case  at  bar  is  less  amenable  to  crit- 

every  way  protects  and  safeguards  icism  for  the  reasons  urged  by  ap- 

the   interests   of   the   accused    with  pellant  than  is  the  one  in  the  case 

reference    to    his    right    of    self-de-  cited." 

fense.     In    the   case   of  Howard  v.  19— State  v.  Todd,  194  Mo.  377,  92 

Commonwealth,    24    Ky.    L.    612,    69  S.  W.  674. 

S.  W.  721,  the  following  instruction  In  State  v.  McCarver,  194  Mo.  717, 

was  approved:     'Although  the  jury  92  S.   W.  684,   the  same  instruction, 

may  believe  from  the  evidence,  be-  with  the  following  sentence  added, 

yond  a  reasonable  doubt,   that  the  was  approved: 

defendant,  H.,  in  M.  County,  before  "If    you    shall    believe    from    the 

the  finding  of  the  indictment  herein,  evidence  that  the  defendant  did  not 

shot    and    killed    S.    with    a    pistol  have  reasonable  cause  to  so  believe, 

loaded  with  powder  and  leaden  ball,  you     cannot     acquit     him     on     the 

or   other    hard    and    explosive   sub-  ground     of    self-defense,     although 

stance,   still  if  tney  further  believe  you  may  believe  from  the  evidence 

from  the  evidence  that  at  the  time  that   the   defendant   really   thought 

the  defendant  did   the  shooting,   if  he  was  iu  danger." 


§  3105.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  1979 

instructed  that  defendant  was  not  required  to  nicely  gauge  the  force 
used,  but  that  he  oould  see  any  means  that  appeared  reasonably 
necessary  under  the  circumstances.  Neither  is  it  necessary  to  this 
defense  that  his  danger  should  have  been  real  or  actual,  or  that  it 
should  have  been  impending  and  about  to  fall ;  but  if  he  had  reason- 
able cause  to  believe,  and  did  believe,  these  facts,  and  cut  the  deceased 
to  prevent  such  expected  harm,  then  you  must  acquit  on  the  grounds 
of  self-defense.^'* 

(e)  If  the  jury  believe  from  the  evidence  that  at  the  time  the 

defendant  struck  and  killed  S ,  if  he  did  so,  he  had  reasonable 

grounds  to  believe,  and  did  in  good  faith  believe,  that  he  was  then 
in  danger  of  losing  his  life  or  suffering  great  bodily  harm  at  the  hands 
of  S.,  and  there  appeared  to  the  accused,  exercising  a  reasonable  judg- 
ment at  the  time  and  under  the  circumstances,  no  other  safe  means 
of  avoiding  the  impending  real,  or  apparent  dangei',  then  in  such 
case  the  accused  had  the  right  to  strike  in  his  necessary  self-defense ; 
and,  if  the  killing  of  S.  occurred  under  such  circumstances,  then  the 
jury  should  acquit  the  defendant. ^^ 

(f)  The  court  instnicts  the  juiy  that  the  defendant  in  this  case 
has  taken  the  witness  stand  in  his  own  behalf,  and  has  admitted  that 
he  shot  the  deceased,  J.,  but  claims  that  such  shooting  was  done  in 
self-defense.  And  the  court  instructs  the  jury  that  the  law  on  the 
subject  of  self-defense  is  that  if  a  person  is  assaulted  in  such  a  way 
as  to  induce  in  him  a  reasonable  belief  that  he  is  in  actual  danger  of 
losing  his  life,  or  of  suffering  great  bodily  harm,  he  will  be  justified 
in  defending  himself,  although  the  danger  be  not  real,  but  only  ap- 
parent. And  in  this  case,  if  the  jury  believe  from  the  evidence  that 
the  defendant,  W.,  was  assaulted  by  the  deceased  in  such  a  way  as 
to  induce  in  the  defendant  a  reasonable  and  well-grounded  belief  that 
he  was  in  actual  danger  of  losing  his  life  or  of  suffering  great  bodily 
harm,  then  he  was  justified  in  defending  himself,  even  to  the  extent 
in  taking  the  life  of  his  assailant,  although  the  danger  was  not  real, 
but  only  apparent. -^ 

§  3105.  What  is  Sufficient  and  What  is  Insufficient  to  Show  Self- 
Defense.  (a)  The  law  guaranties  to  eveiy  man  the  right  of  self- 
defense,  and,  if  defendant  killed  J.  in  necessary  defense  of  his  person, 
he  is  not  guilty.  If,  therefore,  you  find  from  the  evidence  that  the 
defendant  struck  J.  with  some  instrument  which  resulted  in  the 
death  of  said  J.,  and  at  the  time  defendant  struck  deceased  he  had 
good  reason  to  believe,  and  did  believe,  from  the  conduct,  manner,  or 
appearance  of  deceased,  that  the  deceased  was  about  to  inflict  upon 
him  some  great  personal  injury,  and  defendant  struck  him  for  the  pur- 
pose of  averting  such  apprehended  injury,  then  you  must  acquit  the 
defendant  on  the  gTound  of  self-defense.    In  such  case  it  is  not  neces- 

20— State  v.  Gordon,  191  Mo.  114,  89  22— State  v.  Dotson,  26  Mont    305 

S.  W.  1025.  67  Pac.  938  (940). 

21 — Austin    V.    Commonwealth,    28 
Ky.  L  1087.  91  S.  W.  267. 


1980  FORMS  OF  INSTRUCTIONS.  [§3105. 

sary  that  the  danger  should  have  been  real  and  about  to  fall.  All 
that  is  necessary  is  that  the  defendant  believed,  and  had  good  reason 
to  believe,  that  such  danger  existed.  On  the  other  hand,  it  is  not 
enough  that  the  defendant  believed  in  the  existence  of  such  danger, 
but  he  must  have  had  good  cause  for  so  believing  before  he  can  be 
acquitted  on  the  ground  of  self-defense.  If,  however,  you  find  from 
the  evidence,  beyond  a  reasonable  doubt,  that  defendant,  prior  to  the 
killing  of  J.,  had  formed  a  design  to  kill  said  J.  or  do  him  some 
great  personal  injury,  and  to  carry  out  such  design  the  defendant 
armed  himself  with  a  deadly  weapon  and  sought  said  J.,  and  pro- 
voked, brought  on,  or  entered  into  a  difficulty  with  said  J.,  which 
resulted  in  his  death,  for  the  puipose  of  wreaking  his  vengeance  or 
malice  upon  said  J.,  or  for  the  purpose  of  taking  the  life  of  said  J, 
or  doing  him  some  great  bodily  harm,  then  there  is  no  self-defense 
in  the  case,  howevpr,  imminent  the  peril  of  defendant  may  have 
become  in  consequence  of  an  attack  made  upon  him  by  the  deceased; 
and  if,  in  such  circumstances,  you  believe  defendant  killed  said  J., 
then  he  is  guilty  of  murder  in  the  first  degree.'^ 

(b)  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence beyond  a  reasonable  doubt,  that  John  G.  lay  in  wait  for  Bartow 
L.  for  the  purpose  of  killing  him,  and  did  kill  him,  then  the  defendant 
cannot  be  excused  or  justified  under  his  plea  of  self-defense,  and  you 
must  convict  him.-'* 

(e)  If  you  find  from  the  evidence  that  the  defendant  could  have 
retired  to  a  place  of  safety  before  S.  reached  his  gun,  then  it  was  his 
dutj'  to  have  done  so,  and  he  was  not  justified  in  shooting  S.  because 
he  may  have  believed  that  S.  was  going  after  his  gun.  To  justify  the 
use  of  a  deadly  weapon  by  the  defendant  when  an  assault  has  been 
made  upon  him,  the  circumstances  must  appear  to  be  such  that  thei-e 
is  no  other  reasonable  means  of  escape  from  death  or  great  bodily 
harm.-^ 

23— State  v.  Darling,  199  Mo.  168,  that  the  defendant  did,  after  firing 
97  S,  W.  '592.  the  first  shot,  retire  to  a  less  ex- 
24— Gafford  v.  State,  125  Ala.  1,  28  posed  place,  we  do  not  think  this 
So.  406  (407).  instruction  misleading-  or  prejudic- 
25 — Delaney  v.  State,  14  Wyo.  1,  ial,  especially  when  considered  in 
XI  Pac.  792.  connection  with,  and  that  its  mean- 
In  comment  the  court  said  that  in  ing-  was  restricted  to,  a  voluntary 
this  "instruction  the  word  'retired'  withdrawal  from  the  assault  by  the 
is  used,  and  defendant  claims  that  instruction  which  was  given  at  the 
this  is  equivalent  to  the  word  're-  request  of  the  defendant  that  where 
treated,'  and  that  he  was  thereby  one  is  assaulted  in  his  own  house 
prejudiced.  We  think,  as  applied  to  under  such  circumstances  as  to  in- 
the  law  of  self-defense,  there  is  a  duce  the  belief  that  he  is  in  danger 
difference  in  meaning  of  the  two  of  losing  his  life  or  suffering  great 
words.  The  latter  always  implies  bodily  harm,  he  is  not  obliged  to 
an  act  under  pressure  or  force,  a  retreat,  but  may  pursue  his  ad- 
drivin-g  back;  while  the  former  may,  versary  until  he  has  freed  himself 
and  usually  does,  rest  solely  in  from  danger — an  instruction  which, 
volition.  The  use  of  the  word  in  connection  with  the  other  in- 
'escape'  in  the  second  part  of  the  structions  as  a  whole,  embodied  the 
instruction  was  not  proper;  but  in  law  of  the  case." 
view   of  the   evidence   in   this  case 


§  3105.]  CRIMINAI^HOMICIDE— SELF-DEFENSE.  1981 

(d)  The  court  instructs  the  jury,  that  although  they  should  find, 
from  the  evidence,  that  the  said  A.  B.  and  the  defendants  got  into  a 
quarrel  at  the  time  in  question,  and  that  the  said  A.  B.  followed  the 
defendant  up  in  a  threatening  manner,  still,  the  defendant  would 
have  no  right  to  assault  the  said  A.  B.  with  a  deadly  weapon  in  a 
manner  calculated  to  take  life,  or  do  great  bodily  injury,  unless  the 
cireumstanees  were  such  as  to  lead  a  reasonable  person  to  believe 
that  such  an  assault  was  necessary-,  on  the  part  of  the  said  defendant, 
in  self-defense,  to  prevent  receiving  a  great  bodily  injury  himself.^^ 

(e)  If  you  believe  from  the  evidence  in  this  ease  that  B.,  on  the 
simple  request  of  K.  for  an  explanation  of  the  trouble  he  (B.)  had 
had  with  K. 's  little  brother,  became  angered,  and  assaulted  K.  with 
a  stick,  capable  in  his  (B. 's)  hand  of  inflicting  great  bodily  haim 
upon  K.,  and  that  the  manner  of  such  assault  caused  K.  reasonably 
to  believe  that  such  injuiy  was  then  about  to  be,  or  in  progress  of 
being,  inflicted  on  him,  and  to  prevent  it  he  reasonably  believed  it 
was  necessary  to  shoot  him,  then  he  had  a  right  to  draw  his  pistol 
in  his  own  defense,  and  shoot  B.,  even  if  it  killed  him;  and,  if  the 
killing  oecuiTed  under  such  circumstances,  then  the  jury  should 
acquit  K.'" 

(f)  Although  you  may  believe  from  the  evidence  that  the  de- 
fendant, C,  assaulted  and  killed  J.,  yet,  if  you  shall  further  believe 
from  the  evidence  that  such  killing  was  done  in  self-defense,  as  here- 
inafter defined,  then  you  will  acquit  the  defendant.  On  the  question 
of  self-defense  you  are  instructed  that  if  at  the  time  the  defendant,  C, 
assaulted  and  killed  J.,  he,  the  defendant,  C,  had  reasonable  cause 
to  apprehend  a  design  on  the  part  of  J.  or  his  brother,  B.,  to  take  his 
life,  or  to  do  him  some  great  personal  injury  and  that  there  was 
reasonable  cause  for  him  to  apprehend  immediate  danger  of  such 
design  being  accomplished,  and  that  to  avert  such  apprehended  danger, 
he  shot  J.,  and  that  at  the  time  of  shooting,  he  had  reasonable  cause 
to  believe  and  did  believe  that  it  was  necessary  for  him  to  shoot  to 
protect  himself  from  such  aj^prehended  danger,  you  will  acquit  the 
defendant  on  the  ground  of  self-defense.  It  is  not  necessary  that 
the  danger  should  have  been  actual  or  real,  or  'that  the  danger  should 
have  been  impending  and  about  to  fall.  All  that  is  necessary  is  that 
the  defendant,  C,  had  cause  to  believe  and  disbelieve  these  facts.  On 
the  other  hand  it  is  not  enough  that  the  defendant  C.  should  have 
so  believed.  He  must  have  had  reasonable  cause  for  so  believino-. 
Whether  or  not  he  had  reasonable  cause  for  so  believing  is  for  you 
to  detennine,  under  all  'the  facts  and  circumstances  given  in  evidence. 
If  you  shall  believe  from  the  evidence  that  the  defendant  C.  did  not 
have  reasonable  cause  to  so  believe  jou  cannot  acquit  him  on  the 

26— Judge   V.    State,   58    Ala.    406;         27— King  v.   State,  —  Miss.  —    '>3 
Jackson    v.    State,    6    Bax.    (Tenn.)     So.  766. 
452;  Davis  V.  People,  88  111,  350, 


1982  FORMS  OF  INSTRUCTIONS.  [§3106 

ground  of  self-defense,  although  you  may  believe  that  the  defendant 
really  thought  he  was  in  danger.-** 

§  3106.  Belief  of  Danger  Must  Be  Reasonable,  (a)  Unless  such 
belief  of  danger  is  reasonable — that  is,  unless  a  reasonably  cautious 
and  prudent  man  would  entertain  the  same  belief  from  the  same 
appearances — it  would  be  no  defense,  even  though  it  was  an  honest 
belief  of  danger,^^ 

(b)  But  unless  such  belief  of  danger  is  reasonable — that  is,  unless 
a  reasonably  pi-udent  and  cautious  man  would  entertain  the  same 
belief  from  the  same  appearances — it  will  be  no  defense,  even  though 
it  was  an  honest  belief  of  danger.  Men  do  not  hold  their  lives  at 
the  mercy  of  the  unreasoning  fears  of  excessive  caution  of  others; 
and  if  from  such  motives  the  defendant  killed  B.  without  real  or 
apparent  good  reason  for  so  doing,  he  cannot  justify  his  act  as  being 
in  self-defense.^** 

(e)  The  important  questions  for  the  jury  'to  determine  are:  (1) 
Was  the  defendant,  at  the  time  he  fired  the  fatal  shot,  in  present 
danger  of  death  or  serious  bodily  harm,  or  were  the  eircuinstances 
such  as  to  afford  him  just  and  reasonable  grounds  for  believing  him- 
self to  be  in  such  danger?  (2)  Was  the  shooting  done  in  good  faith 
to  protect  himself  from  such  danger  or  threatened  danger?  If  both 
these  questions  can  be  answered  in  the  affirmative,  the  shooting  would 
be  justifiable.  The  defendant,  under  the  law,  would  have  the  right 
to  defend  himself  from  the  appearances  of  danger,  the  same  and  to 
the  same  extent  as  he  would  were  the  danger  real.  That  the  danger 
aiDpeared  real  to  the  defendant  is  all  the  law  requires,  to  justify  him 
in  acting;  and,  in  passing  upon  the  question  as  to  the  defendant's 
right  to  act,  the  matter  must  be  viewed  from  the  standiDoint  of  the 
defendant.^^ 

(d)  The  court  charges  the  juiy  the  apparent  necessity  which  will 
excuse  the  taking  of  human  life  under  the  doctrine  of  self-defense  in 
eases  of  homicide  involves  two  considerations:  First,  the  defendant 
himself  must  have  entertained  an  honest  belief  in  the  existence  of 
such  necessity;  and,  second,  'the  circumstances  surrounding  him  must 

28— State  v.  May,  172  Mo.  630,  72  can  excuse  the  mortal  blow.     This 

S.  W.  918  (920).  contention    is    untenable    and    the 

29— Olds   v.    State,   44   Fla.   452,   33  propriety    of    the    charge    is    fully 

So.   296   (300),    citing  Lane  v.    State,  sustained  by  the  cases  of  Smith  v. 

44   Fla.   105,   32   So.   896;    Howard   v.  State,  25  Fla.  517,  6  So.  482;   Finder 

Commonwealth,  24  Ky.  L.  612,  69  S.  v.    State,   27   Fla.   370,   8   So.    837,   26 

W.    721    (722);    Thompson    v.    St^te,  Am.    St.   75,   and   Padgett  V.   State, 

55    Ga.    47;    Wall   v.    State,    51    Ind.  40  Fla.   451,   24  So.   145." 

453;  State  v.  Stockton,  61  Mo.  382.  31— Francis  v.    State,   44  Tex.    Cr. 

30— Morrison  v.  State,  42  Fla.  149,  App.  246,  70  S.  W.  751  (752). 
28  So.  97  (99).  "The  latter  clause,  taken  in  con- 
"The  contention  is  that  the  nection  with  the  first  clause,  pre- 
charge  erroneously  requires  the  ap-  sents  the  law  of  reasonable  ap- 
pearance of  impending  imminent  pearances  of  danger,  as  we  under- 
danger  to  life  or  limb  to  be  such  as  stand  the  authorities  hold  it  should 
would  actuate  a  reasonable  cau-  be  done." 
tious  and  prudent  man,  before  they 


§3106.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  1983 

have  been  such  as  to  impress  a  reasonable  man,  under  the  same  state 
of  facts,  with  the  belief  of  his  imminent  peril,  and  of  the  existence 
of  an  urgent  necessity  to  take  the  life  of  his  assailant,  as  the  only- 
apparent  alternative  of  saving  his  own  life,  or  else  of  preventing 
the  infliction  on  him  (the  defendant)  of  grievous  bodily  harm.^^ 

(e)  There  can  be  no  successful  setting  up  of  self-defense  by  a 
defendant,  unless  the  taking  of  his  adversary's  life  is  the  only  reason- 
able resort  of  the  party  to  save  his  own  life  or  his  person  from 
[dreadful]  harm  or  severe  calamity,  felonious  in  its  eharacter.^^ 

(f)  You  are  instructed  as  a  matter  of  law  that  when  a  person  is 
assaulted  by  another,  and  from  the  nature  of  the  attack,  viewed  in 
the  light  of  any  previous  threat  or  hostile  declax'ation  made  by  the 
assailant,  and  of  his  known  character  for  violence,  the  party  assaulted 
has  reasonable  grounds  to  believe  and  does  believe  that  the  assailant 
intends  presently  to  take  his  life  or  do  him  some  bodily  injury,  he 
will  be  justified  in  killing  his  assailant,  providing  the  circumstances 
are  such  that  such  extreme  measm'e  would  seem,  to  the  comprehension 
of  a  reasonable  man,  necessaiy,  in  such  situaition,  to  prevent  the 
threatened  injuiy.  Whether  the  appearances  of  danger  are  sufficient 
to  convince  a  reasonable  man  in  the  situation  of  the  accused  that 
death  or  the  infliction  of  great  bodily  hann  upon  the  person  of  the 
accused,  was  intended  by  the  deceased,  is  a  question  of  fact  for 
the  jury.^* 

(g)  The  court  charges  the  jury  that  the  apparent  necessity  which 
will  excuse  the  taking  of  human  life  under  the  doctrine  of  self-de- 
fense, in  cases  of  homicide,  involves  two  considerations :  First,  the 
defendant  himself  must  have  entertained  an  honest  belief  in  the 
existence  of  such  necessity;  and,  second,  the  circumstances  surround- 
ing him  must  have  been  such  as  to  impress  a  reasonable  man,  under 
the  same  state  of  facts,  with  the  belief  of  his  imminent  peril,  and  of 
the  existence  of  an  urgent  necessity  to  take  the  life  of  his  assailant, 
as  the  only  apparent  alternative  of  saving  his  own  life,  or  else  of 
preventing  the  infliction  on  him  (the  defendant)  of  grievous  bodily 
harm.^^ 

32— Miller  v.  State,  107  Ala.  40,  19        34— Housh   v.    State,   43   Neb.   163, 

So.    37    (38).     Following   Wilkius    v.  61  N.  W.  571  (572).     Citing-  State  v. 

State,  98  Ala.  1,  13  So.  312.  Harris,  1  Jones  (N.  C.)  190— "a  well- 

33— State  v.  Carter,  15  Wash.  121,  considered  case;"  People  v.  Cough- 

45  Pac.  745  (746).  lin,  67  Mich.  466,  35  N.  W.  72;  State 

"It  would  have  been  better  had  v.  Sterrett,  68  Iowa  76,  25  N.  W.  936; 
the  court  not  used  the  word  'dread-  State  v.  Archer,  69  Io-v\-a  420,  29  N. 
ful,'  but  we  do  not  think  that  its  W.  333;  State  v.  Bohan,  19  Kan.  28; 
use  -was  prejudicial  to  the  defend-  Davis  v.  People,  88  111.  350;  Watson 
ant.  The  court  had  already  twice  v.  State,  82  Ala.  10,  2  So.  455;  Pen- 
told  the  jury  that  the  defendant  land's  Case,  19  Tex.  App.  365;  Clif- 
might  invoke  the  law  of  self-de-  ford  v.  State,  58  Wis.  477,  17  N.  W. 
fense  to  protect  his  life  or  person  304;  Parrish  v.  State,  14  Neb.  67,  15 
from  great  'bodily  harm,'  and  this  N.  W.  357,  and  Vollmer  v.  State,  24 
was  emphatically  stated  to  the  jury  Neb.  838,  40  N.  W.  420. 
at  several  subsequent  points  in  the  35— Bondurant  v.  State,  125  Afo, 
instructions."  3,  27  So,  775  (777),  citing  Wilkins  v. 


1984  FORMS  OF  INSTRUCTIONS.  [§  3107. 

(h)  If  you  find  that  at  the  time  the  defendant  shot  and  killed  J. 
he  had  reasonable  cause  to  believe  and  did  believe  that  said  J.  was 
about  to  kill  or  inflict  great  personal  injury  upon  him,  and  that  he 
shot  him  to  avert  such  death  or  injury,  then  he  must  be  acquitted  on 
the  ground  of  self-defense.  In  such  a  case  it  is  not  necessary  that 
the  danger  should  have  been  real  and  impending,  but  it  is  sufficient 
if  the  defendant  so  believed,  and  had  reasonable  cause  for  so  believing; 
but  the  fact  that  he  believed  himself  to  be  in  danger  would  not  be 
sufficient  unless  he  had  reasonable  cause  for  so  believing.^*^ 

§  3107,  Acting  on  Reasonable  Belief  of  Great  Bodily  Harm,  (a) 
If  the  juiy  find  from  the  evidence  'that  the  conduct  of  N.  H.  was  such 
as  to  reasonably  lead  the  defendant  to  believe  that  N.  H.  was  about  to 
inflict  some  great  bodily  hai-m  on  his  person  and  the  juiy  further 
find  that  defendant  was  not  at  fault  in  bringing  on  the  difficulty,  and 
that  the  defendant  could  not  have  retreated  without  increasing  his 
danger,  and  that  defendant  acting  on  such  reasonable  belief  of  great 
bodily  harm  fired  a  pistol  at  said  N.  H.  and  wounded  him,  then  the 
juiy  should  acquit  the  defendant.^'^ 

(b)  If  you  believe  from  the  evidence  that  C,  a  short  time  before 
the  shooting,  had  threatened  violence  to  the  defendant,  of  which  the 
defendant  was  infonned,  and  that  he  struck  defendant  a  blow  with 
his  fist,  and  threw  his  hand  behind  him  as  if  to  draw  a  pistol,  then 
the  defendant  had  a  perfect  light  to  interpret  this  act  of  C. 's  in  the 
light  of  such  threats;  and  if  you  believe,  under  these  circumstances, 
that  the  defendant  reasonably  believed  his  life  in  peril,  then  he  was 
perfectly  justifiable  in  shooting  C,  even  though  you  may  believe  that 
C.  w'as  wholly  unarmed,  and  defendant  was  in  no  real  danger  at  his 
hands.^^ 

(c)  If  you  believe  the  prosecuting  witness,  B.,  knocked  the  defend- 
ant down  with  his  fist  or  a  quirt  or  a  pistol,  and  then  commenced  to 
beat  the  defendant  on  the  head  or  face  with  a  pistol,  or  to  cut  him 
in  the  face  with  a  knife,  and  the  defendant  had  no  other  means  of 
defending  himself  than  to  use  his  knife,  and  that  he  believed  and  had 
reason  to  believe  that  the  prosecuting  witness  was  about  to  kill  him 
or  do  him  some  great  bodily  hann  and  he  used  his  knife  to  protect 
himself,  then  you  will  find  him  not  guilty.^^ 

(d)  If  the  jury  believe  and  find  from  the  evidence  before  them 
that  the  defendant,  C,  shot  the  deceased  with  a  pistol,  and  thereby 
killed  him,  as  alleged  in  the  indictment,  and  further  believe  from  the 

State,  98  Ala,  1,  13  So.  312;  Miller  v  mislead  the  jury.    Holmes  v.  State, 

State,  107  Ala.  40,  19  So.  37;  Martiin  100    Ala.    80,    14    So.    864;    Keith    v. 

V.  State,  77  Ala.  1.  State,  97  Ala.  32,  11  So.  914;  Gibson 

36— State  v.  Goddard,  162  Mo.  198,  v.  State,  89  Ala.  121,  8  So.  98,  18  Am. 

62  S.  W.   697  (707).  St.   96." 

37_Winiams  v.  State,  102  Ala.  33,  38— Godwin  v.  State,  73  Miss.  873, 

15  So.  662  (663).  19  So.  712,  55  Am.   St.  573,  approves 

"The    charge    itself,    as    we    con-  the  above  as  one  of  a  series, 

strue   it,   asserts   the  law  properly.  39 — Territory    v.    Baca,   11   N.    M. 

It    might     have     been     better     ex-  559,  71  Pac.  460  (463). 
pressed,  but  as  framed,  it  could  not 


§3107.]  CRIMINAI^HOMICIDE— SELF-DEFENSE.  1985 

evidence  that  at  the  time  he  did  so,  if  he  did,  deceased,  L.,  was  then 
about  to  assault  defendant  with  a  knife,  and  if  the  jury  further 
believe  from  the  evidence  that  defendant  believed,  and  had  the  right 
reasonably  to  believe,  from  the  acts  of  deceased,  if  any,  and  from  all 
other  circumstances,  viewed  from  defendant's  standpoint  at  the 
time,  that  deceased  w^as  about  to  take  his  life  or  to  inflict  upon  him 
some  serious  bodily  injury,  and  so  believing,  if  he  did,  he  shot  de- 
ceased one  or  more  times  with  a  pistol,  and  thereby  killed  deceased, 
believing,  if  he  did,  that  it  was  a  necessary  act  to  prevent  deceased 
from  taking  his  life  or  from  inflicting  upon  him  some  serious  bodily 
injury,  then  it  would  be  the  duty  of  the  jury  to  find  defendant  not 
guilty,  upon  the  ground  of  self-defense.*'^ 

(e)  If  the  juiy  believe  from  the  evidence  in  this  case  that  at  the 
time  of  the  shooting  defendant  had  a  reasonable  ground  to  believe, 
and  did  believe,  that  he  was  in  danger  of  his  life  or  great  bodily 
harm  at  the  hands  of  M.,  then  he  was  justified  in  shooting  him,  and 
this  is  true  even  if  defendant  was  in  no  danger.'*^ 

(f)  Where  one  person  assaults  another,  such  person  so  assaulted 
has  a  lawful  right  to  use  a  sufficient  amount  of  force  to  resist  such 
assault,  and  compel  the  person  so  assaulting  to  desist  therefrom.  But 
where  one  person  is  assaulted  by  another,  it  is  not  lawful  for  the 
person  so  assaulted  to  use  a  deadly  weapon  in  his  defense,  unless  such 
an  assault  was  made  with  such  a  weapon,  or  in  such  a  manner,  as 
would  cause  a  person  of  ordinary  courage  and  prudence  to  believe 
that  he  was  in  imminent  peril  of  losing  his  life,  or  of  receiving 
great  bodily  injury.*^ 

(g)  But  to  justify  the  taking  of  Y. 's  life  in  self-defense,  it  must 
appear  from  the  evidence  that  the  defendant  not  only  really  and  in 
good  faith  endeavored  to  decline  any  further  combat,  and  to  escape 
from  Y.,  before  the  fatal  blow  was  given,  but  it  must  also  appear  that 
the  circumstances  were  such  as  to  excite  the  fears  of  a  reasonable 
person  that  Y.  intended  to  take  his  life,  or  to  inflict  on  him  a  great 
bodily  hann;  and,  further,  that  the  defendant  really  acted  under  the 
influence  of  these  fears,  and  not  in  a  spirit  of  revenge.*^ 

40 — Crockett  v.  State,  —  Tex.  Cr.  toward    defendant    with    his    open 

App.  — ,  77  S.  W.  4  (6).    Contrasting  knife;  and  the  court  properly  predi- 

Phipps  V.  State,  34  Tex.  Cr.  R.  560,  cated  the  charge  in  this  regard  ou 

31   S.   W.   397;   Graham  v.   State,   61  the   testimony   of   defendant's    wit- 

S.  W.  714,  2  Tex.  Ct.  Rep.  236.  Held  nesses." 

that    this    "properly    presented    the  41 — Johnson  v.   State,  —  Miss.  — , 

case  on  the  issue  made  by  appellant.  27  So.  880  (881). 

All  of  the  state's  witnesses  either  42 — State  v.  Sullivan,  51  la.  142, 
prove  that  there  was  no  demon-  50  N.  W.  572  (573). 
stration  made  by  deceased  at  the  The  court  said  that  such  an  in- 
time  of  the  homicide,  or,  if  any  was  struction  need  not  call  attention  to 
made,  they  did  not  see  it.  Those  former  quarrels  between  the 
w'itnesses    who    testified    on    behalf  parties. 

of    appellant    as    to    the    difficulty.  43 — State  v.  Bone,  114  lov.'a  537,  87 

with  one  accord,  state  that  deceased  N.    W.    507    (510),    89    Am.    St.    382; 

drew  his  knife  and   opened   it,  and  State   v.   Warner,   100   Iowa   200,    69 

made  a  demonstration  as  if  to  get  N.   "W.  546;  State  v.  Jones,  89  Iowa 

up    from    his    seat,    and    advanced  183,  56  N.  W.  427. 

125 


1986  FORMS  OF  INSTRUCTIONS.  [§  3108. 

(h)  In  determining  wliether  or  not  the  defendant  took  the  life  of 
the  deceased  under  circumstances  to  render  the  aet  justifiable,  as 
hereinbefore  explained,  you  will  determine  whether  or  not  the  cir- 
cumstances as  they  appeared  to  him  were  such  as  to  lead  a  reasonable 
man  to  believe  that  there  was  a  design  to  kill  him  or  do  immediate 
bodily  harm,  coupled  with  immediate  danger  of  such  design  being  ac- 
complished.** 

§  3108.  If  Circumstances  are  Insufficient  to  Induce  a  Reasonable 
and  Weil-Grounded  Belief  of  Danger,  Defendant  is  Guilty  of  Murder. 
(a)  The  court  instructs  the  jury  that  if  a  person  kills  another  through 
mere  cowardice,  or  under  circumstances  which  are  not,  in  the  opinion 
of  the  jury,  sufficient  to  induce  a  reasonable  and  well-grounded  belief 
of  danger  to  life  or  of  great  bodily  hai-m  in  the  mind  of  an  ordinary 
courageous  man,  the  law  will  justify  the  killing  on  the  ground  of  self- 
defense. 

(b)  In  this  case  the  court  instructs  the  jury  that  if  you  believe 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant,  W.. 
on  the  night  of ,  19 — ,  in  the  County  of  N.j  territory  of  Okla- 
homa, left  the  residence  of  one  L.,  with  a  loadetl  rifle,  and  went  to 
the  place  or  near  'the  place  where  J.  then  resided,  and  laid  in  waiting 
around  said  premises  for  the  purpose  of  taking  the  life  of  the  de- 
ceased, J.,  and  that  th^  said  defendant  shot  the  deceased  while  return- 
ing to  his  home,  and  while  riding  in  the  highway  in  a  buggy,  and 
that  at  the  time  he  shot  the  deceased  he  had  no  reasonable  and  well- 
founded  belief  that  his  life  was  in  danger,  or  that  he  would  suffer 
some  great  bodily  injury  at  the  hands  of  the  deceased,  then,  in  that 
event,  the  defendant  is  guilty  of  murder  as  charged  in  the  indict- 
ment, and  the  jury  should  so  iind.*^ 

§  3109.  Real  or  Apparent  Danger,  (a)  If  you  find  and  believe 
from  the  evidence  that  defendant  did  shoot  and  kill  B.,  and  if  you 
believe  that  at  the  time  he  so  shot  B.,  that  B.  had  made,  or  was  in 
the  act  of  making,  an  attack  upon  the  person  of  defendant,  of  such  a 
character  as  to  put  defendant  in  danger  of  death  or  bodily  injury, 
or  if  you  believe  it  reasonably  appeared  to  defendant  that  B.  was 
about  to,  or  had  made  an  attack  upon  him,  the  defendant,  of  such  a 
character  as  caused  it  reasonably  to  appear  to  defendant,  viewed  from 
his  stamlpoint,  that  he  was  in  danger  of  death  or  serious  bodily  injury, 
and  that,  to  protect  himself  from  such  actual  danger,  defendant  shot 
and  killed  B.,  you  will  find  defendant  not  guilty. '"' 

(b)  Although  the  jury  may  believe  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant,  G.  W.,  shot  and  killed  M.,  if 
they  believe  from  the  evidence  that,  when  he  did  so,  he  had  reason- 
able grounds  to  believe,  and  did  believe,  that  deceased,  or  othei's  in 
his  party  acting  in  concert  with  him,  was  then  about  to  inflict  upon 

44— Stnte  v.  Appleton,  70  Kan.  217,  4G— Ham    v.     State,    —    Tex.     Cr. 

78  Pac.  445.  App.  — ,  98  S.  W.  875. 

45— State  v.  Dotson,  26  Mont.  305, 
67  Pac.  938  (940). 


§3110.]  CRIMINAI^— HOMICIDE— SELF-DEFENSE.  1987 

defendant,  C.  W.,  S.  W.,  E.  C,  or  any  of  them,  death  or  great  bodily 
harm,  or  it  reasonably  appeared  to  him  that  such  was  the  case,  and 
it  further  reasonably  appeared  to  him  that  the  only  reasonably  safe 
means  of  protecting  himself,  or  them,  against  such  danger,  real  or 
apparent,  was  to  shoot  the  said  M.,  or  others  in  his  part}'  acting  in 
concert  with  him,  and  the  shooting  and  killing  of  the  foimer  was 
done  under  these  circumstances,  the  same  was  excusable  on  the  ground 
of  apparent  necessity  in  the  defense  of  himself  or  associates  named, 
and  the  jury  should  acquit  the  defendant.*^ 

(c)  A  person  need  not  be  in  actual  imminent  peril  of  his  life, 
or  of  great  bodily  harm,  before  he  may  slay  his  assailant;  it  is  suffi- 
cient if,  in  good  faith,  he  has  a  reasonable  belief,  from  the  facts  as 
they  appear  to  him  at  the  time,  that  he  is  in  such  imminent  peril.** 

(d)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
was  assaulted  by  the  deceased  in  such  a  way  as  to  induce  in  the 
defendant  a  reasonable  and  well-grounded  belief  that  he  was  actually 
in  danger  of  losing  his  life  or  of  suffering  great  bodily  harm,  then 
he  was  justified  in  defending  himself,  whether  the  danger  was  real 
or  only  apparent.  Actual  or  positive  danger  is  not  indispensable  to 
justify  self-defense.  The  law  considers  that  men,  when  threatened 
with  danger,  are  obliged  to  judge  from  appearances  and  determine 
therefrom  as  to  the  actual  state  of  things  sun-ounding  them;  and,  in 
such  cases,  if  persons  act  from  honest  convictions,  induced  bj^  reason- 
able evidence,  they  will  not  be  held  responsible,  criminally,  for  a 
mis'take  as  to  the  extent  of  the  actual  danger.*^ 

§  3110.  Danger  Need  Not  Be  Real — May  Act  upon  Appearances, 
(a)  The  court  further  instructs  the  jury  that  a  person  need  not  be  in 
actual  imminent  peril  of  his  life  or  of  great  bodily  harm  before  he 
may  slay  his  assailant ;  it  is  sufficient  if,  in  good  faith,  he  has  a 
reasonable  belief  from  the  facts  as  they  appeared  at  the  time  that 
he  is  in  such  imminent  peril.  The  rule  of  law  on  the  subject  of  self- 
defense  is  this :  where  a  man  in  the  lawful  pursuit  of  his  business 
is  attacked,  and  when,  from  the  nature  of  the  attack,  there  is  reason- 
able ground  to  believe  that  there  is  a  design  to  take  his  life  or  to  do 
him  great  bodily  harm,  and  the  party  attacked  does  so  believe,  then 
the  killing  of  the  assailant  under  such  circumstances  will  be  excus- 
able or  justifiable  homicide,  although  it  should  aften\-ards  appear  that 
no  injuiy  was  intended  and  no  real  danger  existed.^'' 

(b)  The  court  instructs  j'ou  that  the  defendant  was  justified  in 
acting  upon  the  circumstances  as  they  appeared  to  him  at  the  time. 
And  in  determining  whether  or  not  the  defendant  took  the  life  of 
deceased  under  circumstances  to  render  the  act  justifiable,  as  herein- 
before explained,  you  will  determine  whether  or  not  the  circumstances 

47— Watkins  v.  Commonwealth,  29  Bode  v.  State,  6  Tex.  App.  424;  Ken- 

Ky.  1273,  97  S.  W.  740.  nedy   v.    Com.,   14   Bush.    (Ky.)    340; 

4S— Murray    v.    Com..    79    Pa.    St.  West  v.  State,  59  Ind.  113. 

311;  Roach  v.  People.  71  111.  25.  50— Carle  v.  People,  200  111.  494,66 

49— Parker  v.   State,  55  Miss.  414;  N.  E.  32,  93  Am.  St.  208. 


1988  FORMS  OF  INSTRUCTIONS.  [§  3110. 

as  they  appeared  to  him  were  such  as  to  lead  a  reasonable  man  to 
believe  that  there  was  a  design  to  kill  him  or  to  do  immediate  bodily 
harm,  coupled  with  immediate  danger  of  such  design  being  accom- 
plished.^^ 

(c)  If  the  defendant  shot  under  a  bona  fide  belief  that  his  life 
was  in  danger,  and  had  had,  under  all  the  circumstances,  reasonable 
cause  to  believe  he  was  in  imminent  danger  at  the  moment  the  shot 
was  fired,  it  would  be  immaterial  whether  there  was  such  actual  dan- 
ger or  not.^- 

(d)  The  defendant  was  entitled  to  act  upon  appearances,  and  if 
the  language  and  conduct  of  the  deceased  was  such  as  to  induce 
in  the  mind  of  a  reasonable  man,  under  all  the  circumstances  then 
existing,  and  viewed  from  the  standpoint  of  the  defendant  a  fear 
that  death  or  gi'eat  bodily  harm  was  about  to  be  inflicted  by  deceased 
upon  the  defendant,  it  does  not  matter  if  such  danger  was  real  or  only 
apparent;  and  if  defendant  acted  in  self-defense  from  real  and  honest 
convictions  as  to  the  character  of  the  danger,  induced  by  the  exist- 
ence of  reasonable  circumstances,  he  should  be  acquitted,  even  though 
he  was  mistaken  as  to  the  extent  of  the  danger.^^ 

(e)  It  is  not  necessary  to  the  right  of  self-defense  that  the  danger 
should  in  fact  exist.  It  may  be  only  apparent,  and  not  real.  If  it 
reasonably  appears  from  the  circumstances  of  the  case  that  the  danger 
existed,  the  person  threatened  with  such  apparent  danger  has  the 
same,  right  to  defend  against  it,  and  to  the  same  extent,  that  he 
would  have  were  the  danger  real.  And,  in  determining  whether  there 
was  reason  to  believe  that  danger  did  exist,  the  apijearances  must  be 

51 — State  v.  Appleton,  70  Kan.  217,  conclusion   that  if  he  was,   or  rea- 

78  Pac.  445;  State  v.  Foster,  66  S.  C.  sonably   appeared    to    be,    presently 

469,  45  S.  E.  2.  in  danger  of  life  or  grievous  bodily 

52 — Kennedy  v.  State,  140  Ala.  1,  harm,  and  believed  he  was  in  such 

37  So.  90  (91).  danger,  he  had  the   right  to  shoot, 

"The  above  charge  requested  by  whether  he  was  the  aggressor  or 
defendant  is  not  abstract.  There  not.  The  charge  does  not  deal  with 
was  evidence  tending  to  show  that  the  subject  of  aggression,  nor  pur- 
defendant  was  in  imminent  peril,  to  port  to  state  the  law  in  that  con- 
all  appearances,  and  that  he  be-  nection.  It  deals  only  with  the 
lieved  he  was  about  to  be  shot  by  character  of  danger  as  being  real, 
y.  when  he  shot  Y.  The  charge  Is  or  apparent  only,  which  is  one  of 
a  correct  statement  of  the  law —  the  three  elements  of  self-defense 
that  it  is  immaterial  in  such  case  in  ordinary  cases,  the  other  two 
whether  the  apparent  danger  was  being  freedom  from  fault  and  in- 
in  fact  real  danger.  It  deals  only  ability  to  retreat,  and  one  of  the 
with  this  question.  It  does  not  af-  two  in  this  case,  as  the  defendant 
firm  that  on  the  facts  postulated,  was  within  the  curtilage  of  his 
viz.,  the  apparent  danger,  and  de-  castle,  and  hence  under  no  duty  to 
fendant's  belief  in  its  reality,  the  retreat.  It  has  no  bearing  upon  the 
defendant  had  a  right  to  shoot,  nor  inquiry  of  the  aggression  vol  non, 
that  he  should  be  acquitted.  It  and  we  cannot  believe  it  would  have 
does  not  profess  to  deal  with  the  misled  the  jury  to  a,  nroteriTiission 
other  condition  to  defendant's  right  of  that  innuiry.  The  court  erred  in 
to    kill,    namely,    his    freedom    from  refusing  it." 

fault  in  bringing  on   the  difRcultv;  R,'? — People  v.   Thompson,   145  Cal. 

nor,    in    our    opinion,     has    it    any  717,  79  Pac.  435  (436). 
tendency  to  mislead  the  jury  to  the 


§  3111.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  1989 

viewed  from  the  standpoint  of  the  j^erson  who  acted  upon  them,  and 
from  no  other  standpoint.^* 

(f)  In  order  to  justify  the  defendant  in  taking  the  life  of  W.  L., 
it  is  not  neeessaiy  for  the  jury  to  find  'that  said  W.  L.  did  have  a 
pistol  in  his  pocket  at  the  time  of  said  killing,  or  that  the  defendant 
was  then  and  there  in  actual  danger  of  losing  his  life  or  of  receiving 
serious  l)odily  injury  at  the  hands  of  said  L. ;  but  it  is  sufficient  in  law 
to  justify  the  defendant  in  taking  the  life  of  the  said  L.  if,  from 
the  words  and  acts  of  the  said  L.  at  the  time,  the  defendant  had 
reasonable  grounds  to  believe,  and  in  good  faith  did  believe,  that  the 
said  L,  was  then  and  there  about  to  make  an  unlawful,  deadly  assault 
upon  him,  the  said  defendant ;  and  in  determining  how  this  may  be 
you  must  view  the  facts  and  circumstances  of  this  case  as  they  then 
reasonably  appeared  to  the  defendant.^^ 

(g)  The  law  does  not  require  that  a  party  must  establish  as  a 
fact  that  the  danger  he  apprehended  was  actual,  and  in  fact  existed; 
but,  if  the  accused  had  reasonable  grounds  to  apprehend  a  design 
that  his  life  was  in  danger,  or  that  there  was  reasonable  ground  to 
apprehend  that  great  personal  injury  was  to  be  done  him,  then  he 
had  a  right  to  act  upon  such  apprehension,  though  it  may  turn  out 
that  he  was  not  in  actual  danger  of  life  or  great  personal  injuiy.^^ 

(h)  In  order  to  justify  self-defense,  it  is  not  indispensable  that 
there  should  exist  actual  and  positive  danger.  A  party  who  is  as- 
saulted in  such  a  way  as  to  infuse  in  him  a  well-grounded  and  reason- 
able belief  that  he  is  in  danger  of  suffering  great  bodily  harm  will  be 
justified  in  defending  himself,  although  the  danger  be  not  real,  but 
only  apparent.  In  other  words,  he  is  justified  in  acting  upon  the 
facts  as  they  appear  to  him  at  that  time,  and  is  not  to  be  judged  by 
the  facts  as  they  actually  are.^'' 

§  3111.  Defendant  May  Safely  Act  on  Appearances,  Even  Where 
They  Turn  Out  to  be  False,  (a)  The  court  further  instructs  the 
jury  that  when  a  person  has  reasonable  grounds  to  appi'ehend  that 
some  one  is  about  to  do  him  great  bodily  harm,  and  there  are  reason- 
able grounds  for  believing  the  danger  imminent  that  such  design 
will  be  accomplished,  he  may  safely  act  upon  appearances,  and  kill 
the  assailant  if  that  be  necessary  to  avoid  the  apiDrehended  danger, 
and  the  killing  will  be  justifiable,  although  it  may  afterwards  turn 
out  that  the  appearances  were  false,  and  that  there  was  in  fact  no 
design  to  do  him  serious  injui-y  nor  danger  that  it  would  be  done.^^ 

(b)  The  court  instructs  the  juiy  that  if  you  find  from  the  evidence 
that  at  the  time  the  defendant  first  fired  the  shot  that  killed  the 
deceased  that  it  appeared  to  him  acting  as  a  reasonable  person,  with- 

54— Swanner  v.  State,  —  Tex.  Cr.  57— Argabright   v.    State,   62   Neh 

App.  —    58  S.   W.  72   (74).  402.  87  N.  W.  146  (147). 

55— Williams  v.  U.  S.,  4  Ind.  Ter.  58— State    v.    McCarver,    194    Mo. 

269.  69  S.  W.  871.  717,  92  S.  W.  684. 

56_Frank   v.    State,   94  Wis.    211, 
68  N.  W.  657  (659). 


1990  FORMS  OF  INSTRUCTIONS.  [§  3112 

out  fault  or  carelessness  on  his  part,  that  the  dang-er  at  that  time  was 
so  urgent  and  pressing  that  it  was  necessary  to  kill  the  deceased  to 
save  his  own  life  or  prevent  his  receiving  great  bodily  injury,  and 
that  he  acted  in  good  faith,  then  you  must  acquit  the  defendant, 
though  the  jury  may  believe  that  it  was  not  necessary  for  the  de- 
fendant to  have  fired  the  shot.^^ 

(c)  The  court  instructs  the  jury,  that  the  law  is:  If  a  person  is 
assaulted  in  such  a  way  as  to  induce  in  him  a  reasonable  belief  that 
he  is  in  actual  danger  of  losing  his  life,  or  of  suffering  great  bodily 
harm,  he  will  be  justified  in  defending  himself,  although  the  danger 
be  not  real,  but  only  apparent.  Such  a  person  will  not  be  held 
responsible,  criminally,  if  he  acts  in  self-defense,  from  real  and  honest 
convictions  as  to  the  character  of  the  danger,  induced  by  reasonable 
evidence,  although  he  may  be  mistaken  as  to  the  extent  of  the  actual 
danger.®" 

(d)  It  is  enough  that  there  be  an  apparent  danger — such  an  ap- 
pearance as  would  induce  a  reasonable  person  in  defendant 's  position 
to  believe  that  he  was  in  immediate  danger  of  great  bodily  injury. 
Upon  such  appearances  a  party  may  act  with  safety.  Nor  will  he  be 
held  accountable  though  it  should  afterwards  appear  that  the  indi- 
cations were  wholly  fallacious,  and  that  he  was  in  no  actual  peril. 
The  rule  in  such  cases  is  this:  What  would  a  reasonable  person — a 
person  of  ordinary  caution,  judgment  and  observation — in  the  posi- 
tion of  the  defendant,  seeing  what  he  saw,  and  knowing  what  he 
knew,  suppose  from  this  situation  and  these  surroundings'?  If  such 
reasonable  person,  so  placed,  would  have  been  justified  in  believing 
himself  in  imminent  danger,  then  the  defendant  would  be  justified  in 
believing  himself  in  such  peril,  and  in  acting  upon  such  appearance.*^! 

§  3112.  Self -Defense — Danger  Must  Seem  Actual,  Present  and 
Urgent,  (a)  The  taking  of  human  life  is  a  matter  of  such  serious 
import  that  it  cannot  be  justified  by  only  slight  danger.  The  danger 
which  will  justify  the  killing  of  a  human  being  must  be  actual, 
present  and  urgent  to  the  apprehension  of  the  defendant.  Anything 
less  than  this  will  not  suffice  to  justify  one  human  being  in  taking 
the  life  of  another.®- 

(b)  The  danger  apprehended  must  be  urgent  and  pressing,  or  ap- 
parently so,  at  the  time  of  the  killing. ^^^ 

59_Velvin    v.    State,    77    Ark.    97,  63— Williams  v.  State,  120  Ga.  870, 

90  S.  W.  851.  48    S.    E.   368   (369). 

60 — Steinmeyer   v.    People,    95    111.  The  court  said:     "The  doctrine  of 

383;    Roach    v.    People,    77    111.    25;  reasonable   fear  as   a  defense   does 

State  v.  Fraunburg,  40  la.  555;  State  not  apply  to  any  case  of  homicide 

V.  Bohan,  19  Kan.  28;  Crews  v.  Peo-  where    the   dahjErer   apprehended    is 

pie,  120  111.  317.  not  urgrent  and  pressing,  or  appar- 

ei—^Carleton  v.  State,  43  Neb.  373,  ently  so,  at  the  time  of  the  killing'," 

61  N.   W.  699  (710);   State  v.   Bural-  citing-  Jackson  v.  State,  91   Ga.  271, 

li    27  Nev.  41,  71  Pac.  532  (535).  18  S.  E.  298,  44  Am.   St.  22. 

'62— Ryan    v.    State,   115   Wis.   488, 
92  N.  W.  271  (276). 


§3113.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  1991 

(e)  The  court  further  tells  you  that  it  must  appear  to  the  defend- 
ant, without  fault  or  carelessness  on  his  part,  that  the  danger  was 
not  only  impending,  but  so  pressing  and  urgent  as  to  render  the 
killing  necessary  to  save  his  own  life,  or  to  prevent  his  receiving  great 
bodily  harm,  and  that  the  defendant  really  acted  under  'this  influence, 
and  not  in  a  spirit  of  revenge.®* 

§  3113.  Apprehension  of  Danger — Person  Must  Act  Upon  Honest 
Belief,  (a)  A  bare  fear  or  a  mere  apprehension  of  a  shooting  to 
prevent  which  a  killing  was  done  will  not  justify.  The  circumstances 
must  be  such  as  to  excite  the  reasonable  fears  in  a  rational  mind,  and 
the  person  shooting  must  act  under  the  influence  of  such  fears,  and 
not  in  a  spirit  of  revenge.  Not  only  must  the  shooting  be  in  defense, 
but  it  must  be  absolutely  necessary  to  prevent  the  attack  and  injury 
on  the  person  shooting,  or  the  person  shooting  must  really  and  hon- 
estly believe  at  the  time,  and  in  good  faith  act  upon  such  belief,  and 
not  in  a  spirit  of  revenge.®^ 

(b)  No  man  can  take  another  man's  life,  and  justify  it  before  a 
jury  on  the  ground  of  self-defense,  unless  he  is  prepai-ed  to  show  that 
there  was  a  necessity  to  take  that  man's  life;  and,  in  order  to  show 
that,  it  must  appear  that  the  danger  to  his  own  life  or  of  receiving 
great  bodily  harm  from  the  hands  of  the  deceased  was  then  and  there 
hanging  over  him  and  about  to  fall  upon  him,  and  that  he  could  not 
prevent  it  except  by  slaying  his  adversary. 

(e)  In  ordinary  cases  of  one  person  killing  another  in  self-defense, 
it  must  appear  that  the  danger  was  so  urgent  and  pressing  that,  in 
order  to  save  his  own  life  or  to  prevent  his  receiving  great  bodily 
harm,  the  killing  of  the  other  person  was  necessary.®*' 

(d)  The  court  instmcts  the  jury  that  by  the  language,  'Mawful 
defense  of  the  person"  is  meant  what  we  sometimes  term  "self- 
defense."  The  right  of  self-defense  is  founded  upon  the  natural 
right  of  a  man  to  protect  himself  against  the  unlawful  assault  upon 
him  by  another.  This  defense  having  been  made  in  this  case,  the  jury 
should  weigh  each  fact  and  circumstance  that  is  offered  as  justifiable 
grounds  in  connection  with  all  the  other  testimony  in  the  case.  Mere 
apprehension  that  a  pei'son  designs  to  kill  another  or  to  commit  some 
great  bodily  harm  upon  him  is  not  sufficient  to  justify  such  other 
in  first  making  an  attack  and  committing  the  act  complained  of  in 
the  indictment  herein;  and  to  perform  such  act,  when  the  excuse 
therefor  is  mere  apprehension,  would  not  be  sufficient  to  justify  the 
act  as  one  having  been  committed  in  the  lawful  defense  of  the  per- 
son. In  a  case  where  a  person  attacks  another,  or  attempts  to  execute 
a  design  upon  the  life  of  such  other,  and  is  in  an  apparent  situation 
to  do  so,  thereby  creating  a  reasonable  belief  that  such  design  is 
about  to  be  accomplished,  then  the  person  so  threatened  may  resist 

64— Lee  v.   State,   72   Ark.   436,   81        65— Frazier  v.   State,  112  Ga    868 
S.    W.    385    (386);    Henry   v.    People,     38  S.  E.  349. 

198  111.  162  (198),  65  N.  E.  120.  66— Williams  v.  U.  S.,  —  Ind.  Ter. 

— ,  88  S.  W.  334  (346). 


1992  FORMS  OF  INSTRUCTIONS.  [§  3113. 

and  use  all  necessary  force  to  prevent  the  accomplishment  of  su.'!i 
design  even  to  the  extent  of  taking  life,  and  it  is  justifiable.  Actuj,! 
or  positive  danger  is  not  indispensable  to  justify  self-defense.  The 
law  considers  that  men,  when  threatened  with  danger,  are  obliged  to 
judge  from  appearances  and  to  determine  therefrom  the  exact  state 
of  things  surrounding  them,  and  in  such  case,  if  a  person  acts  from 
an  honest  conviction,  induced  by  reasonable  evidence  he  will  not  be 
held  criminally  liable  for  a  mistake  as  to  the  extent  of  actual  danger. 
If  the  jury  believe  from  the  evidence  that  at  the  time  the  defendant 
is  alleged  to  have  shot  the  deceased  the  circumstances  surrounding 
him  were  such  as  in  sound  reason  would  justify  or  induce  in  his  mind 
an  honest  belief  that  he  was  in  danger  of  receiving  from  the  deceased 
some  great  bodily  harm,  and  that  the  defendant  in  doing  what  he 
did,  was  acting  solely  from  the  instincts  of  self-preservation,  then  he 
is  not  guilty,  and  you  should  so  find.®" 

(e)  If  the  jury  believe  from  the  evidence  that  at  the  time  of 
the  shooting  in  question  the  said  0.  M.  made  an  attack  upon  the 
defendant  with  a  chair  under  such  circumstances  as  to  create  in  the 
mind  of  a  reasonably  and  ordinarily  prudent  man  a  belief  that  he 
was  in  danger  of  being  killed  or  of  receiving  great  bodily  harm 
immediately,  and  if  the  jury  further  believe  from  the  evidence  that 
the  defendant  at  the  time  did  honestly  believe  that  he  was  in  imminent 
danger  of  receiving  great  bodily  harm,  and  in  good  faith  shot  to 
protect  himself  therefrom,  and  if  you  further  believe  that  the  defend- 
ant, acting  in  good  faith,  did  not  fire  any  more  shots  than  he  had  a 
reasonable  right  to  believe,  under  the  circumstances  in  which  he  was 
placed,  was  necessary  to  protect  himself  or  his  wife  from  death  or 
great  bodily  hann,  then  you  should  find  the  defendant  not  guilty.^^ 

(f)  If  the  jury  find  from  the  evidence  that  at  the  time  the  de- 
fendant is  alleged  to  have  shot  said  A.  B.  the  circumstances  sur- 
rounding the  defendant  were  such  as,  in  sound  reason,  would  justify 
or  induce  in  his  mind  an  honest  belief  that  he  was  in  danger  of  re- 
ceiving from  the  said  A.  B.  great  bodily  harm,  and  that  the  defend- 
ant, in  doing  what  he  then  did,  was  acting  from  the  instinct  of  self- 
preservation,  then  he  is  not  guilty,  although  there  may  in  fact  have 
been  no  real  or  actual  danger.®^ 

(g)  You  are  instructed  that  before  the  defendant  can  avail  him- 
self of  the  plea  of  self-defense  and  justify  himself  of  the  killing 
charged  against  him,  it  must  appear  from  all  the  evidence  that  there 

67— Robinson  v.  Territory,  16  Okla.  faith,    leading'    to    a    conviction    of 

241,  85  Pac.  451  (455,  456).  tlie  tlireatened  dang-er,  whicli  is  ac- 

68 — State    v.    Bufflngton,    71    Kan.  tual  and  substantial,  before  a  per- 

P04.  81   Pac.  465  (466).  son  will  be  excused  or  justified   for 

69_Coil    V.    State,    62    Neb.    15,    86  a   homicide   on   the   ground   of  s'^i*'- 

N.  W.  925   (928).  defr^nse,"    citing    Vollmer    v.    State, 

The   court   said   th^t   "the   phrase  24  Neb.  838.  40  N.  W.  420;  Darling  v. 

'sound  reason'  is  equivalent  to  say-  Williams,  ^5  Ohio  St.  59;  Johnson  v. 

ing  that  the  reasoning  powers  must  State,  79  Miss.  42,  30  So.  39  (40). 
be  exercised  honestly  and   in  good 


§3114.]  CRIMINAI^-HOMICIDE— SELF-DEFENSE.  1993 

was  a  reasonable  ground  on  the  part  of  the  defendant  to  apprehend 
a  design  on  the  part  of  the  deceased,  M.  C,  or  those  who  defendant 
claims  were  with  him  to  do  him,  the  defendant,  great  personal  injury, 
and  that  at  the  time  there  was  imminent  danger  of  such  design  being 
accomplished,  and  that  the  said  defendant  then  and  there  honestly 
believed  that  he  was  in  imminent  danger  of  then  and  there  receiving 
from  the  deceased  and  those  who  defendant  claims  were  with  said 
deceased  some  great  personal  injury;  and  that  the  said  deceased,  M. 
C,  and  those  who  defendant  claims  were  with  him  were  in  a  position 
and  had  the  ability  then  and  there  to  do  the  defendant  great  personal 
injury,  and  that  the  facts  and  circumstances  were  at  the  time  sufficient 
to  convince  the  defendant  of  an  honest  belief  that  he  was  then  in 
imminent  danger  of  receiving  some  great  personal  injury  from  the 
deceased,  C,  or  those  who  defendant  claims  were  with  C."'^ 

§  3114.  Defendant  Need  Not  Believe  Death  of  Assailant  Necessary. 
The  court  instructs  the  jury  that  the  law  of  self-defense  gives  the 
party  assailed  the  right  to  repel  force  by  force,  and  he  need  not  be- 
lieve that  his  safety  requires  him  to  kill  his  adversaiy,  in  order  to 
give  him  the  right  to  make  use  of  force  for  that  purpose.  When  his 
life  is  in  danger,  or  he  is  in  danger  of  great  bodily  hann,  or  when, 
from  the  acts  of  the  assailant,  he  believes  and  has  reasonable  ground 
to  believe,  that  'he  is  in  danger  of  losing  life  or  receiving  great 
bodily  harm  from  his  adversary,  the  right  to  defend  himself  from 
such  danger  or  apprehended  danger  may  be  exercised  by  him,  and  he 
may  use  it  to  any  extent  which  is  reasonably  necessary.  He  need  not 
believe  that  he  can  only  defend  himself  by  taking  the  life  of  his 
assailant.  If  the  death  of  his  assailant  results  from  the  reasonable 
defense  of  himself,  he  is  excusable  whether  he  intended  that  conse- 
quence or  not,  or  whether  he  believed  such  result  was  necessary  or 
not.'^i 

§  3115.  Deceased,  Acting  Together  with  Other  Persons,  Assaulting 
Defendant,  (a)  If  you  believe  from  the  evidence  that  at  the  time 
the  wound  was  inflicted  from  which  the  deceased  subsequently  died, 
the  deceased,  whether  alone  or  acting  together  with  other  persons,  as- 
saiilted  the  defendant,  and  that  it  then  and  there  reasonably  appeared 
to  the  defendant  that  he  was  in  imminent  danger  of  being  wounded 
or  receiving  great  personal  injury  at  the  hands  of  the  deceased,  M.  C, 
and  other  persons  acting  in  concert  with  him,  and  that  the  defendant 
fired  the  fatal  shot  in  the  protection  of  his  person,  while  he  was  under 
the  impression  that  he  was  in  imminent  danger  of  being  murdered 
or  of  receiving  some  serious  personal  injury  to  himself,  then  if  you 
so  believe,  you  will  find  the  defendant  not  guilty. ''^- 

70— Territory  v.  Gonzales,  11  N.  M.     case  of  Territory  v.  Baker    1  Ohio 
301.  68  Pac.  925  (930).  St.   66." 

"This  instruction  is  very  full  and         71 — Lyons    v.    People,    137   111.    602 
presents      the      law      substantially     (620),  27  N.  E.  677. 
within  the  doctrine  laid  down  in  the        72 — Territory   v.    Gonzales,    11    N 

M.  301,  68  Pac.  925  (931). 


1994  FORMS  OF  INSTRUCTIONS.  [§  3116. 

(b)  If  you  believe  from  the  evidence  that  at  the  time  of  the 
stabbing  of  the  deceased  the  defendant  had  good  cause  to  believe  and 
did  believe,  under  all  the  facts  and  circumstances  in  evidence,  that 
deceased,  alone  or  along  with  others,  was  about  to  kill  defendant, 
or  do  him  great  bodily  harm,  and  that  defendant  had  good  cause  to 
believe  and  did  believe  that  it  was  necessary  to  stab  the  deceased 
in  order  to  prevenit  such  apprehended  danger,  then  the  jury  should 
acquit  the  defendant  on  the  ground  of  self-defense.'^^ 

§  3116.  Deceased  Assaulting  Defendant  with  Deadly  Weapon,  (a) 
The  court  instructs  the  juiy  that  if  they  believe  from  the  evidence  that 
M.  assaulted  the  defendant  with  a  deadly  weapon,  to-wit,  a  stick, 
the  defendant  had  the  right,  under  the  law  of  the  land,  to  repel  sueh 
an  assault  by  the  use  of  a  deadly  weapon;  and  if,  in  repelling  such 
assault,  the  defendant  wounded  the  deceased  by  cutting  him  with  a 
knife,  from  which  deceased  died,  then  such  killing  was  justifiable,  and 
the  jury  should  find  the  defendant  not  guilty. 

(b)  The  court  instructs  the  jury  that  they  are  not  called  upon  to 
deteiTnine  in  this  case  which  of  the  parties  was  the  aggressor  in  the 
fight  between  J.  L.  and  the  defendant.  But  the  jury  is  to  determine 
whether  or  not  at  the  time  the  defendant  cut  M.  the  said  M.  was  in 
the  act  of  committing  an  assault  upon  the  defendant  with  a 
deadly  weapon;  and  if  the  jury  believe  that,  at  the  time  B.  cut 
deceased,  the  deceased  was  in  the  act  of  so  assaulting  the  defendant, 
then  such  cutting  was  justifiable,  and  the  jury  should  find  the  de- 
fendant not  guilty,  or,  if  the  jury  entertain  a  reasonable  doubt  as 
to  whether  the  cutting  was  justifiable  or  not,  they  should  resolve 
such  doubt  in  favor  of  the  defendant,  and  acquit  him. 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  L.  began  the  assault  upon  the  defendant  with  his  fist, 
and  if  they  further  believe  from  the  evidence  that  L.  was  thus  assault- 
ing defendant,  M.  began  beating  defendant  with  a  deadly  weapon, 
then  defendant  had  a  right  to  defend  himself  against  such  attacks, 
even  to  the  point  of  taking  the  life  of  either  or  both  of  the  said  M. 
or  L.,  if  actually  or  apparently  necessary  to  save  his  own  life  or 
limb;  and,  if  the  jury  entertain  a  reasonable  doubt  as  to  this,  they 
should  resolve  sueh  doubt  in  favor  of  the  defendant,  and  acquit  him. 

(d)  Even  though  the  jury  should  believe  from  the  evidence  be- 
yond a  reasonable  doubt  that  the  defendant  was  the  aggressor  in  the 
difficulty  between  himself  and  L.,  and  even  though  the  jury  should 
further  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
M.  began  beating  the  defendant  with  a  deadly  weapon  to  prevent 
the  defendant  from  committing  a  felony  upon  L.,  still  the  said  M. 
had  no  right  to  continue  beating  defendant  after  said  defendant  had 
ceased  sueh  attack  upon  said  L. ;  and,  if  the  jury  believe  from  the 

73— State  v.  Price,  186  Mo.  140,  8?  the  case  of  State  v.  Adler,  146  Mo 
S.  W.  920  (921).  19.   47  S.   W.   794,   and   the   criticism 

"This   Instruction   is   in  line   with     of  it  without  merit." 


§  3117.]  CRIMINAI^-HOMICIDE— SELF-DEFENSE.  1995 

evidence  that  M.  did  so  continue  to  beat  the  defendant  with  a  deadly 
weapon,  then  the  defendant  had  a  light  to  defend  himself  against  such 
continued  attack,  even  to  the  point  of  taking  the  life  of  said  M.,  if 
actually  or  apparently  necessaiy  to  save  himself  from  great  bodily 
harm,  or,  if  the  juiy  are  in  doubt  as  to  this,  they  should  acquit.'^* 

§  3117.  Deceased  Attempting  or  Purporting  to  Draw  Weapon,  (a) 
If  you  believe  from  the  evidence  that  the  defendant  did  not  start  or 
provoke  the  quaiTel  with  the  deceased,  but  that  the  deceased  began 
quarreling  with  the  defendant  without  just  cause;  that  deceased  cursed 
defendant,  applying  to  him  a  foul  epithet,  and  threatened  to  kill 
defendant;  that  the  deceased  had  a  revolver  in  his  pocket;  that  he 
arose  from  his  seat  and  put  his  right  hand  to  his  right  pants  pocket 
in  a  threatening  manner,  and  attempted  to  draw  his  pistol  for  the 
purpose  of  shooting  defendant — then  and  in  that  case  the  defendant 
had  a  lawful  right  to  defend  himself,  even  to  the  extent  of  taking  the 
life  of  the  deceased.'^ 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the  evi- 
dence that  F.  and  M.  Avere  enemies,  and  that  when  they  met  at  the 
time  of  the  homicide,  M.,  in  a  loud  and  angi-y  tone  of  voice  called  the 
defendant  a  "damned  liar,"  or  a  "God  damned  liar,"  and  immedi- 
ately threw  his  hand  behind  him  in  a  threatening  and  menacing  man- 
ner, as  though  he  intended  to  draw  a  pistol,  and  that  his  acts  and  con- 
duct were  such  as  to  engender  in  the  mind  of  F.,  and  did  engender  in 
the  mind  of  F.,  a  reasonable  belief  that  he  (M.)  was  armed  with  a 
pistol,  and  was  attempting  to  draw  it  to  shoot  F.,  when  F.  was  making 
no  assault  on  him,  and  that  F.  shot  him  under  such  circumstances, 
then  F.  is  justifiable,  even  if  you  should  believe  M.  was  unarmed  at  the 
time.'® 

§  3118.     Apparent  Danger — Deceased  Shooting  First.     If  you  be- 

74— Boykin  v.   State,   86  Miss.   481,  v.  State,  64  Miss.  428,  1  So.  354,  and 

38  So.  725.  other  cases,  this  was  a  right  which 

The  trial  court  modified  the  first  the    law    guaranteed    him,    and   the 

instruction     by     adding     after     the  modifying,    restrictive    clauses    in- 

word   "stick"    the  following:     "And  serted    by    the    court,    by    injecting 

not  in  necessary  self-defense."  other  propositions  into  them,  might 

The  trial  court  modified  the  sec-  and  probably  did   serve  to   confuse 

end  instruction  by  adding  after  the  and  mislead  the  minds  of  the  jury, 

word  "weapon"  the  words  "and  not  and  to  deprive  the  defendant  of  a 

in  his  necessary  self-defense."  clean,   clear-cut  enunciation   of  the 

The  trial  court  modified  the  third  law  as  applicable  to   his   theory  of 

instruction     by     adding     after     the  self-defense.  As  this  case  might  be 

word  "weapon"  the  following:     "At  reversed,  we  will  only  add  this  ob- 

a    time    when    defendant    was    not  servation  to  ithis  branch  of  it:  That, 

cutting   Jackson   with   his  knife."  where     the     prosecution     desires    a 

The  supreme  court  said:  modification    of    the    principles    of 

"We  deem  the  modifications  made  law  as  set  forth  in  defendant's  in- 

by  the  court  of  instructions  Nos.  1,  structions.  the  better  practice  is  for 

3.  19  and  20  for  appellant  erroneous,  it  to  ask  the  court  for  separate  in- 

We    think    the    charsres    as    framed  s+ructions.     INTask  v.  State.  36  Miss, 

and    asked    by    appellant's    counsel  77:  Arr-hf>r  v.  Sinclair.  49  Miss.  343." 

correctlv    announced    the    principles  75— Williams  v.  V.  S.,  4  Ind.  Ter. 

of  l^w  as  apnlied  to  the  compotcnt.  269.    69    S.    W.    871. 

pertinent   evidence,   and   his  theory  76— Fore  v.  State,  75  Miss.  727,  23 

of  the  case;  and,  as  held  in  Lamar  So.  710  (711). 


1996  FORMS  OF  INSTRUCTIONS.  [§  3119. 

lieve  from  the  evidence  that  the  deceased  shot  at  the  defendant 
first  with  a  pistol;  and  if  you  further  believe  from  the  evidence  that 
this  caused  the  defendant  to  have  a  reasonable  expectation  or  fear 
of  death  or  serious  bodily  injury,  and  that,  acting  under  such  reason- 
able expectation  or  fear,  the  defendant  shot  the  deceased,  then  I 
charge  you,  that  the  defendant  had  the  right  to  continue  to  shoot 
him,  viewed  from  his  standpoint,  at  the  time,  that  danger  existed  to 
his  life  or  to  his  person;  that  is,  that  there  was  danger  of  either 
losing  his  life  or  to  his  person — that  is,  that  there  was  danger 
of  either  losing  his  life  or  suffering  serious  bodily  injury — at  the  hands 
of  the  deceased.  It  was  not  necessai-y  that  danger  did  in  fact  exist 
to  the  life  or  person  of  defendant,  provided  you  believe  from  all  the 
evidence  that  it  reasonably  appeared  to  defendant,  viewed  fi'om  his 
standpoint,  at  the  time,  that  such  danger  existed  to  his  life  or  person, 
if  you  find  the  above  facts  are  true,  then  you  will  find  the  defendant 
not  guilty,  on  'the  ground  of  self-defense.'^'^ 

§  3119.  Must  Employ  All  Reasonable  Means  to  Avert  the  Necessity 
of  Killing,  (a)  As  a  matter  of  law,  no  one  has  a  right  to  kill  an- 
other, even  in  self-defense,  unless  such  killing  is  apparently  necessary 
for  such  defense.  Before  a  person  can  justify  taking  the  life  of  a 
human  being  on  the  ground  of  self-defense,  he  must,  when  attacked, 
employ  all  reasonable  means  within  his  power,  consistent  with  his 
safety,  to  avoid  the  danger  and  avert  the  necessity  for  the  killing. '^^ 

(b)  The  law  enjoins  upon  a  defendant  who  pleads  self-defense  to 
show  that  he  had  no  other  jDrobable  means  of  avoiding  the  danger  to 

77_Wallace  v.   State,  —  Tex.  Cr.  30  So.  73  (74),  the  court  held  it  prop- 

App.  — ,  97  S.  W.  471.  er  to  instruct  the  jury  that  for  the 

"The  objection  is  to  that  portion  defendant  "to  be  in  position  to  in- 
of  the  charge  which  reads:  'If  you  volte  the  doctrine  of  self-defense, 
find  the  above  facts  are  true.'  The  the  defendant  mu.st  have  been  with^ 
insistence  is  that,  to  entitle  the  de-  out  fault  in  bringing-  on  the  fatal 
fendant  to  a  verdict  of  not  guilty  encounter.  McLeroy  v.  State,  120 
upon  the  ground  of  self-defense,  it  Ala.  274,  25  So.  247.  Besides  being 
was  not  necessary  that  the  jury  himself  free  from  fault,  as  above 
should  find  the  facts  enumerated  in  stated,  the  defendant  to  be  entitled 
said  charge  to  be  true.  We  do  not  to  acquittal  on  the  ground  of  self- 
believe  that  said  charge,  when  con-  defense,  must  have  found  a  neces- 
sidered  in  connection  with  the  en-  sity,  real  or  apparent,  for  firing  the 
tire  charge  of  the  court,  injured  or  fatal  shot,  as  a  means  of  averting 
was  calculated  to  injure  the  riThts  grievous  bodily  harm  to  himself; 
of  appellaat.  On  the  other  hand,  and  also  he  must  have  retreated,  if 
the  court  lells  the  jury  that  if  they  by  retreat  he  could  have  avoided 
believe  that  defendant  thought  his  killing  the  deceased  without  mate- 
life  was  in  danger,  or  his  person  in  rially  increasing  his  own  danger, 
danger  of  serious  bodily  injury,  Evans  v.  State,  120  Ala.  268,  25  So. 
and  he  acted  under  such  appear-  175;  Henson  v.  State,  120  Ala.  316, 
ances,  then  they  should  find  him  25  So.  23;  Teague  v.  State,  120  Ala. 
not  guilty,  regardless  of  whether  309,  25  So.  209;  Hendricks  v.  State, 
he  was  injured  or  not.  The  court  122  Ala.  42,  26  So.  242;  Naugher  v. 
prope'-ly  gave  a  charge  of  reason-  FtPte,  105  Ala.  29,  17  So.  24;  Howard 
able  doubt  to  the  jury  on  all  phases  v.  State,  HO  Ala.  92.  20  So.  365." 
of  the  rase."  78— Smith    v.    Territory,    11    Okla. 

In  Harkness  v.  State,  129  Ala.  71.  669,  69  Pac.  805  (808). 


§  3120.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  1997 

himself,  of  losing  bis  own  life,  or  of  sustaining  serious  bodily  bann 
than  to  act  as  he  did  in  this  instance.  Because  the  defendant  who  in- 
vokes that  plea  must  not  only  have  believed  that  his  life  was  in  dan- 
ger, or  that  he  was  in  danger  of  sustaining  some  serious  bodily  harm, 
but  the  facts  and  circumstances  under  which  he  formed  that  belief, 
or  under  which  he  came  to  that  conclusion,  must  have  been  such  as  to 
cause  you  to  believe  that  a  man  of  ordinai-y  firmness  and  courage, 
situated  as  he  was  at  that  time,  would  be  justified  in  so  believing.'^^ 

(c)  You  are  insti-ucted  that,  in  order  to  justify  the  defendant 
taking  the  life  of  deceased  in  self-defense,  he  must  have  employed 
all  the  means  in  his  power  consistent  with  his  safety  to  have  averted 
his  danger  and  avoided  the  necessity  of  the  killing;  and  if  you  find 
that  he  could,  by  retreating,  have  averted  the  danger  and  avoided 
the  necessity  of  the  killing,  it  was  his  duty  to  do  so.^" 

(d)  The  taking  of  human  life  is  a  matter  of  such  deep  significance 
that  it  cannot  be  justified  by  some  slight  appearance  of  danger,  and, 
if  the  defendant  was  in  fault  in  creating  the  situation  of  danger,  his 
right  of  self-defense  does  not  arise  until  he  shall  have  done  all  that 
reasonably  could  be  done  by  him  to  avoid  the  necessity  of  killing  his 
assailant  in  oi'der  to  protect  himself.**^ 

§  3120.  Resistance  Must  Be  in  Proportion  to  the  Danger  Which  Is 
Apprehended — Honestly  Believed  He  Was  in  Danger  of  Life  or  Great 
Bodily  Harm — Reasonable  Doubt,  (a)  Now,  gentlemen  of  the  jury, 
it  is  for  you  to  say  whether  this  respondent  was  assaulted  in  the  man- 
ner claimed.     The  law  gives  to  eveiy  person  the  right  to  protect  him- 

79— State  v.  Hutto,  66  S.  C.  449,  45  taken   to   the   last   sentence   on   the 

S.   E.   13  (14);  State  v.   Fontenot,  50  ground    that   F.   was   not   bound    to 

La.    Ann.    537,    23    So.    634    (635),    69  retreat   at   all,    nor   to   endeavor   to 

Am.   St.  455.  escape,  but  was  excusable  in  doing 

80— Bishop   V.    State,    73   Ark.   568,  as  he  did.    This  court  has,  perhaps, 

84  S.  W.  707.  g-one  as  far  as  any  court  in  excus- 

The  court  said  that  the  rule  that  ing  a  person  from  fleeing  from  his 

defendant  when  attacked  "need  not  assailant.      Bird    v.    State,    77    Wis. 

retreat,  but  may.  stand  his  ground,  281-283,    45   N.    W.    1126;    Perkins    v. 

and  if  need  be,   kill  his  adversary.  State,  78  Wis.  555-557,  47  N.  W.  827. 

and  the  reasons  given  therefor  are  The    difficulty    with    the    contention 

limited  to  cases  where  a  murderous  of  counsel   on   this  point  is  that   it 

assault  is   made  by  deceased   upon  has  no  application   to  the  evidence 

the   defendant,    and   where  the   de-  in    the    case.      P.    had    no    weapon, 

fendant  is  free  from  fault  in  bring-  There   is    no    evidence    that    he   en- 

ing  on   the   difficulty   and   does   not  tered  the  house  with  any  intent  to 

apply  in  cases  where  the  defendant  injure  F.   or  any   one;   nor   that   he 

was  the  aggressor  or  provoked  the  knew  F.  was  in  the  house  when  he 

difficulty,    nor   in   cases   where   the  entered.     The  moment   he   entered, 

assault  was  the  result  of  a  sudden  F.    was    in   the   act   of    raising   his 

quarrel  in  the  heat  of  passion.    Car-  gun    toward    him,    and    cocking    it. 

penter  v.  State,  62  Ark.  309,  36  S.  W.  He  at  once  disclaimed  all  intent  to 

906;    McPherson    v.    State,    29    Ark,  injure,  but  F.  did  not  desist.     There- 

225;  Palmore  v.   State,   29  Ark.  248;  by    F.    became    the    assailant,    and 

Fitzpatrick   v.    State,    37    Ark.    238;  what  P.   said   and   did   was  in  self- 

Dolan  V.  State,  40  Ark.  454;  Duncan  defense.     A  similar  contention  was 

v.  State.  49  Ark.  543,  6  S.  W.  164."  expressly    overruled    in    Clifford    v. 

81— Frank    v.    State,    94    Wis.    211,  State.  58  Wis.  491, 17  N.  W.  304.    See 

68  N.  "W.  6.57  (659).  also  Housk  v.  State,  43  Neb.  163,  61 

The    court    said:      "Exception    is  N.  W.  573." 


1998  FORMS  OP  INSTRUCTIONS.  [§  3121. 

self  from  unlawful  assault.  Where  an  assault  is  made,  ihe  right  to 
resist  exists;  but  the  resistance  must  be  in  proportion  to  the  danger 
which  is  apprehended,  it  is  not  every  assault  that  would  justify  a 
person  in  using  a  deadly  weapon.  If,  however,  the  person  assailed 
honestly  believes  his  life  in  danger  or  that  he  may  suffer  serious 
bodily  harm,  he  has  the  right  to  resist,  even  to  taking  the  life  of  his 
assailant.  The  person  assailed  is  to  be  judged  by  the  circumstances 
and  conditions  as  they  honestly  appeared  to  him  at  the  time.  The 
defense  of  self-defense  necessarily  assumes  an  assault.  There  can 
be  no  self-defense  by  a  i>erson  until  he  is  assaulted  by  another.  It  is 
for  you  to  say,  from  all  the  evidence  in  this  cause,  whether  the  re- 
spondent honestly  believed  he  was  in  danger  of  losing  his  life,  or  in 
danger  of  great  bodily  harm,  and  that  it  was  necessary  for  him  to 
fire  this  fatal  shot  in  order  to  save  himself  from  such  apparent  and 
threatened  danger.  Although  you  may  not  be  satisfied  that  the  re- 
spondent in  committing  the  act,  acted  in  self-defense,  still,  if  the  testi- 
mony in  this  case  creates  in  your  mind  a  reasonable  doubt  as  to 
whether  or  not  the  act  was  done  in  self-defense,  the  respondent  is 
entitled  to  the  benefit  of  the  doubt,  and  it  will  be  your  duty  to  acquit 
him.^^ 

(b)  A  party  in  the  exercise  of  self-defense  cannot  use  more  force 
than  appears  to  be  necessary  for  his  own  protection,  and  if  he  ex- 
ceeds the  force  apparently  ne  sary  to  his  own  defense  or  safety  he 
is  guilty  of  either  murder  or  manslaughter,  as  defined  by  these  in- 
structions, if  the  homicide  results  from  his  acts.^^ 

§  3121.  No  More  Force  to  Be  Used  Than  the  Circumstances  Rea- 
sonably Indicate  to  be  Necossary.  (a)  Eveiy  person  is  permitted  by 
law  to  defend  himself  against  cny  unlawful  attack  reasonably  threat- 
ening injury  to  his  person,  and  is  justified  in  using  all  the  necessary 
and  reasonable  force  to  defend  himself,  but  no  more  than  the  circum- 
stances reasonably  indicate  to  be  necessaiy.*" 

(b)  If  you  find  from  the  evidence  in  this  ease  that  P.  killed  the 
deceased  in  self-defense,  honestly  believing  his  own  life  to  be  in 
jeopardy,  or  that  he  was  in  imminent  danger  of  receiving  serious  bod- 
ily injury  at  the  hands  of  the  deceased,  and  'that  he  used  no  more 
force  than  was  necessary  to  protect  himself,  then  it  would  be 
justifiable  homicide;  and  under  such  circumstances,  of  course,  the 
defendant  would  not  be  guilty.^^ 

(e)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
procured  the  stick  with  which  the  blow  in  question  was  struck,  only 
for  the  purpose  of  self-defense,  and  did  not  intend  to  use  it  for  any 

82 — "This  was  a  correct  Ktatement  the  law.  People  v.  Piper,  112  Mich, 

of    the    law."      People    v.    Hull,    86  644,    71    N.    W.    174    (175).     Compare 

Mich.  449,  49  N.  W.  288  (291).  Housh  v.   State,  43  Neb.   163,   61  N. 

83— Williams  v.  U.  S.,  4  Ind.  Ter.  W.   571    (572);    State   v.    Harper,   143 

269,  69  S.  W.  871.  Mo.  514,   51  S.  W.  89  (91),  as  to  the 

84 — Swanner  v.  State,  —  Tex.  Cr.  propriety  of  using-  the  word  neces- 

App.  — ,  58  S.  W.  72  (74).  sary     without    qualification.       Also 

85— This  is  a  correct  statement  of  Rrandon   v.   State,   75   Miss.   904,   23 

So.  517. 


§  3122.]  CRIMINAI^HOMICIDE— SELF-DEFENSE.  1999 

other  purpose,  and  that  the  deceased  was  armed  with  a  deadly 
weapon,  and  was  turning  to  attack  the  defendant,  and  that  the  defen- 
dant was  aware  of  these  facts  and  knew  or  had  good  ground  to  believe 
and  did  believe  when  he  struck,  etc.,  that  that  was  the  only  mode 
by  which  he  could  avoid  great  bodily  harm  to  himself,  and  that  he 
used  no  more  force  than  was  reasonably  necessary  for  his  own 
defense,  then  his  act  was  not  unlawful,  and  the  jui-y  should  find  the 
defendant  not  guilty.**^ 

§  3122.  Judging  Defendant  from  His  Standpoint,  (a)  You  are 
ms'trueted  that,  in  judging  the  defendant,  it  must  be  from  his  stand- 
point, and  as  it  reasonably  appeared  to  him,  judged  by  all  the  facts 
and  circumstances  in  evidence,  and  it  would  make  no  difference  if  the 
danger  was  real  or  only  ajDparent,  if  danger  reasonably  appeared  to 
defendant;  and,  if  assaulted,  the  defendant  would  not  be  bound 
to  retreat  to  avoid  shooting  said  J.,  and  he  would  have  the  right  to  act 
no  long  as  the  danger  was  apparent  to  him.*' 

(b)  In  detei-mining  whether  the  circumstances  existed  that  would 
justify  the  defendant  in  inflicting  the  wound  upon  M.  C.  which  sub- 
sequently resulted  in  his  death,  you  are  instinicted  that  you  must 
determine  that  fact  from  the  condition  and  circumstances  that  sur- 
rounded the  defendant  at  the  time  and  place  of  the  atfray,  as  they 
reasonably  appeared  to  him  at  the  time ;  that  is  by  jDlacing  yourself  in 
your  own  minds,  as  far  as  may  be  possible  from  the  evidence,  under 
the  same  circumstances  in  which  the  defendant  Avas  placed  at  the  time 

86 — Marts  v.  State,  26  Ohio  St.  162.  other  way  at  common  law.    There 

87 — Cooper   v.    State,    —  Tex.    Cr.  the  man  in  the  right  was  bound  to 

App.  — ,  89  S.  W.  1068.  retreat    to    the    wall.      That    is    not 

"This  charge  in  regard  to  self-de-  so  with  us.     The  man  whose  rights 

fense    is    criticised    because   it    con-  are  attacked  can  stand  his  ground, 

fines  the  jury  to  the  consideration  has  the   legal   right    to   do   so;    and 

of  an  actual  assault  and  one  of  real  the  attacking  party,  or  the  one  in 

danger,  instead  of  a  threatened  as-  the  wrong,  must  do  the  retreating, 

sault   and   apparent  danger.     Upon  if  any  is  required.     Ours  is  the  cor- 

another  trial,  the  court  should  bear  rect  rule;  the  English  is  the  incor- 

this  in  mind,  and   charge  the  jury  rect     rule,     when     applied    to    our 

in    accordance   with    the   testimony  laws." 

relied  upon  to  prove  that  theory  of        In  State  v.  McCarver,  194  Mo.  717, 

the   case.     Suffice   it  to   say   that  a  92   S.    W.    684,    the  court   instructed 

party  who  has  the  right  of  self-de-  the  jury  that  in   passing   upon   the 

fense    from    the    standpoint   of    ap-  question  whether  the  defendant  had 

parent  danger,  or  any  other  danger  reasonable    grounds     for     believing 

that    threatens    his    life    or   serious  that    there    was    imminent    danger 

bodily  injury  to  his  person,  is  not  that  the  deceased  was  about  to  kill 

bound  to  retreat,  and  he  can  stand  him   or  do   him   some  great   bodily 

his  ground,  even  though  an  assaulf  harm,    the    jury    should    determine 

has     not      been    made    upon    him.  the  question  from  the  standpoint  of 

Under   our   law,   if   anybody   is    re-  the  defendant  at  the  time  he  acted, 

quired  to  retreat,  it  is  not  the  man  and  under  his  surroundings  at  that 

acting    in    self-defense.      It    is    the  particular  instant  of  time,  and  the 

attacking     party,     it     is    the    man  jury    must    also,    in    passing    upon 

bringing    on    the    difficulty    that    is  that    question,    take    into    conslder- 

responsible.       As    between    the    at-  ation  the  threats,  if  any,  made  by 

tacking  party  and  the  attacked,  it  the   deceased    against    the    defend- 

is  the  duty  of  the  party  attacking  ant. 
to  desist  and  retreat.     It   was  the 


2000  FORMS  OF  INSTRUCTIONS.  [§  3122 

of  the  shooting,  taking  into  consideration  as  far  as  the  evidence  may 
enable  you  to  do  so,  the  temperament  of  the  defendant  and  his  moral 
and  physical  courage,  or  the  lack  thereof.^^ 

(c)  The  accused  could  not  make  his  judgment  of  the  necessity  of 
slaying  the  deceased  in  order  to  defend  himself  a  justification  of  his 
act.  Whether  the  necessity  for  taking  life  existed  must  be  deter- 
mined from  the  situation  of  the  accused  at  the  time,  and  it  is  the  pro- 
vince and  duty  of  the  jury  to  determine  that  question. ^^ 

(d)  As  to  the  imminency  of  the  danger  which  threatened  the 
prisoner,  and  the  necessity  of  the  killing  in  the  first  instance,  the 
prisoner,  C,  was  the  judge;  but  he  acted  at  his  peril,  as  the  jury 
must  pass  upon  his  action  in  the  premises,  viewing  said  action  from 
the  prisoner's  standpoint  at  the  time  of  the  killing;  and  if  the  jury 
believe  from  all  the  facts  and  circumstances  in  the  eaise  that  the 
prisoner,  C,  had  reasonable  grounds  to  believe,  and  did  believe,  the 
danger  imminent,  and  that  the  killing  was  necessary  to  preserve  his 
own  life  or  to  protect  him  from  great  bodily  harm,  he  was  excusable 
for  using  a  deadly  weapon  in  his  defense ;  otherwise  he  was  no't.^° 

(e)  If  you  believe  that  the  said  A.  B.,  by  his  acts  and  conduct,  or 
by  his  words  coupled  with  his  acts,  reasonably  induced  defendant 
that  he  intended  and  was  about  to  attack  defendant  with  a  deadly 
weapon,  or  did  any  act  which  reasonably  indicated  to  defendant  that 
he,  said  A.  B.,  intended  and  was  about  to  attack  defendant  with  a 
deadly  weapon,  which  would  probably  cause  the  death  or  serious 
bodily  injury  of  defendant ;  and  if  the  acts  of  said  A.B.,  or  his  words 
coupled  with  his  acts,  if  any,  reasonably  created  in  the  mind  of  de- 
fendant at  the  time,  viewed  from  the  defendant's  standpoint,  a  rea- 
sonable expectation  or  fear  of  death  or  some  serious  bodily  injury; 
and  you  further  believe  that  defendant,  then  and  there  moved  and 
actuated  by  such  reasonable  expectation  or  fear  of  death  or  serious 
bodily  injury,  if  any,  shot  the  said  A.B., — then,  under  such  circum- 
stances, it  would  be  in  his  lawful  self-defense,  and  if  you  so  believe 
you  will  acquit  defendant."^ 

88 — Territory  v.  Gonzales,  11  New  to  be  that,  if  the  danger  is  immi- 

Mex.  301,  68  Pac.  925  (931).  neiit    and    pressing,    defendant    had 

89 — Brown    v.    State,    62    N.    J.    L.  the  right  of  self-defense  from  such 

666,  42  Atl.  811  (823).  danger;    but   if   it   is   a   future   con- 

90^ — State    v.    Cottrill,    52    W.    Va.  templated  danger  and  contingency, 

363,  43  S.  E.  244  (245).  a  remote  possibility  or  probability. 

The    same    instruction    was    ap-  defendant     has     no     right,     under 

proved  in  State  v.  Clark,  51  W.  Va.  such     circumstances,     to     shoot    in 

457,   41   S.   E.   204   (209).  his      supposed      self-defense.        Ac- 

91 — Ditmer  v.    State,   45   Tex.    Cr.  cording  to  appellant's  evidence,  the 

App.  103,  74  S.  W.  34  (35).  injured    party    said    to    defendant, 

"The  charge  of  the  court  in  ques-     'You    G — d    d d    son    of   a   b , 

tion  is  not  restrictive,  as  in  the  I'll  kill  you,'  and  immediately  start- 
cases  of  Lynch  v.  State,  24  Tex.  ed  to  the  house,  about  60  feet 
App.  350  (364),  6  S.  "W.  190,  5  Am.  away,  to  get  a  gun,  and  defend- 
St.  888;  Bush  v.  State,  40  Tex.  Cr.  ant  then  shot  the  injured  party. 
App.  540,  51  S.  W.  238.  And  see  Now,  it  will  be  seen  that  the 
Harrington  v.  State,  2  Tex.  Ct.  above  quoted  charge  tells  the  jury 
Pep.  809,  63  S.  W.  562.  Under  these  that,  if  defendant  believed  at  the 
authorities  we  understand  the  law  time  he  shot   the  injured  party  he 


§  3123.]  CRIMINALr—HOMICIDE— SELF-DEFENSE.  2001 

(f)  That,  in  deciding  upon  tlie  guilt  or  innocence  of  defeindant 
H.,  they  should  determine  what  an  ordinaiy  and  reasonable  man 
might  have  fairly  inferred  from  all  the  facts  and  circumstances  by 
which  the  evidence  shows  that  the  defendant  Avas  at  the  time  sur- 
rounded (and,  in  so  doing  must  not  try  him  in  the  light  of  subse- 
quent developments,  nor  must  they  require  of  him  the  same  cool 
judgement  that  the  jury  can  now  bring  to  bear  upon  the  occurrence. 
The  jury  must  put  themselves,  as  far  as  possible,  in  the  defendant 
H.'s  place,  and  then  judge  whether  the  danger  was  apparent,  or 
should  have  been  considered  apparent  by  a  man  of  ordinary  caution 
and  prudence  in  like  condition).  The  danger  to  life,  or  great  bodily 
harm,  need  not  have  been  real,  present,  or  urgent  at  the  very  moment 
of  the  killing,  but  only  apparently  so.  The  question  is,  was  the  danger 
apparently  so  imminent  and  present  at  the  time  of  the  killing  that  a 
reasonable  man  and  prudent  man,  situated  as  H.  was,  would  believe 
it  was  necessary  to  kill  in  order  to  avoid  loss  of  life,  or  to  prevent 
great  bodily  harm ;  and  if,  from  all  the  evidence  in  the  ease,  the  jury 
have  a  reasonable  doubt  w-hether  such  w-as  the  case  when  the  de- 
fendant H.  killed  the  deceased,  then  they  must  find  the  defendant  not 
guilty.92 

§  3123.    Possession  hy  Deceased  of  a  Deadly  Weapon— Presumption. 

(a)  If  the  deceased  was  armed  at  the  time  he  was  killed,  and  that 
he  made  an  attack  upon  defendant  with  a  weapon,  and  if  the  weapon 
used  or  attempted  to  be  used  by  deceased  in  making  said  attack,  if 
any,  and  the  manner  of  its  use  or  attempted  use  were  such  as  were 
reasonably  calculated  to  produce  death  or  serious  bodily  injuiy,  then 
and  in  that  event  the  law  presumes  it  was  the  intention  of  the  de- 
ceased to  kill  defendant  or  inflict  serious  bodily  injury  upon  him.^^ 

(b)  If  the  jury  find  and  believe  from  the  evidence  that,  at  the 
time  defendant  fired  the  shot,  that  the  prosecuting  witness,  S.  H.,  was 
making  a  violent  attack  upon  him  under  circumstances  which  reason- 
ably indicated  her  intention  to  murder  him  or  inflict  serious  bodily 
injury  upon  him,  and  the  weapon  used  by  her,  and  the  manner  of  its 
use,  w^ere  such  as  was  reasonably  calculated  to  produce  either  of  those 
results,  then  the  law  would  presume  that  the  said  S.  H.  intended  to 
kill  him  or  inflict  serious  bodily  injury  upon  him;  and  in  such  ease, 
if  defendant  so  acted,  he  would  be  justifiable.^* 

was  in  danger  of  losing  his  life  or  State,  —  Tex.  Cr.  App.  — ,  59  S.  "W. 

of     serious     bodily     injury     at    the  263  (264). 

hands  of  the  injured  party,  to  ac-        94— Hall    v.    State.    43    Tex.     Cr. 

quit  defendant,   unless  you  further  App.  479,   66  S.   W.   783   (784),   citing 

believe  from  the  evidence  that  de-  Kendall  v.   State,  8  Tex.   App.   5G9; 

fendant     provoked     the     difficulty.  Jones    v.    State,    17    Tex.    App.    6:2; 

This  charge  certainly  is  as  liberal  Cochran  v.  State,  28  Tex.  App.  422, 

as    the    facts    of    the   case    author-  13  S.  W.  651,  8  Am.  Cr.   Rep.  496. 
ize."  The    court    said:       "This    charge 

92 — Hood    V.    State,    —   Miss.    — ,  should    have    been    given.      Article 

27   So.   643   (644),  €76,    Pen.    Code,    provides:      'When 

93 — Teel    v.     State,    —    Tex.    Cr.  the   homicide    takes    place    to    pre- 

App.  — ,  73  S.  W.  11  (12);  Curtis  v.  vent  murder,  maiming,  disfiguring 

126 


2002 


FORMS  OF  INSTRUCTIONS. 


[§  3124. 


§  3124.  Self -Defense — Blow  Need  Not  Actually  Have  Been  Struck 
— Attack  with  Knife,  (a)  The  court  further  instructs  you  that  a 
man  need  not  wait  until  the  blow  is  actually  struck  before  he  has  a 
right  to  act  upon  appearances  and  defend  himself.  It  is  enough  if  he 
honestly  believes,  and  has  reason  to  believe,  from  the  attitude,  conduct 
and  manner  of  the  deceased,  that  he  was  in  danger  of  his  life,  or  of 
great  bodily  harm.^^ 

(b)  If  J.  W.  first  attacked  defendant  with  an  open  knife  as  if  to 
cut  defendant,  and  if  thereupon  defendant  cut  said  W.  he  would  be 
guilty  of  no  offense.^^ 

§  3125.  Killing  in  Revenge  After  Repelling  Assault.  The  juiy  are 
instructed  that  while  a  person  has  the  right,  when  assaulted  by  an- 
other in  siich  a  manner  as  to  excite  in  him  a  reasonable  belief  that 
he  is  in  danger  of  losing  his  life  or  receiving  great  bodily  injury,  to 
resist  the  attack  by  using  such  force  as  is  apparently  necessary  to  de- 
fend himself,  yet  if,  after  he  has  secured  himself  from  danger,  he 
takes  the  life  of  his  assailant  in  a  spirit  of  revenge,  or  for  some  un- 
lawful purpose,  he  cannot  claim  exemption  from  punishment  on  the 
ground  of  self-defense.^'' 

§  3126.  Defendant  Provoking  Affray,  (a)  Therefore,  gentlemen, 
as  a  summing  up  of  this  topic  of  self-defense,  I  charge  you  that  if  you 
find  beyond  a  reasonable  doubt  that  J.  prepared  for,  or  provoked,  the 
affray,  he  cannot  successfully  set  up  the  plea  of  self-defense.^* 

(b)     The  law  of  self-defense  is  emphatically  the  law  of  necessity, 


or  castration,  if  the  weapons  or 
means  used  by  the  party  attempt- 
ing' or  committing  such  murder, 
maim,  disfiguring  or  castration, 
are  such  as  would  have  been  cal- 
culated to  produce  that  result,  it 
is  to  be  presumed  the  person  using 
them  designed  to  inflict  the  injury.' 
It  will  be  seen  from  this  article 
that  when  the  homicide  is  com- 
mitted to  prevent  murder,  and  the 
w^eapon  or  means  used  by  the  ag- 
gressor was  calculated  to  effect 
that  purpose,  the  Code  makes  it  an 
absolute  presumption  of  law  that 
his  design  was  to  inflict  the  injury 
indicated.  This  legal  presumption 
is  imperative  with  the  jury  as  woU 
as  with  the  court,  and,  when  ap- 
plicable, must  be  given  in  charge 
to   the  jury." 

95 — State  v.  Stockhammer,  34 
Wash.   262,  75  Pac.   810   (811). 

96 — Approved  as  supplemented 
with  other  instructions  in  Moody 
V.  State,  —  Tex.  Cr.  App.  — ,  59 
S.   W.   894. 

97— Carleton  v.  State,  43  Neb. 
373,  61  N.  W.  699  (710). 

98 — State  v.  Jones,  —  N.  J.  L.  — , 
60  Atl.  396  (398). 

"It    is    contended    that    by    this 


instruction  the  jury  were  told,  in 
effect,  that  jf  they  should  conclude 
from  the  evidence  that  the  defend- 
ant had  prepared  for  the  affray, 
but  had  subsequently  abandoned 
his  intention,  and  was  in  nowise 
responsible  for  D.*s  attack  upon 
him,  they  must  nevertheless  find 
that  he  was  not  justified  in  pro- 
tecting himself.  It  may  be  that, 
standing  alone,  the  instruction  is 
susceptible  to  this  criticism;  but 
when  the  portion  of  the  charge 
from  which  it  is  taken  is  exam- 
ined, this  criticism  falls.  The  in- 
struction was  rested  upon  a  sup- 
posed finding  by  the  jury  'that 
after  the  quarrel  which  had  taken 
place  between  J.  and  D.  in  the 
morning'  (it  appeared  in  the  case 
that  there  had  been  a  quarrel  be- 
tween these  two  some  hours  before 
the  homicide)  'each  armed  himself, 
one  with  the  scissors  blade  and  the 
other  with  a  razor,  and,  after  they 
got  in  the  cell,  hot  words  led  to  a 
mutual  fight — a  fight  for  which 
both  were  ready,  and  into  which 
both  entered.'  On  such  a  finding 
of  fact  the  legal  rule  charged  by 
the  court  was  entirely  accurate," 


§  3126.]  CRIMINAI^-HOMICIDE— SELF-DEFENSE.  2003 

to  which  a  party  may  have  recourse  under  certain  circumstances  to 
prevent  any  reasonably  apprehended  great  personal  injury  which  he 
may  have  reasonable  ground  to  believe  is  about  to  fall  upon  him.  If 
you  believe  that  the  defendant  had  reasonable  cause  to  apprehend 
a  desig-n  on  the  part  of  F.  to  commit  a  felony  upon  defendant,  or  to 
do  him  some  great  personal  injury,  and  that  there  was  a  reasonable 
cause  to  apprehend  immediate  danger  of  such  design  being  carried  out, 
and  he  struck  F.  as  charged  to  prevent  the  accomplishment  of  such 
apprehended  design,  you  should  acquit  him  on  the  ground  of  self- 
defense.  It  is  not  necessary  to  this  defense  that  the  danger  should 
have  been  real  or  actual,  or  that  the  danger  should  have  been  im- 
pending and  immediately  about  to  fall.  If  you  believe  that  the 
defendant,  at  the  time  he  struck  F.,  had  reasonable  cause  and  did  be- 
lieve these  facts,  and  he  struck  said  F.  under  such  circumstances,  as 
he  believed,  to  prevent  such  expected  hami,  then  you  should  acquit 
him;  but  befoi-e  you  can  acquit  him  on  the  ground  of  self-defense  you 
ought  to  believe  that  defendant's  cause  of  apprehension  was  reason- 
able. You  are  to  determine  whether  the  facts  constituting  such 
reasonable  cause  have  been  established  before  you  by  evidence,  and, 
if  such  facts  have  not  been  established,  you  cannot  acquit  the  de- 
fendant on  the  ground  of  self-defense,  even  though  you  may  believe 
defendant  really  thought  his  cause  of  apprehension  reasonable.  Words 
and  epi.thets,  however  vile  or  grievous,  will  not  justify  an  assault ; 
and  if  you  believe  from  the  evidence  that  the  defendant  sought  or 
brought  on  a  difficulty  with  F.,  or  voluntarily  entered  into  a  difticulty 
with  said  F.,  v\-ith  the  intent  to  kill  him  or  do  him  some  great  bodily 
harm,  then  he  could  not  excuse  himself  on  the  plea  of  self-defense.^^ 

(c)  You  are  instructed  that  no  man  by  his  own  lawless  act  can 
create  a  necessitj"  for  acting  in  self-defense,  and  thereupon  assault  and 
injure  or  kill  the  person  with  whom  he  seeks  the  difficulty,  and  then 
inteipose  as  a  defense  the  plea  of  self-defense.  The  plea  of  necessity 
is  a  shield  only  for  those  who  are  without  fault  in  occasioning  it  and 
acting  under  it.^°°  ' 

(d)  You  are  instructed  if  you  believe  from  the  evidence  in  this 
case  beyond  a  reasonable  doubt  that  the  defendant,  on  the  evening  of 
the  killing,  went  to  where  the  deceased  was  at  work  in  his  pea  patch, 
and  without  provocation  at  the  time  on  the  part  of  the  deceased  with  a 
shotgun  in  a  violent  and  threatening  manner,  such  as  would  put  a  rea- 
sonable man  in  the  situation  of  the  deceased  in  fear  of  losing  his  life 
or  of  receiving  great  bodily  injury,  and  that  the  deceased  was  aroused 
to  such  sense  of  fear  by  said  assault,  then  the  deceased  had  a  right 

99— State  v.  Tooker,  188  Mo.  438,  a    long-    line    of    subsequent    cases. 

87  S.  W.  487  (490).  This    instruction    fully    and    fairly 

The   court   said   in  comment  that  covers    the    law    of    self-defense    as 

"this        instruction,        substantially  applicable    to    the    facts    developed 

covering'  the  same  subject,  was  ap-  at  the  trial  of  this  cause." 

proved   in  State  v.   Shoultz,  25  Mo.  100 — Robinson     v.      Territory,     16 

128,   and   is  cited  with  approval  in  Okla.  241,  85  Pac.  451  (455). 


2004  FORMS  OF  INSTRUCTIONS.  [§  3127. 

to  seek  assistance  of  weapons  with  which  to  defend  himself,  and  the 
fact  that  he  called  to  some  one  to  bring  him  a  gun,  or  attempted  to 
run  to  his  house  for  the  purpose  of  procuring  a  gun  with  which  to 
shoot  the  defendant,  would  not  justify  the  defendant  in  taking  the 
life  of  the  deceased,  unless  the  defendant  had  abandoned  in  good  faith 
the  difficulty,  and  had  done  all  within  his  power,  and  consistent  with 
his  safety,  acting  as  a  reasonable  person,  to  avert  danger  to  himself 
and  avoid  the  necessity  of  killing  the  deceased.^ 

(e)  The  court  further  instructs  the  jury  that  the  law  of  self-de- 
fense does  not  mean  or  imply  the  i-ight  of  attack,  nor  will  it  permit  of 
acts  done  in  retaliation  or  for  revenge.  And  in  this  case,  if  you  be- 
lieve from  the  evidence  that  the  defendant  sought  out  or  brought  on 
the  difficulty  at  the  time  the  fatal  shot  was  fired,  and  for  the  purpose 
of  wreaking  vengeance  upon  the  deceased,  J.,  on  account  of  the  acts 
of  the  deceased  in  reference  to  the  sale  of  a  farm  in  controversy  and 
to  deliver  the  possession  thereto,  and  that  at  the  time  the  defendant 
shot  the  deceased  there  was  no  reasonable  apprehension  or  immediate 
and  pending  injury  to  the  defendant,  and  that  the  defendant  shot 
the  deceased  from  a  spirit  of  retaliation  or  revenge,  and  for  the 
purpose  of  punishing  the  deceased  for  past  injuries,  then  you  are 
charged  that  the  defendant  cannot  avail  himself  of  the  law  of  self- 
defense,  and  that  the  shooting  and  killing  of  the  deceased  affords  no 
justification  or  excuse.^ 

(f )  If  you  find  from  the  evidence  in  this  case  that  the  defendant 
was  the  aggressor  in  the  j^ersonal  difficulty  that  resulted  in  the  death 
of  the  deceased,  and  that  the  killing  was  unlawful,  and  not  justifiable 
or  excusable  homicide,  nor  murder  in  any  degree,  then  self-defense 
could  not  avail,  and  the  defendant  would  be  guilty  of  manslaughter.^ 

(g)  The  court  instructs  the  juiy  that  a  party  charged  with  an 
unlawful  or  deadly  assault  upon  another,  cannot  avail  himself  of 
the  claim  of  necessary  self-defense  if  the  necessity  for  such  defense 
was  brought  on  by  his  own  deliberate,  wrongful  act.* 

(h)  If  the  defendant  provoked,  or  brought  on  the  difficulty,  or  en- 
tered willingly  into  the  fight  with  deceased,  then  he  cannot  set  up 
self-defense  in  this  case.'^ 

§  3127.  Commencing  the  Difliculty — Several  Persons  on  Each  Side. 
But  if  the  juiy  believe  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant,  G.  W.,  C.  W.,  S.  W.,  or  E.  C.  or  any  of  them, 
when  they  met  M.  and  his  party,  commenced  the  difficulty  with  them 
by  first  shooting  at  them,  or  any  of  them,  or  making  the  first  demon- 

1 — Velim   v.    State,   77  Ark.   97,   90  this      charge,      particularly     as      a 

S.  W.  851.  charge  of  who  is  considered  an  ag- 

2— State  V.   Dotson,   26   Mont.   305,  gressor    had     been     given     by     tha 

67  Pac.  938  (940).  court.     Bassett  v.   State,  44  Fla.  12, 

3— Marlow  v.    State,  49  Fla.   7,   38  33  So.  262.    The  verdict  is  fully  sus- 

So.  653.  tained  by  the  evidence." 

"It    was    not    necessary    as    con-  4 — Adams  v.   People,  47  111.  376. 

tended,    that    the    intention    of   the  5 — Boulden   v.    State,  102  Ala.   78, 

aggressor  should  be  referred  to  in  15  So.  341  (344). 


§  3128.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  2005 

stration  to  shoot  at  any  of  them,  or  that  defendants,  C.  W.,  S.  W.,  and 
E.  C.  met  the  parties  named,  and  both  parties  were  armed  and  deter- 
mined on  a  conflict,  and  did  engage  in  such  eonfiict  by  mutual  consent, 
then  in  either  event  the  defendant,  G.  W.,  cannot  rely  on  the  right  of 
self-defense,  or  that  he  acted  in  defense  of  his  associates  named. « 

§  3128.  Defendant  Seeking  Interview  with  Deceased  with  Malice 
and  Hatred  in  His  Heart  and  Inducing  Deceased  to  Assault  Him. 
If  you  find  from  the  evidence  in  this  ease,  beyond  a  reasonable  doubt, 
that  the  defendant.  A.,  with  malice  and  hatred  in  his  heart  towards 
B.,  sought  an  interview  with  B.,  and  accused  him  of  writing  the  dam- 
aging article  about  A.,  and  used  offensive  and  opprobrious  language 
toward  B.,  or  did  any  act  or  thing  for  the  purpose  and  with  intent" 
of  provoking  a  difficulty  with  B.,  so  as  to  induce  B.  to  assault  him, 
with  the  premeditated  design  that,  if  the  said  B.  did  assault  him, 
to  shoot  and  kill  the  said  B.,  then  A.  cannot  avail  himself  of  the 
plea  of  self-defense,  and  you  will  find  him  guilty  as  charged.^ 

§  3129.  Defendant  Seeking  the  Meeting  to  Provoke  Difficulty- 
Circumstances  Must  Be  Such  as  to  Render  Killing  Unavoidable,  (a) 
I  further  instruct  you,  in  relation  to  the  law  of  self-defense,  that 
one  cannot  claim  its  benefits  after  he  has  intentionally  put  himself 
where  he  knows  or  believes  he  will  have  to  invoke  its  aid.  Circum- 
stances justifj-ing  assault,  in  the  law  of  self-defense,  must  be  such 
as  to  render  it  unavoidable.  If  you  believe  from  the  evidence,  and  be- 
yond a  reasonable  doubt,  that  the  defendant  could  have  avoided  any 
conflict  between  himself  and  X.  without  increasing  the  danger  to  him- 
self, it  was  his  duty  to  avoid  such  conflict  and  so  render  a  resort  to 
the  law  of  self-defense  unneeessaiy.^ 

(b)     If  you   believe   that   defendant   committed   the    assault    as   a 

6— Watkins   v.    Commonwealth,  29  In  the  case  at  bar,  however,  though 

Ky.  L.   1273,  97  S.  W.  740.  it   is    conceded    that    the    defendant 

7— Marlow  v.   State,  49  Fla.  7,  38  had  a  right  to  enter  the  hotel,  yet 

So.  653.  in   passing-   out  of  it   he   purposely 

"This  charge  is  not  amenable  to  turned  aside  to  assault  X.    No  ap- 

the    criticism    that    it    invades    the  parent    necessity    existed     for    the 

province    of    the    jury    by    stating  course   which    he    adopted,    and    he 

what    constitutes    the    bringing    on  could    evidently    have   avoided   any 

of  the  difficulty.     Taken  in  connec-  eonfiict  without  increasing  the  dan- 

tion  with  other  charges  given,  it  is  ger   to   himself.     If   the    defendant, 

not    reversible    error.       Bassett    v.  after  precipitating  the  attack,  with- 

State,  44  Fla.  12,  33  So.  262."  drew    from     the    conflict,     thereby 

8— State  V.  McCann,  43  Ore.  155,  72  evincing   a   determination    to   avoid 

Pac.   137   (139).  further     difficulty,     the     testimony 

The  court  said:  "It  is  possible  fails  to  disclose  such  fact,  and  it 
that  under  some  circumstances  the  was  unnecessary  to  instruct  the 
charge  might  be  subject  to  objec-  jury  upon  a  theory  that  had  no 
tion,  for  in  a  free  country  it  is  not  facts  to  support  it.  *  *  *  The  in- 
expected  that  one  person  shall  flee  struction,  in  our  opinion,  correctly 
from  another,  and  it  may  be  that  states  the  law  applicable  to  the 
the  demands  of  business  might  re-  facts  involved,  and  no  error  was 
quire  one  intentionally  to  go  where  committed  in  giving  it.  State  v. 
he  knows  or  has  reason  to  believe  Morey,  25  Ore.  241,  35  Pac.  655,  36 
he  may  be  in  imminent  danger,  and  Pac.  573;  State  v.  Smith,  43  Ore. 
possibly  compelled  to  resort  to  109,  71  Pac.  973;  State  v.  Hawkinsj 
force  as  a  matter  of  self-defense.  IS  Ore.  476,  23  Pac.  475." 


2006  FORMS   OF  INSTRUCTIONS.  [§3130. 

n  eans  of  defense,  believing  at  the  time  he  did  so,  if  he  did  so,  that 
he  was  in  danger  of  losing  his  life  oi'  of  serious  bodily  injury  at  the 
hands  of  said  A.  B.,  then  you  will  acquit  defendant,  unless  you  further 
believe  from  the  evidence  beyond  a  reasonable  doubt  that  defendant 
sought  the  meeting  with  said  A.  B.  for  the  i^urpose  of  provoking  a 
difficulty  with  said  A.  B.,  with  intent  to  take  the  life  of  said  A.  B., 
or  to  do  him  such  serious  bodily  injury  as  might  probably  end  in  the 
death  of  A.  B. ;  and  if  you  so  believe  from  the  evidence  beyond  a 
reasonable  doubt,  then  you  are  instructed  that,  if  defendant  sought 
such  meeting  for  the  said  purpose  and  with  such  intent,  defendant 
would  not  be  permitted  to  justify  on  the  gi'ound  of  self-defense,  even 
though  he  should  thereafter  have  been  compelled  to  act  in  his  own 
self-defense;  but  if  he  had  no  such  purpose  and  intention  in  seek- 
ing to  meet  the  said  A.  B.,  then  his  right  of  self-defense  would  not 
be  forfeited,  and  he  could  stand  his  ground  and  defend  himself  by  the 
use  of  such  means  of  defense  as  the  facts  and  circumstances  indicated 
to  be  necessary  to  protect  himself  from  danger  or  what  reasonably 
appeared  to  him  at  the  time  to  be  danger.^ 

(c)  The  law  says  that,  if  you  invoke  the  plea  of  self-defense,  you 
must  show  that  you  were  without  fault  in  bringing  about  the  neces- 
sity for  the  killing.^" 

(d)  If  A.  B.  said  to  defendant's  hired  man  that  defendant  was 
indebted  to  him^  or  that  he  would  not  sell  to  defendant,  on  credit,  until 
such  debt  was  paid,  it  was  projoer  and  lawful  for  the  defendant,  when 
inf onned  of  such  claims,  to  go  to  A.  B.  's  shop,  for  the  purpose  of 
learning  what  amount,  if  any,  was  owing  by  him  to  A.B.,  or  to  pay 
it;  and,  if  defendant  went  to  A.  B. 's  shop  for  such  purpose  or  pur- 
poses, and  not  to  provoke  a  difficulty  or  quarrel  with  A.  B.,  he  was  in 
the  proper  exercise  of  his  lawful  rig'hts.  But  if  you  find  from  the 
evidence  that  the  defendant  went  to  A.  B. 's  shop  with  a  view  to  pro- 
voke or  bring  on  a  difficulty  with  A.  B.,  he  was  not  acting  lawfully  in 
doing  so,  and,  in  that  case,  he  cannot  avail  himself  of  the  plea  of  self- 
defense  in  killing  A.  B.,  if  he  killed  him  in  the  difficulty  so  sought  by 
defendant,  though  such  killing  may  have  been  necessary  to  preserve 
the  defendant's  life,  or  his  person,  from  an  imminent  and  enormous 
injury;  but  he  would  be  guilty  of  murder  or  manslaughter  as  you 
find  the  facts  to  be,  under  the  rules  given  you  elsewhere  in  these 
instructions.^'^ 

§  3130.  Defendant  Attacking  Brother  of  Deceased,  You  are  in- 
structed that,  if  you  find  and  believe  from  the  evidence  beyond  a 
reasonable  doubt  that  defendant  provoked  and  made  an  unlawful  as- 
sault upon  S.  G.,  the  brother  of  deceased,  with  a  knife,  the  deceased 
had  the  right  to  go  to  his  brother's  assistance  to  protect  his  brother 

9— Ditmer  v.  State,  45  Tex.  Cr.  11— State  v.  Murdy,  81  la.  603,  47 
App.  103,  74  S.  W.  34  (35).  N.  W.  867  (871). 

10 — State  V.  Hutto,  66  S.  C.  449,  45  "This  instruction  expressed  the 
S.  E.  13  (14).  Ifiw     as     announced     in     State     v. 

Neeley,  29  Iowa  115." 


§3131.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  2007 

from  death  or  serious  bodily  injury  at  the  hands  of  defendant,  if  he 
believed  his  brother  was  in  such  danger;  and  if  you  find  that  he 
did  so  go  to  the  assistance  of  his  brother,  and  while  attempting  to 
protect  him  from  the  assault  (if  any)  of  the  defendant,  the  defendant 
stabbed  and  killed  deceased, — the  killing  would  not  be  justifiable  or  in 
self-defense,  notwithstanding  the  fact  that  it  may  have  been  necessary 
for  the  defendant  to  kill  deceased  in  order  to  save  his  own  life;  and 
the  homicide  would  be  murder  in  the  first  degree,  murder  in  the  second 
degree,  or  manslaughter,  as  the  jury  may  find  and  detennine  from  all 
the  facts  and  circumstances  of  the  case,  bearing  in  mind  the  instruc- 
tions herein  given  you  fully  explaining  the  necessary  elements  to  con- 
stitute the  different  degrees  of  homicide.  The  offense,  if  any,  under 
such  circumstances  and  conditions,  would  be  the  same  in  law  as  it 
would  have  been  had  the  defendant  killed  S.  G.,  instead  of  R.  G.^^ 

§3131.  Self-Defense— Defendant  if  at  Fault  Cannot  Plead,  (a) 
If  the  jury  believe  from  the  evidence  that  the  defendant  provoked  the 
difficulty  or  began  the  quarrel  with  the  purpose  of  taking  advantage 
of  W.,  and  of  taking  his  life,  or  of  doing  him  some  gi"eat  bodily  harm, 
then  there  is  no  self-defense  in  the  case,  however  imminent  the 
peril  of  defendant  may  have  become  in  consequence  of  an  attack  made 
upon  him  by  W. ;  and  if,  in  such  circumstances,  the  juiy  believe  that 
the  defendant  struck  and  killed  W.,  then  the  defendant  is  guilty  of 
murder  in  the  first  degree,  and  the  jury  should  so  find.^^ 

(b)  The  court  charges  the  jury  that  to  make  the  plea  of  self- 
defense  available,  the  defendant  must  be  without  fault.  If  he  was 
himself  the  aggressor,  he  cannot  invoke  the  doctrine  of  self-defense, 
even  if  the  deceased  struck  him,  and  whether  the  necessity  to  take  the 
life  of  the  deceased  was  real  or  only  apparent,  if  brought  about  by  de- 
sign, contrivance  or  fault  of  the  defendant,  he  cannot  be  excused  on 
the  plea  of  self-defense.^* 

i  §  3132.  Plea  of  Self-Defense  Barred  by  Defendant's  Agreeing  to 
Fight,  (a)  If  you  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  defendant  and  H.  met  together  and  quaiTeled,  bandying 
opprobrious  or  insulting  words,  and  fought  willingly  or  by  mutual 
consent,  it  is  immaterial  which  of  them  commenced  the  quarrel;  and 

12 — Thornton  v.  State,  —  Tex.  Or.  homicide       should       be       assessed 

App.  — ,  65  S.  W.  1105  (1107).  against  him  if  he  had  killed  S.  G." 

The   court    said:     "We   think   the  13— State  v.  Smith,  164  Mo.  567,  65 

charg-e  is  correct.     Clearly,  the  law  S.   W.   270. 

is,  if  appellant  provoked  a  dif-  The  plea  of  self-defense  is  also 
ficulty  with  S.  G.,  and  made  an  un-  unavailing:  to  the  helper  of  the 
lawful  assault  upon  him  with  a  transgressor.  See  Sherrill  v.  State, 
knife,  deceased  would  have  the  138  Ala.  3,  35  So.  129,  and  the  in- 
right  to  interfere  in  the  necessary  structions  in  the  case, 
and  proper  defense  of  his  brother  14 — Rag-sdale  v.  State,  134  Ala.  24, 
against  the  unlawful  assault  of  ap-  32  Sn.  674  (675):  Whitney  v.  State, 
pellant.  And  if  appellant,  while  en-  154  Ind.  573.  57  N.  E.  398  (400); 
gaged  in  said  unlawful  assault,  Stevens  v.  State,  133  Ala.  28,  32  So. 
killed  deceased,  he  certainly  would  270  (271). 
be    guilty    of    whatever    degree   of 


2008  FORMS  OF  INSTRUCTIONS.  [§  3133. 

the  defendant  cannot,  under  this  state  of  facts,  if  you  believe  such 
beyond  a  reasonable  doubt,  set  up  the  plea  of  self-defense.^^ 

(b)  If  the  defendant  provoked  or  brought  on  the  difficulty,  or  en- 
tered willingly  into  the  fight  with  deceased,  then  he  cannot  set  up  self- 
defense  in  this  case.^^ 

(e)  If  you  believe  from  the  evidence  that  the  defendant  willingly 
and  voluntarily  and  without  provocation  on  the  part  of  the  deceased 
entered  into  the  difficulty  at  a  time  when  he  was  not  endangered 
by  any  acts  of  the  deceased,  he  is  cut  off  from  the  law  of  self-defense ; 
for  it  is  the  law,  where  parties  voluntarily  enter  into  a  mutual  combat, 
in  which  one  of  the  parties  is  slain,  such  slaying  is  murder.^^ 

§  3133.  Aggressor  Cannot  Plead  Self -Defense,  (a)  To  make  the 
plea  of  self-defense  available,  the  defendant  must  be  without  fault. 
If  he  was  himself  the  aggressor,  he  cannot  invoke  the  doctrine  of  self- 
defense,  even  if  the  deceased  was  approaching  him  in  a  hostile  man- 
ner; and  whether  the  necessity  to  take  the  life  of  the  deceased  was 
real  or  only  apparent,  if  brought  about  by  the  design,  contrivance  or 
fault  of  the  defendant,  he  cannot  be  excused  on  the  plea  of  self-de- 
fense.^* 

(b)  The  court  charges  the  jury  that  if  they  believe  beyond  a 
reasonable  doubt,  from  the  evidence,  that  the  defendant  R.,  and  the 
deceased  H.  had  had  some  trouble  a  few  days  before  the  homicide,  and 
that  when  he  R.,  on  the  day  of  the  homicide  came  to  where  the  de- 
ceased H.  was  standing  at  the  ''new  home  base"  he  stepped  up  in 
front  of  the  deceased,  and  in  an  angry  manner  said  to  him  "You 
said  you  wanted  to  see  me,"  and  the  jury  should  further  find, 
from  the  evidence  beyond  a  reasonable  doubt  that  the  deceased  left 
the  i3lace  and  went  to  the  pitcher's  stand,  some  GO  or  65  feet  away, 
and  the  defendant  followed  the  deceased  to  that  place,  and  they 
there  became  involved  in  a  difficulty,  and  the  defendant  killed  de- 
ceased, then  he  cannot  set  up  self-defense  in  this  case.^^ 

(e)  A  necessity  brought  about  by  parties  who  act  under  its  com- 
pulsion cannot  be  relied  upon  to  justify  their  conduct.  The  aggres- 
sors in  a  personal  difficulty,  and  not  reasonably  free  from  fault  can- 
not acquit  themselves  of  liability  for  its  consequences  on  the  ground 
of  self-defense,  unless,  after  having  begun  the  difficulty,  they  in 
good  faith  decline  the  combat,  and  their  adversary  had  become 
the  aggressor.^" 

15— Johnson  v.  State,  136  Ala.  76,  IS— Jarvis  v.  State.  138  Ala.  17,  34 

34  So.  209.  So.    1025   (1030), 

"This  charg-e  given  at  the  request  19— Rag-sdale  v.  State,  134  Ala.  24, 

of   the    solicitor   asserted   a   correct  32  So.  674  (575). 

proposition   of  law,   and   was  prop-  20— Mercer   v.    State,    41    Fla.    279, 

erly  given.    Howell  v.  State.  79  Ala.  26  So.  317  (318). 

283."  "Counsel    for   the   accused   admit 

16_jarvis    v.    State,    138    Ala.    17,  that    the    statement    of   the    charge 

34  So.  1025  (1030).  contains  a  correct  abstract  proposi- 

17_Winiams  v.  State,  4  Ind.  Ter.  tion    of    law.      Lovett    v.    State,    30 

269,  69  S.  W.  871.  I'la.  142,  11  So.  550." 


§  3133.]  CRIMINAI^-HOMICIDE— SELF-DEFENSE.  2009 

(d)  The  law  of  self-defense  does  not  imply  the  right  to  retaliate 
upon  another  for  real  or  supposed  injuries,  nor  for  revenge,  and  I 
therefore  charge  you  that  if  you  find  from  the  evidence  that  the 
accused  at  the  bar  sought,  brought  on  or  voluntarily  entered  into  a 
difficulty  with  the  deceased  for  the  purpose  of  wreaking  vengeance 
upon  him  for  some  supposed  or  real  injury,  then  the  accused  cannot 
avail  himself  of  the  law  of  self-defense.  I  further  instruct  you  that 
in  case  you  find  that  the  defendant  sought,  brought  on  or  voluntarily 
entered  into  a  difficulty  with  the  deceased,  it  does  not  matter,  in 
the  application  of  the  law  of  self-defense,  how  gi-eat  the  danger  or 
imminent  the  peril  which  confronted  him  at  the  time  he  shot  the 
deceased.-^ 

(e)  The  jury  are  further  instructed  that,  if  they  believe  from  the 
evidence  beyond  a  reasonable  doubt  that  the  defendant,  W.  H., 
brought  on  the  difficulty  between  the  deceased,  C.  J.,  and  him- 
self at  the  time  of  the  killing,  and  that  the  defendant  was  the  first 
assailant,  he  cannot  avail  himself  of  the  right  of  self-defense  in 
order  to  shield  himself  from  the  consequences  of  the  killing  of  C.  J., 
if  such  is  the  proof,  however  imminent  the  danger  in  which  he  may 
have  found  himself  in  the  progress  of  the  affray  which  he  so  brought 
on  himself,  unless  you  further  believe  that  the  defendant  in  good 
faith  endeavored  to  decline  any  further  struggle  before  the  mortal 
shot  was  fired.^2 

(f)  If  you  believe  from  the  evidence  that  the  accused  provoked 
the  difficulty,  and  slew  the  deceased,  he  would  not  be  entitled  to  use 
the  plea  of  self-defense  to  obtain  an  acquittal;  but  as  to  whether  he 
did  provoke  the  difficulty  or  not  the  juiy  must  deteiTaine  from  the 
evidence.-^ 

(g)  If  the  jury  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that,  shortly  before  the  difficulty,  S.  hired  a  gun,  loaded  it, 
and  went  about  town  making  threats  against  the  life  of  J.,  and  that 
he  went  to  where  J.  was  standing,  called  him  aside,  and  provoked 
the  difficulty,  by  cursing  J.,  and  by  attempting  to  draw  his  gun  on 
J.,  and  that  such  conduct  on  the  part  of  S.  compelled  J.  to  draw  his 
pistol,  and  shoot,  to  protect  his  life  or  person  from  great  bodily  harm 
at  the  hands  of  S.,  and  thereupon  S.  shot  and  killed  J.,  then  S.  is 
guilty  as  charged,  if  the  jury  further  believe  the  shooting  on  the  part 
of  S.  was  done  with  a  deliberate  design  to  eifect  the  death. 

(h)  If  the  juiy  believe  from  the  evidence  that  the  defendant  hired 
the  gun,  and  bought  the  cartridges,  intending  to  seek  and  find  de- 
ceased, and  provoke  a  difficulty  with  him,  and  in  said  difficulty  to  use 
said  gun  to  slay  and  overcome  him,  and  that,  pursuant  to  such  in- 
tent,  did  seek   and   find   him,   and   did  by  word   or  act  provoke   a 

21— State   V.    Guidor,   113   La.    727,  v.    People,   97  III.   270,   37  Am     Rep 

37  So.   622.  109. 

22— Henry   v.    People,    198   HI.    162  23— State  v.  Owen,  50  La.  An.  1181 

(195),  65  N.  E.  120.  following  Gainey  24  So.   187  (189). 


2010  FORMS  OF  INSTRUCTIONS.  [§  3134. 

difficulty  with  deceased,  in  which  difficulty  he  (defendant)  did  kill 
deceased,  then  he  is  guilty  as  charged,  though  deceased  fired  the 
first  shot,  and  the  jury  should  so  find  him.-'* 

(i)  The  law  of  self-defense  does  not  imply  the  right  to  attack. 
If  you  believe  from  the  evidence  that  the  defendant  armed  himself 
with  a  deadly  weapon,  and  sought  the  deceased  with  the  formed 
felonious  intent  of  killing  deceased,  or  sought  or  brought  on  or  volun- 
tarily entered  into  a  difficulty  with  deceased  with  the  felonious  inten- 
tion to  kill  deceased,  then  the  defendant  cannot  invoke  the  law  of  self- 
defense,  no  matter  how  imminent  the  peril  in  which  he  found  him- 
self.25 

(j)  The  court  instimcts  the  jui-y  that  a  person  charged  with  the 
murder  of  another  cannot  avail  himself  of  the  claim  of  necessary  self- 
defense,  if  the  necessity  for  such  defense  was  brought  on  by  his 
own  deliberate  wrongful  act.-® 

(k)  Unless  you  should  further  believe  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant  sought  and  brought  on  the 
difficulty  with  the  deceased  in  which  the  shooting  occurred  in  the  use 
or  the  threatened  use  of  a  deadly  we^apon,  or  that  the  defendant 
and  the  deceased  mutually  and  willingly  entered  into  a  combat  with 
each  other  with  deadly  weapons,  in  either  of  which  later  state  of  case, 
the  defendant  cannot  be  excused  on  the  grounds  of  self-defense,  unless 
you  believe  from  the  evidence  that  he  in  good  faith  abandoned  the 
difficulty  or  mutual  combat  before  he  shot  D.-^ 

§  3134.  When  Aggressor,  Abandoning  Conflict,  May  Avail  of  Plea 
of  Self-Defense.  (a)  On  the  other  hand  if  you  believe  from  the  evi- 
dence that  the  defendant  commenced  the  affray  by  assaulting  K.,  or 
by  so  menacing  him  as  to  induce  in  K,  a  reasonable  belief  that  he 

24 — Smith   v.   State,   75   Miss.   542,  ant  cannot  avail  himself  of  neces- 

23  So.  260  (262).  sary    self-defense,    if   the    necessity 

25— State    v.    Hicks,    178    Mo.    433,  of  that  defense  was  brought  on  by 

77  S.  W.  539  (540).  the    deliberate    and    lawless    act    of 

"The  first  instruction  above  quot-  the  defendant,  or  his  bantering 
ed  is  challenged  upon  the  ground  Bostic  to  a  fight  for  the  purpose 
that  it  does  not  go  far  enough,  in  of  taking  his  life,  or  committing  a 
that  it  does  not  tell  the  jury  that,  bodily  harm  upon  him  in  which  he 
if  defendant  entered  into  the  dif-  killed  Bostic  by  the  use  of  a  deadly 
ficulty  without  the  intent  to  kill  the  weapon.'  Horr  &  T.  Cas.,  p.  208; 
deceased,  then  he  would  only  be  Stewart  v.  State,  1  Ohio  St.  66.  Of 
guilty  of  manslaughter  in  the  course  the  instructions  of  the  court 
fourth  degree.  We  are  unable  to  must  be  interpreted  in  the  light  or 
agree  to  this  contention,  and  are  the  evidence  in  the  case  showing 
clearly  of  opinion  that,  under  the  the  circums'tances  under  which  the 
facts  disclosed  by  the  record,  the  killing  was  done,  and  this  para- 
instruction  is  a  correct  presenta-  graph  of  the  court's  instructions 
tion  of  the  law  of  the  case.  was    a    proper    instruction    in    the 

26 — Territory    v.    Gonzales,    11    N.  event  of  the  jury  believing  the  tes- 

M.  301,  68  Pac.  925  (930).  timony  for  the  prosecution  and  dis- 

"This  instruction  is  in  almost  the  believing  the  testimony  given  in  be- 

identical     language     used     by     the  half  of  the  defense." 

court  and  approved  in  the  case  of  27— Hellard  v.  Commonwealth,  26 

Adams   v.    People,   47  111.    376.     The  Ky.  L.  38,  80  S.  W.   482  (483),  citing 

language  used  bv  the  court  in  that  Logsdon  v.  Commonwealth,  19  Ky. 

case  was  as  follows:     'The  defend-  L.  413,  40  S.  W.  775. 


§3135.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  2011 

was  in  immediate  danger  of  physical  violence  at  the  hands  of  the  de- 
fendant, then  the  defendant  is  not  entitled  to  a  verdict  of  acquittal 
upon  the  ground  that  he  killed  K.  in  self-defense,  unless  the  defendant, 
really  and  in  good  faith  endeavored  to  decline  any  further  strug- 
gle, and  in  some  way  by  words  or  conduct  notified  K.  thei-eof,  and 
thereafter  acted  only  upon  a  well  grounded  fear  in  him  as  a 
reasonable  man,  that  he  was  in  imminent  danger  of  being  killed  by, 
or  of  receiving  gi'eat  bodily  harm  from  K.  The  words  used  by  de- 
fendant did  not  constitute  an  assault  nor  were  they  sufficient  to  excite 
in  K.  a  reasonable  fear  that  he  was  about  to  be  assailed  by  the  de- 
fendant. 

(b)  If  you  find  from  the  evidence  that  at  the  time  he  stabbed  K. 
the  defendant  did  not,  as  a  reasonable  man,  believe  he  was  in  im- 
minent danger  of  losing  his  life,  or  suffering  great  bodily  injury  at 
the  hands  of  K.  then  the  killing  was  not  done  in  self-defense,  but  was 
either  murder  or  manslaughter,  no  matter  who  began  the  affray,  and 
even  though  the  defendant  had  really  and  in  good  faith  endeavored 
to  decline  further  struggle  and  had  so  informed  K.-^ 

(c)  The  jury  are  instructed,  that  although  you  may  believe,  from 
the  evidence,  that  the  defendant  commenced  the  fight  in  question, 
and  made  the  first  attack  upon  the  deceased,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  the  defendant  afterwards,  and  be- 
fore the  fatal  blow  was  struck,  ceased  to  fight,  and  in  good  faith 
withdrew  from  the  conflict  by  retreating,  or  otherwise,  then  the 
right  of  deceased  to  employ  force  against  the  defendant  ceased;  and 
if  the  deceased  did  not  then  desist  from  attempting  to  use  violence 
towards  the  defendant,  then  the  defendant's  right  to  defend  himself 
revived ;  and  if  he  then  found  himself  in  apparent  danger  of  losing  his 
life,  or  of  sustaining  great  bodily  injury  at  the  hands  of  the  de- 
ceased, he  had  the  same  right  to  defend  himself  that  he  would 
have  had  if  he  had  not  originally  commenced  the  conflict.-^ 

(d)  To  justify  the  taking  of  life,  in  self-defense,  it  must  appear, 
from  the  evidence,  that  the  defendant  not  only  reall}-,  and  in  good 
faith,  endeavored  to  decline  any  further  struggle,  and  to  escape  from 
his  assailant  before  the  fatal  blow  was  given,  but  it  must  also  ap- 
pear that  the  circumstances  were  such  as  to  excite  the  fears  of  a  rea- 
sonable person  that  the  deceased  intended  to  take  his  life,  or  to  in- 
flict on  him  great  bodily  hann,  and  that  the  defendant  really  acted 
under  the  influence  of  these  fears  and  not  in  a  spirit  of  revenge. ^° 

§  3135.  Aggressor  Is  Not  Necessarily  the  Person  Who  Strikes  the 
First  Blow  or  Makes  the  First  Demonstration  to  Strike — Question  of 
Fact.  The  question  as  to  who  was  the  aggressor  is  one  of  fact,  to  be 
determined  by  the  jury  from  the  evidence  in  the  case, .in  the  same 

28— State  v.   Tighe,   27   Mont.    327,  30— Parish  v.  State,  14  Neb.  60,  15 

71  Pac.  3  (8).  N.    W.    357;    State    v.    Sorenson,    32 

29— Terrell    v.    Commonwealth,    13  Minn.  118,  19  N.  W.  738. 
Bush.  (Ky.)  246. 


2012  FORMS  OP  INSTRUCTIONS.  [§  3136. 

manner  as  they  determine  in  other  eases  of  fact.  An  aggressor  is  not 
necessarily  a  person  who  may  strike  the  first  blow  in  a  personal  en- 
counter, or  make  the  first  demonstration  indicating  an  intent  to  strike ; 
'but  if  a  person,  with  malice  and  hatred  in  his  heart  towards  another, 
purposely  acts  towards  such  other  person  as  to  provoke  a  difficulty, 
either  by  acts  or  words,  with  the  intent  to  induce  such  other  per- 
son to  strike  the  first  blow  or  make  the  demonstration,  in  order  to 
form  a  pretext  to  take  his  life,  then  the  defendant  could  not  avail 
himself  of  the  right  to  self-defense.^^ 

§  3136.  State  Must  Prove  Its  Contention  that  Defendant  Began 
the  Fight  Beyond  a  Reasonable  Doubt.  You  are  further  instructed 
that  under  the  facts  and  circumstances  of  this  cause  the  determination 
of  the  question  as  to  who  provoked  the  affray  and  made  the  first  as- 
sault materially  affects  the  logical  conclusions  and  the  responsibility 
of  the  defendant,  inasmuch  as  under  the  law  it  becomes  the  duty  of 
the  prosecution  to  prove  every  material  ingredient  of  this  crime  be- 
yond any  reasonable  doubt,  and  to  the  satisfaction  of  the  jury.  Be- 
fore you  can  be  authorized  in  convicting  the  defendant  you  must  be 
satisfied  in  your  own  minds  beyond  all  reasonable  doubt  that  the  de- 
fendant jarovoked  the  fight, — made  the  first  assault  on  the  deceased; 
therefore  if  you  are  in  doubt  on  this  point ;  that  is  if  your  minds  are 
not  satisfied  whether  the  defendant  provoked  the  fight  and  made  the 
first  assault,  or  whether  the  deceased  did  so  then  it  becomes  your 
duty  under  the  law,  to  give  the  defendant  the  benefit  of  the  doubt 
and  acquit  the  defendant.^- 

§  3137.  Self -Defense— Not  Available  to  One  Who  Kills  Through 
Mere  Cowardice,  (a)  The  court  further  instructs  the  jury  that  if  a 
person  shoots  another  through  mere  cowardice,  or  under  circum- 
stances which  are  not,  in  the  opinion  of  the  jury,  sufficient  to  induce 
a  reasonable  and  well-grounded  belief  of  danger  to  life  or  of  great 
bodily  harm  in  the  mind  of  an  ordinarily  courageous  person,  the  law 
will  not  justify  the  shooting  on  the  ground  of  self-defense.^^ 

31 — Marlow  v.  State,  49  Fla.  7,  38  is  not  a  practical  one,  in  consider- 
So.  653.  ingr  the  matter  of  self-defense.   Bas- 

"It  is  contended  that  this  charge  sett  v.  State,  44  Fla.  12,  33  So.  262; 

is    erroneous    because    it    does    not  Sylvester   v.    State,   46   Fla.   166,   35 

state    that    the   act    done    or  words  So.  142." 

spoken    by    the    defendant    should  32 — Territory   v.    Gonzales,    11    N. 

have  been  reasonably  calculated  to  M.  301,  68  Pac.  925  (931). 

produce   a    difliculty    with    the    de-  The  term   satisfied   might  be  ob- 

ceased.      The    objection   is   not  well  jected  to  in  other  jurisdictions, 

taken.    The  charge  is  that  'if  a  per-  33 — ^Coil   v.    State,    62    Neb.   15,    86 

son,  with  malice  and  hatred  in  his  N.  W.  925  (928). 

heart  towards  another,  purposely  The  court  said:  "The  instruction 
acts  towards  such  other  person  as  correctly  states  the  law.  'Coward- 
to  provoke  a  difficulty,  etc,,  then  ice'  is  the  antonym  of  'courage.' 
the  right  of  self-defense  is  not  The  rule  is  that  a  defendant  is  ex- 
available.  Where  conduct  is  in-  cusable  if  he  does  nothing  more 
tended  to  provoke  and  does  provoke  than  a  reasonably  prudent  and 
a  difficulty,  the  question  whether  or  courageous  man  would  have  done 
not  the  conduct  was  I'easonably  under  like  circumstances.  State  v. 
calculated  to  provoke  the  difficulty  Crawford,  66  la.  231,  23  N.  W.  684." 


§  3138.]  CRIMINAI^-HOMICIDE— SELF-DEFENSE.  2013 

(b)  If,  without  excuse  or  justification  in  law,  or  a  iDremeditated 
design  to  effect  the  death,  defendant  should,  from  excessive  fear  or 
cowardice,  have  taken  the  life  of  H.  when  the  circumstances  were 
not  such  as  to  justify  him  in  so  acting  in  self-defense,  he  would  be 
guilty  of  manslaughter.^* 

(c)  The  law  does  not  allow  any  man  who  interposes  a  plea  of 
self-defense  here  to  say  under  what  eii'cumstances  he  will  fire  his 
pistol  and  take  human  life.  He  must  be  without  fault  in  bringing 
about  the  difficulty.  Then,  again,  the  assault  made  upon  him  by  the 
deceased  must  be  of  such  a  character  as  to  lead  him  honestly  to 
believe  that  he  was  in  imminent  peril  of  his  life  or  of  great  bodily 
harm.  He  must  not  only  honestly  believe  this,  but  you  are  to  deter- 
mine whether  a  man  of  ordinary  reason  and  firmness,  situated  as  the 
defendant  was  situated,  would  have  been  led  to  the  same  conclusion 
under  the  same  circumstances.  If  he  would  have  been,  then  the  plea 
has  been  made  out,  and  should  avail  the  defendant.  If  not,  then  the 
plea  has  not  been  made  out.^^ 

§  3138.  Self-  Defense— Not  Available  to  One  Who  Kills  from  Pre- 
viously Formed  Design.  A  defendant  may,  as  a  reasonable  man, 
have  believed  that  he  was  in  danger  of  losing  his  life  or  of  incurring 
great  bodily  harm,  and  yet  the  killing  may  not,  under  some  cir- 
cumstances, be  justifiable  or  excusable.  One  instance  is  where  he  has 
brought  about  the  necessity  without  being  reasonably  free  from  fault. 
Again,  the  circumstances  of  the  case  may  at  least  make  it  a  question 
for  the  jury  whether  a  killing  was  not  in  pursuance  of  a  previously 
formed  design  to  kill,  instead  of  having  been  the  result  of  a  mere 
purpose  of  self-defense,  although  at  the  time  of  the  altercation  the 
first  overt  act  may  have  come  from  the  person  slain.^^ 

34 — Padgett  v.   State,  40  Fla.   451,  statute  does  not  exclude  this  prin- 

24  So.  145  (147).  ciple  of  the  common  law,  but  rec- 

35 — State  v.   Petsch,   43   S.    C.   132,  ognizes  it,  in   limiting-  the  right  to 

20  S.  E.  993  (997);  State  v.  Whittle,  take  life  to   a   lawful   defense,   and 

59  S.  C.  297,  37  S.  E.  923  (925).  this  court  has  approved  the  state- 

36 — Kennard  v.  State,  42  Fla.  581,  ment  of  the  principle  in  the  follow- 

28  So.  858.  ing     formula:      That     a     necessity 

"At  common  law  a  man  assailed  brought  about  by  the  party  who 
under  certain  circumstances  could,  acts  under  its  compulsion  cannot 
in  order  to  protect  himself,  take  the  be  relied  upon  to  justify  his  con- 
life  of  his  assailant,  and  excuse  duct.  The  aggressor  in  a  personal 
himself  on  the  ground  of  self-de-  difficulty — one  not  reasonably  free 
fense.  It  was  essential,  however,  from  fault — can  never  be  heard  to 
that  it  be  shown  that  the  killing  acquit  himself  of  liability  for  its 
was  necessary  to  save  his  life  or  consequences  on  the  'ground  of 
protect  him  from  grievous  bodily  self-defense.  Lovett  v.  State,  30 
harm,  and  that  he  did  not  wrong-  Fla.  142,  11  So.  550,  17  L.  R.  A.  705. 
fully  bring  about  the  necessity  to  "The  abstract  statement  of  the 
kill.  No  man  was  permitted  to  law  by  the  court,  that  a  defendant, 
take  life  under  a  pretense  of  neces-  as  a  reasonable  man  may  believe  he 
sity  that  he  occasioned  by  his  own  is  in  danger  of  losing  his  life,  or  of 
wrongful  act.  and  this  was  in  har-  incurring  great  bodily  harm,  and 
mony  with  the  principle  pervading  yet  under  some  circumstances  the 
all  branches  of  the  law,  that  no  killing  will  not  be  justifiable  or  ex- 
man  should  be  permitted  to  take  cusable,  was  correct.  If  a  reason- 
advantage  of  his  own  wrong.    Our  ably  prudent   man  has   reasonable 


2014  FORMS  OF  INSTRUCTIONS.  [§  3139. 

§  3139.  Insulting  Words  by  Defendant  Would  Not  Deprive  Him  of 
the  Right  of  Self -Defense,  (a)  The  court  charges  the  jury  that 
even  though  the  defendant  called  J.  * '  a  son  of  a  bitch, ' '  or  used  any 
other  insulting  words,  yet  those  words  would  not,  nor  would  any  other 
wiords,  amount  to  such  provocation  as  to  deprive  defendant  of  the 
right  of  self-defense.^^ 

(b)  If  you  find  from  the  evidence  that  the  defendant  invited  or 
provoked  an  assault  to  be  inade  upon  himself  by  G.,  then  the  de- 
fendant's plea  of  self-defense  will  be  of  no  avail.  No  mere  words 
however  insulting  will  justify  an  assault.^® 

§  3140.  Justification — That  Defendant  and  Deceased  Were  En- 
gaged in  Unlawful  Occupation  Immaterial.  Although  you  may  be- 
lieve from  the  evidence  that  at  the  time  of  the  killing  of  L.  by  the 
defendant,  both  the  defendant  and  L.  were  engaged  in  the  unlaw- 
ful business  of  running  a  gaming  house,  and  that  each  of  them  was 
violating  the  law  by  carrying  concealed  deadly  weapons,  these  un- 
lawful acts  alone  would  not  justify  the  defendant  in  taking  the  life  of 
his  partner  in  crime,  since  it  is  as  much  a  violation  of  the  law  to  kill 
a  bad  man  as  a  good  man.^'' 

§  3141.  Malice  in  the  Slayer  Immaterial — When.  If  you  find  that 
the  assault  by  A.  B.  upon  the  defendant  was  fierce,  violent  and 
sudden,  and  was  not  cau.sed  by  anything  that  the  defendant  had  done, 
and  the  defendant  was  justified  in  repelling  it,  even  to  taking  the  life 
of  A.  B.,  it  will  be  unnecessary  to  inquire  what  ill  feeling  or  malice 
was  entertained  by  the  defendant  towards  A.  B.  for  if  a  person  is 
assailed  in  a  violent,  fierce  and  sudden  manner,  so  that  the  only  way 
left  is  for  him  to  slay  his  antagonist,  then  it  is  wholly  immaiterial  what 
ill  will  or  malice  he  may  entertain  towards  him,  if  he  contributed 
nothing  to  the  attack,  or  in  any  manner  caused  it,  for  the  malice  and 
ill  will,  if  any  existed,  are  wholly  swallowed  np  in  the  defense  of  life 
and  limb.*** 

§  3142.  What  the  Jury  May  Consider  in  Determining  Whether  the 
Blows  or  Shots  Were  Given  or  Fired  in  Self-Defense.  (a)  In  consid^ 
ering  whether  the  killing  was  justifiable  on  the  ground  that  the 
killing  was  in  self-defense,  the  juiy  should  consider  all  the  circum- 
stances attending  the  killing,  the  conduct  of  the  parties  at  the  time 
and  immediately  prior  thereto,  and  the  degree  of  force  used  by  the 
prisoner  in  making  what  is  claimed  to  be  this  self-defense,  as  bear- 
ground  to  apprehend  danger  of  los-  1,  17  So.  328  (332);  De  Arman  v. 
ing  his  life,  or  of  suffering  great  State,  71  Ala.  351;  Hornsby  v.  State, 
bodily  harm,  yet,  if  he  wrongfully  94  Ala.  55,  10  So.  522,  contra, 
occasions  or  brings  about  the  ne-  37— Smith  v.  State,  75  Miss.  542, 
cessity    for    his    action,    he    cannot     23  So.  260  (262). 

justify  his  conduct   on   the  plea  of        3S — State  v.   Jones,   125  Iowa   508, 
self-defonse.     This   disposes   of  the     99  N.  W.  179  (181). 
only  objection  made  to  the  charge,        39 — Williams  v.  U.  S.,  4  Ind.  Ter. 
that  it  contains  an  incorrect  prop-     269,  69  S.  W.  871. 
osition  of  law."  40— People  v.  Macard,  73  Mich.  15, 

Compare  Karr  v.   State,   106  Ala.     40  N.  W.  784  (788). 


§  3143.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  2015 

ing  upon  the  question  whether  the  blows,  if  given,  were  actually 
given  in  self-defense,  or  whether  they  were  given  in  carrying  out 
an  unlawful  pui'pose;  and  if  the  juiy  believe,  from,  the  evidence,  that 
the  force  used  was  unreasonable,  in  amount  and  character,  and  such 
as  a  reasonable  mind  would  have  so  considered,  under  the  circum- 
stances, it  is  proper  for  the  jury  to  consider  that  fact  in  determin- 
ing whether  the  killing  was  in  self-defense.*^ 

(b)  In  considering  whether  the  killing  of  A.  B.  Avas  justifiable, 
on  the  grounds  of  self-defense,  you  should  consider  all  the  circum- 
stances attending  the  killing,  the  conduct  of  the  parties  at  the  time 
and  immediately  prior  thereto,  and  the  degree  of  force  used  by  the 
prisoner  in  making  what  he  claimed  to  be  this  self-defense,  as  bearing 
upon  the  question  whether  the  shot  or  shots  were  actually  fired  in 
self-defense,  or  whether  fired  in  canying  out  an  unlawful  pui-pose.*^ 

(c)  If  the  jury  shall  further  believe,  from  all  the  evidence  herein, 
that  the  accused,  at  the  time  he  shot  and  killed  said  P.,  had  reasonable 
grounds  to  believe,  and  did  believe,  from  all  the  circumstances  as 
they  appeared  to  him,  that  the  said  P.  was  then  and  there  about  to 
take  his  life,  or  inflict  upon  his  person  some  great  bodily  harm,  he  had 
a  right  to  use  any  means  at  his  command  that  were  to  him  apparently 
necessary.  *  *  **^ 

(d)  The  jury  are  instructed  that  in  considering  whether  the 
killing  was  justifiable  on  the  ground  that  the  killing  was  in  self-de- 
fense, you  should  consider  all  the  circumstances  attending  the  kill- 
ing, the  character,  number  and  place  of  the  wounds,  the  conduct  of 
the  parties  at  the  time  and  immediately  prior  thereto,  and  the  degree 
and  nature  of  the  force  used  by  the  defendant  in  making  what  is 
claimed  to  be  his  self-defense,  as  bearing  upon  the  question  whether 
the  shots,  if  fired,  were  actually  shot  in  self-defense,  or  whether 
they  were  shot  in  cariying  out  an  unlaAvful  purpose ;  and  if  the  jury 
believe  from  the  evidence  beyond  a  reasonable  doubt  that  the  force 
used  was  unreasonable  in  amount  and  character,  and  such  as  a  rea- 
sonable mind  would  have  so  considered,  under  the  circumstances,  it  is 
proper  for  the  jury  to  consider  that  fact,  if  it  is  proven,  in  deter- 
mining whether  the  killing  was  in  self-defense.** 

§  3143.     Quarrelsome  Disposition  of  Deceased,     (a)     You  are  in- 

41— Close   v.   Cooper,   34   Ohio   St.  eration.     The   court   said:     "We   do 

98-  not  so  regard  it.     The  phrase  com- 

42— Willis  V.  State,  43  Neb.  102,  61  plained    of   is    an    extremely    broad 

N.  W.  254  (257).  one,     and,     while    not     customarily 

43 — V.'ade    v.    Commonwealth,    106  used    in    such    instructions    in    this 

Ky.  321,  50  S.  W.  271.  commonwealth,    is   frequently   used 

It  was  contended  that  this  re-  in  the  self-defense  instructions  in 
stricted  the  jury  to  the  circum-  other  states,  and  seems  to  us,— if 
Ftances  immediately  attending-  the  it  can  be  assumed  to  make  any 
homicide  in  their  consideration  of  change  in  the  meaning  of  the  in- 
the  evidence  as  to  whether  his  life  struction— to  tend  rather  to  the  ad- 
was  in  danger,  or  whether  he  had  vantage  of  the  accused,"  citing 
reasonable  grounds  to  so  believe,  Sackett  Inst.  Jur.  2d  ed..  p.  528. 
and  that  threats  previously  made  44— Carleton  v.  State,  43  Neb.  373, 
were  withdrawn  from  their  consid-  61  N.  W.  699  (710). 


2016  FORMS  OF  INSTRUCTIONS.  [§  3144 

structed  that  the  fact  that  the  deceased,  B.,  may  or  may  not  have 
been  of  a  quarrelsome  disposition,  or  that  he  may  have  made  as- 
saults upon  other  parties,  does  not  affect  the  nature  of  the  act  of 
killing  him.  Such  testimony  is  admissible  only  as  it  may  tend  to 
throw  light  upon  the  question  as  to  whether  or  not  the  defendant 
acted  in  self-defense,  and  can  only  be  considered  by  you  for  this  pur- 
pose. If  you  find,  beyond  a  reasonable  doubt,  that  the  killing  was  not 
done  in  self-defense,  then  the  act  was  murder  or  manslaughter  and 
the  character  of  the  deceased  is  immaterial,  and  it  matters  not 
whether  he  was  a  good  or  a  bad  man.*^ 

(b)  You  are  to  determine  from  the  evidence  the  state  of  mind 
of  the  defendant  when  he  shot  and  killed  the  deceased  (if  he  did 
so)  and  in  that  connection  you  may  consider  threats  (if  any)  made 
by  the  deceased  regarding  the  defendant,  the  reputation  of  the  de- 
ceased (if  such  it  was)  as  a  violent  and  dangerous  man,  the  defen- 
dant's personal  knowledge  (if  such  he  had)  that  the  deceased  was 
a  violent  and  dangerous  man,  the  relative  strength  of  deceased  and 
the  defendant,  and  all  other  facts  in  the  case  that  may  shed  any 
light  ujDon  such  state  of  mind.**^ 

§  3144.  Physical  Power  of  Deceased  May  Be  Considered.  I  charge 
you  that  the  relative  size  and  strength  of  the  deceased  and  the  ac- 
cused should  be  considered  by  you  in  determining  the  question 
whether  or  not  the  defendant  had  reasonable  grounds  to  apprehend 
death  or  great  bodily  hann  at  the  hands  of  the  deceased. ^'^ 

§  3145.  Jll-Will — Abuse — Threats.  The  court  further  instnicts  the 
juiy  that,  although  you  may  believe  from  the  evidence  that  defendant 
entertained  ill  will  towards  the  deceased  and  had  abused  and  threat- 
ened him,  still  the  defendant  was  not  thereby  deprived  of  the  right  to 
defend  himself  against  any  attack  upon  him  by  the  deceased.  And  if 
you  shall  find  from  the  evidence  that  defendant  shot  and  killed  the 
deceased  in  self-defense,  as  defined  in  other  instructions,  then  you 
must  acquit  him,  notwithstanding  such  ill-will,  abuse,  and  threats.*^ 

§  3146.  Threats,  Without  Effort  to  Carry  Them  Out,  Will  Not  Jus- 
tify Killing — Overt  Act  Necessary,  (a)  All  threats  which  you  be- 
lieve fi-om  the  evidence  wei'e  made  by  either  the  deceased,  H.  L.,  or 
by  L.  L.  against  the  defendant  should  be  considered  by  you  in 
arriving  at  a  verdict.  Any  threats  which  were  communicated  to  defen- 
dant should  be  considered  as  explaining  the  conduct  and  apprehen- 
sions of  defendant  at  the  time  of  the  shooting,  and  all  threats 
whether  communicated  to  the  defendant  or  not,  should  be  considered 
in  passing  upon  the  evidence  as  to  the  conduct  and  demeanor  of  de- 
ceased and  L.  L.  at  the  time  of  the  shooting.  Although  you  may  be- 
lieve from  the  evidence  that  prior  to  the  shooting  deceased,  H.  L.  and 

45 — "The  instruction  was  correct."         47 — State  v.   Petsch,   43   S.   C.   132, 

Willis   v.    State,   43  Neb.   102,   61  N.  20  S.  E.  993  (995). 
W.  254  (259).  4S— State  v.   Todd,  194  Mo.  377,  92 

46— Clark    v.    State,    45    Tex.    Cr.  S.  W.  674. 
App.  479,  76  S.  W.  573  (574). 


§  3146.]  CRIMINAI^HOMICIDE— SELF-DEFENSE.  2017 

L.  L.  made  threats  against  the  defendant,  yet  such  threats  alone  did 
not  justify  defendant  for  shooting  H.  L.,  and  although  such 
threats  were  communicated  to  defendant  before  the  shooting,  yet,  if, 
at  the  time  defendant  fired  the  fatal  shot,  neither  H.  L.  nor  L.  L.  made 
any  threat  or  threats  ag-ainst  defendant,  and  made  no  assault  upon 
defendant,  and  were  making  no  effort  to  carry  out  such  threats, 
then  the  same  did  not  justify  defendant  in  shooting  H.  h.*^ 

(b)  Previous  thi-eats  or  even  acts  of  hostility,  how  violent  so- 
ever, nor  the  violent  and  dangerous  character  of  the  deceased,  if  you 
should  so  find,  will  not  of  themselves  excuse  the  slayer;  but  there 
must  be  some  overt  act  (that  is,  an  open  manifest  act)  on  the  part 
of  the  deceased  at  the  time,  clearly  indicative  of  a  present  pur- 
pose to  do  injury.  To  constitute  the  defense  the  belief  or  apprehen- 
sion of  danger  must  be  founded  on  sufficient  circumstances  to  author- 
ize the  opinion  that  the  deadly  purpose  then  exists,  and  the  fear 
that  it  will  at  that  time  be  executed.  If  any  animosity  existed  on 
the  part  of  the  deceased  to  the  defendant  as  indicated  by  words  and 
actions,  then  and  before,  it  is  proper  matter  for  the  consideration  of 
the  jury  on  the  question  of  reasonable  apprehension.  The  jury  is  the 
judge,  under  all  the  facts  and  circumstances  whether  or  not  there 
was  reasonable  ground  to  justify  the  defendant  in  believing  that  he 
was  in  danger  of  death  or  great  bodily  harm  at  the  time  he  fix'ed  the 
fatal  shot.50 

(c)  If  you  believe  from  the  evidence  that  the  deceased,  R.,  had 
made  threats  to  kill  the  defendant,  or  to  do  him  great  bodily  harm, 
and  that  these  threats  were  communicated  to  the  defendant,  such 
threats  entitled  the  accused  to  be  more  watchful,  and  to  interpret 
the  acts  of  the  deceased  more  harshly,  than  he  otherwise  would 
have  interpreted  them,  and  these  are  facts  for  youi  consideration, 
independent  of  who  brought  on  the  difficulty,  and  whether  or  not 
the  defendant  had  reason  to  apprehend  danger  to  his  life  or  great 
bodily  harm. 

(d)  While  it  is  well  calculated  to  make  the  party  against  whom 
the  threats  are  made  more  vigilant  for  his  own  safety,  and  security  on 
meeting  the  party  who  made  the  threats,  the  party  against  whom 
the  threats  are  made  more  vigilant  for  his  own  safety  and  security  on 
demonstration  on  the  part  of  the  party  making  the  threats  before 
he  can  resort  to  a  deadly  weapon.  There  must  be  some  act  or 
demonstration  on  the  part  of  the  deceased  manifesting  an  intention 
to  carry  out  the  threats  befoi-e  the  prisoner  at  the  bar  would  be  justi- 
fied in  law  in  resorting  to  a  deadly  weapon.  It  is  not  for  me  to 
say  what  is  to  be  the  character  of  this  demonstration ;  you  are  to 
judge  of  that,  in  connection  with  the  threats  and  the  conduct  of 
the  deceased  at  the  time  of  the  conflict  between  the  parties.''^ 

49— State    v.    McCarver,    194    Mo.        51— State  v.   Petsch,  43  S.  C.   132, 
717,  92  S.  W.  684.  20   S.   E.   993   (995). 

50— Ray   v.    State,    108    Tenn.    282, 
67  S.  W.  553  (556). 
127 


2018  FORMS  OF  INSTRUCTIONS.  [§  3147. 

§  3147.  Mere  Fear  Not  Sufficient — Some  Overt  Act  Required— 
What  Constitutes,  (a)  The  court  instructs  the  jury  that  mere  fear, 
however  well  grounded,  that  another  intends  to  kill  the  defendant, 
or  to  do  him  some  great  bodily  harm,  will  not  justify  a  killing,  vui- 
less  there  is  some  overt  act  indicating  a  purpose  to  immediately  carry 
out  such  an  intention;  and  you  are  instructed  that  it  is  not  enough 
that  the  defendant  should  show  that  he  believed  himself  in  danger, 
unless  the  facts  were  such  that  in  the  light  of  all  the  facts  and 
circumstances  known  to  the  defendant  at  the  time,  or  by  him  believed 
to  be  true,  you  can  see  that  as  a  reasonable  man  he  had  grounds  for 
such  belief. 

(b)  The  jury  are  instructed  that  if  you  find  from  the  evi- 
dence that  the  deceased,  X.,  made  threats  against  the  defendant 
which,  if  carried  into  execution,  would  endanger  his  life  or  subject 
him  to  great  bodily  harm,  and  the  defendant  feared  or  had  reason  to 
fear  that  such  threats  were  liable  to  be  carried  into  execution,  then 
the  defendant  might  lawfully  arm  himself  for  the  purpose  of  self- 
defense  in  anticipation  of  such  threats  being  carried  into  execution; 
but  you  are  instructed  that  the  defendant  could  not  lawfully  assault 
the  deceased  on  account  of  such  threats,  or  because  of  fear  induced 
thereby,  unless  the  deceased  at  the  time  made  some  demonstration 
or  performed  some  overt  act  that  caused  reasonable  apprehension  that 
such  threats  were  about  to  be  put  into  execution,  and  in  case  of  such 
demonstratioh  or  overt  act  the  defendant  might  lawfully  become  the 
aggressor  only  to  the  extent  of  putting  himself  in  a  position  of  safety 
as  against  the  unlawful  threatened  acts  of  the  deceased.  If,  under 
the  circumstances,  and  facts  in  this  case,  you  find  the  defendant 
intentionally  carried  his  act  of  aggression  further  than  was  rea- 
sonably necessary  to  place  himself  in  a  situation  of  apparent  safety, 
his  acts  would  be  such  as  to  render  his  act  of  aggression  unlawful,  and 
you  should  under  such  circumstances  consider  the  evidence  as  a 
whole  together  with  such  act  of  aggression  in  determining  his  guilt 
or  innocence  under  the  charge  laid  in  the  indictment. ^^ 

(c)  The  design,  real  or  apparent,  to  kill  the  defendant  or  to  do 
him  some  great  personal  injui-y,  and  the  danger,  i^eal  or  apparent, 
of  the  execution  of  such  design  by  the  deceased,  to  cause  the  killing, 
must  be  manifested  by  some  overt  act,  conduct,  or  behavior  of  the 
deceased  at  the  time  of  the  killing,  indicating  to  the  defendant  H., 
situated  as  he  was,  such  design  and  danger;  but  what  shows  such 
design,  real  or  apparent,  or  such  danger,  real  or  apparent,  are  not 
matters  of  law  for  the  court  to  decide,  but  are  matters  of  fact,  deter- 
mined by  the  jury  according  to  all  the  evidence  in  the  ease.  No 
exact  definition  of  an  "overt  act"  can  be  given.  It  may  be  a 
motion,  a  gesture,  conduct,  or  demonstration,  or  anything  else  which 
evidences  reasonably  a  present  design  to  take  the  life  of  the  defen- 
dant  or   to   do   him   great   bodily   harm.      Trifles   light   as    air  when 

52— Robinson      v.      Territory,      16  Okla.  241,  85  Pac.  451  (455). 


§  3148.]  CRIMINAI^— HOMICIDE— SELF-DEFENSE.  2019 

viewed  alone,  may  become  fraught  with  deadly  meaning  when  viewed 
in  connection  with  all  the  preceding  facts  disclosed,  and  with  all  'the 
evidence  in  the  case.^^ 

(d)  You  are  instructed  that  what  is  or  is  not  an  overt  act  of 
violence, — that  is,  what  acts  on  the  part  of  a  person  slain  would  jus- 
tify the  taking  of  his  life, — varies  with  the  circumstances  of  each 
particular  case.  Under  some  circumstances  a  slight  movement  may 
justify  instant  action  because  of  reasonable  apprehension  of  dan- 
ger; under  other  cii'cumstances  this  would  not  be  so;  and  it  is  for  the 
jury  passing  upon  the  weight  and  effect  of  the  evidence  to  determine 
how  this  may  be.^* 

§  3148.  Threats  with  Acts  Indicating  an  Intention  to  Carry  Them 
Out.  Threats  made  against  the  life  of  a  defendant  when  the  evidence 
shows  an  act  done  by  deceased  at  the  time  of  the  killing  manifesting 
an  intention  to  execute  the  threats  so  made  will  justify  homicide  in  the 
defense  and  protection  of  himself,  but  mere  threats,  unaccompanied 
by  any  act  manifesting  an  intention  to  put  such  threat  into  execution, 
will  not  justify  the  homicide.  If  you  believe  from  the  evidence  that 
deceased,  J.  W.,  had  threatened  to  take  the  life  of  defendant,  and 
that  while  the  deceased  was  doing  some  act  which  manifested  an  in- 
tention on  his  part  of  executing  his  threats  to  take  the  life  of  de- 
fendant, or  which  was  reasonably  calculated  to  and  caused  defendant 
to  believe  from  his  standpoint  that  he  was  about  to  execute  said 
threats,  defendant  shot  deceased  with  ^a  gun,  and  thereby  killed  him, 
you  should  acquit  him.^"* 

§  3149.  Previous  Threats  May  Be  Considered  in  Determining  Who 
Was  Aggressor — ^Mutual  Threats,  (a)  If  you  shall  believe  from  the 
evidence  that,  prior  to  the  time  of  ithe  shooting,  the  deceased  had 
made  threats  against  the  defendant,  or  that  defendant  had  made 
threats  against  the  deceased,  or  thait  each  had  made  threats  against 
the  other,  you  should  take  such  threats  into  consideration,  together 
with  all  the  other  facts  and  circumstances  appearing  in  evidence,  in 
determining  who  was  the  aggressor  in  this  case.^*^ 

(b)  If  the  jury  believe  from  the  evideiTce  that  W.  made  any 
threats  against  the  life  of  defendant,  and  that  snch  threats  w^ere 
communicated  to  defendant  before  the  killing,  the  jury  may  take  into 
consideration  such  threats  in  determining  whe(ther  defendant  was 
justified  in  acting  upon  appearances  when  he  struck  W.  with  the  bil- 
liard cues,  i^rovided  the  jury  believe  from  the  evidence  that  W.  pro- 
voked and  entered  into  the  difficulty  with  the  defendant. ^^ 

(c)  If,   from  the   evidence   in   this  case,   the   jury  have   a  doubt 

53 — Held  error  to  refuse  the  above  55 — Curtis    v.    State,    —   Tex.    Cr. 

and    conviction    therefore    reversed.  App.  — ,  59  S.  W.  263  (264). 

Hood   v.    State,   —   Miss.   — ,    27   So.  56— State  v.  Todd,  194  Mo.  377,   92 

643  (644).    See  also  Johnson  v.  State,  S.  W.  674. 

79  Miss.  42,  30  So.  39  (40).  57— State  v.  Smith,  164  Mo.  567,  65 

54_Wllllams  v.  U.  S.,  4  Ind.  Ter.  S.  W.  270. 
269,  69  S.  W.  871. 


2020  FORMS  OF  INSTRUCTIONS.  [§  3150. 

as  to  whether  defendant,  E.  D.,  or  S.  J.  was  the  aggressor  in  the 
difficulty  in  which  S.  J.  lost  his  life,  then,  in  determining  who  was  the 
aggressor,  you  may  take  into  consideration  any  threat  or  threats  you 
may  find  were  made  by  said  S.  J.  against  defendant,  and  which 
threats  were  communicated  to  said  defendant,  for  the  pui-pose  of  ex- 
plaining the  conduct  and  demeanor  of  said  S.  J.  at  the  time  of  said 
difficulty.  If  you  find  from  the  evidence  that  S.  J.,  prior  to  the  trag- 
edy, made  any  threats  against  the  defendant,  E.  D.,  and  that  such 
threats  were  communicated  to  said  defendant,  or  that  he  made  any 
threats  to  defendant  himself,  then  such  threat  or  threats,  if  any,  so 
made  and  communicated  to  said  defendant,  should  be  considered  by 
you  as  exiDlaining  the  conduct  or  apprehension  of  said  defendant,  if 
any,  at  the  time  of  such  killing.  On  the  other  hand,  if  you  find 
from  the  evidence  that  said  defendant,  E.  D.,  was  the  aggressor, 
and  at  the  time  he  struck  said  S.  J.,  if  he  did  strike  him,  said  S.  J. 
was  not  assaulting  or  attempting  to  assault  said  defendant,  was  not 
making  any  hostile  or  apparently  hostile  demonstrations  toward  de- 
fendant, and  was  making  no  effort  to  cany  out  such  threat  or  ithreats, 
then  such  threat  or  threats  would  not  excuse  or  justify  defendant  in 
killing  deceased,  if  he  did  kill  him,  and,  so  finding,  you  will  disre- 
gard and  not  in  any  manner  consider  the  evidence  of  such  threats 
made  by  the  deceased  against  said  defendant  in  arriving  at  your 
verdict.^^ 

§  3150.  Threatening  Language  Used  May  Be  Considered  as  Evi- 
dence of  State  of  Feeling  or  Who  Was  the  Aggressor.  Evidence  has 
been  offered  tending  to  prove  that  at  Fremont,  a  few  hours  before 
the  homicide,  the  defendant  and  X.  had  a  difficulty,  disagreement 
or  quarrel,  and  that  at  that  time  certain  threatening  language  was 
used  by  the  said  X.  towards  the  defendant,  both  there  and  on  his 
way  homeward.  These  statements,  both  in  whole  or  in  part,  have 
been  contradicted  by  other  evidence.  It  is  for  you  to  detennine  fi'om 
the  evidence  in  this  case  whether  or  not  such  threatening  lan- 
guage was  used;  and,  if  you  find  it  established  by  the  evidence  that 
such  threats  or  threatening  language  were  used  on  the  part  of  X.  at 
the  time  in  question,  this  may  be  considered  by  you  as  tending  to 
prove  the  state  of  feeling  of  said  X.  at  the  time  of  ithe  conflict  which 
resulted  in  his  death;  and,  if  established,  it  would  be  competent  evi- 
dence bearing  upon  the  question  as  to  whether  or  not  the  said  X. 
began  'the  conflict  or  was  the  assaulting  party.^^ 

§  3151.  Prior  Threats — Purporting  to  Draw  Weapon — Reputation 
as  Dangerous  and  Violent  Man.  If  a  person  has  been  threatened  by 
another,  such  threatened  person  has  the  right  to  go  about  his  ordin- 
ary business,  and  is  under  no  legal  obligation  to  avoid  the  person  who 
threatened  him,  but  upon  meeting  such  person,  has  the  right,  under 
the    law,    to    protect    himself,    if    assailed,    and    in    thus    protecting 

58— State  v.   Darling,  199  Mo.  168,        59— State  v.  Helm,  92  Iowa  540,  61 
97  S.  W.  592.  N.  W.  246  (248). 


§  3152.]  CRIMINAL— HOMICIDE— SELF-DEFENSE.  2021 

himself  has  the  right  to  act  upon  circumstances  as  they  appear  to 
him,  and  if  he  believes,  and  as  a  prudent  and  cautious  man  has  a 
right  to  believe,  from  the  attitude  of  the  person  who  threatened 
him,  that  his  life  is  in  imminent  danger,  or  that  he  is  in  imminent 
danger  of  great  bodily  harm,  to  defend  himself,  even  to  the  extent  of 
taking  human  life.  If,  therefore,  the  jury  believe  from  the  evi- 
dence in  this  ease  that  the  deceased,  M.,  threatened  the  life  of  the 
defendant;  and  if  the  jury  further  believe  from  the  evidence  that 
the  said  M.  was  a  man  who  bore  reputation  of  being  a  violent  and 
dangerous  character;  that  these  threats  had  been  communicated  to  the 
defendant,  and  that  the  defendant  knew  that  the  deceased  bore  such 
reputation  as  a  dangerous  and  violent  man;  and  if  the  juiy  believe 
further  from  the  evidence  that  on  the  day  of  the  fatal  encounter  the 
deceased  and  the  defendant  met,  and  that  after  exchanging  a  few 
words  the  deceased  threw  his  right  hand  behind  him  as  if  to 
draw  a  weapon,  and  the  defendant  believed  at  the  time,  and  as  a 
prudent  and  cautious  man  had  a  I'ight  to  believe,  that  his  life  was  in 
imminent  danger,  or  that  he  was  in  imminent  danger  of  sutfering 
great  bodily  hann — then  the  court  charges  j'ou  that  the  defendant 
had  the  right  to  tire  the  fatal  shot,  although  in  point  of  fact  there 
may  have  been  no  actual  or  real  danger,  and  it  will  be  your  duty, 
under  the  circumstances  to  acquit  the  defendant.^*' 

§  3152.  Uncommunicated  Threats,  Admissible  When,  (a)  Un- 
communicated  threats  are  only  valuable,  in  a  case  of  this  kind,  as 
tending  to  show  the  feelings  and  interest  of  the  deceased  towards  the 
defendant  at  the  time  of  their  encounter,  and  whether  or  not  the  de- 
ceased was  the  first  assailant,  and  whether  or  not  the  deceased  so 
acted  at  the  time  of  the  shooting  as  to  induce  in  the  mind  of  the 
defendant  an  honest  belief  that  the  deceased  intended  to  kill  him  or 
do  him  great  bodily  harm.  Communicated  threats,  and  threats  made 
to  defendant  are  valuable  for  the  same  purpose,  and  as  also  tending 
to  throw  light  on  the  state  of  mind  of  the  defendant  at  and  just  be- 
fore the  shooting,  and  as  tending  to  show  that  his  acts  in  shooting 
were  not  malicious.®^ 

(b)  The  court  instniets  the  jury  that  the  evidence  of  threats 
made  by  deceased  against  defendant  was  admitted  in  the  case  solely 
because  there  was  evidence  showing  or  tending  to  show  that  just 
before  the  deceased  met  his  death  he  was  making  or  attempting  to 
make  an  assault  on  the  defendant,  and  if,  from  all  the  facts  and  cir- 
cumstances in  evidence  the  jury  believe  that  at  the  time  or  just  be- 
fore  defendant   shot   deceased,  the  deceased  was  not   assaulting  or 

60— Kennard  v.  State,  42  Fla.  581,  tained  by  Brown  v.   State,  55  Ark. 

28  So.  858  (860).  593,  18  S.  W.  1051;  Wiggins  v.  Peo- 

61— State    v.    Gushing,    14    Wash,  pie,    93    U.    S.    465,    4   Am.    Cr.    Rep. 

527.  45  Pac.  145  (146).  53  Am.  St.  883.  494.     We    think    it    correctly    states 

"This    instruction    was    approved  the   law   upon    the   subject    of   non- 

by  the  territorial  supreme  court  in  communicated   threats   and    threats 

White   V.   Washington   Territory,   3  made  directly  to  a  defendant." 
Wash.  T.  397,  19  Pac.  37;  and  is  sus- 


2022  FORMS  OF  INSTRUCTIONS.  [§  3153. 

attempting  to  assault  the  defendant,  or  making  any  hostile  or  ap- 
parently hostile  demonstration  towards  defendant,  then  you  are  in- 
structed to  disregard  and  not  in  any  way  consider,  the  evidence  of 
threats  made  by  deceased  against  defendant  in  arriving  at  your  ver- 
dict.«2 

§  3153.  Previous  Malice  or  Threats  by  Defendant  Do  Not  Bar 
Plea  of  Self-Defense — Threats  a  Question  of  Fact,  (a)  If  the  defen- 
dant was  assaulted  and  placed  under  such  circumstances  that  he  had 
good  reason  to  believe  that  it  was  necessary  to  defend  himself 
from  such  attack  to  prevent  the  infliction  of  great  bodily  injury,  the 
fact  of  any  previous  threat,  or  even  the  existence  of  any  previous 
malice,  if  any  is  shown,  toward  the  deceased,  could  not  take  away 
from  the  defendant  the  right  of  self-defense. 

(b)  It  is  solely  the  province  of  the  jury  to  determine  whether 
the  defendant  in  fact  did  make  threats  against  the  deceased,  and 
the  weight  to  be  given  to  evidence  of  alleged  previous  threats  de- 
pends upon  their  character,  the  manner  and  occasion  of  their  ut- 
terance, nearness  of  time,  and  the  particular  circumstances  surround- 
ing their  alleged  making.^^ 

§  3154.  Mere  Threat  of  Arrest  Not  Suflftcient  Provocation.  If  one 
merely  announces  his  intentions  of  arresting  a  person,  such  person  is 
not  justified  in  shooting  him,  although  the  foniier's  official  character 
is  not  known  to  the  latter,  and  although  in  fact  the  an-est  would  be 
unwarrantable.^* 

§  3155.  Threats — Defendant  Entitled  to  a  Separate  Instruction  as 
to.  The  jury  are  instructed  that  you  may  consider,  in  determining 
as  to  whether  the  defendant  had  reasonable  grounds  for  believing 
that  he  was  in  imminent  danger  of  death  or  great  personal  injury 
from  the  deceased,  that  the  deceased,  prior  to  the  shooting,  had 
made  threats  to  the  defendant  that  he  would  kill  or  injure  him.^^ 

62 — State  v.  Spencer,  160  Mo.  118,  dence  presents  a  crime  of  naked 
60  S.  W.  1048  (1049),  83  Am.  St.  463,  and  motiveless  enormity.  The  de- 
following  State  v.  Rider,  95  Mo.  fendant's  previous  good  character 
482,  8  S.  W.  723.  is    so    attested    that    we    naturally 

That  evidence  of  uncommunicated  look  for  some  justification  or  ex- 
threats  is  admissible  where  there  cuse.  The  defendant  proffered  the 
is  doubt  who  was  the  aggressor,  justification  or  excuse  of  threaten- 
See  State  v.  Bailey,  94  Mo.  316,  7  Ing  acts  of  violence,  made  more 
S.  W.  43;  State  v.  Sloan,  47  Mo.  610;  alarming  by  the  threatening  words 
State  v.Herrod,  102  Mo.  609,  15  S.  accompanying  them,  and  he  prop- 
W.  373;  State  v.  Elkins,  63  Mo.  165.  erly  asked   for  an   explicit  instruc- 

63 People  v.  Fitzgerald,  138  Cal.  tion  as  to  his  right  to  act  accord- 

39,  70  Pac.  1014  (1017).  ing  to  the  import  of  the  threaten- 

64 Ready  v.  People,  32  Col.  57,  74  ing   words.     It   may   be   that  other 

Pac.  892  (895).  parts    of    the    charge    can    be    con- 

65 People  v.  Zigouras,  163  N.  Y.  strued    as   covering  and   compljnng 

250,    57    N.    E.    465    (467),    new    trial  with    this    request;    but    the    differ- 

granted.  ence  between  a  direct  charge  upon 


Held    error   to   refuse   the    above  this  point,  and  a  general  charge,  in 

instruction.     There  was  evidence  of  which  the  point  needs  to  be  discov- 

hreats  by  the  deceased.    The  court  ercd  and  identifi-^  '--  "       "'-- 

ai(j.  processes,    may 

"This  Is  a  capital  case.    The  evi-  the   defendant." 


§3156.]  CRIMINAI^HOMICIDE— SEI.F-DEFENSE.  2023 

§  3156.  Prisoner  Shooting  Officer  Making  Arrest.  Although  you 
may  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
the  defendant  sold  beer  within  the  corporate  limits  of  the  city  of 
Danville  in  the  presence  of  C,  and  that  defendant  shot  and  killed 
C.  while  C.  had  him  under  arrest,  or  was  endeavoring  to  aiTest  him, 
for  that  offense,  yet,  if  you  further  believe  from  the  evidence  that, 
while  C.  had  him  under  arrest,  or  was  endeavoring  to  arrest  him, 
the  defendant  neither  forcibly  resisted  the  attempt  to  arrest,  nor 
forcibly  endeavored  to  break  the  arrest,  and  that  C.  began  an 
attack  on  defendant  with  a  knife,  from  which  defendant  believed, 
and  had  reasonable  grounds  to  believe  that  he  was  in  imminent  dan- 
ger of  suffering  loss  of  life  or  great  bodily  harm  at  the  hands 
of  C,  and  that  he  could  not,  by  the  use  of  any  available  means, 
avert  the  danger,  except  by  shooting  and  killing  C,  and  that  defen- 
dant did  shoot  and  kill  C.  for  that  purpose — then  you  will  acquit 
defendant  on  the  ground  of  self-defense.^^ 

§  3157.  Self-Defense— Available  Where  Defendant  Kills  An  Offi- 
cer in  Ignorance  of  His  Character.  If  the  jury,  from  the  evidence, 
believe  that  the  defendant  was  placed  in  the  position,  at  the  time  of 
the  killing,  in  which  his  life  was  imperiled  by  the  deceased,  and  he 
slew  him  without  having  any  notice  of  his  official  character,  and 
the  killing  was  apparently  necessary  to  save  his  own  life,  or  to 
prevent  his  receiving  a  great  bodily  injury,  then  the  killing  of  de- 
ceased was  homicide  in  self-defense;  nor  does  it  matter  that  de- 
ceased was  legally  seeking  to  arrest  the  defendant,  if  the  de- 
fendant had  no  notice  of  the  fact,  or  reasonable  grounds  to  know 
that  he  was  an  ofificer.^^ 

§  3158.  Self-Defense  Against  Rape.  If,  at  the  time  the  fatal  shot 
was  fired,  defendant  was  in  her  house,  and  the  deceased  was  at- 
tempting to  enter  her  house,  against  her  objection,  for  the  purpose 
of  forcibly  having  sexual  intercourse  with  her,  'and  against  her  will, 
and  defendant  fired  the  fatal  shot  to  prevent  this,  you  should  acquit 
the  defendant.^* 

§  3159.  Resisting  Lawful  Expulsion  From  Another's  House.  If 
the  defendant  and  said  G.  L.  were  in  the  house  of  one  L.  K.  and  she 
wanted  the  defendant  to  leave  her  house,  she  had  the  right  to  order 
him  out  of  the  house,  and  if  he  failed  to  go  she  would  have  the 
right  to  use  sufficient  force  to  put  him  out  of  her  house,  and  in  case 
of  such  refusal  she  would  have  the  right  to  ask  the  said  G.  L.  to  put 
him  out,  and  he  would  have  the  right  without  unnecessary  injur\'  to 
the  defendant  to  put  him  out  of  said  house,  and  in  such  case  defendant 
would  not  have  the  right  to  resist  any  proper  force  applied  to  him  for 

66— The    instructions    fairly    state         67— Bruce    v.    State,    68   Ark.    310, 

the  law.     Quinn  v.  Commonwealth,  57  S.  "W.  1103  (1104). 
23  Ky.  L.  1302,  63  S.  W.  792  (793-4).         68— "The     above     charge     should 

See  Brown  v.  State,  62  N.  J.  L.  666,  have     been     g-iven."       Osborne     v. 

42    Atl.    811    (823).    for    another    ap-  State,  140  Ala.  84,  37  So.  105  (106). 
proved  instruction  on  this  subject. 


2024  FORMS  OP  INSTRUCTIONS.  [§  3160. 

that  purpose ;  and  if  the  conflict  was  brought  about  by  the  attempt  to 
expel  defendant  from  the  house  of  said  L.  K.  at  her  request,  the  de- 
fendant would  not  have  the  right  to  resort  to  the  use  of  a  dangerous 
weapon,  or  the  right  to  use  it  in  a  dangerous  manner,  unless  it  reason- 
ably appeared  to  the  defendant  to  be  necessary  to  protect  him  from 
receiving  great  bodily  harm,  and  unless  it  further  appeared  to  be  the 
only  means  at  hand  to  save  his  life  or  prevent  great  bodily  injury 
at  the  hands  of  the  said  G.  L."^ 

§  3160.  No  Duty  of  Retreat— When,  (a)  If  the  defendant  was 
free  from  fault  in  bringing  on  the  difficulty,  then  he  was  under  no 
duty  to  retreat,  unless  you  believe  he  could  have  retreated  without 
increasing  his  danger,  or  with  reasonable  safety.'^" 

(b)  If  you  should  believe  from  the  evidence  that  the  defendant 
was  free  from  fault  in  bringing  on  the  ditHculty,  and  was  not  the  ag- 
gressor therein,  and  that  he  was  assaulted  by  the  deceased,  or  by  the 
deceased  and  another,  who  were  armed  with  deadly  weapons,  and  that 
such  assault  was  made  under  such  circumstances  that  it  reasonably 
appeared  to  the  defendant,  as  an  ordinarily  cautious  and  prudent  man, 
that  he  was  in  danger  of  death  or  great  bodily  harm  at  the  hands  of 
the  deceased,  or  of  the  deceased  and  another,  as  aforesaid,  then  you 
are  instructed  that,  under  such  circumstances,  it  would  not  be  in- 
cumbent upon  the  defendant  to  flee  in  order  to  avoid  the  difficulty 
or  avert  the  necessity  of  taking  the  life  of  his  assailant ;  but,  on  the 
other  hand,  under  such  circumstances,  he  might  lawfully  stand  his 
ground,  and,  if  assaulted  by  the  deceased,  or  the  deceased  and  an- 
othei',  under  the  circumstances  aforesaid,  then,  in  such  event,  he 
would  be  justified  in  his  acts,  and  you  would  find  him  not  guilty.'^^ 

(c)  The  question  then  is  simply  this:  ''Does  the  law  hold  a  man 
who  is  violently  and  feloniously  assaulted  responsible  for  having 
brought  such  necessity  upon  himself,  on  the  sole  ground  that  he 
failed  to  fly  from  his  assailant  when  he  might  have  safely  done  so? 
The  law,  out  of  tenderness  for  human  life  and  the  frailties  of  human 
nature,  will  not  permit  the  taking  of  it  to  repel  a  mere  trespass,  or 
even  to  save  life  where  the  assault  is  provoked;  but  a  true  man 
who  is  without  fault  is  not  obliged  to  fly  from  an  assailant,  Avho 
by  violence  or  surprise  maliciously  seeks  to  take  his  life  or  do  him 
enormous  bodily  harm.'^^ 

69— State  v.   Roan,  122  la.  136,  97  the  defendant  would  be  required  to 

N.  W.  997  (998).  retreat  if  it   could   safely  be  done. 

7(>_Deal  v.   State,  136  Ala.  52,   34  The    charge    was    too   favorable    to 

So.  23  (24);  State  v.  Fontenot,  50  La.  him  and  he  could  not  complain.    If 

537,  23  So.  634  (636),  69  Am.  St.   455.  not    so    required,    the    charge    fully 

See  also   State  v.   Carter,  15  Wash,  preserves  the  right  to  act  without 

121,  45  Pac.  745  (746),  and  Territory  retreating. 

v.    Gonzales,    11   New    Mex.    301,    68  72— State  v.  Gardner,  —  Minn.  — , 

Pac.  925  (931).  104  N.  W.  971  (974). 

71— Snelling  v.    State,   49   Fla.   34,  "The      Supreme     Court      of     the 

37  So.  917  (918).  United     States     approved     of     this 

The  court  said  that  if,  under  the  rule    and    of    Runyan    v.    State,    57 

circumstances  stated  in  the  charge,  Ind.  80,  26  Am.  Rep.  52,  in  1894;  and 


S  3161.]  CRIMINAI^HOMICIDE— SELF-DEFENSE.  2025 

(d)  In  cases  of  personal  peril,  such  as  this  defendant  claimed  he 
was  placed  under,  the  defendant  had  not  only  the  legal  right  to  de- 
fend himself,  but  the  law  supposes  it  to  be  his  duty  to  defend  himself 
so  far  as  he  has  personal  capacity,  and  any  serious  bodily  harm 
apprehended  from  a  felonious  attack  would  not  merely  excuse  but 
justify  extreme  resistance;  and  this  defendant  should  not  be  re- 
quired, if  hard  pressed  by  A.  B.,  to  draw  veiy  fine  distinctions  con- 
cerning the  extent  of  the  injuries  the  man  A.  B.  might  inflict. 

(e)  The  defendant  claims  that  the  attack  upon  him  was  so  sudden, 
fierce  and  violent  that  a  retreat  would  not  diminish,  but  increase,  his 
danger.  You  will  therefore  ascertain  from  the  proofs  of  the  condi- 
tion of  the  defendant  and  his  surroundings,  his  means  of  getting  out 
of  the  way  of  the  defendant,  so  that  the  man  A.  B.  could  no  further 
assault  or  shoot  him,  whether  he  would  have  been  able  to  secure 
shelter  in  buildings  or  woods  or  other  obstructions  to  be  out  of 
range  of  A.  B.  's  gun ;  always  bearing  in  mind  that  he  was  under 
no  obligation,  nor  was  it  his  dutj',  to  protect  himself  from  the  as- 
sault by  shielding  himself  with  M.  or  his  house,  for  the  law  does 
not  warrant  a  pei-son,  when  hotly  assailed,  under  circumstances  indi- 
cating intent  to  take  human  life  or  do  grievous  bodily  harm,  to  with- 
hold measures  proper  in  self-defense,  and  expose  others  to  the  same 
danger;  and  if  you  find,  as  claimed  by  defendant,  he  had  no  means 
of  escai>e  except  to  enter  his  own  house,  and  in  doing  so  it  would 
expose  him  to  the  range  of  A.  B. 's  gun,  and  the  circumstances  ap- 
peared to  him  that  in  so  doing  he  would  be  shot,  it  was  his  right  to 
defend  himself;  and  if,  in  doing  so,  A.  B.  was  killed,  the  homicide 
is  excusable,   and  the  defendant  should  be  acquitted.'^^ 

§  3161.  Duty  of  Retreat,  When  There  is  Any  Reasonable  Safe  Way 
of  Escape,  (a)  The  right  of  self-defense  is  recognized  bj^  the  law. 
A  man's  duty  is  to  defend  himself,  and  he  is  not  bound  to  endanger 
himself  by  retreating;  but  if  there  is  any  reasonable  safe  way  of  es- 
cape, the  law  says  he  ought  to  do  that,  and  not  take  the  life  of  his 
fellow  man.  I  don't  mean  that  he  has  got  to  go  away  from  the  place 
because  his  adversary  is  there.  He  is  not  bound  to  turn  out  of  his 
way.  But,  after  the  immediate  conflict  is  commenced,  it  is  his  duty 
to  retreat  from  it;  avoid  taking  a  man's  life;  to  retire,  if  he  can  do  so 
safely,  but  [he  is]  not  bound  to  do  otherwise,  because  he  has  the 
right  to  defend  himself.'^* 

(b)  To  entitle  the  defendant  to  the  benefit  of  this  law  of  lawful 
self-defense,  the  defendant  must  either  be  without  fault  himself,  or 
must  have  attempted  to  withdraw  from  the  contest,  if  such  withdrawal 
could  have  safely  been  done  before  firing  the  fatal  shot.'^^ 

in  Beard  v.  United  States,  158  U.  S.  74— State  v.   Sumner.  55  S.   C.  32, 

550,   15   Sup.   Ct.   962,   39  L.   Ed.   1086.  32    S.    E.    771    (772),    74    Am.    St.    767; 

This  accords  with  the  general  law  State    v.    Foster,    66    S.    C.    469,    45 

on    the  subject."  S.  E.  2. 

73 — "These    requests    should    have  75 — Kirbv  v.    State,  44  Fla.   81,   22 

been  given."     People  v.  Macard,  73  So.  82C  (837). 
Mich.  15,  40  N.  W.  784  (787). 


2026  FORMS  OF  INSTRUCTIONS.  [§  3162. 

(e)  Where  a  party  is  assaulted,  and  the  party  upon  whom  the 
assault  is  committed  is  without  fault  in  bringing  on  the  difficulty,  he 
is  not  compelled  to  run,  but  he  must  avoid  the  necessity  of  the  killing, 
if  he  can  reasonably  and  safely  do  so,  because  the  law  is  jealous  of 
human  life.  But  if  the  appearances  to  him  at  the  time  were  such 
that  he  could  not  reasonably  and  safely  avoid  taking  human  life,  and 
a  man  of  ordinary  reason  and  firmness  would  have  arrived  at  the  same 
conclusion,  then  it  was  not  necessaiy  for  him  to  go  any  further;  and  I 
wish  you  to  understand  me  on  that  point,  that  it  is  only  incumbent 
on  the  defendant  to  avoid  the  necessity  of  taking  human  life  when 
he  can  do  so  wi'th  safety  to  himself. '^^ 

(d)  If  the  jury  believe  from  the  evidence  that,  at  the  time  the 
defendant  shot  and  killed  deceased,  he  was  being  assaulted  or  menaced 
by  the  deceased,  and  he  (defendant)  believed,  and  had  reasonable 
grounds  to  believe,  from  the  character  of  the  deceased,  his  previous 
threats,  if  any  proven,  and  from  the  circumstances  of  the  meeting,  and 
the  nature  of  the  assault  or  menace,  that  he  (defendant)  was  then 
and  there  in  danger  of  loss  of  life  or  suffering  great  bodily  harm, 
and  he  believed,  and  had  reasonable  grounds  to  believe,  that  he  had 
no  safe,  or  to  him  apparently  safe,  means  of  avoiding  said  danger, 
then  the  defendant  had  the  right  to  use  such  force  as  was  necessary, 
or  to  him  apparently  necessary,  to  repel  such  assault,  and  protect 
himself  from  such  danger;  and,  if  he  shot  deceased  under  such  cir- 
cumstances, the  jury  should  acquit  defendant  on  the  grounds  of  self- 
defense.'"^ 

§  3162.  Duty  of  Retreat — Without  Increasing  Danger  to  Life,  etc. 
Before  a  person  can  take  the  life  of  an  assailant,  he  must  be  in  a 
jx)sition  where  he  cannot  retreat  without  increasing  danger  to  his 
life,  or  subjecting  himself  to  great  bodily  harm.  And  if  he  can  retreat 
without  so  increasing  his  danger  to  life  or  great  bodily  harm,  he 
cannot  successfully  invoke  the  doctrine  of  self-defense.'^^ 

§  3163.  Attack  with  a  Pistol,  No  Duty  of  Retreat.  If  you  believe 
from  the  evidence  that  defendant  L.  did  with  a  knife  cut  M.,  and  you 
further  believe  from  the  evidence  that  at  the  time  said  M.  did  with  a 
pistol  make  a  demonstration  that  induced  defendant  to  believe,  viewed 
bj'  you  from  the  defendant's  standpoint  at  the  time,  that  he  was  in 
danger  of  death  or  serious  bodily  injury  at  the  hands  of  said  M.,  then 

76 — From  oral  charge  in  State  v.  he  should  stand  his  ground  or  give 

Petsch,    43   S.    C.    132,    20    S.    E.    993  back  is  a  question  for  the  jury,  and 

(997).  that    he    may   properly    follow   that 

77 — Connor  v.   Commonwealth,   —  course   which   is   apparently  neces- 

Ky.  — ,  81  S.  W.  259  (260-261).  sary  to  save  himself  from  death  or 

The   court   said:      "It   used    to    be  great    bodily    harm.      The    case    of 

laid   dov/n  as  the  rule  that,   before  Oder  v.   Commonwealth,   80  Ky.  32, 

killing    his    assailant,    the    assailed,  was  overruled  in  Reynolds  v.  Com- 

to  be  justified  on  the  ground  of  self-  monwealth,  72  S.  W.  277,  24  Ky.  L. 

dofense,    must   retreat   to    the   wall,  R.  1743.     *    *    *    •• 

and  only  slay  him  as  a  last  resort,  78 — Washington  v.   State,  125  Ala. 

when   he   could   retreat   no   further.  40,  28  So.  78. 
But  the  rule  now  is   that  whether 


vj  3164.  j  CRIMINAI^— HOMICIDE— SELF-DEFENSE.  2027 

you  are  charged  that  defendant  had  the  right  to  act  and  cut  said  M., 
and  he  would  not  be  required  to  retreat  in  order  to  avoid  the  necessity 
or  apparent  necessity  of  killing  M. ;  and  if  you  so  find,  you  will 
acquit.'" 

§  3164.  Drawing  of  a  Gun  by  Deceased,  Defendant  not  Bound  to 
Flee,  (a)  The  court  instructs  the  jury  that  if  they  find  from  the 
evidence  that  the  defendant  had  reasonable  cause  to  believe,  and  diJ 
believe,  that  the  deceased  was  about  to  draw  a  pistol  at  the  time  and 
place  of  the  shooting,  to  shoot  him,  then  he  was  not  bound  to  flee, 
but  had  the  right  to  defend  himself  from  such  threatened  attack. 

(b)  The  court  instructs  the  juiy  that  if  you  shall  believe  from 
the  evidence  that  at  the  time  defendant  shot  and  killed  W.  he  (the 
defendant)  had  reasonable  cause  to  believe,  and  did  believe,  from  the 
acts  and  conduct  of  W.,  that  W.  was  attempting  to  draw  a  pistol  and 
shoot  defendant,  and  that  defendant  had  reasonable  cause  to  believe, 
and  did  believe,  that  there  was  imminent  danger  of  W.  so  doing,  then 
you  must  acquit  the  defendant  on  the  ground  of  self-defense,  even 
though  the  jury  may  further  believe  that  W.  was  unarmed,  and  that 
there  was  no  real  danger.^** 

(c)  When  a  person  is  attacked  by  his  adversary,  and  his  adversary 
makes  a  demonstration  as  if  to  draw  a  weapon  and  his  adversaiy  re- 
treats, and  it  reasonably  appears  to  the  person  so  attacked,  or  against 
whom  the  demonstration  is  made,  that  his  adversary  is  only  retreating 
for  the  purpose  of  getting  into  a  better  attitude  or  condition  to  carry 
on  or  renew  such  attack,  then  the  person  so  attacked  or  the  person 
against  whom  the  demonstration  has  been  made  has  the  right  to 
inflict  violence  upon  his  adversary  so  long  as  such  reasonable  appear- 
ances of  danger  continue. '^^ 

§  3165.  One  Attacked  in  His  Own  Dwelling  Need  Not  Retreat,  (a) 
The  defendant,  while  on  his  own  premises,  outside  of  his  dwellinf- 

79— Lewis    v.    State,    —    Tex.    Cr.  defense,     independent     of     threats; 

App.  — ,  65  S.  W.  1S5.  and    then,    in    addition,    gives    the 

Held    that    this,    and   an    instruc-  same    charges    in    connection    with 

tion  that  defendant  would  have  had  threats.     Swain's  Case.  12  Tex    Ct 

the    right    to    arm    himself    and    go  Rep.    812,    86    S.    W.    335;    Phipps   v. 

back  to  M.'s  place  of  business  and  State,  34  Tex.  Cr.  R.  560,  608,  31  S 

ask  him  for  his  money,  if  any  was  W.  397,  are  not  in  point.     In'  those 

due  him  covered  the  theory  of  self-  cases    the    charge    of    self-defense 

defense  presented  by  the  testimony,  confined     appellant's     right     to     an 

80— State  v.  Todd,  194  Mo.  377,  92  attack,    omitting    the    question    of 

S.  W.  674.  appearances    of    danger    from    any 

81— Moore    v.    State,    —   Tex.    Cr.  other  view  than  from  such  attack 

App.  — ,  96  S.   W.  321  (323).  In  this  case,   however,   he   is  given 

"This  charge  is  given   in  connec-  the  benefit  of  both  theories,  and  in- 

tion   with   threats.     It   is   true   that  stead   of  it  being  injuriou.s,   in   our 

he  charges  with  reference  to  an  at-  judgment,   it  was  favorable   to  ap- 

tack,   but    the   charge   goes   further  pellant." 

and  gives  the  appearance  of  danger  In    Delaney   v.   State,    14   Wyo.    1. 

independent   of   the   attack,    and   in  81    Pac.    792,    the    court    instructed 

the  alternative.     So  it  places  before  that  defendant  was  not  justified  in 

the  jury  two  avenues  of  escape  for  shooting  because  he  may  have  be- 

appellant  along  the  theory  of  self-  lieved  deceased  was  going  after  his 

gun. 


2028  FORMS  OP  INSTRUCTIONS.  [§  3165, 

house,  was  where  he  had  a  right  to  be,  and,  if  you  find  that  the 
deceased  advanced  upon  him  in  a  threatening  manner,  and  the  de- 
fendant at  the  time  had  reasonable  grounds  to  believe,  and  in  good 
faith  did  believe^  that  the  deceased  intended  to  take  his  life,  or  do 
him  great  bodily  harm,  the  defendant  was  not  obliged  to  retreat,  nor 
to  consider  whether  he  could  safely  retreat,  but  was  entitled  to  stand 
his  ground,  and  meet  any  attack  made  upon  him,  in  such  a  way  and 
with  such  force  as,  under  all  the  circumstances,  he  at  'the  moment 
honestly  believed,  and  had  reasonable  grounds  to  believe,  was  neces- 
sary to  save  his  own  life  or  pi'oteet  himself  from  great  bodily  injuiy.^- 

(b)  The  court  charges  the  jui-y  that  the  law  does  not  require  one 
who  is  assailed  in  his  own  dwelling  to  retreat  from  it,  but  the  law  per- 
mits him,  and  says  that  it  is  his  right,  to  stand  his  ground,  and  kill 
his  assailant,  if  it  is  necessary  to  do  so  to  save  his  life,  or  to  protect 
himself  from  great  bodily  harm,  pi'ovided  he  is  without  fault  in  bring- 
ing on  the  difficulty.  And  in  this  case  the  court  charges  the  jury  that 
if  they  believe  from  the  evidence  that  the  defendant,  on  coming  to 
his  yard,  found  the  deceased  in  his  dwelling  house,  or  in  the  act  of 
entering  his  dwelling  house,  and  that  the  deceased  so  acted  as  to 
create  in  the  mind  of  defendant  reasonable  belief  that  himself,  or  any 
member  of  his  family  was  in  danger  of  his  life,  or  sustaining  great 
bodily  harm  at  the  hands  of  deceased,  then  the  defendant,  under  the 
law,  had  a  right  to  shoot  deceased,  and  take  his  life,  if  such  shooting 
was  necessary  to  protect  his  own  life,  or  that  of  any  member  of  his 
family,  from  sustaining  great  bodily  harm  at  the  hands  of  deceased.^' 

(c)  If  you  believe  from  the  evidence  that  defendant  had  the  prem- 
ises rented,  on  which  the  homicide  occurred,  and  that  deceased  went 
into  the  inclosure  on  said  premises  without  the  consent  of  defendant, 
and  after  defendant  had  requested  him  not  to  come  into  said  in- 
closure, and  that  he  (deceased)  continued  to  go  into  said  inclosure 
and  onto  said  premises  after  defendant  had  remonstrated  with 
deceased  against  coming  into  said  field  and  inclosure,  and  if  you 
further  believe  from  the  evidence  that  such  verbal  remonstrances,  if 
any,  were  of  no  avail,  and  that  deceased  on  the  occasion  of  the 
homicide  went  into  said  inclosure,  and  was  approaching  djfendant  in 
said  inclosure,  and  from  the  acts  of  deceased,  or  from  his  words 
coupled  with  his  acts,  it  reasonably  appeared  to  defendant  that  his 
life  was  in  danger  or  that  he  was  in  danger  of  serious  bodily  injuiy 
at  the  hands  of  deceased,  and  that  while  such  danger,  if  any,  was 
imminent  and  pending,  defendant  shot  and  killed  deceased,  then  you 
will  acquit  defendant.  So,  also,  if  deceased  was  in  the  act  of 
forcibly   ejecting  defendant   from   said  premises,   and   defendant  to 

82— State    v.    Gushing,    14    Wash,  outbuildhig-s.      See   instruction   and 

527,   45  Pac.   145,   53   Am.   St.   883.  comment   in   State  v.    Bartmess,   33 

Note. — The    immunity    pertaining  Ore.  110,  54  Pac.  167  (173). 

to  the  defense  of  a  habitation  does  83 — Naugher    v.    State    (Sup.    Ct.), 

not  extend  beyond  the  limits  of  the  105  Ala.  26,  17  So.  24  (26). 
dwellinghouse    and    the    customary 


§  3166.]  CRIMINAI^— HOMICIDE— SELF-DEFENSE.  2029 

avoid  being  driven  off  of  said  premises  by  force,  shot  and  killed 
deceased,  he  was  justified  in  so  doing,  provided  he  resorted  to  all 
other  means  to  prevent  being  driven  from  said  premises  before  killing, 
except  that  he  was  not  bound  to  retreat  in  any  event. ^* 

§  3166.  Burden  of  Proof  as  to  Retreat,  (a)  To  sustain  the  plea 
of  self-defense  set  up  in  this  ease  the  burden  is  on  the  defendant  to 
prove  to  your  satisfaction  that  he  had  no  reasonable  and  safe  avenue 
of  escape  from  the  danger  which  threatened  him,  and  not  on  the  state 
to  prove  it.^^ 

(b)  The  burden  of  the  proof  is  also  on  the  defendant  to  show 
that  he  could  not  retreat  without  danger  or  apparent  danger  of  losing 
his  life,  or  of  suffering  great  bodily  hann,  and  when  the  court  says 
that  the  burden  of  proof  is  on  the  defendant  it  means  that  the  evi- 
dence must  be  sufficient  to  raise  a  reasonable  doubt. -° 

§  3167.  Aiming  at  Aggressor,  Accidentally  Killing  Another,  (a) 
The  court  instructs  the  jury  that  if  they  believe  from  the  evidence 
that  at  the  time  the  defendant  shot  and  killed  A.,  if  he  did  shoot  and 
kill  him,  that  defendant  was  in  immediate  danger  of  death  or  great 
bodily  harm  then  about  to  be  inflicted  on  him,  or  which  reasonably 
appeared  to  defendant  about  to  be  inflicted  on  him,  by  S.,  then  the 
defendant  had  a  right  to  use  such  force  as  reasonably  appeared  to 
him  to  be  necessaiy  to  protect  himself  from  death  or  great  bodily 
harm  at  the  hands  of  said  S.,  and  if  the  juiy  believe  from  the  evi- 
dence that  at  a  time  when  defendant  was  in  immediate  danger  of 
death  or  great  bodily  harm  then  about  to  be  inflicted  on  him,  or 
which  reasonably  appeared  to  defendant  about  to  be  inflicted  on  him, 
by  S.,  he  (defendant)  shot  at  said  S.  and  missed  him,  and  accidentall}^ 
and  unintentionally  shot  and  killed  A.,  then  the  juiy  will  find  the 
defendant  not  guilty,  upon  the  grounds  of  self-defense  and  apparent 
necessity ;  but  this  instruction  is  subject  to  this  modification :  that 
if  the  jurj'  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
the  defendant  began  the  difficulty,  in  which  said  A.  was  killed,  by 
assaulting  S.  with  a  deadly  weapon,  when  it  did  not  reasonably  apy- 
pear  to  him  to  be  necessary  to  protect  himself  from  immediate  danger 
of  death  or  great  bodily  harm  then  about  to  be  inflicted  on  him, 
or  which  reasonably  appeared  to  defendant  about  to  be  inflicted  on 
him,  by  said  S.,  then  and  in  that  event  the  jirrj-  cannot  acquit  the 
defendant  upon  the  grounds  of  self-defense  and  apparent  necessity.^" 

84 — "This   charge  is   the   law   ap-  vorable   to    defendant."     Jarvis    v. 

plicable   to  the  facts  of  this  case."  State,  138  Ala.  17,  34  So.  1025  (1030). 

Bearden  v.   State.  44  Tex.  Cr.  Rep.  87— Turner   v.    Commonwealth,    28 

578,  73  S.  W.   17  (19).  Ky.  Law  Rep.  487,  89  S.  W.  482. 

85 — Held     that     this     instruction  "The  instruction  gaye  the  correct 

"g-iven     for     the     state     correctly  Jaw    of    self-defense    as    applicable 

placed   the  burden  of  proof  touch-  to    the    facts    proven.      Appellant's 

ing-   the   duty   of   retreat,   and   was  only   claim    was    that    he   was    de- 

properly  given."     Boulden  v.  State,  fending  himself  from  assaults  made 

102  Ala.  78,  15  So.   341  (344).  upon  him  by  S." 

86 — This,   "if  faulty,  was  too  fa- 


2030  FORMS  OF  INSTRUCTIONS.  [§  3168. 

(b)  If  the  defendant,  L.,  was  holding  and  cocking  his  gun  im- 
mediately before  it  fired  the  shots  which  killed  R.  (if  he  was  so 
killed)  for  the  purpose  and  sole  purpose  of  protecting  himself  against 
an  actual  or  anticipated  attack  or  assault  with  a  pistol  by  the  wit- 
ness, S.,  which  might  have  resulted  in  death  or  serious  bodily  harm 
to  said  L.  (if  it  did  so  appear  to  him),  then  if  under  these  circum- 
stances the  gun  was  fired  off  by  accident,  the  defendant  should  be 
acquitted;  and  if  you  so  believe,  or  if  you  have  a  reasonable  doubt 
on  this  issue,  you  will  acquit  the  defendant. 

(c)  If  you  believe  that  defendant  committed  the  assault  (if  any) 
as  a  means  of  defense,  believing  at  the  time  he  did  so  (if  he  did  so) 
that  he  was  in  danger  of  losing  his  life  or  of  serious  bodily  injury  at 
the  hands  of  one  S.,  and  that  the  shots  were  intended  as  a  means  of 
defense  against  an  assault  by  said  S.,  the  defendant  would  be  excused 
in  law,  if  thereby  he  accidentally  killed  said  R.,  and  in  such  event, 
or  if  you  have  a  reasonable  doubt  upon  the  issue,  you  will  find  the 
defendant  not  guilty.^^ 

§  3168.  Trespass  bv  Deceased.  The  court  instructs  the  jury  that 
if  you  believe  from  the  evidence  the  sugar  cane  testified  about  was 
cane  which  had  been  banked  on  B. 's  land  by  L.  as  the  tenant  of  B. 
and  that  B.  forbade  the  said  L.  from  removing  said  cane  from  the 
premises  until  such  time  as  a  settlement  between  the  parties  should 
be  had,  and  that  said  L.  together  with  the  deceased,  attempted  to 
remove  said  cane  from  said  premises  without  the  consent  of  B.,  then 
such  attempted  removal  amounted  to  a  trespass,  and  B.  had  the 
right  to  employ  such  reasonable  force  as  might  be  necessaiy  to  pre- 
vent the  trespass,  and  that  in  such  case  neither  L.  nor  the  deceased 
had  the  lawful  right  to  resist  such  force.  And  if  the  jury  believe 
that  either  L.  or  the  deceased,  or  both,  employed  any  means  in 
resisting  such  force  as  was  likely  to  produce  death  or  to  inflict  great 
bodily  harm  on  the  defendant,  then  the  defendant  had  the  lawful 
right  to  meet  such  resistance;  and  if,  in  so  doing,  the  defendant 
wounded  the  deceased  by  cutting  him  with  a  knife,  from  which  wound 
the  deceased  died,  such  killing  was  justifiable  and  the  jury  should 
find  the  defendant  not  guilty.®^ 

§  3169.  The  Right  to  Continue  Firing  Until  Safe,  (a)  If  the 
jury  find  from  the  evidence  that  after  defendant  first  shot  deceased, 
if  you  so  find,  he  (defendant)  was  in  a  room,  and  his  gun  was 
caught,  and  failed  to  fire  again,  and  the  house  he  was  in  had  been 
fired  into  by  other  parties,  there  in  company  with  deceased,  and  the 
defendant,  under  the  facts,   picked  up  the  pistol  of  deceased,  and, 

88— Lankster  v.  State,     —Tex.  Cr.  the  law  as  applied  to  this  compet- 

App.  — ,  72  S.  W.  388  (390).  cut    and    material    evidence    which 

89 — Boykin  v.  State,  38  So.  725,  86  has  been  adduced  and  that  its  re- 
Miss.  481.  fusal    was    error    under    the    prin- 

"We    think    the    instruction    an-  ciples  enunciated  in  Ayers  v.  State, 

nounced,  in  well  guarded  language,  60  Miss.  709,  and, other  cases." 
the  rights  of  the  defeodant  under 


§  3170.]  CRIMINAL— HOMICIDE.  2031 

hearing  a  noise,  and  believing  he  was  in  danger,  fired  another  shot 
into  deceased  after  he  was  down,  in  a  room  that  was  dark  to  such 
an  extent  that  defendant  could  not  know  fully  his  danger  from 
attack  by  the  companions  of  deceased,  then  such  shooting  would  not 
be  murder,  and  you  should  acquit  defendant  of  murder  under  such 
facts.90 

(b)  If  the  jury  further  believe  that  at  the  time  of  the  difficulty 
H.  N.  and  L.  B.  or  either  of  them,  acting  together,  was  making  or 
attempting  to  make,  an  unlawful  attack  upon  defendant,  which  rea- 
sonably appeared  to  defendant  therefrom  that  their  purpose  was 
either  to  kill  or  do  him  serious  bodily  injury,  then,  if  you  so  believe, 
defendant  would  have  the  lawful  right  to  defend  himself  from  such 
attack;  and,  if  he  commenced  to  shoot  under  such  circumstances,  you 
are  instructed  that  he  would  have  the  right  to  continue  shooting  at 
them,  or  either  of  them,  until  it  reasonably  appeared  to  him,  from 
his  standpoint,  that  he  was  out  of  danger  from  such  unlawful 
attaek.91 

§  3170.  Defendant  not  Obliged  to  Wait — ^May  Act  Promptly,  (a) 
The  law  does  not  require,  gentlemen,  that  a  defendant  should  wait 
until  an  actual  assault  upon  him  has  reached  a  stage  where  resist- 
ance would  be  useless.  If  the  situation  is  such  that  a  reasonable  man, 
in  the  situation  of  the  defendant,  would  be  justified  in  believing  that 
his  life  was  in  danger,  or  that  a  felony  was  about  to  be  committed 
upon  him,  he  could  act;  and  what  is  the  apparent  danger  should  be 
considered  by  you  as  the  real  danger.®^ 

(b)  If  the  jury  believe  that  the  evidence  established,  beyond  a 
reasonable  doubt,  that  the  defendant  shot  and  killed  the  deceased, 
and  that  the  reason  for  that  killing  on  the  part  of  the  defendant  was 
because  the  deceased  was  seeking  to  commit  a  serious  personal  injuiy 
upon  the  defendant  with  a  pistol,  and  that  the  deceased  was  the 
assailant,  or  if  the  jury  believe  that  the  defendant  was  the  assailant, 

90 — Jones    v.    State,    44    Tex.    Cr.  might  have  been  to  the  prosecutor, 

App.  405,  71  S.  W.  962  (963).  would    not.    per    se,    authorize    the 

"The  court  instructed  the  jury,  prosecutor  to  assault  defendant; 
if,  when  he  fired  the  first  shot  he  and  if  he,  acting  with  his  brother, 
knew  that  he  was  in  no  danger,  to  made  or  was  attempting  to  make 
convict  him  of  either  murder  or  an  unlawful  attack  upon  appellant, 
manslaughter.  This  was  a  proper  and  it  reasonably  appeared  to  de- 
charge  on  the  part  of  the  state,  but  fendant  that  their  purpose  was 
then  the  converse  of  the  proposi-  either  to  kill  him  or  do  him  serious 
tion  should  have  been  given;  that  bodily  injury,  then  certainly  ap- 
is, if  appellant  did  not  know  that  pellant  would  have  the  right  to 
his  danger  had  ceased,  but  rea-  defend  himself  against  such  attack, 
sonably  believed  that  it  was  con-  and  to  follow  up  such  attack  until 
tinning,  under  such  circumstances  all  appearances  of  danger  had 
he  would  have  the  right  to  continue  ceased;  and  all  this,  of  course, 
to  shoot."  must    be    viewed    from    appellant's 

91— Kelly    v.    State,    43    Tex.    Cr.  standpoint." 

App.  40,  62  S.  W.  915  (917).  92— "An    instruction    more    favor- 

"This    charge   should    have   been  able    to    the    accused    would    have 

given.       Certainly     the     mere     fact  been    wholly    unwarranted."      "Wil- 

that    appellant    may    have    written  liams  v.  State,  120  Ga.  870,  48  S.  E. 

a   valentine,   however   obnoxious  it  368  (369). 


2032  FORMS  OP  INSTRUCTIONS.  [§  3171. 

and  that  the  defendant  had  really  and  in  good  faith  endeavored  to 
decline  any  further  struggle  before  the  fatal  shot  was  fired,  and  that 
the  circumstances  were  sufficient  to  excite  the  fears  of  the  defendant, 
as  a  reasonable  man,  that  his  life  was  in  danger,  or  that  some  great 
bodily  harm  would  come  to  him,  from  the  assault  of  the  deceased, 
and  under  the  influence  of  these  fears,  and  not  in  a  spirit  of  revenge, 
he  shot  and  killed  the  deceased,  that  would  be  a  killing  in  self- 
defense,  and  the  defendant  w^ould  be  justifiable,  and  it  would  be  the 
duty  of  the  jury  to  acquit  the  defendant."^ 

§  3171.  Defendant  Must  Warn  Before  Killing,  if  Practicable.  The 
court  informs  you  that  in  law  the  defendant,  if  he  was  where  he 
had  a  right  to  be,  if  the  deceased  advanced  upon  him  in  a  threatening 
manner,  or  induced  defendant  to  believe  that  he  was  in  danger  of 
life  or  limb,  the  defendant  need  not  retreat,  but  had  a  right  to  stand 
his  ground  and  defend  himself.  When  a  man  is  where  he  has  a 
perfect  right  to  be,  and  deceased  so  acts  under  such  circumstances  as 
to  induce  in  him  a  reasonable  and  honest  ground  of  apprehension 
that  he  is  in  danger  of  life  or  limb,  he  may  at  once  use  necessary 
foi'ce  to  prevent  the  threatened  blow^  even  to  the  extent  of  taking  his 
life;  still  he  would  have  no  right  to  take  the  life  of  deceased  without 
first  warning  him  to  desist  from  his  attack,  unless  you  find  from  the 
evidence  that  defendant  was  justified  in  believing  that  he  had  not 
time  to  give  such  warning.^* 

§  3172.  Excusable  Homicide  Defined — State  Must  Prove  Homicide 
a  Crime,  (a)  The  law  of  the  state  defines  excusable  homicide  to  be  a 
homicide  committed  by  accident  and  misfortune  in  lawfully  correcting 
a  child  or  servant,  or  in  doing  any  other  lawful  act  by  lawful  means, 
with  usual  and  ordinary  caution,  and  without  any  unlawful  intent; 
or  by  accident  and  misfortune  in  the  heat  of  passion  upon  any  sud- 
den and  sufficient  provocation,  or  upon  a  sudden  combat  without  any 
undue  advantage  being  taken,  and  without  any  dangerous  weapons 
being  used,  and  not  done  in  a  cruel  and  unusual  manner.^^ 

(b)  In  order  to  convict,  the  jury  must  believe  from  the  evidence 
beyond  a  reasonable  doubt,  not  only  that  the  defendant  killed  R. 
M.,  but  that  the  killing  was  done  in  such  a  manner  and  under  such 
circumstances  as  would  make  the  homicide  a  crime.  If  the  proof 
shows  that  the  killing  was  done  in  self-defense  or  under  such  cir- 
cumstances as  would  make  the  killing  excusable  homicide,  or  justi- 
fiable homicide,  you  must  find  the  defendant  not  guilty.^® 

93— Roark  v.  State,  105  Ga.  736,  32  4367   Rev.    St.,   and   the   balance   of 

S.  E.  125  (126).  the  instruction  consists  of  the  bal- 

94 — State     v.      Stockhammer,      34  ance  of  that  section,  and   is  mani- 

Wash.  262,  75  Pac.  810  (811).  festly  more  applicable  to   the  case 

95 — Prank    v.    State,    94   Wis.    211,  than  the  part  requested." 

68   N.   W.   657   (660).  96— Gray  v.    State,  42   Fla.   174,   28 

"The  first  part  of  this  instruction  So.   53   (55).     This  instruction  must, 

was   requested   by   counsel   for  the  of    course,    be    supplemented    with 

accused,  and  is  substantially  in  the  others,     defining-     self-defense     and 

language  of  the  first  half  of  Section  excusable  and  justifiable  homicide. 


§  3173.]  CRIMINAL— HOMICIDE.  2033 

§  3173.  The  Assault  on  Defendant  Need  not  Have  Been  Felonious 
— Interfering  in  Com'bat.  If  the  jui-y  believe  from  the  evidence  that 
the  deceased  was  engaged  in  a  difdculty  with  A.  Miller  with  a  knife 
in  the  presence  of  the  defendant,  it  was  his  duty  to  endeavor  to  sup- 
press and  prevent  the  same;  and  if,  in  attempting  to  do  so,  the  de- 
ceased left  off  his  difficulty  with  Miller,  and  made  upon  the  defendant 
with  a  drawn  knife  in  such  a  manner  as  to  cause  the  defendant  to 
apprehend,  and  he  did  apprehend,  that  he  was  about  to  be  slain  or 
to  receive  enormous  bodily  harm,  then  the  defendant  had  a  right  to 
stand  his  gi-ound,  and,  if  necessary,  to  take  the  life  of  the  deceased, 
without  retreating.^'' 

§  3174.  Whether  the  Court  May  Disparage  Plea  of  Self -Defense. 
The  defense  of  self-defense  is  one  frequently  made  in  cases  of  this 
kind,  and  it  is  one  which,  I  may  say  to  you,  should  be  veiy  carefully 
scrutinized  by  the  juiy.  The  evidence  to  this  point  should  be  care- 
fully considered  'and  weighed  by  the  jurj^,  for  the  reason  that,  if 
the  accused  in  fact  acted  in  self-defense  at  the  time  of  the  alleged 
killing,  then  he  ought  not  to  be  punished  for  such  act.  The  evidence 
on  this  question  of  self-defense  ought  to  be  carefully  considered  by 
the  jury  for  another  reason,  and  that  is  because  a  due  regard  for 
the  ends  of  justice  and  the  peace  and  welfare  of  society  demands  it 
to  the  end  that  parties  charged  with  crime  may  not  make  use  of  the 
plea  of  self-defense  as  a  means  to  defeat  the  ends  of  justice,  and  a 
shield  to  protect  them  from  criminal  responsibility  in  case  of  viola- 
tion of  the  law.^^ 

Gilmore    v.    State,    126    Ala.    20,   28  to  the  charge  of  murder,  was  ap- 

So.  595  (602);  Harbour  v.  State,  140  proved  by  this  court  in  Sawyer  v. 

Ala.  103,  37  So.  330.  State,    35   Ind.   80,    and   a   like   cau- 

97— State  v.   Clark,  134  N.   C.  698,  tion  given  by  the  trial  court  to  the 

47  S.  E.  36  (38).  jury  was  also  approved  in  Sanders 

The  trial  judge  added  at  the  end  v.  State,  94  Ind.  147,  while  in  tha 
of  this  instruction  the  words  "pro-  appeal  of  Aszman  v.  State,  123 
vided  the  assault  made  upon  the  Ind.  347,  24  N.  E.  123,  the  same  in- 
defendant  was  felonious  or  with  struction  was  by  a  divided  court 
felonious  intent."  Held  that  such  criticised,  upon  the  ground  that  it 
added  words  made  this  instruction  could  not  be  said  to  embrace  a 
erroneous.  Under  the  instruction  statement  of  any  legal  proposition, 
as  modified,  "the  jury  could  not  but  this  was  rather  in  the  nature 
have  acquitted  the  defendant  if  of  a  general  disparagement  of  the 
they  had  found  that  he  had  a  well-  defense  of  insanity,  pleaded  by  the 
grounded  apprehension  that  the  de-  accused  in  that  case.  It  was  as- 
ceased  was  about  to  assault  him  serted,  however,  that  a  case  might 
with  the  intent  to  kill  him  or  to  possibly  arise  in  which  such  a 
do  him  great  bodily  harm,  unless  statement  by  the  court  could  be 
they  further  found  that  an  assault  properly  made;  but  the  court 
had  been  actually  committed  with  passed  the  question  without  decid- 
a  felonious  intent."  ing  whether  the  charge  in   contro- 

Compare    Freeman    v.    State,    112  versy  constituted  reversible  error." 

Ga.  48,  37  S.  E.  172  (173).  It  was  held  that  in  the  absence  of 

98 — Mcintosh    v.     State,    151    Ind.  the    evidence    it   could    not    be    said 

251,  51  N.  E.  354  (357).  that  the  instruction  was  prejudicial. 

The  court  said:     "An  instruction  The  court  had  the  right  to  caution 

similar  to  the  one  in  question   rel-  the  jury,  but  not  to  cast  suspicion 

ative  to  the  insanity  as  interposed  on  any  legitimate  defense.    Convic- 
tion affirmed. 
128 


2034  FORMS  OF  INSTRUdTlONS.  [§  3175. 

§  3175.  Self-Defense— Burden  of  Proof.  When  the  defendant  sets 
Up  self-defense  in  justification  or  excuse  of  a  killing,  the  burden  of 
proof  is  upon  him  to  reasonably  show  to  the  jury  by  the  evidence 
that  there  was  a  present,  impending  danger,  real  or  apparent,  to  life 
t>r  limb,  or  of  grievous  bodily  harm,  from  which  there  was  no  other 
probable  means  of  escape  unless  the  evidence  which  proves  the  homi- 
cide proves  also  its  excuse  or  justification.^^ 

§  3176.  Self -Defense— Evidence  Equally  Balanced  Acquits.  The 
jury  are  further  instructed  that  if  there  be,  in  the  opinion  of  the 
jury,  a  substantial  conflict  in  the  evidence  or  circumstances  as  to 
whether  the  killing  was  done  in  self-defense,  and  the  circumstances 
or  other  evidence  preponderate  in  favor  of  self-defense,  or  if  it  be 
equally  balanced  as  to  the  killing  being  done  in  self-defense,  the  jury 
ought  not  to  convict  either  of  murder  or  manslaughter.^''** 

§  3177.  Self -Defense — Series  of  Instructions  Approved  in  Missouri. 
(a)  The  court  instructs  the  jury  that  they  cannot  acquit  the  de- 
fendant on  the  ground  of  self-defense  unless  they  believe  from  the 
evidence  in  the  case  on  both  sides,  that  defendant,  J.,  had  reasonable 
ground  to  believe,  and  did  believe,  that  deceased,  H.,  was  about,  then 
and  there,  to  take  his  (defendant's)  life  or  to  do  him  some  great 
bodily  harm,  and  that  the  danger  of  his  doing  so  was  then  and  there 
imminent  and  impending;  and  in  this  connection  the  oourt  further 
instructs  the  jury  that  if  the  defendant  did  not  have  reasonable  cause 
to  believe  and  did  not  believe,  at  the  time  and  place  of  the  shooting 
and  killing,  as  set  forth  in  the  indictment,  that  such  danger  was 
imminent  and  impending,  and  if  they  believe  from  the  evidence  that 
defendant  could  with  safety  to  himself  have  avoided  thus  shooting 
and  killing  H.  at  the  time  and  by  the  means  mentioned  in  the  indict- 
ment, he  did  such  shooting  and  killing,  but  notwithstanding  he  could 
with  safety  to  himself,  have  avoided  such  shooting  and  killing,  he 
then  and  there,  willfully,  feloniously,  on  purpose,  and  of  his  malice 
aforethought,  as  heretofore  defined  in  these  instructions,  with  a 
pistol,  as  set  forth  in  the  indictment,  shot  and  killed  H.,  you  will 
find  him  guilty  of  murder  in  the  second  degree,  and  assess  his  punish- 
ment as  hereinbefore  provided. 

(b)  The  court  instructs  the  jury  that  to  justify  the  killing  of  J. 
H.  by  the  defendant,  it  is  not  sufficient  that  defendant  may  have  acted 
upon  an  honest  belief  that  danger  was  impending  to  his  life,  or  that 
(loceased  was  about  to  inflict  great  injury  to  defendant,  but  it  must 
appear  from  the  evidence  that  he  had  reasonable  cause  to  apprehend 
danger,  real  and  imminent,  at  the  time  of  the  killing,  and  the  jurors, 
herein  are  final  judges  of  the  reasonableness  of  his  apprehensions. 

(c)  The  court  instructs  the  jury  that  when  danger  is  threatened 
and  impending,  a  person  is  not  compelled  to  stand  with  arms  folded 
until  it  is  too  late  to  strike  or  shoot,  but  the  law  permits  him  to. 

99— Robinson  v.  State,  108  Ala.  14,        100— State  v.    Cottrill,   52  W.   Vau 
18  So.  732  (734).  363,  43  S,  E.  45,  59  L.  R.  A.  513.. 


§  3178.]  CRIMINAL— HOMICIDE.  2035 

act  on  reasonable  fear;  and  in  this  ease,  if  the  defendant  had  reason- 
able cause  to  apprehend  that  H.  had  a  design  to  do  him  some  great 
personal  injuiy,  and  that  there  was  reasonable  cause  to  apprehend 
immediate  danger  of  such  design  being  accomplished,  then  J.  had  a 
right  to  act  on  appearances,  and  kill  H.  to  prevent  such  design  being 
accomplished,  and  such  killing  would  be  justifiable,  although  it  should 
aftenvards  turn  out  that  the  ap^Dearances  of  danger  were  false  and 
unfounded,  and  the  finding  in  that  case  should  be  for  the  defendant, 

(d)  The  court  instructs  the  juiy  that  if  the  juiy  believe  and  find 
from  the  evidence  that  the  deceased,  H.,  sought  and  brought  on  the 
difficulty,  and  then  and  there  assaulted  the  defendant  with  a  danger- 
ous and  deadly  weapon,  to  wit,  a  knife,  giving  him  reasonable  cause 
to  believe  that  H.  was  about  to  kill  or  do  him  great  bodily  hann, 
and  that  said  assault  was  without  just  provocation,  then  defendant 
had  a  right  to  shoot  and  kill  the  deceased,  in  the  necessary  defense 
of  his  life,  or  to  prevent  any  great  bodily  harm  or  injury,  and  their 
verdict  should  be  for  the  defendant. ^ 

§  3178.  Self-Defense— Includes  Saving  the  Life  of  Another.  Self- 
defense  means,  gentlemen,  just  what  these  words  imply.  It  means 
that  when  one  man  kills  another  of  necessity.  It  exists  when  one 
man  finds  himself  in  a  position  of  peril — imminent  peril  either  to 
himself  or  to  another — in  peril  of  his  life  or  in  peril  of  serious  bodily 
harm ;  and  where  he  finds  himself  in  that  position,  and  strikes  to  save 
his  life,  or  strikes  to  save  his  body  from  serious  harm,  or  to  save  the 
life  of  another  person,  or  to  save  another  person  from  serious  bodily 
harm,  the  law  constitutes  that  self-defense ;  and,  if  you  believe  the 
defendant  in  this  case  did  that,  then  you  should  render  a  verdict  of 
not  guilty.^ 

§  3179.  Right  to  Protect  and  Defend  Another — Defense  of  Parent, 
(a)  The  jury  are  instructed  that  the  defendant,  R.  P.,  had  as  much 
right,  under  the  law,  to  protect  the  life  and  body  of  his  father,  as 
be  had  to  protect  his  own ;  and  if  you  find  from  the  evidence  that  the 
deceased,  B.,  was  making  an  effort  to  either  take  the  life  of  L.  P., 
the  father  of  the  defendant,  or  to  do  him  some  great  bodily  harm,  and 
the  defendant  struck,  honestly  believing,  and  without  fault  or  care- 
lessness, to  prevent  it,  then  he  would  not  be  guilty  and  you  say  so 
by  your  verdict.^ 

1— State  v.  McKenzie.  177  Mo.  699,  S.  C.  466.     See  also  State  v.  Clark, 

76  S.  W.  1015  (1019),  citing  State  v.  134  N.  C.  698,  47  S.  E.  36  (38). 

Kloss,    117    Mo.    592,    23    S.    W.    780;  3— Pratt   v.    State,  75  Ark.   350,  87 

State  v.  Lewis,  118  Mo.  79,  23  S.  W.  S.    W.    651    (652). 

1082;   State  v.   Johnson,   76  Mo.  121;  The   court   said:     "The   appellant 

State  v.  Brown,  63  Mo.  439.  complains   of   the    modification    but 

The  court  said:    "They  simply  de-  the    doctrine    inserted    is   sustained 

Clare  the  law  as  applicable  to  self-  expressly    by    Smith    v.    State,    59 

defense,   and   are  in  harmony  with  Ark.   132,   26   S.   W.   712,   43   Am.    St. 

the    repeated    declarations    of    this  Rep.  20;  Masrness  v.   State,  67  Ark. 

court."  594,  50  S.  W.  554,  59  S.  W.  529;  Elder 

2— State  v.   Bowers,   65  S.   C.   207,  v.   State,  69  Ark,  649,  65  S.  W.  938, 

43  S.  E.  656  (658),  95  Am.  St.  795,  re-  86  Am.  St  220." 
ferring    to    State    v.    McGregor,    13 


2036  FORMS  OF  INSTRUCTIONS.  {§  3179. 

(b)  You  are  charged  that  even  though  you  may  find  from  the 
evidence  that  there  had  been  a  conspiracy  between  the  defendants 
and  others  to  resist  the  officers,  and  you  further  find  from  the  evi- 
dence that  the  killing  was  not  done  in  furtherance  of  such  con- 
spiracy, but  was  done  by  defendant  in  the  necessary  defense  of  his 
mother,  under  the  law  as  given  you  in  charge,  then  you  will  acquit 
the  defendant.* 

(c)  If  the  jury  believe  from  the  evidence  that  the  defendant 
honestly  believed,  without  fault  or  carelessness  on  his  part,  that  at 
the  time  he  struck  the  blow  that  killed  the  deceased,  that  the  de- 
ceased was  in  the  act  of  killing  the  father  of  defendant  or  of  inflict- 
ing upon  him  great  bodily  injury,  and  that  the  danger  appeared  to 
defendant  to  be  urgent  and  pressing,  then  the  defendant  was  justified 
in  assaulting  and  striking  the  deceased  to  prevent  his  father  from 
being  killed  or  from  receiving  great  bodily  injury, 

(d)  But  the  defendant  would  not  be  justified  in  assaulting  and 
striking  the  deceased,  unless  it  appeared  that  the  deceased  was  in 
the  act  of  killing  defendant's  father  or  inflicting  upon  him  great 
bodily  injury.  If  deceased  was  in  the  act  of  assaulting  and  beating 
defendant's  father,  with  no  manifest  intention  of  killing  him  or 
inflicting  upon  him  great  bodily  injury,  the  defendant  would  be 
guilty  of  some  degree  of  unlawful  homicide;  and  this  would  be  true, 
although  deceased  was  in  the  wrong  in  his  assault  upon  defendant's 
father.^ 

(e)  The  court  instructs  the  jury  that  the  right  to  defend  one's 
self  or  his  parents  against  danger  is  a  right  which  the  law  concedes 
and  guaranties  to  all  men.  Therefore  the  defendant  may  have  killed 
deceased,  0.,  and  be  innocent  of  any  offense  against  the  law. 

(f)  If,  at  the  time  he  shot  the  deceased,  he  had  reasonable  cause 
to  apprehend,  on  ithe  part  of  deceased,  a  design  to  do  S.  H.,  defend- 
ant's  father,  some  great  personal  injury,  and  there  was  reasonable 
cause  for  defendant  to  apprehend  immediate  danger  of  such  design 
being  accomplished,  and  to  avert  such  apprehended  danger  to  his 
father  he  shot  deceased,  and,  at  the  time  he  did  so,  he  had  reasonable 
cause  to  believe,  and  did  believe,  it  necessary  for  him  to  shoot  de- 
ceased to  protect  his  father  from  such  apprehended  danger,  then, 
and  in  that  ease,  the  shooting  was  not  felonious,  but  was  justifiable, 
and  you  will  acquit  him. 

(g)  It  is  not  necessary  to  this  defense  that  the  danger  should 
have  been  actual  or  real,  or  that  danger  should  have  been  impending, 
and  immediately  about  to  fall  on  the  father  of  defendant.  All  that 
is  necessary  is  that  defendant  had  reasonable  cause  to  believe,  and  did 
believe,  these  facts.  But,  before  you  acquit  on  the  ground  of  de- 
fending his  father  against  threatened  danger,  you  ought  to  believe 
defendant's  cause  of  apprehension  was  reasonable.*' 

4— Smith  V.  State,  —  Tex.  Cr.  6— State  v.  Harper,  149  Mo.  514,  51 
A  pp.  — ,  89  S.  W.  817.  S.   W.   89   (92). 

5— Mabry    v.    State,    80   Ark.    345, 
97  S.  W.  285. 


§  3180.]  CRIMINAL— HOMICIDE.  2037 

§  3180.  Killing  in  Defense  of  Defendant's  Son.  (a)  If  the  jury- 
believe  from  the  evidence  that  when  the  defendant  shot  and  killed 
G.,  if  he  did  so,  he  had  reasonable  grounds  to  believe,  either  real  or 
ajjparent,  and  did  in  good  faith  believe,  that  his  son  R.  was  then  in 
imminent  danger  of  losing  his  life  or  suffering  great  bodily  harm  at 
the  hands  of  the  deceased,  G.,  and  there  were  no  other  apparently- 
safe  means  of  escape  by  R.  from  the  impending  danger,  then  the 
defendant  had  the  right,  and  it  was  lawful  for  him,  in  the  exercise 
of  a  reasonable  judgment,  to  use  such  force  as  was  reasonably  neces- 
sary, or  apparently  necessary,  to  save  and  protect  his  son  R. 's  life, 
or  his  person  from  great  bodily  harm,  even  to  the  taking  of  the  life 
of  said  G.  On  such  grounds,  and  under  such  circumstances,  the 
defendant  is  excusable  under  the  law  of  defense  of  another.  The 
danger  to  one's  life,  or  great  bodily  harm  to  his  person,  which 
authorized  defendant  to  act  in  his  defense,  or  in  the  defense  of  his 
son,  as  herein  indicated,  may  be  real  danger  or  apparent  danger. 

(b)  The  court  further  instnicts  the  jury  that  if  they  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  defendant's  son  R. 
made  a  demonstration  to  assault  G.  with  a  knife,  for  the  pui-pose  of 
killing  the  said  G.,  or  inflicting  upon  him  great  bodily  harm,  then  the 
jury  cannot  acquit  the  defendant  upon  the  ground  that  he  acted  in 
the  defense  of  his  son  R.  But  if  the  jury  believe  from  the  evidence 
that  R.  approached  G.,  if  he  did  so,  not  for  the  purpose  of  assaulting 
him  and  killing  him,  or  inflicting  upon  him  great  bodily  harm,  and 
that  G.  first  made  a  demonstration  to  strike  R.  with  a  deadly  weapon, 
if  he  did  so,  and  then  the  defendant  believed,  and  had  reasonable 
grounds  to  believe,  that  G.  was  then  and  there  about  to  kill  his  son 
R.,  or  inflict  great  bodily  harm  upon  him,  then  the  defendant  had 
the  right  to  use  such  means  in  defense  of  his  son,  as,  in  the  exercise 
of  a  reasonable  judgment,  were  apparently  necessary  for  his  safety, 
as  set  out  in  the  instruction  on  defense  of  his  son."' 

(c)  If  the  killing  was  willful  and  intentional,  yet,  if  it  was  with- 
out malice,  then  the  defendant  could  be  guilty  of  no  higher  grade  of 
offense  than  manslaughter;  and,  if  the  killing  was  the  result  of  sud- 
den passion  aroused  in  the  breast  of  the  defendant  by  an  attempt  by 
T.  to  assault  defendant  or  either  of  his  sons  with  a  gun,  then  the 
killing,  if  not  justifiable  on  the  grounds  of  self-defense,  would  be  only 
manslaughter.^ 

(d)  If  the  jui-y  believe  from  the  evidence  that  at  the  time  de- 
fendant shot  and  killed  the  said  C.,  if  he  did  shoot  him,  he  believed, 
and  had  reasonable  grounds  to  believe,  that  the  said  C.  was  then  and 

7 — Thacker  v.  Commonwealth,  24  as   would   have   been   necessary   to 

Ky.  Law  R.  1584,  71  S.  W.  931  (932).  excuse  the  son  if  he  had  killed  the 

8— Mitchell   v.   State,   129   Ala.   23,  deceased.     If  the  son  was  at  fault 

30  So.  348  (352).  in   commencing-   the    difficulty,   that 

The  court  said:  "Defendant's  fact  precluded  any  right  of  the  de- 
right  to  kill  in  defense  of  his  son  fendant  to  kill  in  order  to  extricate 
depended    on    the    same    conditions  or  protect  him." 


2038  FORMS  OF  INSTRUCTIONS.  [§  3181. 

there  about  to  take  the  life  of  his  son,  W.  U.,  or  inflict  on  his  said 
son  great  bodily  harm,  and  there  appeared  to  him,  the  said  H.  U., 
in  the  exercise  of  a  reasonable  judgment,  no  other  means  to  avert 
the  then  real,  or,  to  him,  apparent,  danger,  if  any,  to  his  said  son, 
W.  U.,  but  to  shoot  said  C,  then  he  had  the  right  to  do  so,  and  they 
ought  to  acquit  him  on  the  grounds  of  defending  his  said  son,  W.  U., 
from  death  or  the  infliction  of  great  bodily  harm,  at  the  hands  of 
the  said  C.® 

§  3181.  Defendant  May  Kill  in  Defense  of  Person  or  Property. 
A  person  may  repel  force  by  force  in  defense  of  person,  property  or 
life  against  one  who  manifestly  intends  or  endeavors  by  violence  or 
surprise  to  commit  a  known  misdemeanor  or  felony  or  either  or  to  do 
great  bodily  injury  to  his  person ;  and  the  danger  which  would  justify 
the  defendant  in  the  act  charged  against  him  may  be  either  real  or 
apparent;  and  the  jury  are  not  to  consider  whether  the  defendant 
was  in  actual  peril  of  his  life  or  propertj'  but  only  whether  the  indi- 
cations were  such  as  to  induce  a  reasonable  man  to  believe  that  he 
was  in  such  peril  of  person  or  property.  And  if  he  so  believed  rea- 
sonably (and  had  sufficient  cause  so  to  believe),  and  committed  the 
act  complained  of  under  such  belief,  even  though  it  should  appear 
that  the  deceased  was  not  armed,  you  should  acquit  the  defendant.^" 

§  3182.  When  Killing  Justifiable  in  Defense  of  Property — ^Land- 
lord and  Tenant.  Every  pei'son  has  the  right  to  oppose  force  in  the 
protection  of  property  lawfully  in  his  possession.  And  where  one 
has  property  in  his  possession  which  he  has  raised  as  tenant  on  the 
land  of  another,  under  agreement  to  give  to  his  landlord  a  portion 
thereof  as  rent,  his  possession  thereof  is  lawful,  and  he  has  the  right 
to  defend  his  possession  thereof  against  the  landlord,  opposing  force 
to  force  for  that  purpose,  unless  such  landlord  be  assisting  a  peace 
officer  in  taking  the  same,  under  authority  of  a  writ  of  legal  process. 
And  a  want  of  knowledge  that  the  landlord  is  acting  with  the  author- 
ity of  such  writ  or  process  would,  if  the  landlord  attempted  to  take 
by  force  or  violence  the  property  from  the  possession  of  the  tenant, 
excuse  the  tenant  in  opposing  force  to  force  to  prevent  the  taking 
from  his  possession,  and  in  slaying  the  landlord,  if  necessary,  or  if 
reasonably  appearing  necessary,  in  order  to  prevent  the  taking,  or  in 
protecting  his  own  person  from  injury  or  death  which  reasonably 
appears  to  menace  him  as  an  accompaniment  of  the  taking.  But  in 
every  case  where  one  acts  in  defending  his  possession  of  property, 
as  distinguished  from  his  protection  of  his  life  or  of  his  person  from 
great  bodily  injui-y,  before  the  person  in  possession  would  be  justified 
in  killing  the  other  or  excused  therefor,  every  other  effort  in  his 
power  must  have  been  used  to  repel  the  aggression.  However,  one 
may,  in  the  defense  of  his  property,  be  placed  in  such  position  as  to 

9— Utterback    v.    Commonwealth,        10 — People  v.  Glover,  141  Cal.  233, 
22   Ky.    Law  R.   1011,   59   S.   W.    515.     74  Pac.   745   (747). 
88  Am.  St.  328. 


§  3183.]  CRIMINAI^HOMICIDE.  2039 

become  himself  in  danger  or  apparent  danger  of  death  or  serious 
bodily  injury,  in  which  case  the  rule  stated  in  the  previous  section 
as  to  defense  of  person  would  apply  to  his  case  as  though  the  ques- 
tion had  been  in  the  first  instance  a  question  of  self-defense.  So,  if 
you  believe  from  the  evidence  that  defendant  killed  the  said  K.,  but 
further  believe  that,  from  the  standpoint  of  defendant,  it  appeared 
necessary  at  the  time  to  kill  the  said  K.  as  the  only  means  of  pro- 
tecting the  possession  of  his  property  from  a  forcible  taking,  and 
that  the  defendant  had  no  knowledge  of  the  fact,  if  true,  that  de- 
ceased and  his  companion,  or  the  latter  of  them,  had  legal  process 
authorizing  them  to  take  forcible  possession  of  said  cotton,  then  you 
will  acquit  the  defendant. ^^ 

§  3183.  Defense  of  Habitation,  (a)  The  law  is  that  one  assailed 
with  a  deadly  weajpon  in  his  own  house  is  not  obliged  to  flee.  If 
such  a  person  is  violently  assaulted,  without  being  in  fault,  he  may 
repel  force  by  force,  and  if,  in  the  reasonable  exercise  of  his  right 
of  self-defense,  and  using  no  more  force  than  is  apparently  necessary 
in  defense  of  himself  and  habitation,  he  kills  his  assailant,  the  killing 
is  justifiable  homicide. ^^ 

(b)  The  jury,  in  considering  whether  the  killing  was  in  defense  of 
habitation,  should  consider  all  the  circumstances  attending  the  killing, 
and  the  conduct  of  the  parties  at  the  time,  and  immediately  previous 
thereto,  and  the  means  and  force  used  as  bearing  upon  the  question 
of  whether  the  killing  was  in  defense  of  habitation,  in  good  faith,  or 
whether  it  was  done  maliciously  and  in  a  spirit  of  hatred  or  revenge. ^^ 

11— Howell   v.    State,  —  Tex.   Cr.  12— Runyan   v.    State,    57   Ind.    80, 

App.  — ,  60  S.  W.  44.  2  Am.   Cr.   Rep.   318;  State  v.   Har- 

See  Wells   v.   Territory,   14   Okla.  man,  78  N.  C.  515;  State  v.  Middle- 

436,  for  instructions  relating  to  tak-  ham,   62   la.    150,    17   N.    W.    446. 

ing  forcible  possession  of  land.  13 — Greschia  v.  People,  53  111.  295. 


CHAPTER  C. 

CRIMINAL— INTOXICATING  LIQUOR. 

See  Erroneous  Instructious,  same  chapter  head.  Vol.  III. 


§  3184.  Definition  of  intoxicating 
liquor. 

§  3185.  When  a  liquor  is  considered 
as  intoxicating  within  the 
meaning  of  the  law. 

§  3186.  What  constitutes  a  sale 
within  the  state. 

§  3187.  Burden  of  proof  as  to  li- 
cense. 

§  3188.  Keeping  of  liquors  is  pre- 
sumptive evidence  of  il- 
legal sale,  when. 

§  3189.  Sale  of  liquor  by  druggist. 

§  3190.  Authority  of  bar  tender  in 
making  sales — No  presump- 
tion of  law  either  way. 

§  3191.  Presumption  of  law  that  the 
bar  tender  has  authority  to 
make  only  lawful  sale. 

§  3192.  When  and  when  not  liable 
for  act   of   servant. 

§  3193.  Keeping  a  place  for  the  sale 
of  intoxicating  liquors  as 
agent,  clerk,  servant  or 
principal. 

§  3194.  One  sale  delivered  at  differ- 
ent times. 

§  3195.  Selling  liquor  to  minor — 
Knowledge  and  intent  ma- 
terial. 

§  3196.  Knowledge  of  minority  im- 
material. 

§  3197.  Burden  of  proof  as  to  writ- 
ten order. 


§  3198.  Drunkenness  defined. 

§  3199.  Habit  must  exist  at  the  time, 
etc. 

§  3200.  Selling  to  a  person  in  the 
habit. 

§  3201.  Knowledge  of  criminal  in- 
tent necessary. 

§  3202.  Sale  in  prohibition  limits^ 
No  words  necessary  to  con- 
stitute a  sale — Leaving' 
money  where  vender  may 
get  it  and  taking  of  prop- 
erty is  sufficient. 

§  3203.  Keeping  or  using  a  place  for 
the  illegal  sale  of  intoxi- 
cants. 

§  3204.  Making  a  public  resort  of  a 
dwelling  house  and  the  find- 
ing of  liquor  there  is  pre- 
sumptive evidence  of  keep- 
ing for  illegal  sale. 

§  3205.  Keeping  for  sale  of  liquors 
in  club  house  without  li- 
cense. 

S  3206.  Opening  on  prohibited  days 
— Sales  in  side  or  rear 
rooms  unlawful. 

§  3207.  Order  of  liquor  by  an  agent 
is  not  a  sale. 

§  3208.  What  constitutes  residence 
district. 

§  3209.  Illegal    sale— Local    option. 


§  3184.  Definition  of  Intoxicating  Liquor.  You  are  instructed  that 
intoxicating  liquor  is  such  as  is  intended  for  use  as  a  beverage,  or  is 
capable  of  being  so  used,  which  contains  alcohol,  either  obtained  by 
fermentation,  or  by  the  additional  process  of  distillation,  in  such 
proportion  that  it  would  produce  intoxication  when  taken  in  such 
quantities  as  may  practically  be  drunk ;  and  unless  you  believe  from 
the  evidence  beyond  a  reasonable  doubt  that  the  liquor  sold  by  the 
defendant  comes  within  the  above  definition,  you  will  find  defendant 
not  guilty.^ 

§  3185.  When  a  Liquor  is  Considered  as  Intoxicating  Within  the 
Meaning  of  the  Law.     A  liquor  is  intoxicating,  within  the  meaning  of 

1— Sebastion  v.  State,  44  Tex.  Cr.  App.  508,  72  S.  W.  849  (850). 

2040 


§  3186.]  CRIMINAL— INTOXICATING  LIQUOR.  2041 

the  law,  when  it  is  intended  for  use  as  a  beverage,  or  is  capable  of 
being  so  used,  which  contains  alcohol,  either  obtained  by  fermenta- 
tion or  by  the  additional  process  of  distillation,  in  such  a  proportion 
that  it  would  produce  intoxication  when  taken  in  such  quantities  as 
may  practically  be  drunk;  and,  unless  you  believe  from  the  evidence 
beyond  a  reasonable  doubt  that  the  liquor  sold  by  defendant  comes 
within  the  above  definition,  you  will  find  the  defendant  not  guilty.- 

§  3186.  What  Constitutes  a  Sale  Within  the  State.  The  jury  are 
instructed  that  if  you  find  the  defendant  received  a  written  order 
for  beer  at  the  village  of  Lyle  accompanied  with  a  money  order  for 
the  price  thereof,  and  sent  the  beer  pursuant  to  the  order  to  the 
party  in  Iowa  sending  the  order,  this  would  constitute  a  sale  at  Lyle, 
this  State,  in  violation  of  the  statute,  and  the  defendant  would  be 
guilty  of  the  charge  contained  in  the  indictment.^ 

§  3187.  Burden  of  Proof  as  to  License.  If  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant  by  him- 
self, agent  or  servant,  made  the  sales,  as  charged  in  the  indictment, 
then  it  is  not  necessary  for  the  people  to  show,  by  proof  in  the  fii*st 
instance,  that  he  had  no  license  to  sell  intoxicating  liquors.  That  is 
a  matter  of  defense,  and  should  be  proved  by  the  defendant  if  he 
had  such  license.* 

§  3188.  Keeping  of  Liquors  is  Presumptive  Evidence  of  Illegal 
Sale,  When.  It  is  also  provided  that  in  all  actions,  prosecutions 
and  proceedings  under  the  law  of  this  state  prohibiting  the  illegal 
manufacture  and  sale  of  intoxicating  liquors,  the  finding  of  such 
liquors,  except  in  the  possession  of  one  legally  authorized  to  sell  the 
same,  or  except  in  a  private  dwelling-house  which  does  not  include, 
or  is  not  used  in  connection  with,  a  tavern,  public  eating-house, 
restaurant,  groceiy  or  other  places  of  public  resort,  shall  be  pre- 
sumptive evidence  that  such  liquors  were  kept  for  illegal  sale,  and 
proof  of  actual  sale  shall  be  presumptive  evidence  of  illegal  sale.^ 

§  3189.  Sale  of  Lictuor  by  Druggist.  The  law  allows  druggists  to 
sell  liquor,  as  you  have  already  been  instructed,  for  medicinal,  me- 
chanical, scientific  and  sacramental  purposes,  and  for  that  alone.  The 
law  absolutely  prohibits  the  sale  of  liquor  by  druggists  to  be  used 
as  a  beverage  or  to  be  drank  on  the  premises.  There  are  other  re- 
strictions and  prohibitions  which  it  is  not  necessaiy  to  name,  as  they 
■are  not  involved  in  this  case.  So  long  as  a  druggist  complies  with 
the  law  in  these  regards,  he  is  justified  in  making  sales.^ 

The  juiy  is  instructed  that  a  druggist  and  apothecaiy  has  a 
right  to  have  in  his  possession  intoxicating  liquors  in  any  quantity  to 

2— Malone   v.    State,   —   Tex.    Cr.  State,   1   McCord,  573;  Contra:  Me- 

App.  — .  51  S.   W.   381.  han  v.  State,  7  Wis.  670. 

3— State  V.  Johnson,  81  Minn.  121,  5— State  v.  Illsley,  81  la.  49,  46  N. 

90  N.  W.   161  (162).  W.   977  (978). 

4— Potter  v.  Deyo,  19  Wend.  361;  6— People    v.    Hilliard,    119    Mich. 

Smith  V.  Joice,  12  Barb.  21;  Pender-  24,  77  N.  W.  306. 
grast  V.  Peru,  20  111.  51;  Gerring-  v. 


2042  FORMS  OF  INSTRUCTIONS.  [§  3195. 

be  used  solely  for  the  purpose  of  mixing  and  combining  with  other 
ingredients  as  a  medicine,  and  that  the  only  question  for  the  jury  is 
to  decide  whether  the  liquors  found  in  defendant's  possession  were 
so  kept  by  him  solely  for  the  purpose  of  combining  with  other  in- 
gredients as  a  medicine,  or  were  kept  to  be  sold  in  violation  of  law; 
if  you  should  find  that  they  were  so  kept  solely  for  combining  with 
other  ingredients  as  a  medicine,  you  should  return  a  verdict  of  not 
guilty,  but  if  you  find  that  they  were  kept  for  sale,  you  should  bring 
in  a  verdict  of  guilty. '^ 

§  3190.  Authority  of  Bar  Tender  in  Making  Sales — ^No  Presump- 
tion of  Law  Either  Way.  The  jury  are  further  instructed  that,  noth- 
ing to  the  contrary  appearing,  evidence  of  a  sale  by  a  servant  in  his 
master's  shop  of  his  master's  goods  there  kept  for  sale,  would,  if 
believed,  warrant  the  jury  in  finding  the  sale  was  authorized  by  the 
master,  and  that  this  would  be  so  although  the  defendant  was  not 
on  the  premises  at  the  time  the  sale  was  made.* 

§  3191.  Presumption  of  Law  that  the  Bar  Tender  has  Authority 
to  Make  Only  Lawful  Sales.  Although  the  jury  may  believe,  from 
the  evidence,  that  the  bar  tender  of  the  defendant  sold  intoxicating 
liquor  to  the  said  A.  B.,  as  charged  in  the  indictment,  and  that  the 
said  A.  B.  was  at  the  time  a  person  in  the  habit  of  getting  intoxicated, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  such  sale 
was  without  the  knowledge  or  consent  of  the  defendant,  and  against 
his  wishes,  then  the  defendant  would  not  be  liable  therefor,  and  the 
jury  have  no  right  to  presume  that  the  defendant  authorized  his  bar 
tender  to  make  such  sale  simply  because  he  was  employed  as  bar 
tender  at  defendant's  saloon;  if  the  jury  find  there  is  no  evidence  to 
the  contrary,  the  presumption  of  law  is,  that  the  bar  tender  only  had 
authority  from  the  defendant  to  make  such  sales  as  were  lawful.^ 

7 — Commonwealth     v.     Boutwell,  to  the  jury,  under  all  the  circum- 

162  Mass.  230,  38  N.  E.  441.  stances    of    the    case,    stating    that 

The  court  said  that  under  these  there  was  no  presumption  of  law 

Instructions    "the    jury    could    not  either  way.     This   left   the   weight 

find    the    defendant    guilty    unless  of  the  evidence  offered  by  the  com- 

they  were   satisfied  beyond  a  rea-  monwealth  and  the  inferences  to  be 

sonable  doubt  that  the  liquors  were  drawn  from  it  entirely  to  the  jury, 

kept  for  sale.     So  far  as  appears,  and  is  in  accordance  with  the  view 

there  was  no  evidence  which  called  expressed      in     Commonwealth     v. 

for  any  other  instructions.    The  de-  Briant,  142  Mass.   463,  8  N.  E.   338, 

fendant   did   not  testify,  and  there  56  Am.  Rep.  707.    It  was  as  a  ques- 

was  nothing  to  show  that  any  part  tion    of    faet    solely   that   the   jury 

of    the    liquors    was    on    hand    pre-  were  to  determine  whether  an  au- 

vious  to  May  1st  as  a  part  of  his  thorized  sale  by  the  bar-keeper  had 

stock,   when  he  held  the  license  to  been    proved,    and    the    jury    were 

sell  for  medicinal,  mechanical  and  permitted    to    make    this    inference 

chemical  purposes.     His  statement  if,     under    all    the    circumstances, 

to   that   effect   at   the   time   of   the  they   should    see   fit   to   do   so.      In 

seizure  was  not  evidence  in  his  fa-  Commonwealth  v.  Hayes,  145  Mass. 

vor."  289,   14    N.    E.    151,    it   is   also   inti- 

8— Commonwealth    v.    Houle,    147  mated    that    instructions    precisely 

Mass.  380,  17  N.  E.  896  (897).  similar  to  those   given   in  the  case 

The  court  said  that  this  "instruc-  at  bar  would  be  unobjectionable." 

tion  submitted  the  whole  question  9— State    v.    Mahoney,    23    Minn, 

of  the  authority  of  the  bar-keeper  181,  2  Am.  Cr.  Rep.  408. 


§  3192.]  CRIMINAI^INTOXICATING  LIQUOR.  2043 

§  3192.  When  and  When  not  Liable  for  Act  of  Servant,  (a)  If 
a  clerk  or  bai-  keeper  in  a  saloon  sell  intoxicating  liquor,  without  the 
knowledge  and  against  the  instructions  of  his  employer,  the  latter  is 
not  criminally  responsible  for  the  act.^*^ 

(b)  A  sale  by  an  agent,  against  the  known  will  and  instructions 
of  his  principal,  will  not  render  the  principal  liable. ^^ 

(c)  If  the  jury  believe  from  the  evidence  beyond  a  reasonable 

doubt    that   defendant,   ,   did    at   the    time    and  place    alleged 

unlawfully  and  willfully  sell,  or  assist  in  the  sale  of,  a  pint  of  whis- 
key, to  F.,  then  you  will  find  defendant  guilty,  ete.^^ 

(d)  You  are  instructed  that  if  the  defendant  had  no  interest  in 
the  whiskey,  but  if  you  believe  from  the  evidence  beyond  all  reason- 
able doubt  he  was  acting  as  the  agent  of  some  one  else  who  owned 
the  whiskey  in  making  a  sale  to  the  witness,  K.,  if  such  a  sale  was 
made,  he  is  guilty.  That  before  they  (the  jui-y)  could  convict  the 
defendant,  they  must  believe  from  the  evidence  beyond  all  reasonable 
doubt,  that  the  defendant  sold  the  whiskey  to  the  witness,  K.,  or 
that  if  he  did  not  own  the  whiskey,  he  aided  and  assisted  in  the  sale 
as  the  agent  of  the  owner,  etc.^^ 

§  3193.  Keeping  a  Place  for  the  Sale  of  Intoxicating  Liquors  as 
Agent,  Clerk,  Servant  or  Principal,  (a)  If  you  believe  from  the 
evidence  in  this  case  that  the  defendant  is  not  guilty,  that  he  has 
not  kept  this  place,  that  he  has  not  sold  this  liquor,  then  it  is  your 
duty,  under  your  oaths  as  jurors,  to  find  this  defendant  not  guilty. 
It  is  equally  your  duty,  if  you  believe  this  defendant  beyond  a  rea- 
sonable doubt  to  be  guilty,  to  say  so  by  your  verdict.^* 

(b)  If  you  find  from  the  evidence  introduced  upon  the  trial,  under 
these  instructions,  that  the  defendant,  between  the  1st  day  of  Janu- 
ary,   ,  and  the  24th  day  of  May,  ,  on  lots  4  and  5  in  block 

10  of  St.  Charles  City,  in  Floyd  county,  Iowa,  did  maintain  or  con- 
tinue to  use  a  certain  building  or  place  wherein  he  sold,  kept  for  sale 
or  kept  with  intent  to  sell,  intoxicating  liquors  of  any  siort  or  char- 
acter, in  violation  of  law,  whether  as  clerk,  agent,  servant  or  as 
principal,  then  you  ought  to  find  the  defendant  guilty.    If  you  do  not 

10 — Lathrop  v.   State,  51  Ind.  192,  porter.     Appellant,  who  testified  on 

1  Am.   Cr.   Rep.  468;   Com.   v.   Put-  his  own  behalf,  states  that  he  was 

nam,  4  Gray  16.  working  in  K.'s  saloon  on   the  day 

11 — Anderson  v.  State,  22  Ohio  St.  of  the   alleged   sale   of  the  whisky 

305.  to  F. ;  that  he  was  helping  to  clean 

12 — Burnett  v.   State,   42  Tex.  Cr.  up   that   day,   and   moving  the  bar 

App.  600,  62  S.  W.  1063  (1064).  fixtures;   that  he  did  not   work  for 

The  court  said  in  comment  that  said   K.   before   that  day,   and   had 

"the   complaint  here  is  that  it  as-  no  contract  for  employment  for  any 

sumed  appellant  was  the  agent  or  other  day.    It  occurs  to  us  that  this 

employe   of   K.,    the   owner   of   the  is  an  admission  on  his  part  that  ho 

saloon.    This  is  certainly  the  effect  w^as   in   the   employ   of  K.  on  that 

of  the  charge,  and,   if  his  employ-  Sunday." 

ment  was  controverted  or  in  issue,  13— Winter  v.   State,  133  Ala.  176, 

the    charge    would    be    erroneous.  32  So.  125. 

The  state,  by  its  testimony,  proved  14 — State  v.  Currie,  8  N.  Dak.  545, 

that  he  was  in  the  employ  of  K.  as  80  N.  W.  475  (476). 


2044  FORMS  OP  INSTRUCTIONS.  [§3194. 

so  find  beyond  a  reasonable  doubt,  then  you  should  find  the  defendant 
not  guilty.^^ 

§  3194.  One  Sale  Delivered  at  Different  Times.  If  the  jui-y  be- 
lieve, from  the  evidence,  that  the  defendant,  on  the  occasion  testified 
to  by  the  witnesses,  sold  to  the  said  A.  B.  (one  gallon)  and  no  less, 
and  that  the  quantity  so  sold  was  drawn  from  the  cask  and  placed 
in  a  keg  (or  bottles)  separate  by  itself  and  set  away  for  the  said 
A.  B.  as  his  property  and  charged  to  him  (or  paid  for  by  him),  then 
in  such  case  the  title  to  the  whole  quantity  so  sold  and  set  apart 
passed  to  the  purchaser,  although  he  may  have  taken  away  but  a 
part  of  it  at  the  time  of  the  sale,  and  in  such  case  it  is  a  matter 
of  no  consequence  what  may  have  been  the  motives  of  the  parties  in 
making  such  sale,  and  the  jury  should  find  for  the  defendant. ^^ 

§  3195.  Selling  Liquor  to  Minor— Knowledge  and  Intent  Material. 
The  jury  are  instructed,  as  a  matter  of  law,  that  intent  is  necessaiy  to 
the  commission  of  a  crime,  and  it  is  a  good  defense  to  a  charge  of 
selling  intoxicating  drink  to  a  minor,  that  the  dealer  had  good 
reason  to  believe,  and  did  believe  him  to  be  of  age.  Whether  in 
this  case  the  defendant  did  sell  to  a  minor,  and  whether  he  took 
reasonable  care  to  find  out  whether  the  said  A.  B.  w^as  a  minor,  and 
whether  he,  in  good  faith,  believed  him  to  be  over  the  age  of  twenty- 
one  years,  are  questions  of  fact  to  be  determined  by  the  jury,  from 
the  evidence  in  the  case.^''^ 

§  3196.  Knowledge  of  Minority  Immaterial.  The  jury  are  in- 
structed, that  if  they  believe,  from  the  evidence,  that  the  defendant 
by  himself,  his  agent  or  servant,  sold  or  g-ave  intoxicating  liquor  to 
the  said  A.  B.,  and  that  the  said  A.  B.  was  at  that  time  a  minor, 
under  the  age  of  twenty-one  years,  then  it  is  wholly  immaterial 
whether  the  defendant  knew,  or  did  not  know,  that  the  said  A.  B. 
was  a  minor,  nor  whether  the  said  defendant  was  himself  deceived  in 
regard  to  the  age  of  the  said  minor.  A  person  engaged  in  the  business 
of  selling  intoxicating  liquors  sells  to  a  minor  at  his  peril,  and  is 
equally  guilty  whether  he  knows,  or  does  not  know,  the  age  of  the 
person  to  whom  he  is  selling.^* 

15 — State   v.   CafCrey,   94  Iowa  65,  thority  or  approval  of  the  accused; 

62  N.  W.  664.  and    upon   that   fact   you   must   be 

Sale    with    knowledge,    authority  satisfied   from   the   evidence   in   the 

or  approval  of  defendant.  case,    beyond    a    reasonable    doubt, 

The  court  instructs  the  jury  that  before  you  can  say  he  was  guilty, 
there    does    not    seem    to    be    very  Approved    in    State   v.    Lewis,    86 
much   disipute,    and    I    don't    think  Minn.  174,   90  N.  W.   318. 
you   will    have   any   hard   work   to  16 — Dobson  v.  State,  57  Ind.  69. 
ascertain,  as  to  whether  this  liquor  17 — Faulker    v.    People,    39    Mich. 
was    sold    or    not.      It    was    either  200;   Robbins  v.   State,   63   Ind.   235; 
brandy   or   whisky.     The   sale   was  Anderson  v.  State,  22  Ohio  St.  305; 
on    the    5th    day    of    January    this  Adler  v.  State,  55  Ala.  16. 
year.     Upon   that  there   cannot   be  18— State  v.  Hartfield,  24  Wis.  60; 
much    question,    because    I    do   not  Com.  v.  Emmons,  98  Mass.  6;  State 
understand   that  defendant,   or  his  v.  Cain,  9  W.  Va.  559;  Com.  v.  Fin- 
counsel,  upon  his  argument  to  you,  negan,    124    Mass.    324;    Roborge    v. 
denies   this.     But   the   question   for  Burnham,   124  Mass.  277,   MeCutch- 
your    consideration    is    whether    it  eon  v.  People,  69  111.  601,  1  Am.  Cr. 
was  sold  with  the  knowledge,  au-  Rep.  471. 


§  3197.]  CRIMINAL— INTOXICATING  LIQUOR.  2045 

§  3197.  Burden  of  Proof  as  to  Written  Order.  The  fact  of  the 
defendant  having  a  written  order  from  parents,  guardian  or  family- 
physicians  authorizing  a  sale  to  a  minor  is  a  matter  of  defense,  and 
if  the  people  have  proved  to  the  jury  by  the  evidence,  beyond  a 
reasonable  doubt,  the  sale  or  giving  of  intoxicating  liquors  to  a 
minor,  as  charged  in  the  indictment,  then  the  jury  should  find 
defendant  guilty;  unless  the  jury  believe,  from  the  evidence,  that  at 
the  time  of  such  sale  he  had  such  written  order.i'* 

§  3198.  Drunkenness  Defined.  The  court  instructs  the  jury  that 
a  man  is  drunk  in  a  legal  sense  when  he  is  so  far  under  the  influence 
of  intoxicating  liquor  that  his  passions  are  visibly  excited  or  his 
judgment  impaired  by  the  liquor.-" 

§  3199.  Habit  Must  Exist  at  the  Time,  etc.  The  court  further 
instructs  the  jury,  on  the  part  of  the  defendants,  as  a  matter  of 
law,  that  before  they  can  convict  the  defendants  they  must  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  person  named 
in  the  indictment  had  been  in  the  habit  of  getting  intoxicated  at  the 
time  of  the  alleged  sale,  and  whether  he  was  or  was  not  in  such 
habit  is  a  question  for  the  jury  to  determine,  from  all  the  evidence  in 
the  case.^^ 

§  3200.  Selling  to  a  Person  in  the  Habit — Intent  Necessary.  Al- 
though the  jury  may  believe,  from  the  evidence,  that  the  defendant 
sold  intoxicating  liquors  to  the  said  A.  B.,  as  charged  in  the  indict- 
ment, and  that,  the  said  A.  B.  was  at  the  time  a  person  in  the  habit 
of  getting  intoxicated,  still  if  the  jury  further  believe,  from  the  evi- 
dence, that  before  making  such  sale,  defendant  made  inquiiy  of  per- 
sons well  acquainted  with  the  said  A.  B.,  as  to  whether  he  was  in 
the  habit  of  getting  intoxicat-ed,  and  was  told  that  he  was  not,  and 
that  the  defendant  used  reasonable  care  before  selling  said  liquor, 
in  good  faith,  to  ascertain  whether  the  said  A.  B.  was  in  the  habit 
of  getting  intoxicated,  and  that  when  he  sold  the  said  liquor  he 
honestly  and  in  good  faith  believed  that  the  said  A.  B.  was  not  in 
the  habit  of  getting  intoxicated,  then  the  jury  should  find  the  de- 
fendant not  guilty.22 

§  3201.  Knowledge  or  Criminal  Intent  Necessary.  The  jury  are 
instructed,  that  if  they  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant  sold  or  gave  to  the  said  A.  B.  intoxi- 
cating liquor,  as  charged  in  the  indictment,  and  that  the  said  A.  B. 
was,  at  the  time,  in  the  habit  of  getting  intoxicated,  then  it  is  wholly 
immaterial  whether  the  defendant  knew  or  did  not  know  that  the  said 
A.  B.  was  a  person  in  the  habit  of  getting  intoxicated.  A  person 
engaged  in  the  business  of  selling  intoxicating  drinks,  selling  to  a 
person  who  is  in  the  habit  of  getting  intoxicated,  sells  at  his  peril 

19— State  v.  Cornan,  48  la.  567.  21— Gallagher  v.   The   People,   120 

20— State   v.    Pierce,    65   la.    85.   21     111.  179.  11  N.  E.  335. 
N.  W.  195;  1  Bouv.  Law  Die.  510.  22— Crabtree  v.  State,  30  Ohio  St. 

382. 


2046  FORMS  OF  INSTRUCTIONS.  [§  3202. 

and  he  is  equally  guilty  whether  he  does  or  does  not  know  the  habits 
of  the  person  to  whom  he  is  selling.-^ 

§  3202.  Sale  in  Prohibition  Limits — No  Words  Necessary  to  Con- 
stitute a  Sale — Leaving  Money  Where  Vender  May  Get  it  and  Taking 
of  Property  is  Su£S.cient.  (a)  Before  you  can  convict  the  defendant 
you  must  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
within  five  miles  of  the  Methodist  Church  house  located  in  Center,  in 
Cherokee  county,  Alabama,  and  within  twelve  months  before  the 
finding  of  this  indictment,  the  defendant  sold  or  gave  amay  vinous, 
spirituous  or  malt  liquors.  A  sale  of  personal  property  is  a  transfer 
of  the  same  for  a  price  paid  or  agreed  to  be  paid.  Words  need  not 
be  spoken  to  constitute  a  sale ;  it  may  be  inferred  from  the  conduct 
of  the  parties.  If  one  in  possession  of  personal  property  permits 
another  to  take  it,  with  the  mutual  understanding  it  is  to  be  paid 
for,  and  the  vendee  leaves  money  to  pay  for  it  where  the  vender 
may  get  it,  and  the  vender  afterwards  gets  the  money,  and  accepts  it 
in  payment  of  the  property,  such  a  transaction  would  be  a  sale, 
though  the  parties  may  not  have  said  a  word  about  it. 

(b)  That  they  must  ascertain  from  the  evidence  whether  the  wit- 
ness A.  got  the  whiskey  with  the  intention  of  paying  for  it  whether 
he  left  the  money  to  pay  for  it,  and  whether  the  defendant  after- 
wards got  the  money  and  accepted  it  for  the  whiskey.^* 

§  3203.  Keeping  or  Using  a  Place  for  the  Illegal  Sale  of  Intoxi- 
cants. The  state  claims  that  the  defendant  kept  or  used  the  base- 
ment or  cellar  under  their  restaurant,  and  kept  beer  therein  for  un- 
lawful purposes.  On  this  issue  the  burden  of  proof  is  upon  the 
state,  and,  in  order  to  convict  defendants  on  account  of  what  was 
kept  or  done  in  said  basement  or  cellar,  you  must  find  from  the 
evidence  and  beyond  reasonable  doubt  that  the  defendants  kept  or 
used  the  cellar  in  question,  and  that  intoxicating  liquor  was  kept 
therein  for  the  purpose  of  selling  unlawfully.  If  defendants  kept 
or  used  the  cellar  in  question,  and  beer  was  found  therein,  the  law 
would  presume  it  was  kept  there  unlawfully;  but  this  presumption 
might  be  overcome  by  evidence  showing  that  the  defendants  did  not 
keep  the  beer  in  the  cellar  unlawfully.  If  the  defendants  did  not 
keep  or  use  the  cellar  in  question,  and  had  no  control  of  it,  they 
would  not  be  responsible  for  what  was  kept  or  done  in  the  cellar; 
but,  if  they  kept  or  used  the  cellar,  they  would  have  no  right  to  per- 
mit any  other  person  to  keep  beer  therein  for  unlawful  purposes. ^^^ 

§  3204.  Making  a  Public  Resort  of  a  Dwelling  House  and  the 
Finding  of  Liquor  There  is  Presumptive  Evidence  of  Keeping  for 
Illegal  Sale.     If  you  find  from  the  evidence  that  the  dwelling  house 

23— Bame.s  v.  State.  19  Conn.  397.  instructed  the  jury  that  if  prohibl- 
24— Winter  v.    State,    132   Ala.   32,     tion    existed    in    the    territory    de- 

31  So.  717  (719).  scribed  in  the  indictment,  they  will 

In    Matkin.s  v.   State,  —  Tex.   Cr.      consider  the  defendant  guilty. 

App.  —  62  S.  W.  911  (912),  the  court        2.'^— State   v.    Stevens,   119  la.   675, 

94  N.   W.   241   (242>. 


g  8205,]  CRIMINAL—INTOXICATING  LIQUOR.  2047 

of  its  depgndeneies,  occupied  by  the  defendant  at  the  time  in  questioa 
was  a  place  of  public  resort,  or  a  place  which  was  resorted  to  by 
the  general  public,  then  the  finding  of  intoxicating  liquors  there  would 
be  presumptive  evidence  that  such  liquor  was  kept  or  held  for  sale 
contrary  to  law;  but  this  presumption  of  the  law  may  be  overcome 
by  other  evidence  appearing  in  the  case,  and,  unless  you  find  that  he 
kept  a  place  of  public  resort  this  presumption  would  not  arise  from 
the  fact  that  he  kept  liquors  there. -"^ 

§  3205.  Keeping  for  Sale  of  Liquors  in  a  Club  House  Without 
License,  (a)  The  jury  are  instructed  that  if  you  find  from  the  evi- 
dence beyond  a  reasonable  doubt  that  the  defendant  had  in  his 
possession  beer,  as  alleged  in  the  first  count,  and  whiskey  as  alleged 

in  the  second  count  on  or  about  the  17th  day  of  June, ,  and  that 

he  then  had  no  license  or  druggist's  permit  for  the  sale  thereof,  still 
if  you  believe  from  a  consideration  of  all  the  evidence  that  the  defend- 
ant is  the  alleged  keeper  of  liquors  for  sale,  as  charged  in  the  first 
and  second  counts  of  the  information,  was  merely  acting  as  a  steward 
or  clerk  of  a  private  club  which  had  purchased  and  owned  such 
liquors,  the  liquors  being  distributed  by  said  steward  or  clerk  only  to 
other  members  of  the  club  on  checks  or  coupons,  which  had  been  pur- 
chased by  them,  and  the  money  so  obtained  being  used  for  the  pur- 
pose of  paying  the  steward  or  clerk  for  his  services,  the  use  of  the 
room  to  which  the  members  of  the  club  and  their  guests  had  access 
and  where  the  liquors  were  kept,  and  other  expenses  of  the  club; 
and  if  you  further  believe  from  the  evidence  that  this  club  was 
organized  and  conducted  in  good  faith,  with  a  limited  and  select 
membership,  as  well  as  owning  its  property  in  common,  and  founded 
for  social,  literary,  artistic  or  other  purposes,  to  which  the  furnish- 
ment  of  liquor  was  merely  incidental — this  would  satisfactorily  ac- 
count for  and  explain  the  possession  of  such  liquors,  if  such  posses- 
sion is  proved,  and  you  should  find  the  defendant  not  guilty  on  the 
first  and  second  counts  of  the  information. 

(b)  But  if  you  believe  from  the  evidence  that  the  organization  of 
the  club  was  merely  to  provide  its  members  with  a  convenient  method 
of  obtaining  a  drink  whenever  they  desired  it,  or  if  the  form  of  the 
organization  was  no  more  than  a  pretense  or  device  to  enable  the 
proprietor  to  conduct  an  unlawful  traffic,  then  in  that  ease  he  could 
not  have  satisfactorily  accounted  for  the  possession  of  the  liquor  if 
such  possession  be  proved  in  manner  and  form  as  hereinbefore  ex- 
plained to  you,  and  you  should  find  him  guilty  on  the  first  and  second 
counts  of  the  information.^^ 

2&— State  V.   Fleming,  86  la.  294,  ingr  house,  and  when  he  does  so  the 

53  N.  W.  234   (236).  finding-  of  intoxicatinp:  liquors  there 

The  court  said:     "We  think  this  is  presumptive   evidence  that  they 

instruction  was  authorized  by  sec-  were  kept  for  illeg-al  sale." 
tion  8,  c.  66,  Acts  21st  Gen.  Assem.         27— Sothman  v.  State,  66  Neb.  302 

A    person    may    make    a    place    of  92  N.  W.  303  (305).  ' 

public  resort  of  his  private  dwell- 


2048 


FORMS  OF  INSTRUCTIONS. 


[§  3206. 


§  3206.  Opening  on  Prohibited  Days— Sales  in  Side  or  Rear  Rooms 
Unlawful.  If  a  saloon  is  kept  open  on  one  of  the  forbidden  days, 
for  any  purpose,  or  for  any  business,  or  for  any  length  of  time,  no 
matter  how  short,  it  will  be  a  violation  of  the  statute.  If  a  man, 
renting  an  entire  building,  and  occupying  it,  and  having  a  saloon  m 
one  room,  opening  into  another  room  next  back  of  it,  on  prohibited 
days,  as  Sunday,  admits  to  that  room  persons  who  call  to  get  beer 
and  persons  who  call  ostensibly  for  other  purposes,  and  he  deals  out 
beer  to  them  in  that  room,  I  care  not  what  he  calls  it — what  name  he 
gives  the  room^and  I  care  not  where  he  gets  his  liquor  from,  that 
room,  to  all  intents  and  purposes,  is  a  part  of  that  saloon.^^ 

§  3207.  Order  of  Lictuor  by  an  Agent  is  not  a  Sale.  The  court 
charges  the  jui-y  for  the  defendant,  that  if  you  believe  from  the 
evidence  that  the  witness  F,  got  the  defendant  to  order  him  the  whis- 
key from  a  dealer  in  S.,  and  delivered  it  to  him  under  such  order,  then 
the  defendant  is  not  guilty,  and  the  juiy  should  so  find.^^ 

§  3208.  What  Constitutes  Residence  District,  (a)  If  a  certain 
part  of  the  city,  large  or  small,  is  principally  and  chiefly  used  for 
residence  purposes,  families  residing  and  having  their  homes  therein, 
such  part  of  the  city  would  not  become  a  business  portion  of  the  city 
merely  because  a  grocery  or  other  business  was  here  and  there  carried 
on  therein.  The  decided  preponderance  of  residences  and  families 
residing  therein  determines  the  character  of  said  portion  of  the  eity.^'o 


2S— People  v.   Bowkus,  109  Mich. 
360,  67  N.  W.  319. 

"This  last  portion  of  the  charge 
■was  called  out  by  a  question  from 
the  jury  'whether  a  room  connected 
to  a  barroom,  and  used  as  a  private 
residence  room,  should  be  consid- 
ered as  a  part  of  the  saloon  under 
the  law?  The  latter  instruction  was 
correct.  Saloon  keepers  cannot 
evade  the  law  by  taking  liquors 
from  their  saloons  on  a  week  day  to 
a  room  adjoining  the  saloon,  and 
there  serve  it  upon  Sunday  with  or 
without  pay.  People  v.  Whipple, 
108  Mich.  587,  66  N.  W.  490.  Under 
the  rule  in  People  v.  Minter,  59 
Mich.  557,  26  N.  W.  701,  the  instruc- 
tion as  to  opening  on  forbidden 
days  may  have  been  too  strict,  al- 
though the  court  used  the  expres- 
sion 'kept  open,'  implying,  perhaps, 
a  different  condition  from  that  of 
simply  opening  the  door  and  enter- 
ing for  a  necessary  purpose.  But 
this  part  of  the  instruction  could 
not  have  prejudiced  the  respondent, 
because  he  admitted  serving  liquoi 
in  the  room." 

29_waddle  v.  State,  —  Miss.  — , 
24  So.  311. 

The  court  held  that  "the  refusal 
of  this  instruction  to  the  de- 
fendant   is    fatally    erroneous,    as 


shown  by  Johnson  v.  State,  63  Miss. 
228." 

30— Shea  v.    Muncie,  148  Ind.   14, 
46  N.  E.  138  (144). 

"If  that  is  not  a  correct  state- 
ment of  the  law  upon  the  subject, 
then  it  seems  to  us  that  there  is  no 
fair  way  of  determining  what  is 
meant  in  the  statute,  and  the  ordi- 
nance authorized  thereby  in  the  use 
of  the  words,  'residence  portion  of 
such  city.'  Does  one  family  groc- 
ery in  the  residence  portion  of  a 
city  convert  that  portion  into  what 
the  statute  means  by  the  words, 
'the  business  portion  of  such 
city?'  And  does  one  family  resi- 
dence in  the  business  portion  of  a 
city  convert  that  part  thereof  into 
a  residence  portion  or  such  city? 
Most  certainly  not.  Because,  if 
both  of  these  questions  may  be  an- 
swered in  the  affirmative,  then  It 
will  appear  that  in  very  rare  in- 
stances will  any  city  have  either  a 
business  portion  or  a  residence  por- 
tion thereof.  In  other  words,  all 
parts  of  all  cities  will  be  residence 
portions,  and  the  same  parts  will 
be  business  portions  thereof.  This 
makes  nonsense  out  of  the  lan- 
guage of  the  statute  and  the  ordi- 
nance. The  framers  of  the  statute 
and    of   the    ordinance    must    havo 


§  3209.]  CRIMINAIy— INTOXICATING  LIQUOR.  2049 

(b)  A  family  residence  in  a  dwelling  house  as  a  family  residence 
may  furnish  board  and  lodging  to  boarders  who  may  occupy  with  the 
family  a  part  of  such  residence,  and  such  use  for  a  dwelling  he  use 
will  no't  change  the  character  of  such  dwelling  froi  residence  t^-  a 
business  house. ^^ 

§  3209.  Illegal  Sale— Local  Option,  (a)  It  you  shall  believe 
from   the   evidence,  beyond  a  reasonable  doubt,  that  the  defendant, 

,  in  this  county  and  within  one  year  next  before  the  finding  of 

the  indictment  herein,  sold  directly  or  indirectly,  to  the  witness, 
J.  A.  v.,  spirituous,  vinous,  or  malt  liquors,  in  a  quantity  less  than 
five  gallons  at  the  time  mentioned  by  the  witness,  then  you  ought  to 
find  the  defendant  guilty  as  charged  in  the  indictment  herein  and  fix 
his  punishment  at  a  fine  of  not  less  than  $60  nor  more  than  $100, 
or  at  imprisonment  in  the  county  jail  not  less  than  10  nor  more  than 
40  days,  or  you  may  both  so  fine  and  imprison  the  defendant  within 
the  above  limits,  at  your  discretion,  according  to  the  proof.  And  if 
you  shall  believe  from  the  evidence  that  he  will  fail  to  pay  or  replevy 
said  fine,  you  may,  at  your  discretion,  say  that  he  be  placed  at  hard 
labor  on  some  public  road  or  street  in  the  county  at  the  rate  of  one 
day  for  each  one  dollar  of  the  fine  and  cost  and  likewise  for  the 
imprisonment,  if  any. 

(b)  Or,  if  you  shall  believe  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant  was  engaged  in  the  sale  of  liquor  at 
the  place  mentioned  in  evidence,  and  entered  into  any  scheme,  plan, 
device,  arrangement,  or  subterfuge,  in  evasion  of  the  local  option 
law,  whereby  he  sold  or  transferred  to  the  witness  liquor  mentioned 
in  the  evidence  for  the  pay  or  as  agent  for  another,  who  received  the 
pay,  within  12  months  before  the  date  of  the  indictment,  then  you 
ought  to  find  him  guilty  and  fix  his  punishment  as  provided  in  in- 
struction No.  1  above. ^2 

had    in    mind   the    common    under-  'business'  is  'constant  employment, 

standing-     of     the     import     of     the  regular  occupation;  as  the  business 

words    or    phrases    used,    'business  of    life;    business    before   pleasure.' 

iportion,'  and   'residence  portion,'  of  In  view   of  the  general   scope   and 

a  city.    And  that  idea  was  correct-  intent  of  the  statute  and  ordinance, 

ly  enough  expressed  in  the  instruc-  we  think  the  court   did  not  err  in 

tion  so  that  the  jury  could  appre-  telling  the  jury  that  keeping  board- 

hend  it."  ers   in   one's   residence  or  dwelling 

31 — Shea  v.  Muncie,  148  Ind.  14,  46  house   does   not   convert   the   same 

N.  E.  138  (144).  into  a  business  house." 

In   comment   the  court   said   that  32 — Day  v.  Commonwealth.  29  Ky. 

"Webster's   definition  of   the   word  L.  807,  814,  816,  96  S.  W.  508. 

129 


CHAPTER  CI. 
CRIMINAI^-LARCENY. 

See  Erroneous  Instructions,  same  chapter  head.  Vol.  III. 


§  3210.  Larceny  defined— Felonious 
intent  explained. 

§  3211.  Taking  must  be  with  felon- 
ious intent. 

5  3212.  Felonious  intent  —  Fraud  — 
Artifice— False  pretenses- 
Threats. 

§  3213.  Intent— Horse  stealing. 

§  3214.  Horse  stealing— What  neces- 
sary to  convict. 

§  3215.  Finding  lost  property  not 
larceny— Duty  to  search  or 
advertise   for   owner. 

§  3216.  Finding  lost  property,  intent 
to  convert — Concealng  the 
fact  of  finding. 

§  3217.  Elements  of  larceny — What 
is  necessary  to  prove. 

§  3218.  Value  must  be  proved. 

§  3219.  Rule  for  determining  the 
value  of  property. 

§  3220.  What  constitutes  taking  and 
carrying  away. 

§  3221.  Forcible  taking,  resistance 
necessary. 

§  3222.  Taking  property  so  suddenly 
from  the  person  as  not  to 
allow  time  for  resistance. 

§  3223.  Obtaining  property         by 

threats  to   do  great  bodily 
harm. 

§  3224.  Money  must  be  proved  to  be 
genuine. 

§  3225.  Ownership  in  an  unknown 
owner. 

§  3226.  Special   property  sufficient. 

§  3227.  Person  having  possession  of 
property  must  be  produced. 

§  3228.  Name  of  the  person  injured 
must  be  proved. 

§  3229.  Taking  under  a  mistaken 
claim   of  right. 

§  3230.  Larceny  of  estrays. 

§  3231.  Taking  up  estrays  by  con- 
sent in  good  faith — Subse- 
quent intent  to  wrongfully 
convert. 

§  3232.  Larceny  of  different  cattle, 
belonging  to  different  own- 
ers, at  the  same  time,  is 
one  offense. 
5  3233.  Placing  one's  brand  upon 
live  stock,  appropriating 
same. 


§  3234. 

§  3235. 

§  3236. 
§  3237. 
§  3238, 
§  3239. 
§  3240. 

§  3241. 

§  3242. 
§  3243. 

§  3244. 

§  3245. 

§  3246. 

§  3247. 
§  3248. 
§  3249. 

§  3250. 
§  3251. 


Turning  the  stolen  mare 
loose  and  returning  it  to 
owner  would  not  divest 
taking  of  its  felonious 
character. 

Stealing  of  certain  animals 
is  grand  larceny  and  jury 
cannot  find  defendant  guilty 
of  petit  larceny. 

Whether  petit  or  grand  lar- 
ceny. 

When  the  crime  of  larceny 
is    completed. 

Time  is  not  of  the  essence 
of  the  crime  of  larceny. 

Opening  a  trunk  left  in  de- 
fendant's custody. 

Appropriation  of  property 
under  a  bill  of  sale  and 
possession    thereunder. 

Obtaining  the  title  as  well  as 
the  possession  by  fraud  is 
not   larceny. 

Larceny — Fraud   defined. 

Inculpating  circumstances  to 
show   guilt — When. 

Recent  possession  unex- 
plained. 

Recent  possession  of  stolen 
goods  —  Satisfactory  ac- 
count   of   possession. 

Possession  of  stock  allowed 
to  run  at  large — Burden  of 
explaining  possession,  ex- 
ception. 

Possession  of  stolen  prop- 
erty not  with  the  defendant 
— Property  found  in  barn. 

Possession  of  stolen  prop- 
erty —  Defendant's  house 
used  jointly  with  others. 

On  the  charge  of  larceny, 
proof  of  defendant  having 
bought  the  stolen  property 
with  such  knowledge,  he 
must  be  acquitted  on 
charge  of  larceny. 

Possession  by  one  who  has 
no  claim — Subsequent  con- 
versation. 
Action  of  replevin  to  recover 
stolen  property  does  not 
relieve  from  the  charge  of 
larceny. 


2050 


§  3210.] 


CRIMINAL— LARCENY. 


2051 


3252.  Larceny — Reasonable     doubt 

— Burden  of  proof. 

BECEIVING   STOLEN   PROPERTY. 

3253.  Receiving     stolen     property, 

criminal   intent   must  exist 


at  the  very  instant  of  re- 
ceiving. 

§  3254.  Purchase  of  stolen  property, 
bona   fide   or  sham.  , 

§  3255.  Stolen  goods  left  at  a  man's 
house  without  his  knowl- 
edge. 


§  3210.  Larceny  Defined — Felonious  Intent  Explained,  (a)  Lar- 
ceny is  the  wrongful  and  unlawful  taking  and  carrying  or  leading 
away  of  a  thing,  without  claim  of  right,  made  in  good  faith  and 
without  the  owner's  consent,  with  the  intention  of  permanently  con- 
verting it  to  a  use  other  than  that  of  the  owner.^ 

(b)  Larceny  is  the  felonious  taking  of  the  property  of  another 
without  the  knowledge  or  consent  of  that  other,  and  with  the  intent 
of  the  party  taking,  at  the  time  of  the  taking,  to  permanently 
deprive  the  owner  thereof,  and  with  the  further  intent  at  said  times 
to  wholly  and  permanently  appropriate  it  to  the  use  of  the  party 
taking.^ 

(c)  Felonious  intent  means  without  the  color  of  right  in  taking, 
and  if  the  defendant  honestly  believed  at  the  time  of  the  taking  that 
he  had  a  right  to  take  the  cotton,  then  it  is  your  duty  to  acquit  him.^ 

§  3211.  Taking  must  be  with  Felonious  Intent,  (a)  The  court 
instructs  the  juiy,  that  eveiy  unlawful  taking  of  the  goods  and  chat- 
tels of  another,  without  his  knowledge  or  consent,  does  not  amount  to 
a  larceny;  to  make  it  such,  the  taking  must  be  such,  and  accom- 
panied by  such  circumstances,  as  show  a  felonious  intent,  that  is,  an 
intent  to  steal  the  property.* 

(b)  The  court  instructs  the  jury  that  every  unlawful  taking  and 
carrying  away  of  the  personal  goods  of  another  will  not  amount  to 
larceny;  to  constitute  larceny,  a  felonious  intent  must  be  shown  to 
have  accompanied  the  original  taking;  that  is,  the  goods  must  have 
been  taken  with  an  intent  to  steal  the  same.^ 

(c)  You  are  instructed  that  it  is  not  every  taking  and  carrying 
•away  of  the  property  of  another  that  will  constitute  a  larceny,  but  a 
felonious  intent  must  be  shown  to  have  accompanied  the  taking,  and 


1— Philamalee  v.  State,  58  Neb. 
320,  78  N.  TV.   625   (626). 

"In  this  instruction  the  court  told 
the  jury  that,  to  constitute  larceny, 
the  taking  must  not  only  have 
been  wrongful  and  unlawful,  but 
'without  a  claim  of  right,  made  in 
good  faith,  and  without  the  own- 
er's consent.'  This  definition  is 
clearly  within  the  rule  announced 
in  the  following  cases.  Thompson 
V.  People,  4  Neb.  524;  Mead  v. 
State,  25  Neb.  444,  41  N.  W.  277; 
Waidley  v.  State,  34  Neb.  250,  51 
N.  W.  830;  Barnes  v.  State,  40  Neb. 
545,  59  N.  W.  125;  Carrall  v.  State, 
53   Neb.   431,   73   N.   W.   939." 


2— State  v.  Minor,  107  la.  656,  77 
N.  W.   330  (331). 

"The  virtue  of  this  instruction," 
said  the  Sunreme  Court,  "is  in  ex- 
plaining to  the  jury  just  what  con- 
stitutes the  felonious  intent  in  tak- 
ing, without  employing  that  word 
in  doing  so.  See  Georgia  v.  Kep- 
ford,   45  la.   51." 

3— State  V.  Sims,  107  La.  188.  31 
So.  645. 

4 — Mason  v.  State,  32  Ark.  238; 
Hart  V.  State,  57  Ind.  102;  Com.  v. 
Hurd,  123  Mass.  438. 

5— State  V.  Wood,  46  la.  116; 
Humphrey  v.   State,  63  Ind.  223. 


2052  FORMS  OF  INSTRUCTIONS.  [§  3212. 

in  determining  such  intent  they  had  a  right  to  take  into  'consideration 
all  the  testimony  and  circumstances  bearing  upon  that  matter. ** 

§  3212.  Felonious  Intent  —  Fraud  —  Artifice  —  False  Pretenses  — 
Threats.  While  the  felonious  intent  may  be  found  from  a  secret 
taking,  it  may  be  found  from  an  open  taking,  provided,  for  instance, 
that  it  may  be  by  deception,  artifice  or  fraud.  If  the  title  to  the 
property  as  well  as  the  possession  of  the  property  be  obtained  by 
deception,  artifice,  or  fraud,  this  will  not  be  larceny,  because  the 
owner  parted  with  the  title  as  well  as  the  possession.  The  crime  may 
be  obtaining  goods  under  false  pretenses,  but  it  is  not  larceny.  If 
the  possession  of  property  of  another  to  which  the  taker  has  no 
claim  be  obtained  openly,  but  by  deception,  artifice,  or  fraud,  designed 
by  the  taker  to  secure  the  possession  of  the  goods  of  another  to  which 
he  has  no  claim,  and  no  honest  belief  in  such  a  claim,  and  they  be 
subsequently  converted  to  the  use  of  the  taker,  the  jury  would  be 
justified  in  finding  that  the  taking  was  with  felonious  intent,  and  the 
crime  of  larceny  committed.  *  *  *  Threats  which  will  be  re- 
garded as  effective  in  the  eye  of  the  law  to  cause  a  degree  of  fear 
depriving  the  owner  of  property  of  his  consent  to  its  taking  will  be 
threats  of  personal  violence — either  danger  to  life  or  great  bodily 
harm.  *  *  *  The  compulsion  of  the  payment  of  a  valid  claim, 
or  one  believed  to  be  valid,  by  threat  to  bring  civil  suit  and  attach, 
thus  causing  fear,  and  inducing  as  a  result  of  the  fear  the  payment 
of  the  money,  is  not  larceny.  The  compulsion  of  the  payment  of 
money  not  owed,  and  which  the  taker  knows  is  not  owed,  by  threats 
to  bring  civil  suit  and  attach,  causing  fear,  under  the  influence  of 
which  the  money  is  paid,  is  not  larceny.  The  threat  made  which 
induced  the  fear  which  caused  the  money  to  be  paid  must  be  a-,  threat 
which  it  was  apprehended  would  speedily  be  put  in  execution,  and, 
under  the  influence  of  a  fear  of  its  speedy  execution,  the  money  was 
paid  over.  The  money  must  have  been  paid  under  the  influence  of 
fear  of  great  bodily  harm  to  be  speedily  caused  by  the  taker.^ 

§  3213.  Intent — Horse-Stealing.  In  order  to  constitute  larceny, 
the  taking  must  be  with  the  intent,  at  the  time  of  such  taking,  to 
convert  permanently  to  his  own  use  thereof;  and  if  the  defendant  in 
this  ease  took  the  mare  in  question  for  the  purpose  of  riding  her 
home,   and  without   the   intention   of  retaining  the   said  mare,   and 

6— State  v.  Meldrum,  41  Ore.  380,  would    not    be    guilty    as    charged, 

70  Pac.  526.  and  should  be  acquitted,'  and  that 

In  State  v.   Sally,  41  Ore.  366,   70  it  was  incumbent  upon  the  state  to 

Pac.    396,    the   jury   was   instructed  establish  to  the  satisfaction  of  the 

that  the  intent  to  convert   the  ani-  jury,    beyond    a   reasonable   doubt, 

mal  to  his  own  use,  knowing-  that  it  that  the  defendant   took  the  same 

was  not  his,  is  the  gist  of  this  of-  with    felonious    intent,    and    unless 

fense.  such  facts  are  established  to  your 

The  court  said  that  if  defendant  satisfaction,    beyond    a    reasonable 

took     the     animal     "which     he      is  doubt,  you  will  find  the  defendant 

charged  with  stealing,  'honestly  be-  not  guilty." 

lieving.'and  had  reason  to  believe,  7 — State  v.  Kallaher,  70  Conn.  398, 

and  did  believe  it  to  be  the  prop-  39  Atl.   606  (608),   66  Am.   St.   116. 
erty    of    S.     then     the     defendant 


§  3214.]  CRIMINAL— LARCENY.  2053 

converting  her  permanently  to  his  own  use,  then  he  is  not  guilty  of 
larceny,  and  you  will  acquit  him.'* 

§  3214.  Horse  Stealing — What  Necessary  to  Convict,  (a)  In  or- 
der to  convict  in  this  case,  it  devolves  upon  the  state  to  show  and 
prove  by  the  evidence  beyond  a  reasonable  doubt  that  the  defendant, 
at  the  time  and  place  charged  in  the  indictment,  did  take,  steal,  and 
carry  away  the  mare  charged  in  the  indictment,  with  the  intent  to 
convert  said  mare  pennanently  to  his  own  use,  and  to  deprive  the 
owner  permanently  of  the  use  thereof,  and  that  at  the  time  of  such 
taking  the  mare  was  the  property  of  L.  W.  S.,  and  of  some  value; 
and,  unless  the  state  has  so  shown,  you  will  find  him  not  guilty.^ 

(b)     Gentlemen  of  the  jurj',  if  you  find  beyond  a  reasonable  doubt 

from  the  testimony  in  this  case  that  the  defendant, ,  at  the  time 

alleged  in  the  indictment,  or  about  that  time  within  three  years  next 
before  the  finding  of  the  indictment,  conspired  with  others  or  com- 
bined with  others  and  got  up  any  kind  of  a  writing,  an  order  or  affi- 
davit, and  presented  the  party  who  had  possession  of  this  horse, 
claiming  that  was  his  horse,  and  put  in  this  proof  that  it  was  his 
horse  and  by  means  of  the  papers  shown  by  the  defendant  that  T. 
went  to  the  field  and  brought  the  horse  up  to  him  and  he  put  a  rope 
around  the  hoi-se's  neck,  claiming  the  horse  was  his  own,  and  if  you 
find  he  did  this,  I  instruct  that  you  find  him  guilty  of  the  larceny  of 
the  horse. ^^ 

§  3215.  Finding  Lost  Property  Not  Larceny — Duty  to  Search  or 
Advertise  for  Owner,  (a)  The  jury  is  instructed  that  the  finder  of 
lost  property  is  not  bound  to  make  any  search  for  the  owner.  He  is 
under  no  legal  obligation  to  advertise  it  in  a  newspaper  or  to  search 
the  papers  to  see  if  the  loss  has  been  advertised.  And,  although  the 
jury  may  believe,  from  the  evidence,  that  the  said  A.  B.  lost  the 
property  mentioned  in  the  indictment,  and  that  the  defendant  found 
the  same,  and  afterwards  converted  it  to  his  own  use,  still,  if  you 
further  believe  from  the  evidence  that  at  the  time  he  so  found  it  there 
was  nothing  in  the  nature  of  the  property,  or  in  the  circumstances 
under  which  it  was  found,  to  indicate  to  the  defendant  who  the 
owner  was,  or  where  he  could  be  ascertained,  and  that  the  defendant, 
at  the  time  he  found  the  property  did  not  intend  to  steal  the  same, 
then  you  should  find  him  not  guilty  although  you  may  believe  that 
he  afterwards  purposely  concealed  the  fact  that  he  had  found  the 
property  and  converted  it  to  his  own  use.^^ 

(b)  The  law  is  that  if  a  man  finds  goods  that  are  actually  lost  or 
are  reasonably  supposed  by  him  to  have  been  lost,  and  he  appropriates 
them  to  his  own  use  with  intent  to  take  entire  dominion  over  them 

8— State  v.  Weber,  156  Mo.  249,  56  10— Georgre    v.    United    States,    — 

S.  W.  729.  Ind.    Ter.— ,    89   S.    W.    1122. 

9— State  v.  Weber,  156  Mo.  249,  56  11— Brooks   v.    State,    35    Ohio    St. 

S.  W.  729  (730).  46. 


2054  FORMS  OF  INSTRUCTIONS.  [§  3216. 

as  his  own,  this  is  not  larceny,  provided  he  believes,  and  has  good 
reason  to  believe,  that  the  oAvner  cannot  be  found. ^^ 

§  3216.  Finding  Lost  Property,  Intent  to  Convert — Concealing  the 
Fact  of  Finding,  (a)  The  court  instructs  the  juiy  that  it  is  not 
necessaiy  to  the  conviction  of  the  defendant  that  he  should  have 
known,  or  have  had  reason  to  believe  he  knew,  the  particular  person 
who  owned  the  property  at  the  time  of  the  alleged  finding;  or  that 
he  should  have  had  the  means  of  identifying  the  owner  immediately, 
at  that  time.  If  the  jury  believe  from  the  evidence  beyond  a  reason- 
able doubt  that  the  prosecuting  witness  A.  B.  was  the  owner  of  the 
property  described  in  the  indictment,  and  that  the  defendant  found 
the  same,  and  that  at  the  time  of  the  finding  he  had  reasonable  ground 
to  believe,  from  the  nature  of  the  property,  or  from  the  circumstance 
under  which  he  found  it,  that  if  he  did  not  conceal  the  fact  that  he 
had  found  it,  but  dealt  honestly  with  it,  the  owner  would  appear  or 
be  ascertained,  then,  if  he  pui'posely  concealed  the  fact  that  he  had 
found  the  property,  he  would  be  guilty  of  larceny;  provided,  the  jury 
further  believe  from  the  evidence  that  at  the  time  the  defendant  first 
took  the  property  into  his  possession  he  intended  to  convert  it  to  his 
own  use.i^ 

(b)  You  are  instructed,  first,  that  to  render  the  finder  of  lost 
property  guilty  of  larceny  in  appropriating  it  to  his  use,  it  is 
necessary  that  he  find  it  under  circumstances  which  give  him  knowl- 
edge or  means  of  inquiry  as  to  the  true  owner.  Second,  that  there 
must  exist,  on  the  part  of  the  finder,  both  the  belief  that  the  owner 
can  be  found  and  the  intent  to  deprive  him  of  his  property  at  the 
time  of  the  finding.^* 

§  3217.  Elements  of  Larceny — What  is  Necessary  to  Prove.  You 
are  further  instructed  that  before  you  can  find  the  defendants,  or 
either  of  them,  guilty,  the  Territory  must  prove  to  your  satisfaction, 
beyond  a  reasonable  doubt,  the  following  propositions :  First,  that 
the  property  charged  in  the  indictment,  or  some  part  of  the  same,  was 
taken;  second,  that  it  was  taken  either  by  fraud  or  stealth,  or  by 
both  fraud  and  stealth ;  third,  that  it  was  the  property  of  C.  H.  R. 
and  L.  W.  R.  or  one  of  them;  fourth,  that  it  was  taken  with  the 
felonious  intent  to  deprive  the  owners  thereof;  fifth,  that  the  de- 
fendants were  the  persons  who  took  the  property.^^ 

12— Baker   v.    State,    29    Ohio    St.  stealth,    or    by    fraud    and    stealth, 

184,    23    Am.    Rep.    731,    2    Am.    Cr.  was,   we  think,   correct.     If  it   was 

Rep.  337.  so  taken,   the  crime  as   defined   by 

13 — Brooks   v.    State,   35   Ohio   St.  the   statute    was     committed,     and 

46.  mig-ht  be  proved   under  the  indict- 

14 — State    V.    Hoshaw,    89    Minn,  ment   charging-  that   property    was 

307,  94  N.  W.  873.  taken    by   fraud    and    stealth.     The 

15 — Flohr    V.    Territory,    14    Okla.  indictment    could    not    charge    the 

477,  78  Pac.  565  (574).  crime  in  the  exact  language  of  the 

The  court  held  in  comment  that  statute,  to  wit,  that  it  was  taken 
this  charge  of  the  court,  "that  be-  by  fraud  or  stealth,  as  such  Ian- 
fore  the  jury  could  find  the  defend-  pruage  would  not  charge  that  it 
ants,  or  either  of  them,  guilty,  they  was  taken  in  either  manner.  We 
must  find  that  the  property  stolen  have  heretofore  sufficiently  noted 
■was    taken    either    by    fraud     or  this    distinction." 


§  3218.]  CRIMINAL— LARCENY.  2055 

§  3218.  Value  Must  be  Proved.  That  among  the  material  aver- 
ments contained  in  the  indictment  necessary  to  be  proved  in  order 
to  wari'ant  a  conviction,  is  the  one  that  the  property  alleged  to  have 
been  stolen  had  some  value,  and  if  the  prosecution  have  failed  to 
prove,  affii-matively,  some  value  to  said  property,  then  it  is  the  duty 
of  the  jury  to  acquit  the  accused.  A  simple  statement  of  counsel  as 
to  the  value  of  the  property  will  not  suffice;  it  must  be  proved  in 
some  of  the  ways  known  to  the  law,  or  the  verdict  should  be  not 
guilty.i« 

§  3219.  Eule  for  Determining  the  Value  of  Property,  (a)  The 
court  further  instructs  the  jury,  as  a  matter  of  law,  if  they  find  the 
defendant  guilty  of  the  larceny,  as  charged  in  the  indictment,  it  will 
then  be  their  duty  to  find,  from  the  evidence  in  the  ease,  the  value 
of  the  property  stolen,  and  to  state  such  value,  as  found  in  their 
verdict;  and  if,  after  a  careful  consideration  of  all  the  evidence  in 
the  case,  the  jury  have  a  reasonable  doubt  arising  from  all  the  evi- 
dence as  to  the  value  of  such  property  being  greater  than  twenty 
dollars  (Iowa),  it  will  be  their  duty  under  the  law  to  find  the  value 
to  be  twenty  dollars,  or  less,  as  shown  by  the  evidence.^^ 

(b)  If  you  find  the  defendant  guilty,  you  will  determine  by  your 
verdict,  under  the  evidence  and  these  instnictions,  the  value  of  the 
property,  or  what  it  was  worth  in  the  market. ^^ 

§  3220.  What  Constitutes  Taking  and  Carrying  Away.  To  con- 
stitute larceny  there  must  be  a  felonious  taking  and  carrying  away 
of  the  property  mentioned  in  the  indictment  or  some  part  of  it,  but 
it  is  not  necessary  that  the  property  should  be  carried  or  removed  to 
any  particular  distance  from  the  place  where  it  is  taken,  and  in  this 
case,  if  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  took  the  property  mentioned  in  the  indict- 
ment or  any  part  of  it  from  the  place  where  it  was  left  by  the 
owner  and  concealed  the  same  (in  the  same  room  or  building)  with 
intent  to  steal  the  property  so  taken,  this  would  be  a  sufficient  taking 
and  carrying  away  of  the  property  to  constitute  the  crime  of  larceny.^^ 

16 — State  v.  Krieger,  68  Mo.  98.  tablish  beyond  a  reasonable  doubt 

17 — state  V.  Wood,  46  la.  116;  each  material  averment  in  the  in- 
State  V.  McCarty,  34  N.  W.  606.  formation.  The  jury  therefore  were 

18_Ford  V.  State,  46  Neb.  390,  64  fully   informed    by   the   court   that 

N.  W.  1082  (1085).  the  value  of  the  property  must  be 

"By  this  instruction,  the  jury  establshed  beyond  a  reasonable 
were  told  to  fix  the  value  of  the  doubt.  Instructions  must  be  con- 
ring  in  case  a  verdict  of  guilty  was  strued  together,  and  if,  when  con- 
returned,  at  what  it  would  bring,  sidered  as  a  whole,  they  properly 
or  was  worth  in  the  market.  This  state  the  law,  it  is  sufficient.  St. 
doubtless  was  the  correct  rule.  It  Louis  v.  State,  8  Neb.  406,  1  N.  W. 
is  true  the  instruction  does  not  371;  Murphy  v.  State,  15  Neb.  383, 
state  whether  the  value  was  to  b©  19  N.  W.  489." 

determined  by  a  preponderance  of  19— Nutzel    v.    State,    60   Ga.   264; 

the  evidence,  or  beyond   a  reason-  State  v.  Green,  81  N.  C.  560. 

able  doubt;  but  this  point  was  cov-  "What  Constitutes  Asportation  of  a 

ered   by  the  second  instruction,  by  Horse, 

which  the  jury  were  told  that  the  If  you   find   from  the  testimony, 

burden  was  upon  the  state  to  es-  If  you  believe  from  the  testimony 


2056  FORMS  OF  INSTRUCTIONS.  [§3221. 

§  3221.  Forcible  Taking,  Resistance  Necessary,  (a)  Unless  you 
are  convinced  from  the  evidence  to  a  moral  certainty  and  beyond  any 
reasonable  doubt,  that  in  K.  County,  State  of  Washington,  during 

the  month  of  January,  ,  and  on  or  about  the  10th  day  of  said 

month,  defendants  forcibly  took  from  the  person  of  the  prosecuting 
witness.  A.,  at  least  some  of  the  lawful  money  of  the  United  States 
mentioned  in  the  information,  and  that  said  money,  if  such  there 
actually  was,  was  the  money  of  said  A.  and  that  defendants  then  and 
there  forcibly  took  the  same  with  the  intent  to  convert  the  same  to 
their  own  use,  against  the  will  of  said  A.  then  your  verdict  must  be 
for  defendants,  that  is,  not  guilty. 

(b)  If  the  jury  believe  from  the  evidence  that  there  was  no 
offense  in  this  cause  on  the  part  of  defendants  other  than  the  mere 
stealing  of  money  or  snatching  the  same  from  the  person  of  A.,  with- 
out resistance  on  his  part,  then  your  verdict  will  be  for  defendants. 
Unless  witness  A.  resisted  the  efforts  of  the  defendants  to  get  his 
money,  if  such  effort  there  was,  and  such  resistance  was  overcome 
by  force,  there  must  be  no  conviction  in  this  case.^" 

§  3222.  Taking  Property  so  Suddenly  From  the  Person  as  Not  to 
Allow  Time  for  Resistance.  The  theft  must  be  committed  without 
the  knowledge  of  the  person  from  whom  the  property  is  taken,  or  so 
suddenly  as  not  to  allow  time  to  make  resistance  before  the  property 
is  carried  away.  Now,  if  you  believe  from  the  evidence  in  this  case, 
beyond  a  reasonable  doubt,  that  defendant,  B.  M.,  ,  .  .  did  fx-aud- 
ulently  and  privately  take  from  the  person  and  possession  of  L.  R, 

that  witness  T.  voluntarily  went  horse  was  moved.  If  the  testimony 
and  got  the  horse  and  he  was  not  of  the  witnesses  was  that  he,  the 
induced  to  do  this  by  the  repre-  defendant,  led  the  horse  before  he 
sentation  of  the  defendant,  then  was  arrested,  if  you  believe  beyond 
his  going  and  getting  it  would  not  a  reasonable  doubt  that  this  is 
be  the  act  of  the  defendant  in  true,  that  is  a  sufficient  carrying 
going  and  getting  it.  Under  that  away  of  the  horse  to  satisfy  the 
state  of  facts  it  would  be  neces-  part  of  the  law  that  we  call  aspor- 
sary  for  the  defendant  to  take  tation,  regardless  of  going  after  the 
charge  of  the  horse  and  move  it,  horse  and  bringing  it.  Larceny, 
and  if  you  find  from  the  testimony  among  other  things  consists  of 
that  he  put  his  rope  on  the  horse  the  unlawful  taking  without  the 
and  led  him  one  step  that  would  consent  of  the  owner,  and  the  wit- 
satisfy  the  part  of  the  law  called  ness  T.  in  this  case,  knew  the  horse 
asportation.  If  T.  was  induced  to  did  not  belong  to  the  defendant, 
go  and  get  the  horse,  if  this  man  and  under  the  law  T.  was  bailee  of 
sent  T.  after  it  by  showing  the  the  owner  of  the  horse,  and  if  he 
papers  and  claiming  he  was  the  turned  the  horse  over  to  the  de- 
owner  of  it  and  T.  went  and  got  fendant,  at  the  time  not  believing 
the  horse  and  brought  it  to  him,  the  defendant  was  the  owner  of  the 
then  that  is  sufficient  asportation  horse  but  for  the  purpose  of  letting 
of  taking  and  carrying  the  horse,  the  posse  man  have  an  opportunity 
but,  if  the  evidence  does  not  satis-  to  arrest  the  defendant,  then  the 
fy  beyond  a  reasonable  doubt  that  defendant  would  not  be  guilty  of 
T.  was  so  induced  to  do  this  by  the  the  crime  of  larceny, 
representation  of  this  defendant  Approved  in  George  v.  T'^nit'^d 
and  the  producing  this  order  or  af-  States,  —  Ind.  Tcr.  — ,  89  S.  W. 
fidavit,    then    in    order    to    perfect  1122. 

the  larceny  it  would   be  necessary  20 — Stnte    v.    Johnson,    19    Wash, 

that   after  this   he,   the  defendant,  410,  53  Pac.  667  (668). 
took  charge   of  the  horse  and  the 


§  3223.]  CRIMINAL— LARCENY.  2057 

one  dollar,  described  in  the  indictment,  without  the  consent  of  the 
said  L.  R.,  and  so  suddenly  as  not  to  allow  time  'to  make  resistance 
before  the  property  was  carried  away,  with  the  intent,  etc.^^ 

§  3223.  Obtaining  Property  by  Threats  to  do  Great  Bodily  Harm. 
If  the  juiy  find  that  K.  secured  this  money  by  a  threat  to  bring  a 
civil  suit,  or  by  representations  that  the  papers  had  been  placed  in 
the  hands  of  the  sheriff,  and  this  was  the  only  threat,  no  matter 
whether  he  believed  in  his  claim  or  not,  he  should  be  acquitted.-^ 

§  3224.  Money  Must  be  Proved  to  be  Genuine.  The  jury  are  in- 
stmcted,  that  to  warrant  a  conviction  under  this  indictment,  the 
jury  must  believe,  from  the  evidence,  that  one  or  more  of  the  treasury 
notes,  bank  bills  or  other  money,  alleged  to  have  been  taken  by  the 
defendant,  was  a  genuine  bill  or  note ;  and  if  the  juiy  find  that  the 
people  have  failed  to  pi-oduce  any  proof  of  the  genuineness  of  such 
treasuiy  note,  bank  bill  or  other  money,  and  that  there  is  no  such 
evidence  before  the  jury,  then  the  juiy  should  find  the  defendant  not 
guilty.-3 

§  3225.  Ownership  in  an  Unknown  Owner.  The  court  charges 
you  that,  in  order  for  the  state  to  convict  under  the  count  alleging 
ownership  in  an  unknown  owner,  they  must  establish  and  prove  that 
some  specific  cattle  was  taken  from  the  possession  of  the  said  un- 
known owner.  It  is  not  sufficient  that  the  animal  found  in  the 
possession  of  the  defendant  was  unknown,  but  the  state  must  identify 
it  as  the  one  taken  out  of  the  possession  of  such  unknown  owner, 
and,  unless  it  does  so,  you  must  acquit  upon  said  first  count. ^^ 

§  3226.  Special  Property  Sufficient.  As  to  the  ownership  of  the 
property,  the  court  instructs  the  jury,  that  if  the  said  C.  D.  had  the 
actual  care,  custody  and  right  to  use  the  said  (horse),  and  was  in 
the  actual  possession  at  the  time  of  the  alleged  taking,  not  as  the 
agent  or  servant  of  the  real  owner,  this  would  be,  for  the  purposes 
of  this  trial,  sufficient  evidence  of  ownership  to  sustain  the  allegation 
in  the  indictment,  that  he  was  the  owner.^^ 

§  3227.  Person  Having  Possession  of  Property  Must  be  Produced. 
It  is  a  rule  of  law,  that  when  jaroperty  is,  by  the  ownei',  placed  in 

21 — Mathis   v.    State,   —  Tex.   Cr.  sion  of  an  issue  not  suggested  by 

App.  — ,  65  S.  W.  523,  citing  40  Tex.  tiie    evidence.      McLin    v.    State,    29 

316.   50  S.   W.   368;   State  v.   Ander-  Tex.  App.  171,  15  S.  W.  600. 

son,  59  S.  C.  229,  37  S.  E.  820  (821).  "But    the   offense    defined    by   the 

"The      charge,       properly      con-  statute  of  privately  stealing  is  the 

strued,"   said     the    court,     "simply  taking    of    property    so     suddenly 

authorized  the  conviction  upon  the  from    the   person   as   not    to   allow 

last  portion  of  subdivision  2  of  ar-  time  to  make  resistance  before  the 

tide    880,    Pen.    Code,    to    wit,    the  same  is  carried  away." 

jury  must  believe  that  the  private  22 — State    v.    Kallaher,    70    Conn, 

theft  consisted  of  taking  the  dollar  398,    39   Atl.    606,    66   Am.    St.    116. 

so  suddenly  as  not  to  allow  time  to  23 — Collins   v.    People,    39   111.    233. 

make  resistance  before  it  was  car-  24 — Melton   v.    State,   —  Tex.    Cr. 

ried  away.     Of  course,  if  the  prop-  App.   — ,    56   S.    W.    67. 

osltion  contended  for  by  defendant  25 — Crockett  v.  State,  5  Tex.  App. 

was  true,  according  to  the  facts  in  526. 
this  case,  it  would  be  the  submis- 


2058  FORMS  OF  INSTRUCTIONS.  [§  3228. 

the  care  and  custody  and  under  the  control  of  another,  and  such 
property  is  alleged  to  have  been  stolen  from  the  possession  of  such 
other  person,  then,  if  it  is  in  the  power  of  the  prosecution  to  produce 
the  person,  so  having  such  possession,  as  a  witness,  he  must  be 
produced,  in  order  to  show  that  the  property  was  not  taken  with  his 
consent;  and,  in  such  ease,  the  evidence  of  such  person  cannot  be 
supplied  by  other  proof,  nor  can  the  accused  be  convicted  without  it.^' 

§  3228.  Name  of  the  Person  Injured  Must  be  Proved,  (a)  The 
court  instructs  the  jury  that  it  is  essential  in  all  criminal  prosecu- 
tions, that  the  name  of  the  party  injured  should  be  proved,  as 
charged  in  the  indictment;  and,  if  the  proof  shows  in  this  ease,  that 
the  property  stolen  belonged  to  C.  B.  and  not  to  A.  B.,  as  charged 
in  the  indictment,  the  jury  must  acquit  the  defendant. 

(b)  It  is  necessary  for  the  prosecution  to  prove  the  ownership 
of  the  property,  as  alleged  in  the  indictment;  and,  unless  the  jury 
believe  from  the  evidence  that  the  said  A.  B.  was  the  owner  of  the 
(horse),  mentioned  in  the  indictment,  the  jury  must  find  the  de- 
fendant not  guilty.2'^ 

(e)  The  court  instructs  the  jury  that,  before  the  state  can  legally 
secure  the  conviction  of  defendant,  it  must  be  established  by  evi- 
dence satisfactory  to  the  jury,  beyond  a  reasonable  doubt,  that  the 
one  hog  alleged  to  have  been  stolen  was  the  property  of  X.  at  the 
time  it  was  taken,  if  it  was,  and  if  the  evidence  or  want  of  evidence 
raises  in  your  mind  a  reasonable  doubt  whether  or  not  said  one  hog 
described  in  the  indictment  belonged  to  X.  at  the  time  it  was  taken, 
if  it  was,  then  you  should  acquit  the  defendant.^^ 

§  3229.  Taking  Under  a  Mistaken  Claim  of  Right,  (a)  You  are 
instructed  that  if  this  defendant  took  this  horse  under  a  claim  of 
right,  and  you  find  a  fair  pretense  for  so  taking  said  horse,  it  is  your 
duty  to  acquit  this  defendant,  though  you  may  find  he  was  mistaken 
in  his  claim  to  said  horse.^^ 

(b)  The  jury  are  instructed,  that  although  they  may  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant  took  and 
carried  away  the  property  in  question,  as  charged  in  the  indictment, 

26 — State  v.   Osborne,  28  la.  9.  with    sufficient    certainty    in    other 

27 — McBride    v.    Com.,    13    Busli.  respects  to  identify  the  act  of  lar- 

(Ky.)  337;  Robinson  v.  State,  5  Tex.  ceny,    but    find    that    the    property 

App.  519.  taken   all   belonged   to   H.   R.   indi- 

28— Hull  v.  State,  —  Tex.  Cr.  App.  vidually,  or  that  some  of  the  prop- 

— ,  80  S.  W.  380.  erty  belonged  to  W.  R.  individual- 

In    Flohr   v.    Territory,    14    Okla.  ly,    or   that    some   of   the   property 

477.  78  Pac.  565  (573),  a  variance  be-  belonged  to  H.  R.  individually  and 

tween   the  allegation  of  ownership  some   of  it   to   H.     R.   and    W.    R. 

set  out   in  the   indictment  and   the  jointly,  then  the  variance  between 

proof    was    held    immaterial:  the  allegation  in  the  indictment  as 

The  court  instructs  the  jury  that  to   the   ownership   of   the   property 

the  indictments  in  this  case  charges  alleged  to  have  been  stolen  and  the 

the    property    which    is    alleged    to  ownership    as    shown    by    the    evi- 

have   been    stolen    as    belonging   to  dence  is  not  material. 

H.  R.  find  W.  R.     If  you  find  from  29— State    v.     Eubank,    33    Wash, 

the  evidence,   beyond  a  reasonable  293,   74  Pac.   378    (380). 
doubt,  that  the  offense  is  described 


§  3230.]  CRIMINAL— LARCENY.  2059 

still,  if  they  further  believe,  fi-om  the  evidence,  that  the  defendant 
took  the  property  under  a  claim  of  title  honestly  entertained,  then  he 
is  not  guilty  of  larceny;  and,  in  such  case,  it  makes  no  difference 
whether  he  did,  in  fact,  have  any  legal  right  to  the  possession  of  the 
property  or  not.^'' 

(c)  The  court  institicts  the  jury  that  if  the  evidence  fails  to  show 
that  defendant  believed  the  property  at  the  time  of  taking  was  not 
the  property  of  F.  L.  D.,  you  will  find  defendant  not  guilty.^^ 

(d)  You  are  instructed  that  if  you  believe  from  the  evidence  that 
the  defendant  really  and  bona  fide  believed  that  the  property  which 
he  is  charged  of  having  stolen  was  his,  or  that  he  had  a  right  to 
remove  same  at  the  time  of  such  taking,  then  your  verdict  will  be  for 
the  defendant;  and  it  makes  no  difference  whether  or  not  such  right 
did  in  fact  exist.^^ 

(e)  The  juiy  ai^e  instructed  that  if  they  believe  from  all  the  evi- 
dence   before    them,   beyond   a   reasonable   doubt,   that   the   one   hog 

described  in  the  indictment  belonged  to at  the  time  defendant 

took  it,  if  he  did,  and  if  they  further  believe  from  the  evidence  that 
at  the  time  defendant  took  said  animal,  if  he  did,  he  did  so  under  a 
claim  of  right,  and  that  he  honestly  believed  said  animal  belonged  to 
him,  and,  so  believing,  if  he  did,  took  said  animal  into  his  possession 
in  good  faith,  and  afterwards  brought  said  animal  to  K.  and  sold  it, 
then,  if  such  are  the  facts,  defendant  would  not  be  guilty  of  theft, 
and  you  should  acquit  the  defendant.^^ 

(f)  The  jury  are  instructed  that  no  man  can  commit  theft  of  his 
own  property,  and  if  you  should  find  that  T.  E.  R.  owned  the  animals 
charged  to  have  been  stolen,  or  if  you  find  that  he  believed  they 
were  his  at  the  time  he  took  them,  then  it  was  not  theft,  although  you 
may  believe  under  the  evidence,  that  they  were  not  his  in  fact ;  and 
if  you  have  a  reasonable  doubt  of  this  you  will  acquit  the  defendant.^* 

§  3230.  Larceny  of  Estrays.  (a)  If  the  jury  find,  from  the  evi- 
dence, bej'ond  a  reasonable  doubt,  that  the  animal  mentioned  in 
the  indictment  was  an  estray,  and  that  the  defendant  took  it  into 
his  possession,  or  found  it  running  with  his  stock  and  took  care  of 
and  fed  it  with  his  own  stock,  and  that  when  he  first  got  it  into 
has  possession  he  did  not  intend  to  steal  it  or  feloniously  convert  it 
to  his  own  use,  then  he  would  not  be  guilty  of  the  crime  of  larceny, 
although  you  may  find,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  he  afterwards  killed  the  animal  and  converted  it  to  his  own 
use,  with  intent  to  deprive  the  owner  of  it.^^ 

30— State  v.   Bond,  8  Clarke   (la.)  whether  or  not  he  believed  he  had 

540.  a    right    to    take    the    cattle,    they 

31 — Darnell   v.   State,  43   Tex.  Cr.  should    acquit. 

App.  86,  631  (632).  33— Hull    v.     State,    —     Tex.     Cr. 

32— Meerschat    v.    State,    —    Tex.  Apn.  — .  80  S.  W.  380. 

Cr.  App.  — ,  57  S.  W.  955.  34— Steed  v.  State,  43  Tex.  567,  67 

In    Reese    v.    State,    44    Tex.    Cr.  S.   W.   328   (331). 

App.    34,    68    S.    W.    283    (285),    the  35— Starch    v.    State,    63    Ind.    283; 

court    instructed    the   jury   that    if  Gripgs  v.  State,  58  Ala.  425,  29  Am. 

they  had  a  reasonable  doubt  as  to  Rep.   762  n. 


2060  FORMS  OF  INSTRUCTIONS.  [§  3231. 

(b)  If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  took  the  animal  mentioned  in  the  indict- 
ment into  his  possession  while  the  same  was  running  in  the  public 
highway,  and  that  at  the  time  he  so  took  the  animal  he  knew  it 
was  not  his  own,  and  that  he  intended  then  to  steal  and  convert  it 
to  his  own  use  and  to  deprive  the  owner  of  his  property,  whoever 
he  might  be,  and  that  in  pursuance  of  such  intention  he  afterwards 
killed  the  animal  and  converted  it  to  his  own  use,  this  would  amount 
to  the  crime  of  larceny;  provided,  you  find  all  the  other  allegations 
of  the  indictment  proved,  by  the  evidence,  beyond  a  reasonable 
doubt.^^ 

§  3231.  Taking  up  Estrays  by  Consent  in  Good  Faith — Subsequent 
Intent  to  Wrongfully  Convert,  The  jury  are  instructed  that  if  you 
believe  from  the  evidence  that  the  owners  of  the  mare  alleged  to 
have  been  stolen  authorized  the  defendant  to  take  her  up  and  hold 
her  for  them,  and  the  defendant  took  her  up  in  good  faith  for  that 
purpose,  and  held  her  for  the  owners,  he  is  not  guilty.  That  if  she 
was  taken  from  the  range  by  agi'eement  or  consent  of  the  owners, 
in  good  faith,  with  an  intent  to  return  her  to  them,  a  subsequently 
conceived  intention  by  defendant  to  wrongfully  convert  her  to  his 
own  use  would  not  constitute  larceny,  and  he  should  be  acquitted ; 
but,  if  he  took  her  with  a  felonious  intent  to  appropriate  her  to 
his  own  use,  he  would  not  be  guilty,  although  the  owners  may  have 
authorized  or  requested  him  to  take  her  up  for  him.^^ 

§  3232.  Larceny  of  Different  Cattle,  Belonging  to  Different  Own- 
ers, at  the  Same  Time,  is  One  Offense.  You  are  charged  that,  in 
order  to  sustain  said  plea,  you  must  be  satisfied  fi'om  the  evidence 
that  the  offense  for  which  defendant  was  formerly  convicted  was 
one  and  the  same  transaction,  and  occurred  at  one  and  the  same  time 
and  pLace,  as  the  offense  for  which  he  is  now  on  trial.  The  stealing 
of  different  cattle,  belonging  to  different  persons,  at  the  same  time 
and  place,  so  that  the  prosecution  is  the  same,  is  but  one  offense, 
etc.^** 

§  3233.  Placing  One's  Brand  Upon  Live  Stock,  Appropriating 
Same,  It  is  claimed  on  the  part  of  the  state  that  the  defendant  on 
or  about  that  date,  in  this  county  or  state,  took  this  property  and 
appropriated  it  to  his  own  use  by  fraud  or  stealth,  with  intent  to 
deprive  the  owner  thereof.  I  will  say  to  you  that  the  placing  of 
one's  brand  upon  property,  and  taking  the  property  into  his  posses- 
sion and  putting  it  into  his  pasture,  is  prima  facie  evidence  that  he 
intends  to  appropriate  it  and  has  appropriated  it.  So  the  question  for 
this  jury,  and  probably  the  main  question,  will  be,  who  was  the  owner 
of  this  colt?39 

36— Ptarr^h   v.    State.   63   Ind.    283;  38— Stevens  v.   State,   42  Tex.  Cr. 

State   V.    Martin,   28   Mo.   530;    Com.  Apr.    151.  58  S.  W.  96.  59  S.  W.  545. 

V.     Mason,    105    Mass.    163,    7    Am.  39  -State   v.   Bjelkstrom,  —  S.   D. 

Rep.   507.  — ,   104  N.  W.  481. 

37 — State    v.     Meldrum,    41     Ore.  "It  is  insisted  on  the  part  of  the 

380,  70  Pac.  526  (528).  accused  that  this  instruction  in  ef- 


§  3234.]  CRIMINAL—LARCENY.  2061 

§  3234.  Turning  the  Stolen  Mare  Loose  and  Returning  it  to  Owner 
Would  Not  Divest  Taking  of  its  Felonious  Character,  (a)  The  court 
instructs  the  jury  that  if  you  believe  and  hnd  from  the  evidence  that 
the  defendant,  at  and  in  the  county  of  Dent,  and  state  of  Missouri, 

in  the  month   of  ,  19—,  did  willfully  and  feloniously ^  steal, 

take,  and  carry  away  one  bay  mare,  the  same  charged  in  the  indict- 
ment, with  the  intent  at  the  time  to  convert  the  said  mare  perma- 
nently to  his  own  use,  and  to  deprive  the  owner  permanently  of  the 
use  thereof;  and  if  you  further  believe  and  find  from  the  evidence 
that  at  the  time  of  such  taking,  if  you  find  it  was  so  taken,  the  said 
mare  was  the  property  of  W.,  and  of  any  value  whatever— you  will 
find  him  gnilty  of  grand  larceny,  and  assess  his  punishment  at  im- 
prisonment in  the  state  penitentiary  for  a  tenn  not  less  than  two  nor 
more  than  seven  years. 

(b)  If  you  believe  and  find  from  the  evidence  that  the  defendant 
took  the  mare  at  the  time  and  place  charged  in  the  indictment,  with 
the  intent  at  the  time  of  such  taking  to  convert  her  permanently  to 
his  own  use,  and  to  deprive  the  owner  pennanently  of  the  use 
thereof,  and  that  the  said  mare  was  the  property  of  W.  and  of  some 
value,  then  the  fact  that  the  defendant  turned  the  said  mare  loose 
would  not  divest  such  taking  of  its  felonious  character,  but  in  such 
case  he  would  be  guilty  of  larceny,  notwithstanding  that  he  turned 
the  said  mare  loose,  and  it  was  returned  to  the  owner.*" 

§  3235.  Stealing  of  Certain  Animals  is  Grand  Larceny  and  Jury 
Cannot  Find  Defendant  Guilty  of  Petit  Larceny.  It  will  be 
noticed  from  the  definition  of  grand  larceny  that  everj'  felonious 
stealing,  taking  and  driving  away  of  cows,  steers,  bulls  and  calves  is 
grand  larceny,  regardless  of  the  value  of  the  property  taken;  and 
in  this  case  as  there  is  no  evidence  of  anything  other  than  calves, 
cows,  steers  and  bulls  having  been  taken,  you  would  not  be  at  liberty 
to  find  the  defendant  guilty  of  petit  larceny,  but  your  verdict  must 
be  guilty  of  grand  larceny,  if  you  should  believe  from  the  evidence 
beyond  a  reasonable  doubt,  and  to  a  moral  certainty,  that  the  de- 
fendant, as  charged  in  the  infonnation  did  steal  feloniously,  a  cow, 
steer  bull  or  calf,  or  if  you  should  upon  this  proposition  have  a 
reasonable  doubt  of  the  guilt  of  the  defendant,  your  verdict  should 
be  not  guilty." 

§  3236.  Whether  Petit  or  Grand  Larceny.  Under  our  statute  there 
are  two  degrees  of  larceny,  namely,  grand  larceny  and  petit  larceny, 

f^r,+  tr>r,ir  from  the  1urv  the  ques-  neous;  but,  read  in  connection  with 

tfon  of  Sitent  and  the  question  of  other  portions  of  the  charge  siibse- 

StakeJnThe  part  of  the  accused,  quently    given    to    the    jury,    it    is 

^nd   thereby   invaded   the  province  clear  that  this  apparent  error  could 

of^^thrSry."^  Tne  latter  part  of  in-  not  ha^;e  in  any  manner  prejudiced 


2062  FORMS  OF  INSTRUCTIONS.  [§  3237. 

and  within  the  charge  contained  in  the  indictment  in  this  case  is 
included  the  lesser  degree  of  petit  larceny.  If  you  find  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  did  take,  steal, 
and  carry  away  the  property  described  in  the  indictment,  with  the 
intent  to  deprive  the  owner  thereof,  and  you  further  find,  beyond  a 
reasonable  doubt,  that  the  value  of  the  property  was  more  than  $20, 
then  you  should  find  the  defendant  guilty  of  gi-ahd  larceny  as  charged 
in  the  indictment.  But,  if  you  should  find  that  the  defendant  did  take, 
steal,  and  cany  away  the  property  charged  in  the  indictment,  with 
the  intent  to  deprive  the  owner  thereof,  and  the  evidence  fails  to 
show  beyond  a  reasonable  doubt  that  the  value  of  the  property  was 
more  than  $20,  then  you  can  only  find  the  defendant  guilty  of  petit 
larceny.^2 

§  3237.  When  the  Crime  of  Larceny  is  Completed.  If  the  offense 
of  theft  was  committed  as  alleged,  the  offense  was  complete  at  the 
time  the  hog  was  taken  in  its  accustomed  range,  if  it  was  so  taken; 
and  if  defendant  was  guilty  as  principal,  as  above  defined,  in  the 
original  taking,  under  the  circumstances  making  it  theft,  he  would 
not  be  relieved  from  punishment  by  reason  of  his  failure  to  aid  in 
bringing  the  hog  to  the  town  of  Crockett  after  such  taking,  if  any.^^ 

§  3238.  Time  is  Not  of  the  Essence  of  the  Crime  of  Larceny.  Time 
is  not  what  we  term  of  the  essence  of  a  crime  when  a  theft  or  other 
criminal  offense  is  said  to  have  been  committed  at  a  certain  time. 
The  gist  of  the  charge  does  not  consist  in  proving  that  it  was  done 
at  the  exact  time  laid  in  the  indictment.  The  gist  is  whether  or  not 
the  crime  as  alleged  was  committed,  and,  if  the  state  proves  that  it 
was  committed  at  any  time — the  particular  charge  contained  in  the 
indictment  prior  to  the  finding  of  the  true  bill — that  would  be  suffi- 
cient; but  the  state  must  prove  the  charge  as  contained  in  the  indict- 
ment. It  is  not  necessary,  and  the  state  is  not  required,  to  prove  the 
exact  time  laid  in  the  indictment ;  but,  still,  it  must  prove  that 
substantial  charge  as  having  been  committed  at  some  date,  certainly 
before  the  finding  of  the  true  bill.** 

§  3239.  Opening  a  Trunk  Left  in  Defendants'  Custody.  You  are 
further  instructed  that  if  you  find  from  the  evidence  that  R.  went 
to  the  house  of  the  defendants  dui'ing  the  month  of ,  19 — , 

42— Blair  v.  Territory,  15  Okla.  549,  state  all  of  the  law  of  the  case  in 

82   Pac.   653   (654).  one   instruction,   and   where   an   in- 

"This  charge  fully  covered  the  struction  given  simply  omits  a 
omission  in  the  otl.  2r,  and  when  proposition  Avhich  it  should  contain, 
taken  together  are  not  open  to  ob-  and  that  proposition  is  clearly  and 
jection.  Counsel  cite  in  support  of  specifically  set  out  in  another  in- 
their  objection  several  cases  which  struction,  and  together  they  em- 
hold  that  the  giving  of  an  erron-  brace  the  law  applicable  to  the 
eous  instruction  is  not  cured  by  case  and  do  not  conflict,  we  can  see 
giving  another  which  correctly  no  cause  for  complaint." 
states  the  law.  We  concede  the  43 — Newberry  v.  State,  —  Tex. 
correctness  of  that  proposition  but  Cr.  App.  — ,  74  S.  W.  774  (776). 
this  case  does  not  fall  within  that  44— Rtnte  v.  Reynolds,  48  S.  C. 
rule.     A   court   is   not   required   to  384,  26  S.   E.   679. 


§  3240.]  CRIMINAL— LARCENY.  2063 

taking  with  them  a  part  of  the  property  described  in  the  iadict- 
ment,  and  when  they  left  the  premises  of  the  defendants  that  they 
left  such  property  in  their  trunks,  and  in  the  care  and  custody  of  the 
defendants,  and  you  further  find  from  the  evidence  that,  after  R.  and 
his  wife  had  left  the  place  of  the  defendants,  that  the  defendants,  or 
either  of  them,  opened  the  trunk  so  left  in  their  care  and  custody, 
and  took  the  property  therefrom  with  the  felonious  intent  to  deprive 
the  owners  thereof,  then  the  defendants,  or  one  of  them,  that  took 
such  property  under  the  circumstances  above  stated,  is  guilty  of 
larceny,  and  you  should  so  find.*^ 

§  3240.  Appropriation  of  Property  Under  a  Bill  of  Sale  and  Pos- 
session Thereunder.  You  are  instructed  that  if  you  believe  that  to 
secure  a  debt  there  was  made  and  executed  to  the  defendant  a  bill 
of  sale  of  the  drug  stock  and  the  fixtures,  and  that  the  key  to  the 
drug  store  wherein  such  property  was,  was  turned  over  to  the  de- 
fendants, or  either  of  them,  because  of  their  having  such  bill  of  sale 
as  security  for  their  claim,  and  in  order  to  place  them  in  possession 
of  the  property  upon  which  they  had  the  bill  of  sale,  and  in  order 
to  give  them  possession  under  their  lien,  then  in  such  a  case  the 
defendants  could  not  be  found  guilty  of  larceny  for  the  misappro- 
priation of  property  coming  into  their  hands  under  such  circum- 
stances.''^ 

§  3241.  Obtaining  the  Title  as  Well  as  the  Possession  by  Fraud  is 
Not  Larceny.  The  court  instructs  you  that  if  the  title  to  the  prop- 
erty, as  well  as  the  possession  of  the  property,  be  obtained  by  decep- 
tion, artifice,  or  fraud,  this  will  not  be  larceny,  because  the  owner 
parted  with  the  title  as  well  as  the  possession.  The  crime  may  be 
obtaining  goods  under  false  pretenses,  but  it  is  not  larceny.*'' 

§  3242.  Larceny — Fraud  Defined.  Fraud  within  the  meaning  of 
the  statute  on  larceny,  is  the  getting  possession  of  property  by 
means  of  falsehood,  deception  or  artifice.  The  meaning  of  the  word 
"stealth,"  as  applied  to  larceny,  is  the  taking  of  property  secretly 
and  without  the  knowledge  or  consent  of  the  owner.*** 

§  3243.  Inculpating  Circumstances  to  Show  Guilt — When.  But  if 
you  believe  from  the  evidence  in  this  case,  and  find  there  was  any 
evidence  upon  that  question,  that  the  defendant,  without  any  infor- 
mation from  any  one  else,  pointed  out  the  places  where  the  tools 
were  found,  and  they  were  the  tools  that  were  used  in  wrecking  the 
train,  that  would  be  an  inculpating  circumstance  that  you  might 
consider  in  this  case  with  reference  to  his  guilt,  in  connection  with 
other  evidence.*^ 

§  3244.  Recent  Possession  Unexplained,  (a)  The  jury  are  in- 
structed  that   the   possession  of  stolen  property  recently  after  the 

45_Flohr    v.    Territory,    14  Okla,     398.  39  Atl.  606  (610).  66  Am.  St.  116. 
477,    78    Pac.    565    (575).  48— Flohr    v.    Territory.    14    Okla. 

46_Flohr   v.    Territory,    14  Okla.     477.   78   Pac.   565    (573). 
477    78    Pac.    565    (574).  4*— Shaw  v.  State,  102  Ga,  660,  29 

47— State   v.    Kallaher,    70  Conn.     S.  E.  477  (478). 


2064  FORMS  OF  INSTRUCTIONS.  [§  3244. 

larceny  thereof,  when  unexplained,  may  be  sufficient  to  warrant  the 
jui-y  in  inferring  the  guilt  of  the  party  in  whose  possession  it  is 
found.  Whether  such  inference  should  be  drawn  is  a  fact  exclu- 
sively for  the  jury.^** 

(b)  It  is  a  rule  of  law,  that  recent  possession  of  stolen  property 
unexplained  is  a  circumstance  tending  to  show  that  the  possessor  was 
the  thief.^i 

(e)  The  court  instructs  the  jury,  that  the  possession  of  stolen 
property  recently  after  the  theft  by  the  person  charged,  if  unex- 
plained, is  a  circumstance  tending  to  prove  his  guilt;  and  if  the  jury 
believe,  from  the  evidence,  that  the  defendant  was  found  with  the 
stolen  property  in  his  possession,  then,  in  determining  the  weight  to 
be  attached  to  that  circumstance,  as  tending  to  prove  guilt,  the 
jury  shall  consider  all  the  circumstances  attending  such  possession — 
the  proximity  of  the  place  where  found  to  the  place  of  the  larceny; 
the  lapse  of  time  since  the  property  was  taken ;  whether  the  property 
was  concealed;  whether  the  party  admitted  or  denied  the  possession; 
the  demeanor  and  character  of  the  accused;  whether  other  persons 
had  access  to  the  place  where  the  property  was  found.  All  these 
circumstances,  so  far  as  they  have  been  proved,  are  proper  to  be 
taken  into  account  by  the  jury  in  determining  how  far  the  possession 
of  the  property  by  the  accused,  if  it  has  been  proved,  tends  to  show 
his  guilt. ^- 

(d)  The  court  instructs  the  jury,  that  the  possession  of  recently 
stolen  property  is  usually  regarded,  in  law,  as  a  criminating  circum- 
stance, strongly  tending  to  show  that  the  possessor  stole  the  property, 
unless  the  facts  and  circumstances  surrounding  or  connected  with 
such  possession,  or  other  evidence,  explains  or  shows  such  possession 
might  have  been  acquired  honestly.  Possession  of  stolen  property, 
immediately  after  the  theft,  is  sufficient  to  warrant  a  conviction, 
unless  attending  circumstances,  or  other  evidence,  so  far  overcomes 
the  presumption  thus  raised  as  to  create  a  reasonable  doubt  of  the 
prisoner's  guilt,  when  an  acquittal  should  follow.^^ 

(e)  In  this  case,  if  the  jury  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  property  described  in  the  indictment 
was  stolen,  and  that  the  defendant  was  found  in  the  possession  of 
the  property  soon  after  it  was  stolen,  then  such  possession  is,  in  law, 
a  strong  criminating  circumstance,  tending  to  show  the  guilt  of  the 
defendant,  unless  the  evidence,  and  the  facts  and  circumstances 
proved,  show  that  he  may  have  come  honestly  in  possession  of  the 
same.''* 

50— Palmer  v.   State,  70  Neb.  136,  53— Sahlinffer   v.    People,    102    111 

97  N.  W.  235.  241;    Fowle    v.    State,    47    Wis.    545; 

51— Smith  v.  State,  103  Ala.  40,  16  State     v.     Pennyman,     68     la.     216; 

So.  12  (13).  John.son  v.  Miller.  29  N.  W.  743. 

52— Conkwright   v.   People,   35   III.  54— Smith    v.    State,    58    Ind.    340; 

204;   State  v.    Hodge,  50  N.  H.  510,  Watkins  v.  State,  2  Tex.  App.  73. 
9  Am.  Rep.  288. 


§3245.] 


CRIMINAL— LARCENY. 


2065 


§  3245.  Recent  Possession  of  Stolen  Goods— Satisfactory  Account 
of  Possession.  The  court  charges  you  that,  while  the  recent  pos- 
session of  stolen  property,  if  unexplained,  is  a  circumstance  tending 
to  show  the  guilt  of  the  prisoner,  yet,  if  the  jury  believed  from  the 
evidence  that  the  defendant  came  honestly  into  the  possession  of  the 
property,  or  that  it  is  unconnected  with  any  suspicious  circumstance 
of  guilt,  this  would  be  a  satisfactory  account  of  his  possession,  and 
would  remove  every  presumption  of  guilt  growing  out  of  the  same.^' 

§  3246.  Possession  of  Stock  Allowed  to  Run  at  Large— Burden  of 
Explaining  Possession,  Exception.  If  you  find  from  the  evidence  that 
X.  was  the  owner  of  the  gelding  described  in  the  information,  and 
that  said  gelding  was  permitted  to  run  on  the  range,  proof  of  the 
further  fact  that  said  gelding  was  shortly  thereafter  in  'the  possession 
of  the  defendant  is  sufficient  to  put  upon  defendant  the  burden  of 
explaining  such  possession.  The  presumption,  if  any,  arising  from 
such  fact  of  possession  of  range  stock,  if  you  find  such  fact  from 
the  evidence,  is  one  of  fact  only,  and  is  rebuttable,  and  such  presump- 
tion is  overcome  whenever  a  reasonable  explanation  is  made  or 
arises  from  the  evidence;  that  is,  an  explanation  which  you  deem 
reasonable,  considering  all  the  facts  and  circumstances  of  the  case, 
is  given,  and  is  not  shown  to  be  untrue.^*^ 


55— State  v.  Sally.  41  Ore.  366.  70 
Pac.  396  (397). 

"The  presumption  arising  from 
the  possession  of  stolen  property  is 
one  of  fact,  and  not  of  law.  It  is  a 
circumstance  in  the  case  from 
which  the  jury  may  infer  guilt,  but 
no  legal  presumption  of  guilt 
arises  therefrom.  State  v.  Hale,  12 
Ore.  352,  7  Pac.  523.  The  weight  and 
value  of  such  testimony  are  ex- 
clusively for  the  jury,  and  it  may 
well  be  questioned  whether  the 
court,  in  instructing  them  as  to 
what  would  overcome  the  pre- 
sumption, did  not  invade  their 
province.  State  v.  Maloney,  27  Ore. 
53,  39  Pac.  398.  But  if  so,  it  was  an 
error  favorable  to  the  defendant, 
of  which  he  cannot  complain." 

Jones  V.  People,  12  111.  259,  is  au- 
thority for  a  nearly  identical  in- 
struction, given  in  the  second  edi- 
tion:    It  is   as  follows: 

The  court  instructs  the  jury,  that 
while  possession  of  stolen  property 
recently  after  the  theft,  if  unex- 
plained, is  a  circumstance  tendnig 
to  show  the  guilt  of  the  possessor, 
still,  in  this  case,  if  the  jury  be- 
lieve, from  the  evidence,  that  the 
defendant  bought  the  property  m 
question  at,  etc.,  openly  and  pub- 
licly, and  unconnected  with  any 
suspicious  circumstances  of  guilt, 
this  is  a  satisfactory  account  of  his 
130 


possession  of  the  property,  and  re- 
moves every  presumption  of  guilt 
growing    out   of    such   possession. 

56— State  v.  Eubank,  33  Wash. 
293,    74    Pac.    378. 

"By  the  instruction  in  this  case 
the  burden  of  explaining  posses- 
sion is  placed  upon  the  defendant. 
The  instruction,  upon  its  face,  ap- 
parently conflicts  with  the  rule  an- 
nounced by  this  court  in  State  v. 
Walters,  7  Wash.  246,  34  Pac.  938, 
1008. 

"An  instruction  in  that  case  con- 
tained the  following:  'In  this  case, 
if  the  jury  believe  from  the  evi- 
dence beyond  a  reasonable  doubt 
that  the  property  described  in  the 
information  was  stolen,  and  that 
the  defendant  wr.s  found  in  posses- 
sion of  the  property  soon  after  it 
was  stolen,  then  said  possession  is 
in  law  a  criminating  circumstance 
tending  to  show  the  guilt  of  the 
defendant,  unless  the  evidence  and 
the  facts  and  circumstances  proved 
show  that  he  may  have  come  hon- 
estly in  possession  of  it.  The  in- 
struction was  held  to  be  erroneous 
on  the  theory  that  possession  of 
recently  stolen  property  is  only  a 
circumstance  to  be  considered  by 
the  jury  in  connection  with  all 
other  evidence  in  a  given  case.  In 
State  V.  Bliss,  27  Wash.  463.  6S  Pac. 
87,  the  respondent's  counsel    urged 


2066 


FORMS  OF  INSTRUCTIONS. 


[§  3247. 


§  3247.  Possession  of  Stolen  Property  Not  With  the  Defendant- 
Property  Found  in  Barn,  (a)  The  court  instructs  the  jui-y  that  the 
defendant  denies  the  charge  made  by  the  state.  He  insists,  in  the 
first  place,  that  the  evidence  submitted  by  the  state  is  not  suflficient 
to  authorize  a  conviction  in  this  case.  He  insists  that  if  it  is  true 
that  a  burglary  was  committed,  and  the  harness — the  property  de- 
scribed in  the  bill  of  indictment — was  stolen,  and  if  that  property 
was  subsequently  found  in  the  barn  loft,  that  this  evidence  does  not 
show  beyond  a  reasonable  doubt  that  the  house  was  his,  or  was  in 
his  control.  He  insists  that  the  property  was  in  the  custody  and 
control  of  another;  therefore  the  state  has  not  put  the  possession 
on  him,  and  the  evidence  does  not  authorize  a  eonvietion.^'^ 

(b)  In  this  case  there  is  no  evidence  that  the  lot  on  which  the 
bag  of  money  is  said  to  have  been  found  was  at  any  time  in  the  actual 
or  eonstnictive  possession  of  the  defendant,  and,  therefore,  if  the 
juiy  believe  that  the  money  so  found  was  the  property  of  X.,  no  pre- 
sumption of  defendant's  guilt  is  raised  thereby,  as  the  defendant  had 
no  dominion  or  control  over  said  premises  and  the  alleged  finding  of 
said  money  on  said  lot  is  not  a  circumstance  against  the  defendant  in 
this  case.^^ 


this  court  to  overrule  State  v. 
Walters,  supra,  in  the  above-men- 
tioned particular,  but  we  declined 
to  do  so,  and  approved  the  holding 
in  the  former  case  as  the  estab- 
lished doctrine  of  this  court.  The 
instruction  in  the  case  at  bar,  how- 
ever, given  under  the  authority  of 
section  7114,  2  Ballinger's  Ann. 
Codes  &  St.,  which  is  as  follows: 
'In  all  prosecutions  for  larceny  un- 
der the  last  preceding  section, 
where  the  animal  alleged  to  have 
been  stolen  was  permitted  by  its 
owner  to  run  on  the  range,  proof 
of  possession  of  the  animal  by  the 
person  accused  of  stealing  the 
same  shall  be  prima  facie  evidence 
that  the  accused  acquired  posses- 
sion thereof  recently,  and  shall 
have  the  effect  of  throwing  on 
the  accused  person  the  burden  of 
explaining  such  possession.'  The 
previous  section  referred  to  in  the 
above  quoted  one  relates  to  the 
larceny  of  animals,  and  it  will  be 
seen  that  the  quoted  section  ex- 
pressly provides  that,  when  the 
animal  alleged  to  have  been  stolen 
was  permitted  by  its  owner  'to  run 
on  the  range,'  proof  of  possession 
by  the  accused  shall  be  prima  facie 
evidence  that  it  was  acquired  re- 
cently, and  shall  throw  the  bur- 
den of  explaining  it  upon  the  ac- 
cused. The  statute  therefore  de- 
clares an  exception  to  the  general 
rule   adopted   by  this  court  in   or- 


dinary larceny  cases,  the  exception 
being  restricted  to  the  larceny  of 
animals  permitted  to  run  upon  the 
range.  "The  statute  was  passed  in 
1895,  and  State  v.  Walters  was  de- 
cided prior  to  this  statute.  That 
case  involved  the  larceny  of  a 
horse,  but  the  opinion  does  not  dis- 
close whether  it  was  a  range  ani- 
mal or  not.  State  v.  Bliss,  supra, 
however,  involved  another  class  of 
property,  and  we  have  made  the 
above  observations  in  order  to 
make  it  clear  that  while  we  ad- 
here to  the  general  rule  rean- 
nounced  in  that  case,  we  at  the 
same  time  recognize  the  exception 
made  by  the  statute  cited.  We 
have  already  said  in  State  v.  Bliss 
that  the  general  rule  adopted  is 
supported  by  eminent  authority, 
and  we  now  see  no  reason  for 
changing  it,  unless  it  shall  be  done 
by  the  Legislature,  as  in  the  case 
of  the  exception  herein  discussed. 
The  instruction  in  the  case  at  bar 
came  within  the  exception,  and  is 
therefore  not  erroneous." 

57— Moncrief  V.  State,  99  Ga.  295, 
25   S    E    735. 

58— State  v.  Austin,  129  N.  C.  534, 
40  S.  E.  4. 

The  court  said  that  the  instruc- 
tion as  asked  was  given,  except  the 
latter  part  that  is  in  parentheses. 
This  should  have  been  given,  in 
view  of  the  evidence. 


§  3248.]  CRIMINAL— LARCENY.  2067 

§  3248.  Possession  of  Stolen  Property — Defendant's  House  Used 
Jointly  with  Others.  "When  the  possession  sought  to  be  proved  on 
the  part  of  the  accused  consists  of  the  asserted  fact  that  the  stolen 
property  was  found  in  the  house  of  the  defendant,  it  must  be  shown 
that  the  possession  and  occupation  of  the  house  by  the  defendant  was 
exclusive,  and  was  not  enjoyed  by  other  parties  jointly  with  him.  If 
you  find  the  house  was  used  by  othei'S, — by  othei'S  with  him, — such 
evidence  would  not  alone  authorize  a  conviction,  but  such  fact  may 
and  should  be  considered  by  the  jury,  together  with  all  the  evidence 
in  the  case,  in  passing  uiwn  the  ga;ilt  or  innocence  of  the  person 
charged. ^'^ 

§  3249.  On  the  Charge  of  Larceny,  Proof  of  Defendant  Having 
Bought  the  Stolen  Property  with  Such  Knowledge,  He  Must  Be 
Acquitted  on  Charge  of  Larceny,  (a)  You  are  instructed  that  if 
you  believe  from  the  evidence  the  steer  in  question  was  sold  and  de- 
livered to  the  defendant  by  one  A.,  or  if  you  entertain  a  reasonable 
doubt  of  such  proposition,  then  you  cannot  convict  the  defendant  for 
the  larceny  of  said  steer. 

(b)  The  jury  are  instructed  that  the  buying  or  receiving  of  stolen 
goods  is  a  substantive  crime,  but  the  person  who  is  charged  of  having 
stolen  the  property  cannot  be  convicted  by  evidence  showing  that  he 
received  or  bought  the  stolen  property.  So  that  in  this  ease,  even 
though  j-ou  may  believe  from  the  evidence  and  beyond  a  reasonable 
doubt  that  the  defendant  either  bought  or  received  the  steer  in  con- 
trovei-sy  knowing  it  to  have  been  stolen,  this  would  not  authorize  his 
conviction  for  the  crime  of  which  he  stands  charged,  and  your  ver- 
dict should  be  "Not  guilty. "^o 

(c)  You  are  instructed  that  if  you  belief  the  four  cattle  in  ques- 
tion were  stolen  from  the  range,  and  that  recently  afterward  defend- 
ant had  them  in  his  possession,  then,  to  warrant  his  conviction  as  the 
thief,  you  must  be  satisfied  from  the  evidence  that  A.  R.  is  the  per- 
son who  took  the  cattle  from  their  range,  so  that  if  you  believe  he 
bought  them  from  S.  G.  and  L.  G.,  or  from  either,  then  he  will  not  be 
guilty  of  theft,  even  if  you  believe  that  he  knew  they  were  stolen  by 
persons  from  whom  he  bought  them.^i 

59_Moncrief  v.  State,  99  Ga.  295,  ficient  in  the  matter  criticised.     It 

25  S.  E.  734  (735).  is   true,    'reasonable   doubt'    is    not 

60— Roberts  v.  State,  11  Wyo.  66,  mentioned   in   the  excerpt;  but   the 

70  Pac.  803  (804),  100  Am.  St.  925.  court   after   submitting:   the  charge 

6i_Ramirez  v.  State,  43  Tex.  Cr.  to  the  jury,   to  the  effect  that  be- 

App.    455,    66    S.   W.    1101.  fore  they  could  convict  they   must 

"The  objection  to  this  charge,"  believe  beyond  a  reasonable  doubt 
said  the  court,  "is  that  it  required  he  fraudulently  took  from  the  pos- 
defendant  to  prove  by  a  prepon-  session  of  the  alleged  owner  the 
derance  of  evidence  that  he  bought  cattle  described  in  the  indictment 
the  cattle,  and  thus  eliminated  without  his  consent,  etc.,  but  other- 
reasonable' doubt  from  this  phase  wise  that  they  should  acquit  him, 
of  the  case.  The  charge,  taken  as  further  gave  the  reasonable  doubt 
a  whole,  is  not  subject  to  this  criti-  in  this  language,  'If  you  do  not  so 
cism;  nor  do  we  believe  this  par-  believe  beyond  a  reasonable  doubt, 
ticular  portion  of  the  charge  is  de-  you  will  acquit  the  defendant,'  and 


2068  FORMS  OF  INSTRUCTIONS.  [§  3250. 

§  3250.  Possession  by  One  Who  Has  No  Claim — Subsequent  Conver- 
sion. If  the  possession  of  j^roperty  by  another,  to  which  the  taker 
has  no  claim,  be  obtained  openly,  but  by  deception,  artifice,  or  fraud, 
designed  by  the  taker  to  secure  the  possession  of  the  goods  of  another 
to  which  he  has  no  claim,  and  no  honest  belief  in  such  a  claim,  and 
they  be  subsequently  converted  to  the  use  of  the  taker,  the  jury 
would  be  justified  in  finding  that  the  taking  was  with  felonious  intent, 
and  the  crime  of  larceny  committed.^^ 

§  3251.  Action  of  Replevin  to  Recover  Stolen  Property  Does  Not 
Relieve  from  the  Charge  of  Larceny.  You  are  further  instiaieted 
that  evidence  has  been  introduced  in  this  ease  showing  that  an  action 
of  replevin  was  commenced  by  one  or  both  of  the  R. 's  to  recover  the 
possession  of  the  property,  or  a  part  of  the  property,  alleged  in  the 
indictment  to  have  been  stolen,  and  that  in  that  suit  some  part  of  the 
property  was  taken  by  the  sheriff  under  the  order  of  delivery  issued 
therein,  and  that  a  redelivery  bond  was  given  by  the  defendants,  and 
that  the  property  taken  under  the  writ  of  replevin  was  retained  by 
'them.  The  evidence  of  this  I'eplevin  action  so  introduced  was  com- 
petent for  the  purpose  for  which  it  was  offered,  as  circumstance  throw- 
ing light  upon  the  main  issue;  but  the  fact  tliat  this  replevin  action 
was  commenced,  and  the  fact  that  the  defendants,  or  one  of  them, 
gave  a  redelivery  bond  and  returned  the  property,  in  no  wise  relieves 
him  or  them  of  the  criminal  responsibility  of  the  larceny  of  the 
property,  if  you  find  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  property  was  in  fact  stolen  by  them,  or  either  of  them.^^ 

§  3252.  Larceny — Reasonable  Doubt — Burden  of  Proof,  (a)  If 
you  believe  from  the  evidence  that  said  E.  P.  authorized  or  gave  his 
pennission  or  consent  to^^  defendant  to  sell  or  otherwise  dispose  of 
said  horse,  or  if  you  have  a  reasonable  doubt  thereof,  j'ou  will  acquit 
defendant.*** 

(b)  It  is  not  enough  to  show,  even  if  the  evidence  should  show, 
that  the  defendants  stole  grain,  but  it  should  be  shown  clearly,  be- 
yond a  reasonable  doubt,  that  the  alleged  larceny  was  committed  on 

the  day  of  ,  19 — ,  as  charged  in  the  information,  or  your 

verdict  should  be  not  guilty.''^ 

subsequently  again  gave  the  pre-  gave  appellant  his  authority  or 
sumption  of  innocence  and  reason-  permission  to  sell  or  in  any  man- 
able  doubt."  uer    dispose    of     the     horse,      this 

62 — State    v.    Kallaher,    70    Conn,  would    meet   the   contention   of  the 

398,  39  Atl.  606  (609),  66  Am.  St.  116.  state  that  the  conversion  was  frau- 

63 — Flohr    v.    Territory,    14    Okla.  dulent.     Now,  if  there  was  a  rea- 

477,  78  Pac.   565.  sonable  doubt   of   this,  then  appcl- 

64 — Smith    v.    State,    45    Tex.    Cr.  lant   was   entitled   to  an   acquittal; 

App.  251,  76  S.  W.  434.  and  as  we  understand  this  charge, 

The  court  said:  it  gave  this  phase  of  the  law  in  ac- 

"It  is  contended  this  changes  the  cordance  with  our  statutory  pro- 
reasonable    doubt    and    places    the  visions." 

burden    upon    the   ancusod.     We    do         65 — Baldwin  v.  State,  46  Fla.  115, 

not  so  understand  it.     If  the  owner  35  So.  220  (222). 


§  3253.]  CRIMINAL— LARCENY.  2069 

RECEIVING  STOLEN  PROPERTY. 

§  3253.  Receiving  Stolen  Property,  Criminal  Intent  Must  Exist  at 
the  Very  Instant  of  Receiving.  To  constitute  the  crime  of  receiving 
stolen  goods  as  charged,  it  is  essential  to  show  a  criminal  intent. 
The  receiver  must  know  that  the  goods  were  stolen,  and  this  knowl- 
edge must  exist  at  the  veiy  instant  of  the  receiving;  otherwise  the 
crime  does  not  exist. *^® 

§  3254.  Purchase  of  Stolen  Property,  Bona  Fide  or  Sham,  The 
court  instnicts  the  jury  that  they  are  the  judges,  from  all  the  facts 
and  circumstances  of  the  case,  whether  or  not  a  purchase  of  the 
alleged  stolen  property  was  in  fact  a  bona  fide  purchase,  or  whether 
or  not  it  is  a  device  and  sham.*''^ 

§  3255.  Stolen  G-oods  Left  at  a  Man's  House  Without  His  Knowl- 
edge. The  juiy  are  instructed  that  if  goods  are  left  at  a  man's 
house  without  his  knowledge  or  consent,  even  though  they  may  have 
been  stolen  by  the  person  leaving  them,  this  in  itself,  does  not  make 
the  person  at  whose  house  the  goods  were  left  a  receiver  of  stolen 
goods.^^ 

66— Butler  v.  State,  35  Fla.  246,  17  68— Butler   v.    State,    35    Fla.    246 

So.  551  (552).  17  So.  551  (552). 

67— Bowers   v.   State.  —  Tex.   Or. 
App.  — ,  71  S.  W.  284  (285). 


CHAPTER  Cn. 
CHIMIN  AL—Pii  R  JURY. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  3256.  That  the  accused  was  sworn 
must   be   proved. 

§  3267.  Swearing-  falsely — No  rea- 
sonable g-rounds  of  believ- 
ing- statements  to  be  true. 

§  3258.  More  than  one  witness  re- 
quired. 

§  3259.  One  witness  sufficient,  when. 

§  3260.  Testiinony  alleged  must  be 
proved. 

§  3261.  Every  material  allegation 
must  be  proved. 


§  3262.  Materiality  must  be  shown. 
§  3263.  Materiality   sufficient,    when. 
§  3264.  Test   of   materiality. 
§  3265.  Authority  of  the  officer  must 
be   shown. 

§  3266.  Perjured  testimony— Absence 
of  motive. 

§  3267.  Elements  to  be  considered  in. 
arriving  at  a  verdict- 
Series. 


§  3256.     That  the  Accused  was  Sworn  Must  Be  Proved.    That  to 

authorize  a  conviction  in  this  case  it  must  appear,  among  other  things, 
that  the  defendant  was  sworn,  as  a  witness,  before  giving  his  alleged 
testimony;  and  this  must  be  proved,  beyond  a  reasonable  doubt;  and 
if  the  jury  entertain  any  reasonable  doubt  as  to  whether  the  defend- 
ant was  affirmed  instead  of  being  sworn,  in  the  usual  manner  before 
testifying,  the  jury  should  find  the  defendant  not  guilty.^ 

§  3257.  Swearing  Falsely — No  Reasonable  Grounds  of  Believing 
Statements  to  Be  True.  The  jury  are  instructed,  that  while  false 
swearing,  under  an  honest  belief  that  the  statements  are  true,  is  not 
perjury,  still,  the  jury  are  to  determine,  from  all  the  evidence  in  the 
ease,  whether  such  honest  belief  existed;  and  if  the  juiy  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
swore  falsely,  as  charged  in  the  indictment,  and  that  he  had  no  rea- 
sonable grounds  for  believing  his  statements  to  be  true,  and  did  not 
honestly  and  in  good  faith  believe  them  to  be  true,  then  he  is  guilty 
of  perjury.- 

§  3258.  More  Than  One  Witness  Required.  If  the  juiy  find  that 
the  several  witnesses  who  have  testified  for  the  prosecution  (or  the 
witnesses,  A.,  B.  and  C),  have  each  testified  to  separate  and  distinct 
facts  or  circumstances,  then  such  testimony  must  be  considered  by 
the  jury  as  the  testimony  of  a  single  witness  upon  each  specific 
point  testified  to  by  them;  and  if  the  jury  further  believe,  from  the 
evidence,  that  only  one  of  said  witnesses  has  testified  to  facts  tending 
to  show  the  falsity  of  the  testimony,  set  forth  in  the  indictment,  and 
upon  which  the  perjury  is  assigned,  then  the  prosecution  has  failed 
to  prove  the  falsity  of  such  testimony  as  required  by  law,  unless  the 

1— Hitesman  v.  State,  48  Ind.  473.     2— Johnson  v.  People,  94  HI.  SOP. 

2070 


§  3259.]  CRIMINALr— PERJURY.  2071 

jury  further  find,  from  the  evidence,  that  the  testimony  of  such  wit- 
ness has  been  corroborated  upon  that  point  by  other  facts  or  circum- 
stances proved  on  the  trial.^ 

§  3259.  One  Witness  Sufficient,  When.  The  court  instructs  the 
jury  that  as  to  each  and  all  of  the  material  averments  in  the  indict- 
ments, except  the  allegation  of  the  falsity  of  the  testimony  therein 
stated  and  set  forth,  they  may  be  proved  by  the  testimony  of  one 
witness  alone ;  provided,  the  juiy  are  satisfied  beyond  a  reasonable 
doubt,  of  the  truth  thereof  by  the  testimony  of  such  witness;  and 
as  regards  proving  the  falsity  of  such  testimony,  the  court  instructs 
the  jury,  that  while  that  fact  cannot  be  established  by  the  testimony 
of  one  witness  alone,  it  is  not  absolutely  necessary  that  it  be  estab- 
lished by  the  testimony  of  two  witnesses;  it  may  be  proved  by  the 
testimony  of  one  witness  and  other  eon-oborating  facts  or  circum- 
stances corroborating  such  witness;  provided  the  juiy  are  satisfied, 
beyond  a  reasonable  doubt,  from  the  testimony  of  such  witness,  and 
such  corroborating  facts  and  circumstances,  that  such  testimony  was 
false  in  fact.^ 

§  3260.  Testimony  Alleged  Must  Be  Proved.  The  jury  are  further 
instructed,  that  while  it  is  incumbent  upon  the  people,  in  order  to 
warrant  a  conviction,  to  prove,  as  one  of  the  material  averments  in 
the  indictment,  that  the  defendant  did  testify  to  one  or  more  of  the 
statements  of  testimony  contained  in  the  indictment,  still,  it  is  not 
necessary  that  they  should  be  proved  in  the  precise  words  alleged; 
it  is  sufficient  if  they  are,  substantially,  proved  in  language  and  effect 
as  therein  stated.^ 

§  3261.  Every  Material  Allegation  Must  Be  Proved,  That  before 
the  jury  will  be  warranted  in  finding  the  verdict  of  guilty  in  this 
case,  they  must  be  satisfied,  beyond  a  reasonable  doubt,  from  the 
evidence  introduced  before  them,  that  the  defendant  was  sworn  as  a 
witness  by  R.  L.,  on  the  trial  of  an  action  of  (replevin)  pending 
before  him,  as  an  acting  justice  of  the  peace  of  this  county,  wherein 
A.  was  plaintiff  and  B.  was  defendant ;  that  the  value  of  the  property 

in  question,  in  said  suit,  did  not  exceed  $ ;  that  upon  such  trial 

the  defendant  testified  upon  oath  that  he  bought  the  horse  of  one 
A.  B.,  and  paid  $100  in  cash  for  it  at  the  time;  that  whether  he  had 
so  bought  the  horse  was  a  material  question  on  that  trial;  that  such 
testimony  was  false,  and  that  the  defendant  knew  it  to  be  false  at 
the  time  he  so  testified;  and,  unless  the  prosecution  have  proved 
each  and  all  of  the  matters  above  enumerated  beyond  a  reasonable ^. 
doubt,  by  evidence  introduced  before  the  jurj',  the  jury  must  find  the 
defendant  not  guilty.® 

3— State    v.     Heed,     57    Mo.    252;  5— People  v.  Warner,  5  Wen.  271; 

State    v.      Raymond,     20     la.      582;  Taylor  v.  State,  48  Ala.  157. 

Crusen    v.    State,    10   Ohio   St.   258;  6— Pankey   v.    State,   1    Scam.    80; 

Hendricks   v.    State,    26    Ind.    493.  Montgomery  v.   State.  10   Ohio  220; 

4— U.   S.   V.  Wood,   14  Peters  430;  State  v.  Fassett,  16  Conn.  457, 
State  v.  Raymon,  30  la.  583. 


2072  FORMS  OF  INSTRUCTIONS.  [§  3262. 

§  3262.  Mareriality  Must  Be  Shown.  The  jury  are  further  in- 
structed- that  amoug  the  material  averments  in  the  indictment  is  the 
statement,  that  whether  the  said  defendant  had  bought  t>he  horse 
therein  referred  to  of  A.  B.  and  paid  $100  for  it  in  cash  at  the  time, 
became  a  material  question  on  said  trial;  and  to  warrant  a  conviction 
in  this  ease,  the  fact  of  such  materiality  must  be  established  to  the 
satisfaction  of  the  jury,  beyond  a  reasonable  doubt;  and  if,  after  a 
careful  consideration  of  all  the  evidence,  and  in  view  of  the  principles 
of  law  given  you  in  these  instructions,  you  entertain  any  reasonable 
doubts  as  to  whether  the  fact  above  stated  did  become  material  on 
said  trial,  you  should  find  the  defendant  not  guilty.'^ 

§  3263.  Materiality  Sufficient,  When.  The  jury  are  instructed,  as 
a  matter  of  law,  that  to  render  testimony  material  in  a  case  it  is  not 
necessaiy  that  it  should  bear  directly  upon  the  main  issue  in  the 
ease ;  it  is  sufficient  if  it  is  material  to  any  question  arising  upon  the 
trial,  and  such  as,  if  it  were  true,  might  properly  influence  the  justice 
or  the  jury  before  whom  the  case  is  being  tried  in  any  matter  affecting 
the  rights  of  the  parties.^ 

§  3264.  Test  of  Materiality.  That  the  true  test  of  whether  the 
alleged  testimony  of  the  defendant  was  material  on  said  trial  is  this: 
Was  it  of  such  a  character  that,  if  true,  it  should  properly  influence 
the  action  of  the  justice  or  the  jury  on  the  trial  in  any  matter  affect- 
ing the  rights  of  the  parties  to  that  suit;  and  if  the  jury  find,  from 
the  evidence,  that  the  alleged  testimony  could  not  properly  influence 
the  action  of  the  justice,  or  jury,  in  any  mafcter  affecting  the  rights  of 
the  parties  to  the  suit,  then  it  is  wholly  immaterial  whether  it  was 
true  or  false,  and  the  jury  should  find  the  defendant  not  guilty.^ 

§  3265.  Authority  of  the  Officer  Must  Be  Shown.  The  JU17  are 
further  instructed,  that,  while  it  is  necessary  for  the  prosecution,  in 
order  to  warrant  a  conviction  for  perjury,  to  show  that  tUe  person 
administering  the  oath  was  authorized,  by  law,  to  administer  oaths, 
still,  if  it  be  shown,  by  the  evidence  beyond  a  reasonable  doubt,  that 
the  oath  was  administered  by  a  person  who  was  then  an  acting  jus- 
tice of  the  peace  in  and  for  the  county  where  the  oath  was  adminv 
istered,  this  is  sufficient  evidence  of  his  authority  to  administer  the 
oath.i" 

§  3266.  Perjured  Testimony — Absence  of  Motive,  (a)  If  you 
agree  with  the  defendant  that  this  is  a  pure  fabrication,  you  ought, 
at  least,  to  be  able  to  find  some  motive  for  such  a  wicked  fabrication. 

(b)     If,  by  your  verdict,  you  say  the  complaining  witness  has  com- 

7— Bullock   v.    Koon,   4   ^Wen.   531;  9— State   v.   Keenan,   8   Rich.   456; 

State  v.   Thrift.  30  Ind.   211;   Wood  State   v.    Shupe,    16   la.   3-6,    85   Am. 

V.    People,    59   N.    Y.    117;    State   v.  Dec.  485  n;  State  v.  Lavalley,  9  Mo. 

Aikena,   32  la.  40S.  824. 

8—2  McClain  Crim.  Law,  sec.  862;  10— Kerr    v.     People,    42    111.     307; 

Corn.  V.  Grant.  116  Mass.  17.  State  v.  Furlong.  26  Me.  69;  Weston 

V.  Lumley,  33  Ind.  486. 


§  3267.]  CRIMINAL—PERJURY.  2073 

mitted  perjury,  you  ought  to  find,  if  you  can,  some  motive  for  her 
perjury.^^ 

§  3267.  Elements  to  Be  Considered  in  Arriving  at  a  Verdict — 
Series.  Gentlemen  of  the  jury:  A  grand  jury  of  your  county  charge? 
S.  with  the  crime  of  perjury,  as  set  forth  and  stated  in  the  indictment, 
which  has  been  read  before  you.  In  order  to  convict  him  the  state 
must  by  the  evidence,  establish  all  the  material  allegations  of  the 
indictment,  and  if  you  have  any  reasonable  doubt  as  to  any  of  those 
material  allegations  you  must  acquit  the  defendant.  First.  The 
evidence  must  satisfy  you  that  'the  defendant  S.  was  duly  sworn  to 
testify  in  a  cause  in  this  court  entitled  J.  against  the  R.  &  D.  Rail- 
road Company.  Unless  he  was  put  under  the  sanction  of  an  oath, 
and  unless  it  was  administered  by  the  officer  named  in  the  indictment, 
and  was  in  the  cause  named,  you  must  acquit.  But,  if  he  was  duly 
sworn  to  testify  in  the  ease  named,  then  inquire  further  whether  or 
not  he  testified  substantially  as  alleged  in  the  indictment.  Consider 
fully  and  carefully  what  the  evidence  now  before  us  shows  as  to  his 
testimony  in  the  former  case,  and  see  whether  or  not  the  material 
allegations  of  the  indictment  as  to  his  testimony  are  proven  to  have 
been  sworn  to  by  him  on  the  trial.  (Did  he,  in  the  other  case,  testify 
substantially  as  the  grand  jury  say  that  he  did?  It  is  not  essential 
that  eveiy  part  of  his  testimony,  as  narrated  in  the  indictment,  should 
be  proven.  For  instance,  the  indictment  says  that  defendant  swore 
that  J.  S.  went  out  of  the  back  door  of  the  car.  If  this  is  a  mistake 
in  the  indictment,  the  mistake  should  not  prevent  conviction,  if  the 
material  and  substantial  allegations  are  pi'oven,  as  I  wi.ll  advise  you 
hereafter).  But  the  state  must  show  you  by  satisfactory  proof  that 
the  defendant  did  give  the  evidence  substantially  as  alleged  in  the 
indictment;  otherwise  you  cannot  convict.  (Then  carefully  consider 
and  compare  all  the  evidence,  and  say  whether  the  defendant's  evi- 
dence, complained  of  in  the  indictment,  was  false  or  true.  If  you 
find  different  witnesses  contradicting  each  other,  then,  as  reasonable, 
intelligent  men,  Aveigh  the  testimony  of  the  state  going  to  show  the 
falsity  of  the  defendant's  statement  against  the  evidence  showing 
its  truth,  and  try  and  determine  which  you  must  believe.)  I  cannot 
instruct  you  which  witness,  or  which  set  of  witnesses  to  believe. 
The  responsibility  rests  on  you.  I  may  assist  you,  however,  by 
some  general  rules  which  our  experience  shows  us  to  be  valuable  in 
such  cases.  For  instance,  take  the  state's  witnesses  and  their  testi- 
mony.    How  was  it  given  before  you?    What  interest  or  prejudice 

11 — Hannon  v.  State,  70  Wis.  448,  strong-   evidence    of   his    innocence, 

36  N.  W    1  (4).  and,  in  cases  where  the  evidence  is 

"A    known    motive    for    a   course  not   positive   and    direct,    is    almost 

of    action     is    always    a    powerful  always  sufficient  to  procure  an  ac- 

argument  in  favor  of  such  action,  quittal.     .     .     .     We    do     not     think 

The  absence  of  any  motive  for  its  the     defendant     was     prejudiced    by 

commission  on  the  part  of  the  per-  this  in-=-truction,  nor  tliat  it  was  er- 

son   accused    of   a  great    crime    is  ror  to  give  it." 


2074  FORMS  OP  INSTRUCTIONS.  [§  3267. 

are  they  shown  to  have  in  the  ease'?  What  amount  of  intelligence, 
capacity  or  memory  do  they  show  to  have?  Is  their  testimony  rea- 
sonable or  unreasonable?  Was  it  given  in  with  the  apparent  desire 
to  tell  the  truth,  or  was  their  evidence  given  with  an  apparent 
desire  to  convict  the  defendant?  Was  their  sworn  testimony,  as 
they  gave  it,  inconsistent,  or  was  it  contradictory?  Compare  the 
whole  testimony  of  state's  witnesses,  and  see  if  they  corroborate 
each  other  or  contradict  each  other.  If  you  find  that  they  corrobo- 
rate each  other  literally  and  minutely,  consider  whether  or  not  this 
minute  corroboration  may  not  show  preconcert  and  arrangement  with 
a  purpose  to  convict.  If  on  the  contraiy,  there  is  a  substantial  agree- 
ment and  corroboration  between  the  state's  witnesses,  together  with 
some  variety  and  seeming  conflict  as  to  nonessential  or  immaterial 
matters,  you  should  note  that  agreement  and  corroboration  as  im- 
portant to  enable  you  to  determine  the  naturalness  and  truthfulness 
of  their  statements,  for  experience  shows  us  that  witnesses  seeing  the 
same  occurrence,  and  detailing  the  same,  are  apt  to  honestly  differ 
in  some  of  the  details,  and  differences  as  to  details  are  frequently 
found  to  be  consistent  with  substantial  agreement  as  to  the  essential 
and  material  facts.  Now,  use  these  same  rules  in  weighing  the  testi- 
mony offered  you  by  the  defendant,  and  in  considering  the  value  of 
the  testimony  of  the  defendant's  witnesses.  How  did  they  testify, — 
positively,  intelligently,  fairly  and  impartially,  or  otherwise?  Do 
they  corroborate  each  other  in  substantial  and  material  points,  or  do 
they  contradict  each  other?  If  they  agree  in  the  substantial  parts 
of  their  testimony,  it  should  go  to  establish  the  correctness  of  their 
evidence.  But  if  they  contradict  each  other  in  matters  as  to  which 
you  believe  they  cannot  be  mistaken,  you  should  consider  that  fact, 
in  estimating  the  reliability  and  correctness  of  what  they  depose  to. 
Taking  all  the  evidence  that  has  been  offered  you  on  both  sides  try 
and  arrive  at  the  truth  of  the  issues  here.  Was  the  evidence  of  S. 
as  charged  in  the  indictment  substantially  true,  or  was  it  substan- 
tially false?  If  satisfied  that  it  was  tnie,  you  must  acquit.  Or  if, 
on  considering  all  the  evidence,  you  are  not  satisfied  beyond  a  rea- 
sonable doubt  that  defendant  swore  falsely  you  must  acquit.  If  you 
are  satisfied  he  swore  falsely  go  a  step  further.  Was  that  false 
testimony  material  in  the  case  of  J.  v.  R.  &  D.  R.  R.  Co.?  *  ♦  • 
Go  also  a  step  further.  The  testimony  complained  of  must  not  only 
have  been  false  and  material  to  the  issue,  but  it  must  have  been 
willfully  and  corruptly  false.  It  was  willfully  false  if  the  defendant 
was  not  present  on  the  cars,  and  knew  nothing  of  what  he  was 
testifying  about,  yet  testified  that  he  was  present,  and  testified  to 
occurrences  in  the  ear,  or  if,  being  on  the  car,  and  knowing  what 
actually  occurred,  he  knowingly  and  intentionally  testified  to  what 
was  untrue.  You  should  ask  yourselves,  was  the  testimony  false,  and 
did  S.  S.  know  it  was  false.  Again,  the  law  says  it  must  have  been 
corruptly    false.      If    a    man    in    order    to    help     a    friend     or 


§  3267.]  CRIMINAL— PERJURY.  2075 

harm  an  enemy,  testifies  falsely  for  the  purpose  of  misleading  a 
court  or  jury  you  may  well  believe  and  find  that  his  pui-pose  was  a 
corrupt  one.  if,  however,  the  false  testimony  is  given  in  by  mistake, 
or  by  inadvertence,  and  with  no  purpose  of  wrongly  influencing  a 
court  or  juiy,  you  cannot  convict.  (If,  however,  the  state  has  con- 
vinced you  that,  in  the  matters  set  forth  in  the  indictment,  this  de- 
fendant, being  duly  sworn  in  the  cause  as  stated  in  the  indictment, 
testified  willfully  and  corruptly  false  as  to  things  material  in  the 
cause,  as  alleged  in  the  indictment,  then  your  verdict  should  be, 
''We,  the  jury,  find  the  defendant  guilty,  as  charged  in  the  indict- 
ment.") If  the  state  has  not  so  convinced  you,  you  should  say, 
"We,  the  jury,  find  the  defendant  not  guilty, "^^ 

12— Smith  v.  State.  103  Ala.  57,  15  So.   866   (868). 


CHAPTER  CnL 


CRIMINAL— ARSON— BRIBERY— CONCEALED  WEAPONS- 
GAME  AND  GAMBLING— MALICIOUS  MISCHIEF- 
MISCELLANEOUS  PROSECUTIONS. 
See  Erroneous  Instructions,  same  chapter  head.   Vol.  III. 


ARSON. 

§  3268.  Arson  defined. 

§  3269.  Arson,  elements  to  be  proved 
beyond  a  reasonable  doubt 
— Evidence  of  ownership 
essential. 

§  3270.  Insanity  as  a  defense  to  ar- 
son. 

BRIBERY. 

§  3271.  Attempt  to  bribe  a  juror- 
Proof  required — Other  at- 
tempts to  bribe  held  in- 
competent. 

§  3272.  Collection  of  bribe  money 
from  disreputable  women 
by  agent. 

§  3273.  Bribing-   public    officer   to   do 
what   they  are  already  ob- 
ligated to  do — Intent  essen- 
tial— Series. 
CONCEALED  WEAPONS. 

§  3274.  Carrying  concealed  weapons 
— Right  to  arrest  without 
warrant. 

§  3275.  Carrying   concealed   weapons 
— Apprehension  of  personal 
injury. 
GAME    AND    GAMBLING. 

§  3276.  Game   or  gambling   defined. 
§  3277.  Keeping    a    gambling   house, 

what  must  be  proved. 
§  3278.  Lottery— Aiding    and    assist- 
ing. 
MALICIOUS   mischief! 

§  3279.  Malice,  when  implied. 

§  3280.  Malice    must    be    proved. 

§  3281.  Malicious  injury  to  an  ani- 
mal— Malice  against  the 
owner  must  be  shown. 

§  3282.  Ownership,    how    proved. 

§  3283.  Injury  done  wilfully  for  the 
purpose  of  gain — Personal 
malice  need  not  be  shown. 


physicians   and.   surgeons. 

§  3284.  Disinterring  dead  bodies  for 
surgical  experiment  —  In- 
tent,   proof   required. 

§  3285.  Practicing  medicine  with- 
out a  certificate — Reason- 
able doubt. 

§  3286.  Practice  of  medicine — Diplo- 
ma from  an  accredited 
school   required. 

§  3287.  Sale  of  drugs  without  license 
— Domestic  remedies  ex- 
cepted. 

miscellaneous  prosecutions. 

§  3288.  Peddling  without  a  license — 
One  sale  sufficient  if  inten- 
tion   to    continue    exists. 

§  3289.  Obstructing  highway— Suf- 
ficient proof  of. 

§  3290.  Obstruction  wilfully  placed 
in   navigable  stream. 

§  3291.  Military  expedition — Trans- 
porting men  and  arms. 

§  3292.  Military  expedition — Knowl- 
edge of  accused  that  it  is 
such. 

§  3293.  Concealing  inferiority  of 
food — Adulteration. 

§  3294.  Breach  of  peace — Vile  epi- 
thets on  public  street. 

§  3295.  Abusive  language  in  pres- 
ence  of  female. 

§  3296.  Construction  of  a  vehicle — 
Oil  tank  held  a  part  of  the 
wagon. 

§  3297.  Instruction  as  to  measure- 
ment of  lobster. 

§  3298.  Quiet  and  peaceable  po.sses- 
sion  —  Unlawfully  break, 
pull  down  or  injure  an- 
other's fence. 

§  3299.  Cutting  trees. 


ARSON. 

§  3268.  Arson  Defined.  The  court  instructs  the  jury  that  arson 
consists  in  the  willful  and  malicious  burning  of  the  dwelling  house 
of  another.^ 


1—1  McClain  on  Cr.  Law,  §  517. 


2076 


§  3269.]  CRIMINAI^-BRIBERY.  2077 

§  3269.  Arson,  Elements  to  Be  Proved  Beyond  a  Reasonable  Doubt, 
(a)  If  you  believe  from  the  evidence  beyond  a  reasonable  doubt  that 
defendant  X.,  in  the  county  of  B.,  state  of  Texas,  on  or  about  the 
1st  day  of  July,  19 — ,  did  willfully  set  fire  to  and  burn  the  house  of 
E.,  mentioned  in  the  indictment;  and  if  you  further  so  believe  from 
the  evidence  that  said  house  was  situated  in  said  state  and  county, 
and  was  then  and  there  in  the  possession  of  and  occupied  by  the  said 
E.,  then  you  will  find  the  defendant  guilty  of  arson,  and  assess  his 
punishment,  etc.^ 

Arson,  Evidence  of  Ownership  Essential.  (b)  The  court 
charg-es  the  jury  that,  if  the  state  failed  to  prove  by  evidence  of  title 
ownership  of  the  property  fired  as  charged  in  the  indictment,  the 
jury  cannot  find  the  defendant  guilty.^ 

§  3270.  Insanity  as  a  Defense  to  Arson.  You  are  instructed  that 
the  law  presumes  that  every  person  is  sane,  and  it  is  not  necessaiy 
for  the  state  to  introduce  evidence  of  sanity  in  the  first  instance. 
When,  however,  any  evidence  has  been  introduced  tending  to  prove 
insanity  of  an  accused,  the  burden  is  then  upon  the  state  to  establish 
the  fact  of  the  accused's  sanity,  the  same  as  any  other  matei-ial  fact 
to  be  established  by  the  state  to  w^arrant  a  conviction.  If  the  testi- 
mony introduced  in  this  ease  tending  to  prove  that  the  defendant 
was  insane  at  the  time  of  the  alleged  burning  described  in  the  infor- 
mation raises  in  your  mind  a  reasonable  doubt  of  his  sanity  at  the 
time  of  the  alleged  burning,  then  your  verdict  should  be  acquittal.* 

BRIBERY. 

§  3271.  Attempt  to  Bribe  a  Juror — Proof  Required — Other  At- 
tempts to  Bribe  Held  Incompetent,  (a)  The  court  charges  the  jury 
that  the  promise  or  offer  made  to  S.  by  the  defendant  must  have  been 
eorruptly  made,  and  made  with  the  intent  to  bias  the  mind  or  influ- 
ence the  decision  of  S.  as  a  juror  in  the  case  of v. , 

charged  with  grand  larceny. 

(b)  The  court  charges  the  juiy  that,  if  they  are  reasonably  doubt- 
ful from  the  evidence  in  this  cause  as  to  the  defendant  attempting 
to  bribe  S.  as  a  juror  in  the  particular  case  described  in  this  indict- 
ment, they  must  acquit  the  defendant,  and  that  any  belief  that  the 
jury  might  have  as  to  an  attempt  on  the  part  of  defendant  to  bribe 
S.  as  a  witness  cannot  be  considered  in  this  ease  against  the  defend- 
ant.s 

§  3272.  Collection  of  Bribe  Money  from  Disreputable  Women  by 
Agent.     The  court  instructs  the  jury  that  it  is  the  law  generally  that 

2— Kelley    v.    State,    44    Tex.    Cr.  held  in  Boles  v.   State,  46  Ala.  207, 

App.  187,  70  S.  W.  20  (21).  was   good    and    should    have    beea 

3— Hanaigan  v.  State,  131  Ala.  29,  given." 

31  So.  89.  4— Knights  v.   State.  58  Neb.   225, 

"This  charge,"  said  the  court,  "is  78  N.  W.  508  (509),  76  Am.  St.  78. 

a  copy  of  the  one  which  the  court  5— White  v.  State,  103  Ala.  72,  16 

So.  63  (65). 


2078  FORMS  OF  INSTRUCTIONS.  [§  3273. 

any  act  of  an  assumed  agent,  and  a  recognition  of  his  authority  by 
the  alleged  principal,  may,  in  a  proper  case,  prove  the  agency  to  do 
other  similar  acts.  And  if  you  find  in  this  case  that  C.  was  authorized 
or  directed  by  the  defendant  to  collect  in  his  behalf  money  from  one 
or  more  of  these  women,  other  than  A.  M.,  such  fact  is  proper  to  be 
considered  in  determining  whether  or  not  defendant  authorized  C.  to 
collect  money  from  her.  Indeed,  if  you  find  that  C.  had  general 
authority  to  collect  protection  money  from  abandoned  women,  or 
from  a  certain  class  of  them,  which  included  A.  M.,  then  you  would 
be  justified  in  finding  that  in  receiving  money  from  A.  M,,  if  in  faet 
he  received  it,  he  received  the  same  for  the  defendant,  and  in  that 
event  will  find  that  he  himself  received  the  money.® 

§  3273.  Bribing  Public  Officers  to  do  What  They  Are  Already 
Obligated  to  Do — Intent  Essential — Series,  (a)  Now  it  makes  no 
difference  whether  S.  issued  any  orders  or  not  after  the  payment 
of  it.  The  crime  was  completed,  if  it  was  a  crime  at  all,  at  the  time, 
the  money  was  offered  by  the  respondent.  Now,  the  respondent  ad- 
mits that  he  did  pay  money  at  that  time  to  S.,  as  I  said  before,  and 
claims  that  he  paid  it  at  X.  It  makes  no  difference  whether  he  paid 
it  at  X.  or  sent  it  through  a  letter,  as  far  as  the  substance  of  the 
offense  is  concerned,  and  it  is  for  you  to  consider  whether  or  not  the 
people's  claim  as  to  how  it  was  paid  is  correct,  and  whether  that  date 
is  correct. 

(b)  As  a  general  proposition  to  direct  you  in  this,  I  will  say  that 
the  respondent  cannot  be  convicted  unless  you  find  beyond  a  reason- 
able doubt  that,  at  the  time  claimed  by  the  people,  the  money  was 
given  to  S.,  by  or  through  the  agency  of  the  respondent,  with  the 
corrupt  intention  and  for  'the  purpose  of  corrupting  him  and  influ- 
encing his  official  action  in  issuing  fraudulent  certificates  mentioned 
in  the  information.  As  I  said  to  you  before,  that  must  have  been 
the  purpose,  and  whether  or  not  S.  ever  issued  them  would  make  no 
difference,  if  he  received  the  money.  If  he  had  then  said,  "I  won't 
issue  any  certificates,"  the  crime  would  be  just  as  complete  as  it 
would  be  if  he  had  issued  them^  if  it  was  paid  to  him  with  the  corrupt 
intention  of  influencing  him  in  his  official  action. 

(c)  It  may  have  occurred  to  you  that  this  respondent  was  com- 
mitting a  wrong  from  the  beginning  in  paying  money  to  S.  That  is 
true.  He  had  no  right  in  the  world  to  pay  the  first  twenty  dollars  to 
him  for  counting  span*ows,  because  the  law  itself  obliged  S.  to  count 
all  span^ows  that  were  brought  to  him  that  were  caught  in  the  village 
of  X.,  under  the  statute. 

(d)  It  was  entirely  wrong  from  the  beginning  for  him  to  pay  any 
money.  It  is  demoralizing  to  the  officer,  and  to  the  respondent  him- 
self, and  all  the  people,  that  the  people  shall  be  placed  in  position 
of  having  its  officers  receive  money  from  individuals  with  whom  they 
are  doing  business  for  the  purpose  of  paying  them  for  doing  things 

&— State  v.  Ames,  90  Minn.  183,  96  N.  W.  330  (334). 


§  3273.]  CRIMINAL— BRIBERY.  2079 

• 
that  the  statute  obliges  them  to  do  without  pay;  but,  however  wrong 
that  may  be,  it  is  introduced  here  simply  for  the  purpose  of  showing 
the  relation  existing  between  the  respondent,  S.,  and  G.,  and  has  a 
bearing  upon  the  intention  with  which  the  act  of  December  was  done. 

(e)  Now,  don't  forget  that  it  will  be  a  great  wrong  to  the  re- 
spondent, and  a  great  wrong  to  the  people,  if  you  should  say  that 
this  man  should  be  convicted  by  reason  of  having  paid  money  in  May 
or  June  to  this  officer.  However  wrong  that  may  have  been,  this 
case  is  not  planted  upon  that  occurrence,  but  you  should  consider  it 
as  bearing  upon  the  occurrence  in  December. 

(f)  It  is  for  you  to  say  whether  or  not  the  respondent  paid  the 
money  in  December  for  a  corrupt  purpose ;  and  if  for  a  corrupt  pur- 
pose, then  he  is  guilty.  If  i't  was  not  for  a  corrupt  purpose,  then 
he  is  not  guilty,  if  it  was  paid  to  him  with  no  intention  of  influencing 
his  official  action  as  an  officer. 

(g)  The  respondent  claims  that,  while  he  paid  the  money  to  S. 
to  get  him  to  issue  orders,  that  the  intention  was  to  detect  crime 
that  it  was  claimed  that  S.  was  committing  with  other  persons.  The 
claim  of  the  people  is  that  he  did  it  for  the  sole  purpose  of  protect- 
ing himself  and  getting  S.  in  his  power. 

(h)  Now,  if  you  find  that  he  did  it  for  a  corrupt  purpose  of  pro- 
tecting himself,  or  for  the  corrupt  pui-pose  of  getting  the  orders  for 
any  other  purpose  except  to  detect  crime  of  other  people,  and  with- 
out reference  to  himself,  then  he  should  be  convicted  under  his  own 
testimony,  because  he  admits  that  he  paid  the  money;  but,  if  you 
find  that  it  was  not  paid  with  the  corrupt  intention  of  doing  wrong 
then  he  must  be  acquitted. 

(i)  As  bearing  upon  that,  whether  he  paid  that  rightfully  or  with 
the  intention  of  doing  right,  and  without  intention  of  doing  a  wrong, 
you  must  take  into  consideration  all  the  testimony  in  this  case.  It 
is  for  you  to  determine  whether  or  not  the  statement  he  makes  of 
what  happened  between  him  and  R.  is  true;  that  is  for  you  to  de- 
termine. 

(j)  You  are  to  consider  the  way  these  sparrows  were  brought  to 
S.,  the  memoranda  that  were  left  with  S.,  if  you  find  that  there  were 
memoranda  left,  and  the  respondent  himself  admits  some  of  them. 
It  is  stated  here,  and  admitted  by  the  defendant,  that  he  used  to 
leave  memoranda  with  certain  figures  of  the  amounts  that  he  placed 
in  there,  and  asked  orders  to  be  drawn  for  more  than  the  amount  of 
birds  delivered;  that  he  intended  afterward  to  furnish  the  birds  to 
make  up  the  amount  of  the  orders.  Now  that  was  absolutely  wrong 
and  demoralizing.  No  man  ought  to  have  thought  it  was  right  at 
any  time. 

(k)  The  law  is  plain,  and  it  seems  to  me  that  no  one  could  make 
a  mistake  concerning  the  fact  that  the  sparrows  must  be  counted, 
must  be  there,  and  must  be  destroyed  before  the  orders  are  drawn. 
But  that  is  not  what  they  complain  of  in  this  ease.  I  call  your  at- 
tention to  that,  so  that  you  won't  get  mixed  when  you  go  to  your 


2080  FORMS  OP  INSTRUCTIONS.  [§  3274. 

jury  room.  You  may  consider  that  as  bearing  upon  whether  or  not 
the  transaction  of  December  was  corrupt  or  not.®" 

CONCEALED  WEAPONS. 

§  3274.  Carrying  Concealed  Weapons — Right  to  Arrest  Without 
Warrant.     Where  any  person  carried  on  or  about  his  person  in  the 

city  of  a  pistol,  without  lawful  authority,  in  the  presence  and 

wuthin  the  knowledge  of  a  police  officer  of  the  city  of  S.  while  on 
duty,  such  officer  would  have  a  rig-ht  to  arrest  such  person  without 
warrant,  and  to  disarm  him.'^ 

§  3275.  Carrying  Concealed  Weapons — Apprehension  of  Personal 
Injury,  (a)  The  court  instructs  the  jury  that  if  you  believe  from 
the  evidence  in  this  ease  that  the  defendant  W.  had  reasonable 
grounds  to  apprehend  danger  of  great  bodily  harm  from  A.  at  or 
before  the  time  at  which  he  is  charged  with  carrying  the  pistol,  con- 
cealed, then  he  ,had  a  right  to  cany  it  for  his  own  protection,  and 
the  jury  will  find  him  not  guilty. 

(b)  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  before  the  date  at  which  defendant  is  charged  with 
cari-ying  a  concealed  pistol,  A.  and  he  were  unfriendly,  and  that 
A.  had  threatened  to  kill  him  if  he  crossed  his  path,  and  if  you 
furtlier  believe  that  these  threats  were  communicated  to  the  de- 
fendant and  he  apprehended  danger  from  A.  and  on  that  account  car- 
ried the  pistol,  you  will  find  him  not  guilty.^ 

GAME  AND  GAMBLING. 

§  3276.  Game  or  Gambling  Defined.  A  game  is  a  trial  of  skill  or  of 
chance,   or   of    skill    and    chance,   between    two   or  more    contending 

6a — Above    series    of    instructions  ory     requirement,     and     this     was 

hold  good  in  People  v.  Gorsline,  132  palpably  wrong.     The  court  by  its 

Mich.   549,  94  N.  W.   16   (17-18).  modification  in  inserting  the  word 

7 — Edwards  v.   State,  —  Tex.   Cr.  'great'    before    the    words    'bodily 

App.  — ,  69  S.  W.  144  (145).  harm'  in  the  charge  cured  its  vice. 

8 — Strother  v.   State,  74  Miss.  247,  An   apprehension   of   'a   serious   at- 

21  So.  147  (148),  34  L.  R.  A.  472.  tack  from  an  enemy'  and  an  appre- 

"The  statute  (Code  §  1027)  author-  hension  of  'great  bodily  harm'  are 
izes  one  indicted  for  carrying  con-  synonymous  phrases.  It  was  never 
cealed  a  deadly  weapon  to  prove  the  design  of  the  statute  to  author- 
by  way  of  defense,  that  he  'was  ize  men  to  carry  concealed  deadly 
threatened,  and  had  good  and  suf-  weapons  on  a  mere  apprehension 
ficient  reason  to  apprehend  a  se-  of  some  bodily  harm.  It  is  serious 
rious  attack  from  an  enemy  and  bodily  harm — great  bodily  harm — 
that  he  did  so  apprehend,'  etc.,  that  the  threatened  man  may  guard 
and  both  modifications  were  ncces-  himself  against  by  carrying  con- 
sary  to  conform  the  instructions  to  cealed  a  deadly  weapon.  The  stat- 
the  letter  and  spirit  of  the  statute,  ute  by  its  very  terms  makes  the 
An  apprehension  of  'a  serious  at-  threatened  man  not  only  have  good 
tack'  is  the  language  of  the  stat-  and  sufficient  reason  to  apprehend 
ute.  The  charge  as  asked  made  an  a  serious  attack  from  his  enemy, 
apprehension  of  'danger  of  bodily  but  also  requires  him  to  actually 
harm'  the  equivalent  of  the  statut-  apprehend  such  attack." 


§  3277.]  CRIMINAL— GAMBLING.  2081 

parties,  according  to  some  rule,  by  which  each  may  succeed  or  fail 
in  the  trial." 

§  3277.    Keeping  a  Gambling  House,  What  Must  Be  Proved,     (a) 

The  juiy  is  instructed  that  the  defendant  is  indicted,  under  section 
2644,  for  keeping  and  maintaining  a  gaming  room  for  the  pui-pose 
of  gaming  and  gambling.  The  jury  will  note  that  it  is  necessary,  be- 
fore conviction  can  be  had,  that  the  state  must  establish,  beyond  a 
reasonable  doubt — First,  that  the  defendant  was  keeping  a  gaming 
and  gambling  room;  and  second,  that  it  was  kept  for  the  purpose 
of  gaming  and  gambling.^** 

(b)  Defendant  is  charged  with  committing  the  offense  of  keep- 
ing and  exhibiting  a  gaming  table  and  bank  on  or  about  December 

— ,  .     You  are  instructed  in  this  connection  that  if  you  believe 

from  the  evidence,  beyond  a  reasonable  doubt,  that  defendant  did 
commit  such  an  offense  on  Dec.  — ,  you  are  charged  that  it  is  your 
duty  to  convict  him.^^ 

§  3278.  Lottery — Aiding  and  Assisting,  (a)  If  you  believe  and 
find  from  the  evidence  and  under  these  instructions  beyond  a  reason- 
able doubt  that  at  the  city  of  St.  Louis  and  state  of  Missouri,  at 
any  time  within  three  years  next  before  the  29th  day  of  May,  1903, 
the  defendant,  T.  willfully  and  unlawfully  did  aid  and  assist  in  mak- 
ing and  establishing  as  a  business  and  avocation  in  the  city  of  St. 
Louis  and  state  of  Missouri  a  lottery  or  scheme  of  drawing  in  the 
nature  of  a  lottery,  and  that  the  same  was  known  as  the  ''Mexican 
Lottery,"  and  whereby  any  money  of  any  amount  and  value  what- 
ever might  be  acquired  of  said  lottery  by  lot  or  chance,  you  will 
'find  the  defendant  guilty  as  charged  in  the  second  count  of  the  indict- 
ment ;  and  unless  you  so  find  tlie  facts  you  will  acquit  the  defendant. 
If  you  find  the  defendant  guilty,  you  will  assess  his  punishment  in  the 
penitentiaiy  for  a  term  of  not  less  than  two  years  nor  more  than  five 
years,  or  at  imprisonment  in  the  city  jail  or  workhouse  for  not  less 
than  six  months  nor  more  than  twelve  months.^- 

9— Toler    v.     State,    41    Tex.    Cr.  dated  March  17,  1899.    White's  Ann. 

App.  659,  56  S.  W.  917.  Code  Cr.   Proc.  par.  346." 

The  court  said  that  an  inspection  12— State  v.  Miller,  190  Mo.  449,  89 

of    Stearnes    v.    State,    21    Tex.    692,  S.  W.  377  (380). 

shows  that  this  definition  is  an  ex-  "The      instruction      is      attacked 

act    copy    of    the    one    there    laid  upon    the   ground    that    there    was 

down;  and  held  the  same  to  be  cor-  not  sufficient  evidence  upon  which 

rect,    citing    Bouv.    Law    Diet.    704;  to  base  it.    The  statute  upon  which 

8  Am.  &  Eng.  Enc.  Law,  p.  1033.  this  instruction  is  based  was  he^ors 

10 — Brown  v.   Owen,  75  Miss.  319,  the  court  in  State  V.  Pomeroy,  130 

23  So.   35.  Mo.  489,  32  S.   W.   1002.  and  it   was 

11 — Haynes  v.   State,  —  Tex.  Cr.  there  held  that  in  a  prosecution  for 

App.  — ,  56  S.  W.  923.  making    or    establishing    a    lottery 

The  affidavit  and  information  in  as  a  business  or  avocation  in  this 

the  foregoing  case  charged  that  ap-  state  it  was  not  necessary  to  show 

pellant    committed    the    offense    on  that  the  drawings  were  to  occur  in 

or  about  December  29th,  1898.     "In  this    state.      The    evidence    in    thi.s 

prosecutions  under  this  statute  the  case  is  as  strong  as,  if  not  stronger 

state  can  prove  the  commission  of  than,    that    offered    on     Pomeroy's 

the  offense  at  any  time  within  two  Case,  and  we  think  amply  sufficient 

years  prior  to  the  date  of  the  in-  to    show    that    the    defendant    was 

formation.      The    information    was  aiding  and  assisting  in  making  and 
131 


2082  FORMS  OP  INSTRUCTIONS.  [§  3279. 

(b)  You  are  instructed,  further,  that  the  mere  fact  that  the  de- 
fendant sold  lottery  tickets  is  not  of  itself  sufficient  to  prove  the 
charge  made  in  the  indictment  herein,  unless  you  further  find  from 
the  evidence  that  within  three  years  next  before  the  filing  of  the 
indictment  the  defendant  aided  and  assisted  in  making  and  establish- 
ing a  lottery  or  scheme  of  drawing  in  the  nature  of  a  lottery  as  a 
business  and  avocation  in  the  city  of  St.  Louis  and  state  of  Mis- 
souri.^^ 

MALICIOUS  MISCHIEF. 

§  3279.  Malice,  When  Implied,  (a)  If  the  jury  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  inflicted 
the  injuiy  upon  the  property  in  question,  in  manner  and  fonn  as 
charged  in  the  indictment,  willfully  and  wantonly,  and  without  any 
reasonable  excuse  being  given  therefor,  then  the  law  will  imply 
malice  against  the  owner  of  the  property.^'' 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
shot  and  injured  the  animal  in  question,  in  manner  and  form  as 
charged  in  the  indictment,  recklessly  and  wantonly,  and  without  any 
provocation,  then  the  law  will  presume  malice  against  the  owner,  and 
the  jury  should  find  defendant  guilty.^^ 

§  3280.  Malice  Must  Be  Proved.  This  being  an  indictment  for 
malicious  mischief,  malice  is  a  necessary  element  to  be  proved,  or 
made  to  appear  from  the  facts  or  circumstances  proved.  Without 
this  ingredient  the  crime  is  not  complete,  and  the  act  complained  of 

establishing  the  business  of  a  lot-  victed;  and  he  testified  himself  that 

tery    in    this    state   in    a    most    im-  he  did  sell   tickets,   obviously  with 

portant  particular.    He  devoted  his  the  view  to  red'uce  his  offense  from 

time     to     the     business,     employed  a   felony   to   a   mere   misdemeanor, 

agents  to  make  a  business,  distrib-  It  appears  that  his  counsel  on  dif- 

uted  winning  lists,  and  paid  prizes,  ferent    occasions    during   the    prog- 

and,  as  said  by  this  court  in  State  ress  of  the  trial  stated  that  the  of- 

V.  Wilkerson,  170  Mo.  184,  70  S.  W.  fense   of  which   the   defendant  was 

478:    'We  know  of  no  more  effective  guilty  was   selling  tickets.     An   in- 

way  to  assist  in  making  and  estab-  struction    is    not    erroneous    which 

lishing  a  business  as  an  avocation  assumes  as  true  the  fact  which  is 

than  to  participate  in  it  and  to  de-  admitted    on    the    trial.       State    v. 

vote   one's   time   and   service    in    «o  Holloway,  156  Mo.  222,  56  S.  W.  734; 

doing.'     Wiithout  repeating  the  evi-  State  v.    Edwards,   71   Mo.   312.     As 

dence  which  appears  in   the  state-  to  the  criticism  of  the  instructions 

mont,    we    think    there    was    ample  that  they  do  not  use  the  word  'fel- 

evidence   to   justify   the   verdict   of  oniously.'     We  have  answered  that 

the   jury."  contention    in    State    v.    Cronin,    189 

13— State  V.   Miller,  supra.  Mo.  663,  88  S.  W.  604.    See  also  State 

"The  objection  to  the  instruction  v.   Scott,   109   Mo.   232,   19   S.    W.   89; 

is  that  it  assumes  that  the  defend-  State  v.  Garth,  164  Mo.  553,  65  S.  W. 

ant     sold     lottery     tickets     without  275;    State  v.  Tobie,  141  Mo.   547,  42 

submitting    that    fact    to    the   jury.  S.    W.    1076." 

We  think  it  is  without  merit.     The         14—2    McClain    Crim.    Law,    sees, 

defendant  submitted  an  instruction  829,  833;  2  Whar.  Crim.  Law,  7  Ed. 

himself  to  the  effect  that,  if  he  only  2008. 

bought  tickets  and  sold  them  on  his         15— Mosby  v.  State,  28  Ga.  190. 
own  account,  he  could  not  be  con- 


§3281.]  CRIMINAL— PHYSICIANS,   ETC.  2083 

would  be  only  a  trespass,  for  which  the  party  injured  would  be  com- 
pelled to  resort  to  a  civil  action  for  redress.^^ 

§  3281.  Malicious  Injury  to  an  Animal — ^Malice  Against  the  Owner 
Must  Be  Shown,  (a)  The  malice  necessary  to  constitute  this  of- 
fense must  exist  against  the  owner  of  the  property,  or  against 
some  one  having  a  general  or  special  interest  therein.  Malice  against 
the  animal,  if  proved,  will  not  warrant  a  conviction. ^^ 

(b)  Li  order  to  convict  the  defendant  upon  this  indictment,  the 
prosecution  must  prove,  to  the  satisfaction  of  the  jury,  that  the 
defendant  knew  or  supposed  the  animal  in  question  belonged  to  the 
said  A.  B.,  and  so  knowing  or  supposing,  willfully  and  deliberately 
injured  the  same,  through  malice  towards  the  said  A.  B. ;  and  unless 
this  has  been  done  it  is  your  duty  to  acquit  the  defendant. ^^ 

§  3282.  Ownership,  How  Proved.  When  personal  property  left  in 
the  care  and  custody,  and  under  the  control  of  a  person  not  the 
absolute  owner,  but  having  a  legal  right  to  such  possession,  not  as 
agent  or  seiwant  of  such  owner,  is  injured,  the  person  having  such 
control  and  possession  has  such  an  interest  in  the  property  as  will 
authorize  the  property  to  be  laid  in  the  indictment,  for  maliciously 
injuring  the  same,  as  the  property  of  the  person  so  having  it  in 
charge. ^^ 

§  3283.  Injury  Done  Willfully  for  the  Purpose  of  Gain — Personal 
Malice  Need  Not  be  Shown.  If  the  jury  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  injured  the  (property 
in  question)  that  the  injury  was  a  serious  one  and  was  done  willfully 
and  deliberately  for  the  purpose  of  gain  or  benefit  to  himself,  then 
the  juiy  may  find  the  defendant  guilty,  in  manner  and  form  as 
charged  in  the  indictment,  although  the  evidence  does  not  show  that 
the  defendant  had  any  personal  malice  towards  the  owner  of  the 
property.  ^° 

PHYSICIANS  AND  SURGEONS. 

§  3284.  Disinterring  Dead  Bodies  for  Surgical  Experiment — Intent, 
Proof  Required,  (a)  K  the  juiy  shall  find  and  believe  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant,  on  or  about 

the of ,  ,  at  and  in  the  County  of  C.  and  State 

of  Missouri,  did  then  and  there  dig  up,  disinter,  and  remove  the  dead 
body  and  remains  of  L.  G.,  deceased,  from  the  gi-ave  in  which  said 
dead  body  and  remains  had  been  inten-ed,  and  then  and  there  was, 
for  the  purpose  of  dissection,  and  surgical  and  anatomical  experiment 

16— Gaskill    v.    State,    56   Ind.    550.        18— Newton  v.  State,  3  Tex.  App. 
17— State    V.    Enslow,    10    la.    115;     245. 
74  Am.  Dec.  378;  U.  S.  v.  Gideon,  1         19—2    Whar.    Crim.    Law,    2    Ed. 
Minn.  292.     Contra:  Mosby  v.  State,     1818;   People  v.   Horr,   7  Barb.   9;  2 
28  Ga.  190.  McClaln  on  Crim.  Law,  sec.  831. 

20— Brown   v.    State.    26   Ohio   St. 
176. 


2084  FORMS  OP  INSTRUCTIONS.  [§  3285. 

and  preparation,  of  said  body  and  remains,  then  you  should  find  him 
gnilty  as  charged  in  the  indictment. 

(b)  The  jury  are  instructed  that  the  intent  of  the  defendant  in 
removing  the  dead  body  of  L.  G.  from  the  grave  where  it  had  been 
interred,  if  you  find  that  he  removed  said  body,  need  not  be  proved 
by  direct  and  positive  testimony,  but  may  be  inferred  from  the  facts 
and  circumstances  in  proof.-^ 

§  3285.  Practicing  Medicine  Without  a  Certificate — ^Reasonable 
Doubt,  (a)  The  information  in  this  cause  charges  the  defendant 
with  unlawfully  practicing  medicine  by  pi'escribing  for,  issuing  medi- 
cine to,  and  treating  one  A.  H.  for  the  cure  of  a  disease  and  bodily 
affliction,  and  that  the  same  was  done  in  the  county  of  S.  and  the 
State  of  Missouri,  and  unless  you  so  find  and  believe  fi'om  the  evi- 
dence, beyond  a  reasonable  doubt,  you  should  acquit  the  defendant. 

(b)  The  court  declares  the  law  to  be  that  if  you  find  from  the 
evidence  that  the  defendant,  at  the  eoi;nty  of  S.  and  State  of  Missouri, 
at  any  time  within  one  year  next  before  the  filing  of  this  information, 
did  publicly  profess  to  be  a  physician,  and  that  by  reason  of  his  pub- 
licly professing  to  be  a  physician,  one  A.  H.  accepted  his  services 
in  his  professional  capacity  by  calling  upon  defendant,  and  defendant 
prescribed  for,  treated,  and  issued  medicine  to  said  A.  H.,  who  was 
then  and  there  a  sick  person;  and  that  the  defendant,  at  the  time  of 
so  prescribing  for,  treating,  and  issuing  medicine  to  said  A.  H.,  was 
not  a  registered  physician  of  the  State  of  Missouri,  and  has  no  certifi- 
cate issued  by  the  board  of  health  of  the  State  of  Missouri,  authoriz- 
ing him  to  practice  medicine  in  the  State  of  Missouri,  you  should 
find  the  defendant  guilty  as  charged,  and  assess  his  punishment  at  a 
fine  not  less  than  $50  nor  more  than  $500  or  at  imiDrisonment  in  the 
county  jail  not  less  than  30  days  nor  more  than  one  year,  or  at  both 
such  fine  and  imprisonment. -- 

§  3286.  Practice  of  Medicine — Diploma  from  an  Accredited  School 
Required.  In  connection  with  the  main  charge,  the  jury  are  instructed 
that  an  accredited  medical  college  is  one  which  is  chartered  by  the 
legislature  of  the  state,  or  its  authority,  in  which  such  college  is  sit- 
uated ;   and  if  you  find  that  before  Jan.  1, ,  defendant  did  file  for 

record  with  the  clerk  of  the  district  court  of  Gonzales  county  a 
diploma  from  an  accredited  medical  college,  as  the  term  has  hereto- 
fore been  defined,  then  you  will  acquit  him.-^ 

§  3287.  Sale  of  Drugs  without  License — Domestic  Remedies  Ex- 
cepted. Although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  sold  iodine  and  quinine,  yet,  if  they  further  believe  from 
the  evidence,  that  they  are  domestic  remedies,  then  the  defendant 
is  not  liable  for  such  sales.-* 

21— State  v.  Fox,  148  Mo.  517,  50  S.  24— People  v.  Fisher,   83  111.  App. 

W.  98   (99).  114   (116). 

22— State    v.    Davis,    194    Mo.    485,  The  court  held  that  "the  sale  of 

92  S.  "W.  484.  'domestic     remedies'     is     exempted 

23 — Aldenhoven   v.    State,    42   Tex.  from  the  statutory  provisions  under 

Cr.  App.  6,  56  S.  W.  914  (915).  which   was    being-   prosecuted. 


§3288.]  CRIMINAL— MISCELLANEOUS.  2085 


MISCELLANEOUS  PROSECUTIONS. 

§  3288.  Peddling  Without  a  License — One  Sale  Sufficient  if  Inten- 
tion to  Continue  Exists.  The  jury  are  instructed  that  it  was  not 
necessary  that  the  defendant  should  have  owned  the  goods  or  have 
had  any  interest  in  them,  or  that  he  engaged  in  the  business  for  a 
livelihood  or  profit ;  that  if  defendant  knew  the  owner  of  the  goods 
had  no  license,  and  defendant  went  along  with  the  ownei',  and  aided 
and  abetted  in  such  sales,  Goodman,  the  owner,  being  engaged  in  the 
business  of  peddling,  and  agreeing  to  pay  defendant's  expenses  for 
such  services,  then  defendant  would  be  guilty  as  charged,  although 
he  assisted  and  participated  with  the  owner  of  said  goods  in  but  one 
sale,  provided  it  was  defendant's  intention  to  continue  to  assist  in 
the  business;  that  one  sale  by  the  defendant  would  have  constituted 
the  offense  charged,  provided  he  had  made  proposition  and  intended  to 
continue  in  the  business  employed  by  Goodman  to  cany  the  valise  for 
his  expenses,  and  that  it  was  not  necessary  that  he  should  have 
engaged  further  than  this  in  the  business  for  a  livelihood  or  profit. ^^ 

§  3289.  Obstructing  Highway — Sufficient  Proof  of.  In  prosecu- 
tions for  obstructing  a  public  highway,  upon  the  question  of  the 
existence  of  such  highway,  it  is  sufficient  to  prove  that  the  same 
was,  at  the  time  of  the  alleged  obstruction,  used  and  worked  as  such. 
The  work  here  referred  to  is  such  as  is  done  by  authority  of  the 
proper  supervisor.-*^ 

*    *    *    It    is    urged    that,    as    the  portion   of  the   oral   charge   of  the 

Supreme  Court  held  inferentially  in  court  excepted  to  by  the  defendant 

the  case  of  Cook  v.  People,  125  111.  was  in  accord  with  the  views  above 

278,  that  quinine  is  a  domestic  rem-  expressed,  and  is  free  from  error." 

edy,  it  was  error  to  submit  to  the  26 — Johns  v.  State,  104  Ind.  557,  4 

jury  as  the  instruction  did  the  de-  N.   E.  153  (155). 

termination  of  whether  that  drug  "This  instruction,"  said  the  court, 
is  a  domestic  remedy.  The  logic  of  "was  based  upon  section  1811,  Rev. 
that  contention  is  that  quinine  as  St.  1881,  which  is  as  follows:  'In 
a  matter  of  law  is  a  drug  that  can  any  prosecution  for  obstructing  a 
be  legally  sold  only  by  a  registered  highway  *  *  *  it  shall  be  suf- 
pharmacist,  and  is  not  a  domestic  ficient  to  prove  that  it  is  used  and 
remedy.  All  that  was  said  by  the  worked  as  such.'  This  section 
Supreme  Court  in  Cook  v.  People,  should  not  be  construed  as  under- 
supra,  was  that  the  court  thought  taking  to  make  such  proof  con- 
that  'the  jury  were  fully  warranted  elusive  of  the  fact  that  the  way  al- 
in  finding  from  the  evidence  that  leged  to  have  been  obstructed  is  a 
quinine  was  not  one  of  the  usual  public  highway.  The  legislature 
domestic  remedies  referred  to  in  cannot  thus  make  any  item  of  evi- 
said  proviso.'  We  are  clearly  of  dence  conclusive.  "Wantlan  v. 
the  opinion  that  in  prosecutions  White,  19  Ind.  470.  The  reasonable 
under  this  act  the  determination  of  interpretation  of  this  section  is  that 
whether  the  drug  sold  is  a  domestic  such  proof,  in  the  absence  of  coun- 
remedy  is  a  question  of  fact  for  tervailing  proof,  is  sufficient  to 
the  jury."  susta'n  the  charge  that  the  way  is 

25— Keller  v.  State,  123  Ala.  94,  26  a   public  highway.     The   case  thus 

So.  .323  (324).  made  may  be  overthrown  by  proof 

"The      case,"      said      the      court,  of  such  facts  as  will  show  that  the 

"clearly   falls    within    the   influence  way    is    not   a    public    highway,    or 

of   the   decisions    in   Abel   v.    State,  by  proof  of  such  facts  as  will  raise 

90    Ala.    631,    8    So.    760;    Segars    v.  a   reasonable   doubt  as   to  whether 

State,   88   Ala.    144,   7   So.   46.     That  or  not   it   is  such   public   highway. 


2086  FORMS  OF  INSTRUCTIONS.  [§  3290. 

§  3290.  Obstruction  Willfully  Placed  in  Navigable  Stream.  The 
jury  are  instructed  that  if  they  believe  all  of  the  evidence  in  this 
ease,  and  find  from  the  evidence,  beyond  a  reasonable  doubt,  that 

the is  a  navigable  stream,  and  further  find  that  the  defendant 

obstructed  the  same  by  willfully  placing  posts  in  same  as  testified, 
then  the  defendant  is  guilty,  and  you  should  so  find.-^ 

§  3291.  Military  Expedition — Transporting  Men  and  Arms.  In 
passing  on  the  first  question,  it  is  necessary  to  understand  what 
constitutes  a  military  expedition  within  the  meaning  of  this  statute. 
For  the  purposes  of  this  ease,  it  is  sufficient  to  say  that  any  com- 
bination, of  men  organized  here  to  go  to  Cuba  to  make  war  upon 
its  government,  provided  with  arms  and  ammunition,  we  being  at 
peace  with  Cuba,  constitutes  a  militaiy  expedition.  It  is  not  neces- 
sary that  the  men  shall  be  drilled,  put  in  uniform,  or  prepared  for 
efficient  service,  nor  that  they  shall  have  been  organized  as  or  accord- 
ing to  the  tactics  or  rules  which  relate  to  what  is  known  as  infantry, 
artillery,  or  cavalry.  It  is  sufficient  that  they  shall  have  combined 
and  organized  here  to  go  there  and  make  war  on  a  foreign  govern- 
ment, and  to  have  jDrovided  themselves  with  the  means  of  doing  so. 
I  say  ''provided  themselves  with  the  means  of  doing  so,"  because 
the  evidence  here  shows  that  the  men  were  so  provided.  Whether 
such  provision,  as  by  amiing,  and  so  forth,  is  necessary  need  not  be 
decided  in  this  case.  I  will  say,  however,  to  counsel  that  were  that 
question  required  to  be  decided  I  should  hold  that  it  is  not  necessary.^^ 

§  3292.  Military  Expedition — Knowledge  of  Accused  that  it  is 
Such.  To  convict  the  defendants,  it  is  necessaiy  that  the  govern- 
ment shall  have  satisfied  your  minds  beyond  a  reasonable  doubt  that 
this  was  a  militaiy  enterprise,  and  that  the  defendants  when  they 
started  knew  it.     Otherwise  they  are  not  guilty.-^ 

§  3293.  Concealing  Inferiority  of  Food — Adulteration.  Now  be- 
fore the  inferiority  of  an  article  can  be  concealed  it  must  be  neces- 
sarily first  ascertained  as  to  whether  or  not  there  is  an  inferiority 
in  the  article.  If  it  is  an  inferior  article  and  that  inferiority  is  con- 
cealed by  reason  of  the  addition  of  foreign  substance  in  this  vanilla, 
and  you  are  satisfied  from  the  proof  beyond  a  reasonable  doubt  of 
the  fact,  then  he  would  be  guilty,  although  he  had  no  knowledge  as 
to  the  foreign  substance  being  in  the  bottle. 3° 

The   purpose   of   the    statute   is   to  case.     Whether  or  not  such  an  in- 

dispense     with     the     tedious     and  struction  as  the  above  would  be  a 

sometimes   difficult   proof   that  the  proper  one  in  a  case  of  conflict  in 

way  is  a  public  highway,  where,  in  the  evidence  as  to  the  existence  of 

fact,  there  is  or  ought  to  be  no  real  the  way  as  a  public  highway,  is  a 

controversy    about    that    fact.      In  question  we  need  not  now  decide." 

this  case,  the  evidence  is  not  in  the  27— State  v.   Baum,  128  N.  C.  600, 

record,  and  hence  we  cannot  know  88  S.  E.  900. 

that  there  was  any  evidence  at  all  28 — Wiborg  v.   United   States,  163 

as  to  the  highway,  except  evidence  U.   S.  632  (653),  16  S.  Ct.  1127  (1197). 

of     the     use     and     work     that     the  29 — Wiborg   v.   United   States,   163 

charge  implies.     That  evidence  the  U.  S.  632  (655),  16  S.  Ct.  1127  (1197). 

statute  makes  sufficient  in  such  a  30 — People  v.  Hinshaw,  135  Mich. 

378,  97  N.  W.  758. 


§  3294.]  CRIMINALr— MISCELLANEOUS.  2087 

§  3294.    Breach  of  the  Peace— Vile  Epithets  on  Public  Street.    I 

instruct  you,  as  a  matter  of  law,  that  a  person  who,  on  the  public 
streets  of  a  city,  in  the  presence  of  several  pei-sons,  applies  to  another 
vile  epithets,  with  the  intention  of  annoying,  offending,  and  disturb- 
ing such  person,  commits  a  breach  of  the  peace.'^^ 

§  3295.  Abusive  Language  in  Presence  of  Female.  If,  after  con- 
sidering all  the  evidence,  the  jury  have  a  reasonable  doubt  arising 
out  of  any  part  of  the  evidence  as  to  whether  the  language  used  by 
the  defendant  was  in  the  presence  or  hearing  of  a  female,  then  the 
jury  must  find  the  defendant  not  guilty.^^ 

§  3296.  Construction  of  a  Vehicle— Oil  Tank  Held  a  Part  of  the 
Wagon.  If  you  believe  from  the  evidence  that  the  wagon  of  defend- 
ant mentioned  in  the  indictment  was  constructed  with  four  wheels, 
two  front  and  two  rear,  or  hind  wheels,  the  wheels  being  joined  by 
axles  on  which  rest  bolsters,  bars  or  springs,  and  if  the  bolsters,  bars 
or  springs  are  connected  from  front  to  rear  by  side  bars  or  reaches 
or  platform  by  which,  when  a  team  is  attached  to  the  tongue  of  such 
wagon,  the  same  could  be  hauled  and  moved  about ;  and  if  you  believe 
that,  after  such  construction  of  said  wagon,  a  boiler  or  tank  of  iron 
was  placed  upon  said  wagon  to  be  used  for  transporting  oil,  and  so 
fastened  to  said  wagon,  its  said  side  bars,  bars,  or  platforms  and 
bolsters,  as  to  hold  and  keep  the  same  in  place  when  filled  with  oil — 
then  said  boiler  or  tank  was  a  part  of  the  load  on  said  wagon  equally 
with  the  oil  contained  therein. ^^ 

§  3297.  Instruction  as  to  Measurement  of  Lobster.  I  instruct  you 
that,  in  contemplation  of  that  statute,  the  lobster  should  be  laid  upon 
its  back,  and  extended,  upon  the  measure  to  the  end  of  the  tail,  the 
back  all  being  made  of  joints  so  that  it  can  naturally  and  readily  lie 
down,  or  be  laid  down,  upon  the  board;  that  any  other  waj',  as  by 
lifting  the  end  of  the  flipper,  which  I  believe  it  is  said  has  the 
tendency  or  effect  of  lengthening  the  lobster,  is  not  in  contemplation 
of  the  law.34 

§  3298.  Quiet  and  Peaceable  Possession — Unlawfully  Break,  Pull 
Down  or  Injure  Another's  Fence — Series,  (a)  You  are  charged,  as 
the  law  of  this  case,  as  follows:  By  ''quiet  and  peaceable  possession"  is 
meant  such  possession  as  is  acquired  peaceably  and  without  force,  and 
as  is  continuous  and  uninterrupted  from  the  date  of  such  acquisition 
to  the  date  of  the  alleged  injuiy ;  or  such  possession  as  is  acquired  by 
dispossessing  another,  but  afterwards  ratified  or  acquired  (acquiesced) 

31— State    V.    Appleton,    70    Kan.  that  further  discussion  is  unneces- 

217,  78  Pac.  445.  sary." 

32— Rollings  v.  State,  136  Ala.  126.  34— Campbell    v.    Burns,    94    Me. 

34   So.    349.  127.  46  Atl.  812  (815). 

33— Hamilton    v.     State.    22    Ind.  Action    of    debt    brought    under 

App.  479,  52  N.  E.  419  (422).  chapter  285,   statute  of  1897.   to  re- 

"This  instruction  is  a  correct  ex-  cover  the  penalty  of  five  dollars  for 

position  of   the  law,  as  applied  to  each   and    every    lobster   less   thau 

the  facts  in  this  case.    It  is  so  well  ten   and   one-half   inches   in   length 

settled,   so  clear  and   to  the  point  alleged  to  have  been   found  in-  the 

possession  of  the  defendant. 


2088  FORMS  OF  INSTRUCTIONS.  [§  3299. 

in  by  the  person  dispossessed,  and  is  continuous  and  uninterrupted 
from  the  date  of  such  ratification  or  acquiescence  to  the  date  of  the 
alleged  injury.  You  are  further  charged  that  the  title  to  the  land 
upon  which  the  fence  alleged  to  be  injured  is  situated,  or  the  title 
to  the  land  inclosed  by  said  fence,  or  the  right  of  possession  based 
upon  such  title,  is  not  an  issue  in  this  case,  and  is  not  to  be  con- 
sidered by  you.     Now,  if  you  believe  from  the  evidence  beyond  a 

reasonable  doubt  that  defendant  M.  P.,  on  or  about  the day 

of , ,  in  the  county  of  W.  and  State  of  T.,  did  then  and 

there  unlawfully  break,  pull  down  or  injure  a  fence  belonging  to 
Mrs.  D.,  and  that  said  fence  was  then  and  there  under  the  control  of 
W.  W.,  and  that  said  W.  W.  was  then  and  there  holding  same  under 
a  lease  contract,  and  that  said  breaking,  pulling  down  or  injury,  if 
any,  was  done  without  the  consent  of  the  said  Mrs,  D.  or  of  the  said 
W.  W.,  or  of  either  of  them;  and  that  at  the  time  of  said  injury,  if 
any,  the  said  W.  W.  was  in  actual  possession  of  said  fence  and  the 
land  inclosed  by  it,  and  that  such  possession  at  said  time  was  quiet 
and  peaceable,  as  these  terms  have  hereinbefore  been  explained  to 
you — then  you  will  find  defendant  guilty,  and  assess  his  punishment, 
etc. 

(b)  The  defendant  in  a  criminal  ease  is  presumed  to  be  innocent 
until  his  guilt  is  established  by  legal  evidence  beyond  a  reasonable 
doubt,  and  in  case  you  have  a  reasonable  doubt  as  to  the  defendant's 
guilt  you  will  acquit  him,  and  say  by  your  verdict,  ''Not  guilty." 

(e)  If  you  believe  from  the  evidence  that  on  the  28th  of  October, 
1903,  the  defendant  was  in  the  actual,  quiet  and  peaceable  possession 
of  the  land  on  which  the  fence  is  situated  that  is  involved  in  this  suit, 
then  you  will  acquit  the  defendant. 

(d)  If  you  believe  from  the  evidence  that  at  the  date  of  the 
commission  of  the  alleged  offense  on  the  28th  of  October,  1903,  W.  W., 
as  the  tenant  of  Mrs.  D.,  was  not  in  the  actual,  quiet  and  peaceable 
possession  of  the  land  on  which  the  fence  involved  in  this  suit  is 
situated,  then  you  will  acquit  the  defendant,  for,  unless  you  so  find 
that  said  W.,  as  tenant  of  Mrs.  D.,  was  so  in  the  actual,  quiet  and 
peaceable  possession  of  said  land,  you  cannot  find  defendant  guilty.^^ 
§  3299.  Cutting  Trees.  The  jury  are  instructed  that  if  you  be- 
lieve from  the  evidence  and  all  the  circumstances  in  evidence,  that 

35 — Pate    v.    State,    —    Tex.    Cr.  another;   and   property,   within   the 

App.  — ,  81  S.  W.  737  (738).  contemplation    of    this    statute,    is 

"We  think  that  the  above  the  possession.  That  is.  the  party 
charges  amply  and  properly'  cov-  who  has  the  actual  exclusive  and 
ered  the  facts  in  this  case;  the  peaceful  possession  of  the  property 
sole  question  being  as  to  the  peace-  can  maintain  a  prosecution  against 
able  and  quiet  possession  of  the  one  who  injures  any  property  of 
land,  the  title  not  being  involvea  which  he  has  such  possession.  Car- 
in  this  prosecution.  In  other  words,  ter  v.  State,  18  Tex.  App.  573;  Jen- 
it  is  immaterial  who  actually  kins  v.  State,  7  Tex.  App.  146; 
owned  the  land.  The  offense  de-  Behrens  v.  State,  14  Tex.  App.  121; 
nounced  by  the  statute  under  con-  Arthbutnot  v.  State,  —  Tex.  Cr. 
sideration  is  against  the  party  who  App  — ,  34  S.  W.  269." 
molests  or  injures  the  property  of 


§3299.] 


CRIMINAL— MISCELLANEOUS. 


2089 


the  defendant  X.,  prior  to  the  cutting  of  the  trees,  was  a  member  of 
the  board  of  trustees  of  the  Y.  cemetery  association,  and  as  such 
trustee  advised  with  other  members  of  said  board  of  trustees  Avith 
reference  to  the  cutting  of  the  trees,  and  that  such  other  trustees 
advised  that  the  trees  shoukl  be  cut,  and  that  the  defendant,  acting 
in  good  faith  and  upon  such  advice,  and  believing  it  would  be  of 
benefit  to  said  cemetery,  and  without  any  evil  design  or  intent,  did 
cut  the  trees,  then  you  should  find  the  defendant  not  guilty,^® 


36 — Mettler  v.  People,  135  111.  410 
(415),  25  N.  E.  748. 

The  court  said:  "The  general 
rule  requiring  the  acts  of  a  cor- 
poration to  be  evidenced  by  a  reso- 
lution of  its  board,  has  no  applica- 
tion to  the  question  involved  in 
the  ruling  of  the  court,  and  the  ad- 
mission of  the  evidence,  and  under 
the  instruction.  The  defendant 
was  indicted  for  a  criminal  offense, 
— for  knowingly  and  willfully  with- 
out color  of  title  cutting  trees  be- 
longing to  a  corporation  without 
the  consent  of  the  corporate  au- 
thorities. Suppose  these  trustees 
all  agreed  that  it  was  for  the  best 
interest  and  welfare  of  the  associa- 
tion that  these  trees  should  be  cut 
and  removed  from  the  cemetery 
grounds  and  they  directed  the  de- 
fendant to  cut  and  remove  the 
same,  A\-e  think  it  is  plain  that  if 
the  defendant  did  cut  under  such 
direction  and  authority,  it  could 
not  in  justice  be  said  that  his  ac- 
tion was  willful  or  that  he  was 
guilty  of  a  crime  in  carrying  out 
the  wishes  of  the  board  of  trustees. 
These  trustees,  including  the  de- 
fendant, were  in  possession  of  the 
land  belonging  to  the  corporation. 
They  had  charge  of  the  grounds 
and  the  management  and  improve- 
ment   thereof,    and    if    they,    con- 


stituting a  majority  of  the  board, 
think  proper  to  cut  a  tree,  dig  a 
ditch  to  drain  the  ground,  remove 
a  fence  or  make  any  other  slight 
improvement,  we  think  it  might  be 
done  ■without  subjecting  the  per- 
sons engaged  in  the  work  to  a 
criminal  prosecution,  notwith- 
standing the  board  was  not  as- 
sembled and  a  resolution  adopted 
directing  the  work  to  be  done. 
Moreover,  the  section  of  the  stat- 
ute under  which  the  defendant  was 
indicted  requires  the  act  to  be  done 
knowingly  and  \%illfully  without 
color  of  title  made  in  good  faith, 
and  without  the  consent  of  the 
proper  authorities  or  persons  hav- 
ing legal  charge  thereof.  In  what 
maimer  was  consent  to  be  given  to 
remove  from  the  act  the  criminal 
intent  which  lies  at  the  threshold 
of  every  crime?  This  statute  does 
not  declare  that  such  consent  shall 
be  given  by  resolution  duly  passed 
and  recorded,  and,  in  the  absence 
of  a  provision  of  that  character, 
we  are  inclined  to  hold  in  a  crim- 
inal proceeding  consent  may  be 
proven  in  the  manner  offered  by 
the  defendant.  The  offered  evi- 
dence should,  in  our  opinion,  have 
been  admitted,  and  the  instruction 
asked  should  have  been  given." 


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